We're back after a long absence, but there's a good excuse. We catch up on the biggest developments from the last couple months, including the Breyer retirement, the Court's COVID decisions, the masking imbroglio, and the Alabama redistricting shadow-docket ruling. We also discuss Dan's childhood meeting with Justice Thomas, speculate about the median age of our listenership, and invent a new empirical metric for evaluating Supreme Court justices.
We're back after a long absence, but there's a good excuse. We catch up on the biggest developments from the last couple months, including the Breyer retirement, the Court's COVID decisions, the masking imbroglio, and the Alabama redistricting shadow-docket ruling. We also discuss Dan's childhood meeting with Justice Thomas, speculate about the median age of our listenership, and invent a new empirical metric for evaluating Supreme Court justices.
[Divided Argument theme]
Will: [00:00:19] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: [00:00:25] I'm Dan Epps. Will, I feel we always have to start each of these episodes with an apology for the truly unscheduled and unpredictable nature of the show. This might be our longest-
Will: [00:00:38] Two months, is that a record?
Dan: [00:00:38] --gap in episodes. Yeah. I mean, for the given short life of the show, I think it probably is. What's your excuse?
Will: [00:00:44] I was waiting for you.
Dan: [00:00:45] Yeah. Okay. My excuse, had another baby, okay?
Will: [00:00:49] Good excuse.
Dan: [00:00:50] In early January, pretty good excuse. Caspian J. Epps was born in January 4th. [crosstalk] So, I've been busy. Everybody has been giving me a hard time. Don't you feel like a jerk now for taking me away from child-rearing responsibilities? Also, I'm still doing other stuff, and teaching, running all these committees. So, it's been a busy time, but we're back.
Will: [00:01:09] Sure. All our listeners feel like jerks now.
Dan: [00:01:11] Yeah. Luckily, nothing happened with the Supreme Court in the last few months, right?
Will: [00:01:15] I’ve got to say--
Dan: [00:01:15] I haven’t really been paying attention. So, can you get me up to speed?
Will: [00:01:18] Yeah, I did assume December, January, how much can we miss? We’ve got to take a month off.
Dan: [00:01:22] Yeah, that's why the baby was timed that way. You time everything around the court schedule.
Will: [00:01:27] Yeah. Well, I have really terrible news for you, Dan. Your favorite justice on the Supreme Court is not going to be in the Supreme Court anymore starting next fall.
Dan: [00:01:37] Which one?
Will: [00:01:38] Stephen Breyer.
Dan: [00:01:40] Oh, okay. Yeah, favorite. It's quite a sarcastic comment from you there, Will. Justice Breyer has finally decided to that. I guess he decided it will not politicize the court more for him to step down now. It would have politicized the court more for him to step down last year. But maybe he thought if he doesn't step down now, it'll politicize the court more for him to step down next year if there's Republican Senate and they'll fill the seat, so he's stepping down.
Will: [00:02:08] I assume all along, he kind of knew this was the year he was likely to step down. He was just really irritated at everybody telling him that he had to make some little calculation that was different nobody was planning, especially when his calculation was actually pretty reasonable anyway.
Dan: [00:02:23] Yeah, I guess so. That's as plausible as anything that it would make sense that maybe he wanted to have some semblance of a more normal term that was less a virtual phone term before stepping down, that makes a certain amount of sense. But the signals he was sending last year did certainly make some people nervous about the kind of considerations he was making about when to make that decision. I don't know if I have a ton to say about Breyer. I did an event yesterday, a Zoom event here at WashULaw, with my colleagues, Lee Epstein, and Greg Magarian. It was moderated by our university chancellor, Andrew Martin, who's himself a political science expert on the court, who developed the Martin-Quinn scores, you know what those are, Will?
Will: [00:03:15] I do.
Dan: [00:03:16] Yeah. They're these political science measures of Supreme Court judicial etiology, based on coding the cases over a really long period of time. I bet you have a view about this, but you think this is a dumb way to think about the court, right?
Will: [00:03:28] My view is that-- there's an obscure article by Professor Ernie Young at Duke. It's still a nice article. Part of it he criticizes is there's a weird endogeneity in how we code the cases. We have some sense that ruling for the criminal defendant, that's the rule. But really for federalism, that's conservative. United States v. Lopez, where the Supreme Court strikes down the Gun-Free School Zones Act on federalism grounds in favor of criminal defendant. That's, of course, they could have just conservative because we all know, Lopez is a conservative decision. But the reason we all know Lopez is a conservative decision is we have some external sense of which justices are conservative and which justices aren't. So, I do worry there's a real sense of which the scores are actually just we're getting back out of the them what we already know.
Dan: [00:04:13] Yeah. I think there is some of that. Certainly, there's some cases at the boundaries where there's more of a judgment call. There's a lot of cases that maybe don't fit into that. There's the more routine criminal cases. But that is the one most significant objection one can make. It still can be interesting, because it can give you a little bit more information about the kind of longer run than you might have just based on your own instincts to say, okay, it actually turns out that-- you look at these and turns out that Justice Scalia, he's seen as this pro criminal defendant justice in some ways, but he actually really doesn't rule for criminal defendants that often at all and things like that. But I was wondering if like you had your own scoring system. I was thinking about you have-- maybe it's the Baude-Sachs score. How originalist is the justice, and it's called like the BS Score, and they get points. Have you guys come up with that, yet?
Will: [00:05:04] [laughs] That's great. One metric I do use is how often do they cite Baude or Sachs. So, you get the higher score, the more citations you accrue. There are some Justices-
Dan [00:05:13] That helps.
Will [00:05:13] I'm sad to say who are still at a zero on the Baude-Sachs score. I’ll put results on the board.
Dan: [00:05:17] Well, they might hear this episode and decided to change.
Will: [00:05:21] Some of those justices seem to be pointedly avoiding citing either of us. I doubt they're going to change, they're probably going for a no BS.
Dan: [00:05:29] Yeah, it's a point of pride.
Will: [00:05:30] There is somebody named Frank Cross who wrote a book trying to score how originalist all the different opinions were so you could do an empirical study of whether originalist opinions were better in some way than the non-original opinions. Of course, he says they're not. His metric is citations to the Federalist Papers. The more you cite the Federalist Papers, the more originalist you are. [Dan laughs] But again, it's the same problem. Part of what he discovers is that, of course, you can cite the Federalist Papers for either side, and indeed, that's what happens in some case where the originalism is the issue, both cite the Federalist Papers, so then he ends up concluding, “Well, none of the justices are more originalist than anybody else.”
Dan: [00:06:09] So, what we need is we just are going to need you and Steve to read every opinion that's ever been written of the history of the court and then score it. And then, we'll have our score of how good justices are based on--
Will: [00:06:21] Actually, it could be fun. One of my predecessors in office, David Currie, incredible constitutional law professor here at Chicago loved these--
Dan: [00:06:30] He's in the intro to this show, right?
Will: [00:06:33] Exactly who reads our [chuckles] who--
Dan: [00:06:36] Posthumously.
Will: [00:06:38] Who posthumously introduces our podcast, thank you very much to his family. Anyway, his first big crazy project was he read every Supreme Court constitutional law case, and then wrote a two-volume book about everything that Supreme Court had ever done in constitutional law.
Dan: [00:06:51] Probably took a long time.
Will: [00:06:52] It did. And his next project, which was to read every constitutional law debate in Congress up to the first 100 years and what Congress had done has been really sort of showstopping in part because nobody really had ever paid attention to and gone through that. But you learn a lot, I still learn a lot from my Currie volumes. When you come across an obscure Supreme Court case, you're just like, “What is going on here?” You just pop up on Currie, and he's almost always put it in context and has a useful evaluation of whether it's plausible, and I like to do that.
Dan: [00:07:19] Well, you've got tenure, so you've got time. I'm looking forward to that ultimate scoring, and who knows what it might produce? It might turn out that some obscure justice is actually the greatest Supreme Court Justice of all time that nobody realized. So, we'll get there.
I lost my train of thought. The event I was doing, we talked about Justice Breyer, what's his legacy? What I said was I don't know if he has a huge legacy, you think about his opinions, I don't know if there's going to be a ton of Breyer opinions that are going to really kind of be cited, either as dissents, or as majorities for generations to come. Kind of zingers, poetic lines that last, I struggled to come up with stuff like that. May be there's things that people kind of excavate that we're not thinking of now, but I tend to think that he'll be seen as a fine, moderate, liberal, but maybe not one who's writing for the ages. What do you think?
Will: [00:08:14] That might be right. It might be in the nature of moderate pragmatists that they have a harder time writing for the ages. I mean Justice Holmes was a pragmatist, but not really moderate. I mean he was extreme in different directions, but--
Dan: [00:08:27] Also just a very good writer. It's part of influence, is writing these immortal lines that people cite over and over.
Will: [00:08:35] Yeah, I do think that's true. I do think Justice Breyer, he did have this style of writing that I think I like more than you do, that was just, I think, unusually candid and sometimes colloquial. More than many judges would just tell you on the page what he was thinking, and then sometimes that translated better to legal materials, some of them didn’t. There may be some things in the way excavating. Isn't he the one who had-- parents involved the case, it's come back to relevance again soon where Chief Justice Roberts says the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Didn't Justice Breyer have some line? I guess it was not a vernacular line of I can't remember it about, "Rarely before have so many changed so much in so little time." He had some kind of quip about how conservative the court was and how much it was moving the law, which maybe didn't age well, actually.
Dan: [00:09:28] That sounds familiar.
Will: [00:09:30] Not one for the ages, I guess.
Dan: [00:09:31] I can't remember if it was him. I was trying to think of another one, and what about the thing about Shelby County, about raincoats and umbrellas? That wasn't even him. That was Justice Ginsburg. I was struggling there. I don't know. Justice Breyer very smart guy, nice person. I think his heart is in the right place a lot, but my takeaway is that he was somewhat of an ineffectual justice, and sometimes when he was trying to ask question or argument kind of comically ineffectual, I think as a dissenter, he leaves a little bit to be desired. I think his dissents are often a bit tepid, and we'll talk about that later in the episode, but I wish him well. He's had a perfectly good career. I think he's leaving at an appropriate time. It'll be really interesting to see who replaces him.
Will: [00:10:21] There's one piece of pushback before you--
Dan: [00:10:23] Sure. Okay.
Will: [00:10:23] I think the question of whether he's--
Dan: [00:10:24] I'm just trying to slide that one in.
Will: [00:10:26] The question of whether we remember him or that he wrote lines we like is different from the question whether he was effective. So, I actually do think that Justice Breyer was pretty effective internally, because he was reasonable, and a lot of people liked him.
Dan: [00:10:38] The compromiser.
Will: [00:10:39] Yeah. Weirdly, actually, he was kind of good at listening. He was somebody who could be responsive. Maybe we'll see this when the Breyer papers open up or something. But you could be an effective justice in terms of success like convincing Justice Kennedy to do something that you want him to do, or the chief or whoever, even if you don't write opinions the law professors don’t talk about on the radio.
Dan: [00:11:03] Some people are speculating that he really realized it was time to go because the dynamics of the court have shifted that he's just not able to work that magic anymore. The five most conservative justices are just not really interested in playing that game. That's plausible.
Will: [00:11:23] We need fresh blood who's going to be better at appealing to Justice Kavanaugh, that's the plan?
Dan: [00:11:27] Yeah. Also, you must be excited, because we're going to get a new nominee who's going to finally flesh out the Ninth Amendment. Did you know this?
Will: [00:11:39] What?
Dan: [00:11:40] The Ninth Amendment, we're going to get-- The Ninth Amendment, it's going to be--
Will: [00:11:42] I know about the Ninth Amendment.
Dan: [00:11:44] We got a question about this at the panel I did yesterday, and none of us even knew what the question was talking about. But it turns out that in some remarks that President Biden made in a meeting with Senate Judiciary Committee Chairman Dick Durbin, and the ranking member, Senator Chuck Grassley, Biden said, “What I'm looking for is a candidate with character, with the qualities of a judge in terms of being courteous to folks before them, and treating people with respect as well as the judicial philosophy that is more of one that suggests that there are unenumerated rights in the Constitution and all the amendments mean something, including the Ninth Amendment.”
Will: [00:12:19] [chuckles] Uh-huh.
Dan: [00:12:21] I had not seen this. Maybe it was on Twitter, I missed it, but I was grateful to have this. I think I know what he means. I want to see if you know what he means.
Will: [00:12:29] I think I know what he means too, and actually, I think I remember seeing that. I think he's talking about Robert Bork, and Griswold v. Connecticut, and [crosstalk] Roe v. Wade.
Dan: [00:12:39] Yep. So, he's the Senate Judiciary Chairman during the Bork hearings 1987. And then, Bork has asked about various things including the Ninth Amendment. I bet you know what he says.
Will: [00:12:53] It's an inkblot.
Dan: [00:12:54] Yeah. He borrows this metaphor says, “It's as if there was an inkblot there, there's just nothing you can do with it.” So, I think in a roundabout way, what Biden is saying is, “I want the anti-Bork.” Right?
Will: [00:13:10] I think that's right. I'll say specifically. So, obviously, Roe v. Wade is under attack. In Griswold v. Connecticut, kind of the predecessor to Roe v. Wade, the court and concurring opinion, especially in part relied on the Ninth Amendment as one of the sources for where do these unenumerated rights come from. In Roe, I think, the court moved a little bit away from the Ninth Amendment and towards the due process clause and that kind of give us the modern documents of some due process. But if you were somebody who took office back in the Griswold days, I think, it was around when Joseph Biden became a Senator, you might still be thinking about these things, especially as Ninth Amendments questions, especially with Bork on top of it. So, I think that's a roundabout way-- in whatever way that George W. Bush saying he wanted to punch strict constructionists was his loose way of saying he meant originalism, but he wasn't up on the ways all of that changed. I think this is the opposite. [crosstalk]
Dan: [00:14:09] Well, I'm impressed with you. You got it right away. Your mind jumped and figured out exactly what was really going on there. But I hadn't seen those remarks, so we're going to get a Ninth Amendment justice. Don't know who. We know the likely nominees, in part because President Biden pledged to nominate a black woman to the seat, and so there's a set of likely nominees. I think a lot of attention is focused on Justice Leondra Kruger of the California Supreme Court and Judge Ketanji Brown Jackson of the DC Circuit, some other names that have been floated, Judge Michelle Childs, who I think is about to join the DC Circuit from South Carolina, and some other possibilities, but my guess is it's going to be one of the first two.
Will: [00:14:54] I think David Lat, in his most recent newsletter, thinks that Judge Childs has now jumped into the second place over Kruger.
Dan: [00:15:02] Interesting.
Will: [00:15:03] That she's now more clearly the runner-up because Jim Clyburn really wants her. And he's one of the original sources of Biden's pledge. She's from South Carolina, and so Lindsey Graham is probably happy with her, and she's likely to get at least one Republican vote.
Dan: [00:15:19] Yeah. It doesn't strike me as the wisest strategic choice for Biden to choose the nominee that the Republicans are saying, “Oh, please, please choose that one.” She's a lot older, she's 10 years older than Leondra Kruger. Some people have raised concerns that she's sort of been more of an employer side litigation, how progressive she would be. So, I'm not sure that would be the wisest choice, but they don't always listen to me.
Will: [00:15:47] Well, doesn't it depend a lot on what you're trying to maximize and what your tradeoffs are? You said, “The only thing presidents accomplish is to pick Supreme Court justices, and we want to maximize the chance that they'll rule in accordance with the values of Dan Epps for as many years as possible," you'd make one kind of calculation. But if you said like, “At some point, there's some tradeoff between energy spent on a confirmation fight and energy spent getting Joe Manchin to finally pass some kind of legislation," then you have to think about how to compare the deltas across different things.
Dan: [00:16:18] Yeah. Although I wonder, really is Leondra Kruger going to be that hard to confirm? Look at her qualifications. She was the Acting Principal Deputy Solicitor General. She clerked for Justice Stevens. She was, I thought, one of the best oral advocates before the court when she was in the SG’s office. When I was clerking, I was very consistently impressed with her. I think it's going to be hard to oppose her. I don't know how much harder that confirmation fight is really going to be. And there's always stuff that can come up that you don't expect with any given nominee. So, I don't know. You also have to care about the base and you want the base to be fired up, and this matters. I think you want somebody who's going to rise up to the moment and be able to really write maybe the kinds of dissents that maybe Justice Breyer was not writing. This is an appointment that's not going to change the balance of power on the court, it's going to still be a 6-3 court. Liberals are going to be losing a lot of the time. But I think what you want is someone who can stake out good arguments, right to sense, and maybe plant some seeds for down the road.
Will: [00:17:24] I love Leondra Kruger from everything I know about her and the times I've interacted with her. I'd probably testify at her confirmation hearing myself if anybody cared about what I thought. But I do think it can matter. Getting one vote means that she can get out [unintelligible [00:17:37] committee, whereas out of vote, it's more complicated. At the moment, one Democratic senator is indisposed. So, you literally might need a vote. And never underestimate the power or the ability of Mitch McConnell to command their public and caucus. So, that might make a difference in, not whether it happens, but maybe whether it happens fast enough so you don't lose six weeks.
[00:17:59] I don't claim to be at all in touch with the Democratic base. But I gather there's some jockeying about who-- some people think that because Leondra Kruger is not the left-most justice on the California Supreme Court, that makes her conservative, which seems wrong, but there you go. Some people think that the support of Jim Clyburn represents a really important part of the Democratic base, less ideologically than demographically. Ketanji Brown Jackson has a lot of friends in DC. So, I witnessed this happen on Republican side too, where there were different factions of Republican party base where each thought a different person was the base-pleasing choice. So, it's not obvious to me how you weigh all that just politically.
Dan: [00:18:41] Yeah. Okay. Well, we'll obviously see what happens. We'll certainly have a ton more to say about it. We'll certainly have a ton more to say about the nominee once we know more. I have not dug into opinions by the potential nominees. So, I just don't have a lot of insightful stuff to say there. Obviously, the other thing getting a lot of attention is the fact that Biden made this pledge to appoint a black woman. Some people have criticized that. My response to that is just to say demographic concerns have mattered a lot in Supreme Court nominees over a really, really long period of time. Reagan promised to appoint the first woman to the Supreme Court. There's good reason to think that President Trump was eager to appoint a woman to replace Justice Ginsburg. So, I don't know if what President Biden did here was really fundamentally different from what has been happening for a very long time, even if maybe he was more explicit about it than some presidents might be.
Will: [00:19:41] Well, I'm not sure it's worse. Maybe it's better. There's a more explicit that we know of, kind of quid pro quo between the pledge and Joseph Biden being the President of United States.
Dan: [00:19:56] In terms of getting Clyburn's support in South Carolina.
Will: [00:19:59] Right. I think as we understand this from the Woodward and Costa book that nobody's challenged. Biden is not the frontrunner in the Democratic primary going into South Carolina. So overall, knows he really needs to win South Carolina, knows he really needs Jim Clyburn support. And Clyburn says, “One of my three conditions for giving it to you is that you publicly pledge to put the first black woman on the Supreme Court.” Biden says, “Deal.” Biden does it, Clyburn does it. Biden wins South Carolina. That gives enough momentum to rally before Super Tuesday. In some ways, that makes the pledge even more democratic. There are people who defended the Donald Trump's list of nominees on similar democratic grounds. For once, a president is running on who's going to put on the court and people know what they're getting. There's a way in which this pledge might be more defensible than any previous demographic pledge, because it's got that stamp of democratic approval, if you like-- [crosstalk]
Dan: [00:20:52] Yeah. What happened there that fundamentally different from someone making a pledge in order to extract political benefits, President Reagan makes this pledge because he thinks it'll help him win an election. Stuff like that happens all the time. Maybe it's different, because you're trying to get the endorsement of a particular one decisionmaker, but you're making pledges to get-- [crosstalk]
Will: [00:21:14] I'm sayings it's different-- We have more reason to believe it's material. They probably do all the time, thinking it will help them and maybe it helps them, maybe it doesn't. So, it's like we have more reason to believe if Joe Biden had not made this pledge, he would not be the President of United States.
Dan: [00:21:27] That's possible.
Will: [00:21:28] It'd be Bernie or Trump.
Dan: [00:21:32] That's possible. That's interesting. I don't really know which way that cuts.
Will: [00:21:38] I'm not sure it's bad, I just think it's--
Dan: [00:21:39] Yeah. We don't need to open the whole can of worms, but someone publicly said that Biden nominee would have to have an asterisk next to her name because of this pledge. I don't think that makes sense. I don't think that makes sense more than putting an asterisk next to Justice Barrett's name, any other nominees who were selected for various kinds of considerations. I think when you look at the pool of nominees, it's a smaller pool of nominees. But there's multiple people in the pool who seem plausible, given the kind of credentials you need to be on the Supreme Court. So, this idea that it's going to necessarily mean getting a worst candidate, I don't think is right.
Will: [00:22:22] Yeah. Whether it means getting a worst candidate depends on who they choose and who you think the better candidates would have been. It's not saying you can easily analyze the abstract.
Dan: [00:22:32] The claim made is that Judge Sri Srinivasan on the DC Circuit was obviously more qualified than anyone else. By choosing someone else, that person was--
Will: [00:22:42] Right.
Dan: [00:22:42] You can make that claim that you think that person is better, but you cannot make a claim that Srinivasan is objectively as a matter of fact better than Leondra Kruger, who has a very, very, very similar resume, worked in the SG’s office, worked in the role of Principal Deputy Solicitor General, is sitting as a judge, clerked in the Supreme Court. I don't know. Really, really hard to say.
Will: [00:23:05] I think Leondra Kruger is great. I agree with you but I do think you're entitled to disagree. You're entitled to look at Judge Srinivasan’s opinions, which are amazing and think, "No, he really is better." This is something that--[crosstalk]
Dan: [00:23:17] Yes, but if you're going to do that and you're a conservative making that argument, you also need to figure out what you're going to-- does just Justice Barrett deserve an asterisk? Was she the most qualified on paper person to be in the Supreme Court? No, she had pretty limited-- I don't think she had done much litigation before the Supreme Court at all. She hadn't been a judge for a very long time, and she had pretty limited practice experience.
Will: [00:23:39] Qualification is not just about your CV. I don't think any serious person-- it's also about what we actually know about your record and your philosophy. Justice Barrett, as a professor, had writings about constitutional interpretation and federal jurisdiction that were really good. I can't think of the last time a better legal scholar was put on Supreme Court. [crosstalk]
Dan: [00:24:00] I’ve read that--[crosstalk]
Will: [00:24:01] [crosstalk] -Felix Frankfurter.
Dan: [00:24:02] Stephen Breyer was a better legal scholar. Stephen Breyer was hugely influential in the study of regulation. Some of his early books are really good and important. He is a better legal scholar.
Will: [00:24:14] He was a very good scholar of regulation. I'm not sure he's a better scholar than [unintelligible [00:24:19].
Dan: [00:24:19] I have read a bunch of articles. I think they're fine. I don't think they're as good as you think they are. And I don't think that there is intellectually sophisticated and game changing as some of Breyer’s early scholarship, in terms of thinking about things like risk regulation.
Will: [00:24:35] Right. But this is part of the question, is are we just measuring game changing? Or, we're also we're measuring whether you're changing the game in a good direction or a bad direction? So, I think philosophy is a part of the-- [crosstalk]
Dan: [00:24:45] But these claims are about someone on the conservative side sort of stepping in and saying, “Well, I'm going to judge who's going to be better for people,” I disagree with ideologically at that point. At that point, I think it's hard.
Will: [00:24:59] At that point, I'm just not sure you can disentangle that from thinking like, look, Judge Srinivasan’s analysis of the constitutional status of the tax court [unintelligible [00:25:04] is just one of the most sophisticated things that a sitting judge has written about non-Article III courts, and that nobody else has done that. So, nobody else can get in that same intellectual league. I think the asterisk claim is a little different in that. The asterisk claim partly asks is there a difference between saying ex-ante that a bunch of people are not going to under consideration and saying an ex-post. The answer's no, but sometimes--
Dan: [00:25:27] Or, we're just not saying it. Just being secretive about it.
Will: [00:25:30] Right. In lots of contexts we work in, academic hiring and so on, we do sometimes think there are times it's useful that we take diversity or something into account, but without having explicit quotas, that that's the way the Supreme Court requires us do it.
Dan: [00:25:45] But you said explicit. For example, Justice Thomas, he was replacing Justice Marshall, President George H. W. Bush clearly had demographic considerations in mind when choosing Justice Thomas. We don't necessarily see conservatives making the same argument that Justice Thomas deserves an asterisk. Haven't seen that.
Will: [00:26:06] I don't know whether people said that or not. People said a lot of nasty and racist things for Justice Thomas. My prior is--[crosstalk]
Dan: [00:26:11] Are conservatives saying that? Are people in the [crosstalk] saying that?
Will: [00:26:16] All sort of people have said all sort of nasty things about Justice Thomas at various times, which have all been false. But again, I don't remember, I was not paying attention to these things back in the early 90s.
Dan: [00:26:28] I thought you were born paying attention to these things, Will. [crosstalk] I was paying attention. Do you know I met Justice Thomas in his first year on the court?
Will: [00:26:38] No.
Dan: [00:26:40] Yeah, my fourth-grade class, I was living in Richmond, Virginia, at the time. We took a field trip to DC. Somehow through some series of events I don't totally understand, we went to the court. In retrospect, we must have been in one of the kind of bigger-- these conference rooms or something, which is not the room that they actually hold the conference in but there are these big ceremonial spaces that they use for events. He came, I feel like he spent like an hour or two with us. I have a picture somewhere with him where he's got the big glasses. He looks like he did in the confirmation hearings, which looks different now. He was super nice. This was months after he'd been confirmed. He was just delightful. So, we go way back.
Will: [00:27:27] That's great.
Dan: [00:27:28] [crosstalk] -but he and I go way back.
Will: [00:27:31] I'm not sure when I even knew that Justice Thomas was Supreme Court Justice. I was busy playing Dungeons & Dragons most of--
Dan: [00:27:39] Like with the dice and stuff?
Will: [00:27:41] For a while, we didn't have dice, and we were playing at school where you couldn't have dice. So, we would construct these kinds of paper random number generators that you--[crosstalk]
Dan: [00:27:49] I didn’t know you came from such an underprivileged background. You weren't allowed to have dice.
Will: [00:27:53] Well, school rules--[crosstalk]
Dan: [00:27:55] [chuckles]
Will: [00:27:55] And then, we eventually switched to just like, “pick a number,” so the dungeon master just picks that indexing number in their head and the player picks a number, you just add them together, you got a random number.
Dan: [00:28:03] Hmm, interesting.
Will: [00:28:04] [crosstalk] -the dice rolls. Eventually, we were allowed to have dice in high school. So, it's a game changer.
Dan: [00:28:10] At some point, you awoke to the Supreme Court, and things have never been the same since then.
Will: [00:28:17] I awoke for a long time.
Dan: [00:28:19] Woke to the court. It's been a while, so I keep going off on these tangents and losing track of where we are. [Will laughing] I think that's all we have to say about the nomination situation.
Will: [00:28:19] Yeah, we better stop before we get in trouble.
Dan: [00:28:29] More than we already have, yeah. Okay, so what else has been going on since I kind of disappeared? What's happened at the court?
Will: [00:28:36] Well, nothing much. They did strike down the Biden administration's attempt to impose a nationwide vaccine mandate on 100 million workers, or I guess on the employers of 100 million workers.
Dan: [00:28:50] I was just reading this. I don't think this is good. Can you try to walk us through what happened here before my takes get too hot.
Will: [00:29:02] Okay. The Occupational Safety and Health Administration, which is part of the Department of Labor, issued a requirement that large employers have their workforce-- Well, something that was sort of branded by the Biden administration as a vaccine mandate, but actually, it was a requirement that you either require your employees to be vaccinated or require them to mask and test regularly. Later on, you think about reframing this is not a vaccine mandate, but a testing mandate with a vaccine exemption. By the way, it's a general pandemic control requirement.
[00:29:40] The case has bound up with another requirement imposed, more specifically on healthcare providers involved in the Medicare and Medicaid programs, less controversial and gets upheld, but it's another piece of this puzzle. OSHA puts the rule in place as an emergency rule, which is allowed by the statute as long as it concludes it's a grave danger and so on. So, administrative law. And then, it gets challenged by everybody under the sun. I guess it's a little bit outside of our jurisdiction because it's not the Supreme Court, but there's some very complicated and interesting wrangling about appellate court gets to hear a challenge over the rule, because there's a statutory process that I did not know much about before then for when a rule is suddenly challenged at a bunch of different circuits at once, you consolidate all the cases and send them to one circuit. We used to send them all to the DC Circuit, or we used to at least let the government pick by deciding where to send the record. And now, we just have a lottery.
Dan: [00:30:36] There's balls that are drawn out of an urn or something, right?
Will: [00:30:40] Yeah.
Dan: [00:30:40] I had never heard of this before.
Will: [00:30:42] And then, that acts as just a new level of strategy, which is that each circuit gets one ball if there's a case filed in that circuit in the next days. Then, people who actually are sympathetic to the rule, try to make up grounds on which to challenge the rule for not going far enough, [Daniel laughing] so that they can get their circuits in too. [chuckles] Anyway, they hold the circuit lottery, it goes to the Sixth Circuit. The Sixth Circuit declines to issue an immediate stay of the rule while waiting to decide on the merits, but its decision declining a stay makes pretty clear that they're going to uphold the rule, or at least--
[00:31:16] Then, the challengers go to the supreme court trying to get the rule stayed, which is all shadow docket stuff. And the Supreme Court, rather than spend 36 hours dashing off into the middle of night of a while they're going to stay the rule, schedules a floor oral argument. And the parties actually get to come in and have several hours, and the Justices get the conference and think about it, and write an opinion. They say the Sixth Circuit should issue a stay because the rules are lawful.
Dan: [00:31:47] Procedurally, that seems good. You write an opinion, it's per curiam. I don't know if you figured out who wrote this. I didn't have a clear instinct as to who wrote it. Anytime there's a per curiam, you might think it's the Chief.
Will: [00:32:01] The early consensus was Justice Kavanaugh, and the more recent consensus is the Chief.
Dan: [00:32:05] What changed?
Will: [00:32:07] Just as people were reading it looking for style, early on, people I knew said this is definitely Justice Kavanaugh, and then a lot of them have said, “No, actually, I think that's going to be a Chief’s opinion.'
Dan: [00:32:16] Yeah. A lot of times with these big kinds of per curiams, you think the Chief might take its side. Procedurally, I think that's the right way to handle it. It's a time-sensitive matter, and let's get the arguments out, and let's take it seriously, that seems good. Legal analysis, I’ve got to say, I did not buy this one at all. I found this legal analysis pretty implausible. I find it really hard to explain this result as something other than hostility to Democratic administration. Let me just walk you through Part 1A, and I'm sure that you'll tell me I'm wrong and, [Will laughing] like, “This isn’t great legal argument,” and stuff, of the opinion.
[00:33:01] Often when I'm reading an opinion, there's two sides and you read the first side, you're like, “Okay, well, I see their arguments,” and you read the dissent, you're like, “Okay, I'm more with the dissent. There was some stuff that they missed.” I just spit up after the first paragraph of the analysis where they say, “As its name suggests, OSHA is tasked with ensuring occupational safety that is safe and healthful working conditions. And such standards must be reasonably necessary appropriate to protect safer healthful employment.” And they've got, this is added. The whole rest of the opinion is about how because you could catch COVID somewhere else, basically-- There's some slice of the major question structuring which we'll talk about, but because you could catch COVID somewhere else, it's not employment risk.
It doesn't make a ton of sense to me. There's lots of things that could happen to you at the office, that could also happen to you elsewhere. It doesn't mean that OSHA, which is about ensuring occupational safety somehow is now not allowed to regulate those things. You can have a fire at home, you can have a fire at work. You can fall and hit your head at home, you can fall and hit your head at work. Workplaces are places where there's a lot of interactions, a lot of risk of exposure and infection. So, I don't know. This one did not do it for me.
Will: [00:34:19] I'm not sure I like the opinion either. First of all, I think part of what's going on here, and it's unfortunate that the court doesn't feel able to say it quite as explicitly as I think it's really going on, is there's a version of almost a pretext argument here. Maybe you just disagree with the characterization of what's going on or maybe you agree with the characterization that it's okay, the argument is like--[crosstalk] Yeah. The Biden ministration doesn't care about-- this is not getting hit on the head by falling stuff at a construction site or getting asbestos from working with dangerous materials. This is like we have a fricking nationwide pandemic that the administration has been trying desperately to stem, and they hope this is something they can do. They hope that if they require people to get vaccinated in order to go to work, then a lot of people will be vaccinated and there'll just be less COVID generally. They don't really care whether it's the workplace, but the workplace is just the hook. I don't think that invalidates it, but that is--
Dan: [00:35:13] I'm sure that should not invalidate it, for reasons we can talk about in a second, but yes, I think surely the administration wants to reduce COVID generally. Your read is right because they point to quotes that are basically about how the administration wants to do this because it's going to reduce COVID. I don't know why that's bad. I think it is unquestionable that the workplace is a place where these things can spread. I also thought we had this fairly settled principle from a case like four years ago, that sort of said, “When the executive does something that's within the parameters of what's legally permissible, you don't make this further inquiry into the secret motive." Do you remember what case that was?
Will: [00:35:56] Are you alluding to Trump v. Hawaii?
Dan: [00:35:57] Yeah, I am. What about that? The fact that there was a secret reason that the President was racist and wanted to ban Muslims from the country when he said that 12 times, we're not going to inquire that. We're just going to look at the four corners of what was done here. This is within-- we're not going to make any further inquiry into pretext, even though that would be a constitutional violation.
Will: [00:36:19] Look, I think you can get plenty of hits on this doctrine, but I do think Trump v. Hawaii is a little different, because I think the court explicitly says there, as it said before, that immigration gets lower standards than domestic regulation. There are lots of reasons to quibble with that, but I think that's a kind of well-settled [unintelligible 00:36:34] principle. [crosstalk]
Dan: [00:36:35] If that it's true, it's not clear why that would flip the result about whether you even consider pretext, right? [crosstalk]
Will: [00:36:42] Well, one reason would be, and not to be too critical legal studies or critical race theory about it, I guess but you might think that, look, the immigration system is so inevitably shot through with racism and troubling decisions, that it just can't survive if we subjected it to serious scrutiny. I think it's probably true, and so we don't. We need people on the wall.
Dan: [00:37:03] They didn't say that. They didn't say that in the opinion. But again, administrations do all sorts of things for all sorts of political reasons. There's all sorts of considerations that go into these things. The statute says you get to regulate occupational safety risks, it is unquestionable that the workplace is a place where COVID spreads. I work in a university. This is a thing we are deeply concerned about, is the transmission of COVID in the workplace, in the classroom. We, here, voluntarily have a vaccine mandate for that reason. So, the fact that this is going to have these other ancillary benefits, I don't see why that somehow takes something that we think would be within the power granted under the statute and changes the result. I don't know what doctrine that would come from, it's like, “Well, what's your real reason” kind of doctrine. So, I don't buy it.
Will: [00:38:01] Fair enough. So maybe that shouldn't be such a doctrine.
Dan: [00:38:04] Well, is there such a doctrine or is there just the secret pretext for why the court is deciding-- that they have a secret pretextual reason for deciding this case in a way, and it's because they think there's a secret pretextual reason for what the Biden administration is doing, is that basically what you're saying?
Will: [00:38:21] Hmm, more than that. When you're deciding what counts is an occupational safety risk, I think one thing the court could be saying, I agree they're not clear about this, what they could be saying is, it does have to be something that's more of a risk at work than the other stuff you do. Now, there are some people where that's true.
Dan: [00:38:36] Where does that come from the statute?
Will: [00:38:38] The idea would be, “What differentiates a safety risk from an occupational safety risk?” One of you could be, “Any safety risk that happens in any degree at work counts as an occupational safety risk.” Another reason would be, “No, no, work has to in some way contribute to the risk.” Take heart attacks. People have heart attacks at work, they also have them at home. Some people have stressful jobs that put their hearts more at risk while they're at work, and you can say heart attacks are an occupational safety risk. Some people, like me, I probably as likely to have a heart attack in my sleep as I am in the classroom. So, it'd be a little weird if they then required me to take heart medicine on the grounds that having a heart attack in class is an occupational safety risk. You say like, “Yeah, it could happen at work,” but--
Dan: [00:39:21] Okay. First of all, I don't-- [crosstalk]
Will: [00:39:24] [crosstalk] -actually works next, but yeah.
Dan: [00:39:27] The point is you can catch COVID at work. You're saying there are a bunch of people for whom being at work will not do anything to even contribute to the hypothetical chance that they're going to have a heart attack. You can catch COVID at work. Everybody could catch COVID at work, and that would increase your risk of getting COVID and dying from COVID. The heart attack thing doesn't work.
Will: [00:39:50] What if your workplace is even, without a vaccine mandate, a place you're less likely to get COVID than not at work? You work in a distance workplaces and people wear masks, compared to the rest of your life that you spend.
Dan: [00:40:04] We shouldn't be applying strict scrutiny to this. It's not a constitutional claim. What if it turns out that OSHA wants to regulate fire risk at a factory, and it turns out, well, at home, I actually live in an inferno, and I'm less likely to be incinerated here.
Will: [00:40:20] I agree with you about the scrutiny question. I'm just trying to distinguish the legal theory. It's plausible to say that if your work isn't more dangerous than nonwork, it's not an occupational safety risk. Now, there are plenty of workplaces where COVID is an occupational safety risk, even by that definition. The rule should plainly be upheld as to all those workplaces. The courts probably wrong to facially strike down the whole rule, just because it's probably overbroad under their theory. But I'm just trying to explain that the theory is not quite as--[crosstalk]
Dan: [00:40:52] Just to be clear, even if there are people who at home are just as likely to get COVID, that doesn't mean that there aren't additional risks at work, because you're exposed to different people at work, right?
Will: [00:41:04] Could be.
Dan: [00:41:05] In that case, something at work would be causing you to get COVID. Even if it turns out that you are out at the bars unmasked every night, and at work you're with a small group of people, you still could get exposed to COVID at work. The fact that like you're doing more dangerous stuff elsewhere, doesn't mean you couldn't get exposed to COVID at work, which means it still could be an occupational risk. If the job of OSHA is to say, “Let's make workplaces safe,” this would make the workplace safer. And the fact that people might do something outside of work that is dangerous, they're limited in what they can do about that.
Will: [00:41:39] I agree it could be. But it also might depend on where you'd go if you weren't at work. If you were not at work, you would sit in a bubble. So, any danger at work, the alternative is sitting in a bubble. But imagine that you weren't at work--[crosstalk]
Dan: [00:41:50] Right. But I don't see anything about this.
Will: [00:41:51] -even more people.
Dan: [00:41:52] I'm struggling to get this comparative analysis out of the statute. This is not remotely textualism. This is like Briarean, free-floating kind of purpose--
Will: [00:42:05] It actually reminds me more than anything of King v. Burwell, another opinion by the Chief.
Dan: [00:42:11] Of the majority, that said that the federal government was allowed to--
Will: [00:42:18] Establish healthcare exchanges, even though the statute said only states establish healthcare changes, but there was just a lot of, "Well, it's the Affordable Care Act," I think they even italicized affordable, "The point is to make these more affordable, come on." There's a lot of the kind of “Oh, come on” school of legal reasoning, which is not my favorite school of legal reasoning because it was not the first time that someone has engaged in it.
Dan: [00:42:38] Yeah. Although I tend to think this is less plausible, because in some ways, it's the opposite, because in in both cases, you've got someone who is hostile to the administration, who is trying to blow up the system, and they've made this clever “gotcha” legal argument, which in this case, strikes me as a less plausible “gotcha” legal argument than it did in King v. Burwell. although I think that common sense-- I don't know. I think common sense leads you to the right result in in King v. Burwell and leads to the opposite result, in this case, personally.
Will: [00:43:16] Canwe talk about Bush v. Gore for a second?
Dan: [00:43:16] Yeah, taking me back.
Will: [00:43:20] Okay. It also reminds me of Bush v. Gore, an opinion that most of our listeners are probably too young to remember, but I do remember.
Dan: [00:43:27] I [crosstalk] think the median age of our listeners is like 62 or something.
Will: [00:43:32] [laughs]
Dan: [00:43:33] I don't know if we're really speaking to the youth here, Will.
Will: [00:43:36] [laughs] Fair enough.
Dan: [00:43:37] Maybe we’ll find out.
Will: [00:43:38] I get used to [crosstalk] all the things my students don’t remember.
Dan: [00:43:41] Yeah. People born after 2000, let us know if you're listening.
Will: [00:43:45] Okay. Over the median age, all right. This opinion has a per curiam, it's kind of muddy and got a lot of different stuff going on. It's a little hard to tell what the strongest rationale is, and then a concurring opinion by three justices that's much more clear, but also more legally aggressive that puts forward what might call the real rationale. In Bush v. Gore, that was this idea that Article II means what it says, and saying that legislatures have to be the ones regulating presidential elections. Anyway, here, that's Justice Gorsuch coming in with a kind of nondelegation argument. That’s a more honest place to put these concerns to say, “You can't have a statute that gives this much power to the Department of Labor. Maybe you can, but we really, really doubt you do."
Dan: [00:44:34] Yeah, and let's dig into that but I'm just going to get one zinger in first, which is you could also say that they're similar. In both cases, you've got a Republican-appointed majority that's doing something quite aggressive, that isn't obviously dictated by your normal legal analysis, and they're very plausible reasons to think that politics are playing a pretty big role in the opinion, but go on, talking about your major questions thing.
Will: [00:44:58] I picked the analogy mindfully, I mean Bush v. Gore also has a lot of supporters. This argument is less about the occupational or whatever. It is more about a different reason to have this, just kind of test to say, there's some kind of concern-- we all agree, at least in the doctrine, there's some kind of concern with giving one random cabinet official, the ability to do major legislative choices that affect the whole country. And it's true that we very, very rarely strike things down on nondelegation grounds, but it lurks in the background for a lot of our cases. That's what's really going on with the kind of the legal challenge, is the Department of Labor gets to issue-- States are having debates about how broad they have vaccine mandate, our institutions have decided what to do. This is a major policy question that lots of Americans are grappling with. And Congress didn't just let the Secretary of Labor decide to do that for the whole country.
Dan: [00:46:01] The Secretary of Labor, that's an independent agency, Labor Department?
Will: [00:46:04] I think it's a cabinet official.
Dan: [00:46:07] Oh. It's just the Secretary of Labor making these decisions on his own?
Will: [00:46:11] Well, I think the OSHA answers to Secretary of Labor.
Dan: [00:46:14] So, the president doesn't have any role in that?
Will: [00:46:16] My understanding is that President has some, is allowed to supervise that.
Dan: [00:46:16] Yeah. This is what's stupid about that. I don't like about this argument is President politically accountable. These opinions are always framed as if there's some random nerd with a pocket protector, buried deep in some office in DC who's making all these rules. The White House is politically accountable. White House was deeply involved in this process, obviously, and it was very public.
Will: [00:46:44] That's fine. Let's take the administration agency out of it. Let's assume that Congress could have decided to actually make some rules about the pandemic, but didn't want to, because that would be politically controversial. And so, they punted it to the President, because that's how things work these days. I think what Justice Gorsuch saying is, “Congress is supposed to make laws, and the President is not supposed to just take the punt.”
Dan: [00:47:12] But Congress did make a law here, and we're trying to figure out what that law meant. And that law seems, as I read it, to authorize the OSHA to regulate [chuckles] workplace risks. So, we're back where we started.
Will: [00:47:27] And by workplace risks, you mean any risks that happen at the workplace, even if the agency's real reason for regulating them is not really the workplace, right? I think that is what the statute says.
Dan: [00:47:41] I don't think people involved in this decision you said do not care about COVID transmission in the workplace. They'd say, “No, of course, we care about that.” But the fact that there's also these other benefits, it's not a bad thing.
Will: [00:47:55] Yeah. They said, “We're banning all guns to the extent allowed under the Second Amendment, because of workplace shootings.” There's some segment of limitation to that. So, okay, whatever the limit is fine. But beyond that, no more guns, because they're an occupational safety hazard. And yeah, of course, we also are excited about stopping all the other shootings don't have in the workplace. I don't know, wouldn't it be reasonable for the justice to blink at that. Maybe this is not that, maybe it's-- [crosstalk]
Dan: [00:48:24] It's kind of hard to fight the hypo there when you have the-- I'm just finding it hard to draw the analogy. These two situations are very different. You're saying, “Look, you can get vaccinated,” which is obviously something that has consequences at work, but also has consequences not at work. There is this masking and testing option. It's like saying you either need to just not have a gun and ban your employees from having guns, or at least provide gun lockers for them, or something like that. I don't know. Seems not crazy.
Will: [00:48:57] I'm definitely with you on that. I'm definitely with you. Once we don't think of the vaccine mandate as a vaccine mandate. Once we think of it as just a testing and masking mandate with a vaccine alternative, this is even more obviously a workplace regulation, and the whole thing falls apart. If that's where we want to criticize the court, I'm happy to just end there. But if we want to take the bigger questions of should there be any scrutiny of whether the government is using OSHA as a pretext to enact nationwide social legislation, that's this other question. It sounded like you also didn't [unintelligible 00:49:30] be any scrutiny of that.
Dan: [00:49:30] I want a theory for when we're allowed to do this pretext thing, rather than just sort of having this be an ad hoc like, “Well, we don't like it when Democrats do it.” So, I want a theory about when you can do that. It seemed like the conservative position was, you don't do that. You look at whether the thing is within the authority granted to the President to do. By the way, depending on who's in charge, we seem to paint these things quite differently. There's Trump v. Hawaii, it's all about the President gets this power as executive to make these decisions. And then as soon as it's coming out of this Biden administration, we're back to talking about these weirdos in back offices in DC, this unelected bureaucrat.
Will: [00:50:15] Although that's not just--- It is actually the case that the statute in Trump v. Hawaii vested authority directly in the President immune from the Administrative Procedures Act or any other rule of administrative law. Actually, the case that the statute here vested it in OSHA, sort of just several layers of review. Now, I'm with you still, that--[crosstalk]
Dan: [00:50:33] Which is all ultimately accountable. There's no layer foreclose removal in there. The President could remove every single one of those people, I think.
Will: [00:50:42] I think so. Some people believe that the President could also just directly tell OSHA what to do and other people disagree. So, I think people--
Dan: [00:50:51] But people who are more likely to believe that are probably the majority in this case, right?
Will: [00:50:54] Yeah, but maybe less likely to be in the current administration. So, I'm not sure. Anyway, I'm happy to eliminate that. I think--[crosstalk]
Dan: [00:51:00] Well, we're focusing on the court’s reasoning, not administration's.
Will: [00:51:04] Well, but the court is reviewing the administration.
Dan: [00:51:07] They're reviewing what they did. They're not necessarily reviewing their secret reasons. That's the whole question-- [crosstalk]
Will: [00:51:12] Well, no, you don't want them reviewing their secret reasons. [chuckles]
Dan: [00:51:15] But we're trying to figure out whether they're allowed to do that, what their source of authority for doing that is.
Will: [00:51:19] Here's the theory, no matter what the statute says, the Constitution says that, “Important subjects must be entirely regulated by the legislature itself, and others have less interest in which a general provision may be made the kind of power given to,” fill out the details. That's Justice Gorsuch’s theory quoting to Justice Marshall, for his basic theory in nondelegation doctrine. Important subjects, go to the legislature. If it's of less interest, you fill in the details, those can go to the executive. It's a theory.
Dan: [00:51:48] Where does it come from? Is it in the statute? Where do you--?
Will: [00:51:52] This is the Constitution. It’s comes from the-- [crosstalk]
Dan: [00:51:54] The Constitution says, “Here's how you have to interpret a statute.”
Will [00:51:57]: The Constitution says, yes, because Article I gives Congress legislative power, and the President executive power, and then we have to figure out what's the difference between the legislative executive power. Some people think the answer is there's no difference. That's the hardcore critique of the nondelegation doctrine, which I have some sympathy towards but the courts never accepted that. And if you think there is some difference between legislating, and executing, the theory is the difference is that the legislature has to decide the important stuff, and the executive can fill the details.
Dan: [00:52:27] That is a theory. Again, it's not one that is clearly textually bound anywhere.
Will: [00:52:33] Not clearly. It's not that intextual, it's got a bunch of citations to a bunch of smart law professors who have a bunch of historical support for this theory.
Dan: [00:52:45] Yeah. That's obviously controversial. There's smart law professors who disagree with it, but it also presupposes this question of when has Congress decided stuff. Congress could have just decided in passing the regulations that go into OSHA that this is a broad grant of discretion. If we wanted to carve out stuff that seems significant, we would have said so. "No, we're giving you this authority to regulate it in this way. Use it."
Will: [00:53:14] Right. But the idea of this is that there's some limit to Congress' ability to say that OSHA like, “Do what you want 40 years from now, and don't bother us with the details.” The idea is--[crosstalk]
Dan: [00:53:25] Yeah. I guess it depends a little bit on what version of this idea of major questions we're talking about. Is it just a canon of special interpretation or is it actually a hardcore constitutional rule that means that they couldn't do this?
Will: [00:53:39] And Justice Gorsuch’s theory anyway is if the statutory subsection the agency cites really gave OSHA the power it says, that law would likely constitute an unconstitutional delegation of legislative authority. He seems to be applying it as applied nondelegation doctrine. If OSHA were right up with the statute means I would include it was unconstitutional. And then that gets into all the debates of whether we should have a nondelegation doctrine where the judge should enforce it but it's at least got a real theory. It's as respectable theory as anything Justice Gorsuch has.
Dan: [00:54:11] Yeah, I think it's more honest. I don't agree with it. But I'd say it is easier to defend, it is less implausible than what the per curiam is doing, I think.
Will: [00:54:27] So, now can we talk about the indefensible part of the opinion?
Dan: [00:54:30] Sure.
Will: [00:54:31] We've only been talking so far about whether the OSHA regulation is lawful, but this whole thing is an application for a stay, which is a four-factor test. One part of which is are the challenges likely to succeed on the merits, but then there are other parts like, is there irreparable injury? What's the public interest, balancing the equities? The courts emphasized in a lot of opinions. Under Roberts Court, those are important steps. Sometimes, even though the plaintiff is going to succeed on the merits, you have to consider that the balancing the equities justify holding relief. There's a case maybe over 10 years ago now, Winter v. NRDC, where NRDC was challenging the use of Navy sonar that was maybe going to deafen some whales. The court said even if the use of sonar is illegal, once you balance the equities, we’ve got to let the Navy use their sonar for a while, not going to stay. It's an important equitable step. You would think that after talking about the merits, the Supreme Court should also talk about whether the equities mean that they should leave the-- at least not grant to stay, let this continue to play out. Right?
Dan: [00:55:36] They do talk about that for a couple sentences at the end of the opinion, says, “The equities do not justify withholding interim relief.”
Will: [00:55:44] Yes, they're not just withholding relief. They’d say, "There's tradeoffs on the one hand, thousands of lives, on the other hand, lots of jobs. But they say it is not our role to weigh such tradeoffs. In our system of government, that is the responsibility that was chosen by the people through the democratic process. Because OSHA doesn't have this authority, we can't balance these equities." Which is to say, they're like, “Well, once we decided it's illegal, we lack the power to balance the equities, which is, I don't quite know what the court means. So, it's the only reason I hesitate to say it's indefensible.
Dan: [00:56:22] It would be weird though to say the court has actually-- so that four-factor test makes a lot of sense when maybe you haven't done the full merits analysis. It's weird to say, “We are just deciding this question, this doesn't need to come back to us anymore. We're done. But then, let's figure out whether to withhold, maybe we shouldn't grant interim relief, because this can be litigated all the way.” The court has now issued a ruling that answers the legal question, what else needs to happen here?
Will: [00:56:52] Although not that long ago in the first eviction moratorium case, didn't that happen? There was the challenge to the federal eviction moratorium that the court seemed to conclude was unlawful, and Justice Kavanaugh wrote the opinion for the vote saying, “The moratorium is unlawful. I don't think they can do it. But I'm also going to leave it in place for a few weeks, because balancing the equities, it'll be better for orderly administration,” or whatever. So, you can imagine here saying--
Dan: [00:57:21] The majority actually say it was unlawful, I'm trying to remember--[crosstalk]
Will: [00:57:25] I don't think the majority said it was unlawful in the first opinion although they then said so in the second opinion, it's pretty clear.
Dan: [00:57:30] Right. You had to read the tea leaves. If the court had actually issued a per curiam saying, “This is definitely 100% unlawful”--
Will: [00:57:36] I'm just saying the court had clearly decided that. The court really had that view. And says here, it's not so much what would happen on remand, but you could imagine them saying under the majority's theory, OSHA can still regulate plenty of workplaces if it doesn't more narrowly and in a more focused way. So, why don't they consider, "Look, we'll leave the rule in place for a month, while OSHA goes back and figures out which agencies it can satisfy us count as real occupational threats under the courts version of this test," or whatever. Administrative law has a whole range of nuanced remedies. Balancing the equities puts all those on the court's plate. Saying it's not their role to weigh such tradeoffs is like they--
Dan: [00:58:20] [laughs]
Will: [00:58:21] It's like you have a macro in your computer about that if you're a good judge, because in a statutory interpretation case or constitutional law case, it's not your job to weigh tradeoffs. You could say that over and over again, “Don't worry, I'm not making policy.” But when you're administering equitable relief under the court's own doctrine, sorry, it is your job to weigh the tradeoffs.
Dan: [00:58:42] [laughs] Yeah, that's fair. I don't have a great answer to that. I think that they could have easily-- so if I'm willing to stipulate the legal conclusion, it probably would be not a hard section of the opinion to write and just say like, “This is going to cost businesses a lot of money. And in the meantime, a bunch of people who don't want to get vaccinated may have to get vaccinated, or get fired." That doesn't seem super hard to write if you buy the first part of the opinion.
Will: [00:59:10] I think that's right. Although I think the possibility that the agency could do something else that would be lawful, and you're making that harder or easier, something you have to grapple with, and then you have to grapple a little more with how many people they think are going to die. And I suspect that [unintelligible 00:59:26] Justice Breyer have a very different view about how people are going to die and that may also be influencing them, but they don't want to say that.
Dan: [00:59:31] Yeah. By the way, this is not-- Well, yeah, maybe there's a whole conversation we need to have about COVID at the court and COVID in the lower courts, because there's a lot of interesting stuff going on. That's another thing that happened while I was away, where we had the whole controversy about Justice Gorsuch is unmasked at the arguments and Justice Sotomayor whom he normally sits next to, is not sitting next to him, is doing the arguments from her phone by her chambers. Nina Totenberg said that the Chief had in some way asked the Justices to wear masks. Gorsuch was refusing to, and that's why Sotomayor wasn't coming to the arguments. There's been a couple of kind of brief and cryptic kind of denials of that.
Will: [01:00:18] Gorsuch and Sotomayor had a joint statement saying something that was not quite responsive. It was like, “We're puzzled by these responses. Justice Sotomayor didn't ask. we're good friends.” And Nina Totenberg doubled down and said, “No, no, the response came from the Chief.” Then, the Chief issued a short statement saying, “No, I never asked anybody to wear mask.”
Dan: [01:00:37] He said, “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” This is just weirdly phrased.
Will: [01:00:46] I think that's exactly what had been alleged. And then, it's switched to 'asked' in some form.
Dan: [01:00:51] Oh, I thought that was in the original version of the--
Will: [01:00:55] Yeah, but he said he didn't ask. I take it, I mean, he said he didn't ask in any form.
Dan: [01:01:00] Yeah, maybe. It does seem like the original Totenberg report is shaky. It seems to have not had maybe great sources. So, I don't really know what "in some form" is supposed to mean. But, yeah, that didn't look good. The first statement came out in and was the Sotomayor-Gorsuch statement was just again sufficiently cryptic. It's one of those instances where the court's natural, instinctive reaction to be secretive really kind of hurts it right. In this case, if in the first place, someone in the court had just been willing to get on the phone and be like, “No, that's not what's happening here,” this wouldn't have been a thing. Instead, they're not willing to talk. When there's a big brouhaha, they're willing to issue these very short statements. Can you just tell us what's going on?
Will: [01:01:49] I don't know. I actually like this better at the meta level, in that the real point of the story was to claim-- They still make you think there was more and more internal drama and dissension at the court. That's the theme of the mask-gate allegation. And then, the most powerful signal sent by the statements are not the kind of thing that Justices normally do and a joint statement by Justice Sotomayor, Justice Gorsuch, that's not a dissent for the [unintelligible 01:02:16] seen that, I just think the most powerful effect sent by that is like, obviously, the court still has an united front. That's not consistent with them grousing with each other behind closed doors, but if anybody thought, like, “Oh, there are cracks in the courts public unity,” “Nope, we're closing ranks.”
Dan: [01:02:35] For now, no.
Will: [01:02:37] Well, I kind of admire that.
Dan: [01:02:39] Yeah, I don't know. For me, it depends on what really actually is going on behind the scenes, and I have no idea.
Will: [01:02:46] Yeah. I guess I don't think it's that important.
Dan: [01:02:50] You don't think which is important?
Will: [01:02:52] What is going on behind the scenes with the Justices' discussions with one another about how to manage the court in the second year of COVID.
Dan: [01:03:02] It's important to me whether Justice Gorsuch is refusing to mask despite his diabetic colleague, wanting him to. If that were true, that would be not speak well with him. That isn't true--
Will: [01:03:14] [crosstalk] -important to me.
Dan: [01:03:15] What would be important to you?
Will: [01:03:16] Everything else we're talking about. I don't know.
Dan: [01:03:19] That makes him look like a bad person, right? I don't know.
Will: [01:03:21] I think at this point, many people have strong feelings about lots of COVID policies out of proportion to their actual, real-world importance in many directions.
Dan: [01:03:34] These things have become kind of political virtue signaling in one sense, but--
Will: [01:03:38] It's often more than just virtue signaling. There's psychological and different people do have different-- But I just think that's true at my school, I'm sure it's true at your school, I'm sure it's true at every-- That's just it. Those things are drama we have to get through because we're human beings living in world together but I just don't think they're that important.
Dan: [01:03:59] There are some things that are just wrong. There's been some lower court judges, public-appointed judges who are making factual claims about the vaccines killing people, which are just not correct. These are verifiable. They had an incident in January, where DOJ attorney requested from the Fifth Circuit to be able to attend the argument remotely. They denied that. He tried to argue with a mask on. They insisted he removed the mask. He's someone who's had small children at home, and during the height of the Omicron pandemic, that's completely unacceptable. It seems to be that is very hard to defend other than judges on the Fifth Circuit are kind of COVID skeptics or something.
Will: [01:04:40] I would feel differently if Justice Gorsuch were an antivaxxer who refused to get vaccinated, I'd feel differently. I'll admit that. I'm not trying to totally principle line about that, other than a belief that there's more room for reasonable debate about masks than about vaccines, but I feel differently about that.
Dan: [01:04:57] Yeah. I agree with what you're saying about masks. Although I also think that if some older person I'm sitting next to wants to wear one, I'm like, “Okay, fine.”
Will: [01:05:07] Sure. Look, I taught in one all last quarter, and it was fine. Now, certainly, we live in partial terror of our children being suddenly quarantined from home for some random exposure. But I just thought, in the same way, like of all the things, I just think it's not that important of-- that piece of the drama at the Supreme Court, even if it were true, which it appears not to be, that Justice Gorsuch is a jerk, it just doesn't seem that important.
Dan: [01:05:32] It's clearly important to lot of people because it got a lot of attention, [Will laughs] but maybe it's not as important to whether a justice is adhering to the true original meaning.
Will: [01:05:42] Well, it got a lot of attention because people like to look for excuses to hate Justice Gorsuch.
Dan: [01:05:47] He also gives them some excuses sometimes. This is the thing that puzzles me about him, is that he doesn't seem that concerned about doing easy things that would buy him some goodwill. Do you have to go talk at the Trump Hotel? Do you have to go do this FedSoc event with a bunch of Republican politicians?
Will: [01:06:08] This is one of his most admirable qualities, I think.
Dan: [01:06:10] I don't see why it's admirable. I just don't see what's admirable to make-- I think if you're a judge, maybe you have some obligation to try to make people think that you're not a partisan.
Will: [01:06:22] Most judges care too much about their press, not too little. It's not the optimal on a zero, but most Justices especially, the temptation is definitely the other direction.
Dan: [01:06:30] Maybe I think that it's not a bad thing. I think that there's a reason why we care about our courts having an appearance of impartiality. This is a place where, I think it's okay to say judges maybe err on the side of not making people think that you look like a rank partisan. Would that be a big deal?
Will: [01:06:49] I think it's a two-way street. We live in a world where people who talk about and report about the court did it responsibly, and so that when they expressed concerns, those concerns were--[crosstalk]
Dan: [01:06:57] No, there's not a symmetry there. Those people are not exercising government power. Those people don't have responsibility. People out in the public are going to do whatever they're going to do.
Will: [01:07:05] Not people in the public. I'm just saying if people are going to falsely claim that the federal side is a partisan organization and therefore Justice Gorsuch shouldn't talk to them, I don't think the false claims that federal side is partisan should influence the decision.
Dan: [01:07:15] I didn't make that claim though. I said do you have to an event that's full of Republican politicians, which really, whether you think FedSoc is a partisan organization or not, they have a lot of events that look like Republican partisan events. That one in particular, Pence was going to be there. But also, I don't know, you could talk to other groups too.
Will: [01:07:33] Sure. Does he [crosstalk] talk to other groups?
Dan: [01:07:34] Has he offered? I don't know. Has he ever spoken at the American Constitution Society?
Will: [01:07:40] Bet you $1,000 that the American Constitution Society has not invited him to--[crosstalk]
Dan: [01:07:44] I bet some member of some chapter somewhere is listening, invite him--[crosstalk]
Will: [01:07:48] A student chapter has, but some major--
Dan: [01:07:50] Oh, okay.
Will: [01:07:50] Some equivalent-- Look, I don't--[crosstalk]
Dan: [01:07:53] He's speaking at some Florida lawyers’ chapter, right? They think, “Why is that more important than speaking--?”
Will: [01:07:59] Florida is not random. Florida's is new future of the Federalist Society, I fear.
Dan: [01:08:03] Well, that's a whole other conversation.
Will: [01:08:06] Yeah. We should have a conversation about that.
Dan: [01:08:08] Yeah, we'll get to that. Maybe we've exhausted that topic. A lot of other stuff we could talk about. I think we should try to rein ourselves in though. You want to talk about this Alabama thing, and maybe wrap up there?
Will: [01:08:20] Sure. Something else happened in the shadow docket that was maybe also controversial merits decision, which has a lot of interesting echoes and contrasts with the vaccine case, and that are the cases of Merrill v. Milligan and Merrill v. Caster. Have you had a chance to read these since you've returned to the world?
Dan: [01:08:41] Yes, I did although I'll say that I am not an election law person. My understanding of the Voting Rights Act is in the kind of Court's Case Law interpreting it is somewhat limited. I sort of understand what's going on here. I can talk about it in more general terms, but I'm not going to be deep in the weeds.
Will: [01:09:00] I did take election law twice in law school.
Dan: [01:09:02] Did you fail it the first time?
Will: [01:09:03] [chuckles] I just loved it so much, I needed more, election law.
Dan: [01:09:07] You can retake classes at Yale?
Will: [01:09:09] Advanced election law.
Dan: [01:09:10] Okay.
Will: [01:09:11] One from Pamela Karlan and one from Heather Gerken. Both great classes. I was colleagues with Nick Stephanopoulos who presented a paper that's cited by everybody involved in this case. But let me just try to oversimplify. Because we had the census, it's time to redistrict which we have to do every 10 years. Alabama has drawn new congressional districts. And those districts have been challenged on the grounds that they violate Section 2 of the Voting Rights Act, which forbids some kind of discrimination in the drawing of districts. The fight is about whether or not Alabama should have drawn two districts that are likely to be majority black and elect black representatives, or whether they only had to draw one. They drew one and the district court held they should have drawn two. And now the state has appealed to the Supreme Court and said, “No, no, we only need to draw one.” And the Supreme Court--
Dan: [01:10:05] And sought to stay the injunction?
Will: [01:10:08] Sought to stay the injunction ordering them to draw two. We'll talk about the actual in a minute. The Supreme Court granted the application for a stay and granted cert/noted probable jurisdiction. So, they put the case on the docket, they're going to decide whether the district was right. In the meantime, Alabama can go ahead and use the map state once, not the maps that were held illegal by the District Court. This is controversial both for-- there's the merits aspect and shadow docket procedural aspect. So, which do I head first?
Dan: [01:10:39] That's kind of hard to disentangle them, but I think maybe you need to talk about the shadow docket part and then figure out the premise of the merits part because it relates to the shadow docket criticism. As I understand it, Justice Kagan is saying, “You're using the shadow docket to stay this. And the only way that makes sense is if you are adopting a theory of the law that is inconsistent with our precedent.” So, basically sub silentio, you're saying that you want to overrule precedent by granting this stay application here without saying so. And then, Justice Kavanaugh says, “No, this is not a decision on the merits.” Justice Kagan says, “Shadow docket,” Justice Kavanaugh says, “Bad news for you, but this is basically worn-out rhetoric. We're done.”
Will: [01:11:34] Catchy, but worn-out rhetoric.
Dan: [01:11:35] Yeah. Catchy, but worn-out rhetoric. So, we're done with it. It's worn-out, we're not going to talk about it anymore. And then, he says, “To reiterate, the court stay order is not a decision on the merits.” It does seem like that's one piece of it. There's another question, which is there's this idea in election law, the Purcell principle, I think it's a rule of equity. You're not supposed to court, you're not supposed to enjoin, change the rules of elections right before an election, right?
Will: [01:12:04] Yeah.
Dan: [01:12:05] We're not totally clear what counts is right before to me, and there's a debate about that. These maps were challenged, basically, immediately after they were released, voting in the primaries, I think it's going to start in May, there's going to be some early voting at the very end of May, early voting the primaries very end of March, and the general election is coming up in November. So, there's a big debate about whether this is actually that soon before an election, or whether this is the appropriate time to issue this challenge. But yeah, there's this big question about the merits. Did I miss anything important in terms of the--? [crosstalk]
Will: [01:12:45] No. First, let's just note the contrast between this and the OSHA case. These are both in a similar posture. They're both requests for a stay where one factor as opposed to the merits, and the other factor was the equitable factors. In the OSHA case, the court decided to resolve the merits on a fast timeframe, and then say, “Therefore, we don't need to even talk about the equities.” And here, it's the opposite. Here, they are granting a stay entirely on the basis of the equitable factors. They're saying, “We're really not sure who's right about the merits.”
Dan: [01:13:15] Explicitly, that's what the--
Will: [01:13:16] Explicitly. Who knows who's right about the merits? Justice Kavanaugh, “Yes, we do have to conclude that the government has at least a fair chance of being right. But the plaintiff has also a fair chance of being right. Who knows?" It's entirely driven by the equitable factors. This is just a totally different, more traditional frame for thinking about it. You could have approached the OSHA case that way, where you could have not decided the merits, and said, “We're not going to decide the merits. Both sides are plausible. You don't even agree with that, but both sides are plausible, but on the equities, we're just going to leave this in place because we're in a pandemic.”
Dan: [01:13:49] Yeah. I guess maybe this highlights something that I think is a really fair area of criticism of, let's call it the courts emergency docket, generally, because it's not necessarily in the shadows right now, that I think you're going to agree with it, there actually is a ton of unexplained discretion in this context. When do you grant a stay application, when do you not, when do you choose which things they similarly reverse? And then, how do you choose whether to address the merits, not address the merits, put weight on which factors, things like that. There's a choice that's been made by the majority in both those two cases to put more or less weight on the merits. Why? I don't know because they wanted to.
Will: [01:14:30] Well, I think to the court's credit, they're aware of these choices and they're trying to work them out and explain them. They have that section of the OSHA opinion of why they're not balancing the equities. Justice Kavanaugh has this long opinion about why he thinks the equities entitle him to grant relief here, even though it doesn't know review the merits. In one model of what the common law and equity is, you might say it's the best you can hope for the best. Justices who are making the decisions, I think, are reasonable. They're trying to explain their reasoning. Over time that'll produce a kind of common law rule. But I do worry this is not a good advertisement for that kind of case-by-case decision making, because at some high level of how you frame these things, they're not necessarily-- they're framing them in a way that makes intuitive sense in some case, but not taking a step back, or that would make sense to them in another case, or if things were reversed or the like. I appreciate the effort, but I do think we need we need a little bit more of a theory of what we're doing here.
Dan: [01:15:31] Yeah. In this case in particular, we don't really have the court telling us what it's doing. We have a one-paragraph thing from the court at the beginning, but most of the explanation we're getting comes from Kavanaugh concurrence that's only joined by Justice Alito.
Will: [01:15:49] That's true. There could be other members of the court who think, “No, no, I really am sure about the merits, and that's why I'm granting a stay.” That's true too.
Dan: [01:15:57] That might be more helpful. At least in the OSHA stuff, they at least-- a majority the court actually explained what they were doing.
Will: [01:16:07] Yeah. Can I ask you a question with the shadow docket thing?
Dan: [01:16:10] Hmm.
Will: [01:16:10] Two more appearances of the phrase “shadow docket” in Supreme Court opinions, still no citations to the [Dan laughs] article that introduced the term “shadow docket” from anybody ever, but that's okay. It has been suggested to me that I should call for abolition of the use of the term "shadow docket," especially by the court, and also by non-scholarly accounts, because at this point, they are having serious conversations about this stuff, the use of the phrase "shadow docket," it just allows a certain kind of both in name calling, and then counter name calling. It just distracts the project that you and I are just talking about it. Actually, trying to talk through what are the emergency relief standards and when it is or isn't appropriate to act on emergency applications, and that the name at this point lowers the tone. You agree?
Dan: [01:16:54] I don't think it's in your interest. I think the more they talk about it, the more you're going to get it cited, even if it's not by them.
Will: [01:17:00] Yeah, but for the good of the republic, suppose I was willing to give up the citations in exchange for a more coherent--
Dan: [01:17:06] I don't think it would change anything. Maybe they start saying the emergency docket.
Will: [01:17:10] Yeah. Technically, the emergency docket is a subset of the shadow docket. So, the shadow docket encompasses all the different, like for summary reversals, but not emergency.
Dan: [01:17:18] The emergency docket is a more apt name for what they're doing here, right?
Will: [01:17:21] The thing they're currently arguing about is the emergency docket, that’s correct.
Dan: [01:17:25] Okay, you say don't use the word “shadow docket.” Kagan is still going to make the same arguments. She writes, I thought, a pretty good, pretty pointed dissent here that really paints the court as really being hostile to and trying to undermine the Voting Rights Act. At the very end of the opinion, she says, "The court is doing a disservice to black Alabamians, who, under that precedents, have had their electoral power diminished in violation of a law this court once knew to buttress all American democracy." So, sort of saying the court has lost sight of the-- is now hostile to this really important law that was critical to American democracy, which I agree with. Totally agree with. But I think she's still going to make those arguments, whatever label she puts on.
Will: [01:18:10] Okay, maybe. On the merits, I do think she has a good point here, which is that we are calling this early February of 2022 too close to the election, because there's general elections, also primary election, we now have a lot of early voting. It's true that there will be some votes cast in the primary election not that long from now. But it does mean that, that in practice, it's really hard to challenge an election law. She doesn't talk about this thing. There's some scholars have written about when you add up all the different remedial problems. You might have thought if you were naive, you might have thought what's fine, you just challenged after the election. If you're elected under an unlawful statute, that's just being convicted under an unlawful statute, you just get your conviction reversed. But of course not. It's like a categorical rule, courts don't throw out elections just because the districting was bad.
[01:19:04] And then, you might have thought like, “Well, we need some sort of statutory regime that stops these things from going into place before so that we have time to hear challenges to them, like a preclearance regime.” But, of course, the Supreme Court struck that down in Shelby County v. Holder. So, it is a little funny--
Dan: [01:19:19] [crosstalk] -if they're actually hostile to this.
Will: [01:19:23] It is a little funny that you can't challenge it after the election because of finality. You can't suspend it before the election because of federalism. And now, you can't challenge it before the election because of equity. Now, one gap they haven't closed yet, that my colleague, Sam Bray, as well as I talk about, traditionally, if you find a lot of old voting rights cases, even some of the white primary cases, the remedies people were seeking was damages. You just seek damages for unlawful denial of the right to vote.
Dan: [01:19:49] From who, the legislators?
Will: [01:19:51] The states, whatever state officials enforce the law, just like an--[crosstalk]
Dan: [01:19:54] Under what cause of action, just like--
Will: [01:19:57] Constitutional Section 83.
Dan: [01:20:00] [unintelligible [01:20:00] Is it Bivens?
Will: [01:20:02] These are state officers, so it could be a Section 83 claim. These were the days before we invented qualified immunity. But even now, there could be nominal damages. I do wonder, I'm positive that of all the remedies, the court is not going to let you sue for damages to enforce these things, but I'd like to see somebody make them explain why you can't get that one either.
Dan: [01:20:21] Hmm. It does seem like whatever you think about this Purcell principle, we are still in time for this to be resolved in advance of the election, and at least seems like there are some significant equities on the other side. So, I don't buy it. I don't have as much to say about the underlying merits of the-- what is it, Jingles? Ingles?
Will: [01:20:46] The merits are also big ideal. We haven't talked about them yet, and we'll talk about them on the court, here's this case and besides it. In a nutshell, the old test is something like, if you reasonably can draw a majority minor district, you have to. Failure to draw a district that would give black people voting power is presumptively discriminatory effect, because you could have and you didn’t. Judge Frank Easterbrook put forward a test that is more in line with how we now do an anti-discrimination test, which would not be just like, could you? But what would a race-neutral person have done? We now have enough computerized software that people use in partisan gerrymandering cases to say, “Tell the AI that the maps have to be compact or whatever else you want and just have it draw a million maps and see on average how many majority-minority districts they make.” And that's how many the legislature is supposed to make. If it fails to do what a normal race-neutral AI would do, it's probably racist.
[01:21:43] And that's a sort of more scientific way of testing it and more in line with what you'd expect from disparate impact of employment or education or things like that. My colleague, Nick Stephanopoulos, and I coauthored and wrote an article trying to actually just work through what would happen if the Easterbrook test became the law and it would be a dramatic cut in black representation. Whether it's right or wrong, it would make a huge difference. And it's more or less what Alabama is proposing in the suit, is they're saying to decide we have to draw one, you don't just ask like, “Is it possible?” You ask would a race-neutral person have done that in the normal course of things. So, it'll be big. It'll be much bigger than--[crosstalk]
Dan: [01:22:20] Do you think [crosstalk] do that?
Will: [01:22:22] Yeah. Well, let's see. I guess I just say that typically. It's a plausible theory in the abstract that brings the statute more in line with how other statutes work, proposed by a respected federal judge in a pretty plausible way. The main reasons you would think for rejecting it are this legislative history that suggests it might not be the legislative history the statute wants, and the consequences would be bad for black representation, which don't seem like those are considerations that would dissuade the Supreme Court for adopting it. But the fact that Justice Kavanaugh and Justice Alito express such agnosticism about the merits, means they must at least not be ready to buy it yet.
Dan: [01:23:09] Or, they are ready to buy it and they just want to paint what they're doing as more legitimate?
Will: [01:23:15] I don't know. But then, they open themselves up all these criticisms from--
Dan: [01:23:18] They're just saying, “We weren't ready to decide it now. Now, we've had full argument and briefing and we're totally ready to go.”
Will: [01:23:23] It could be. I just think if Justice Kavanaugh and Justice Alito knew they were going to buy it in the fall, they would have said nothing.
Dan: [01:23:29] By the way, who's in dissent here? This was a softball.
Will: [01:23:35] Yeah. Well, there's the Kagan-Breyer-Sotomayor dissent we've talked about. There is also dissent from Chief Justice Roberts, if that’s--[crosstalk]
Dan: [01:23:40] This is interesting. Chief Justice Roberts, no friend of the Voting Rights Act. He thinks whatever the majority is doing here is too far. Right?
Will: [01:23:49] Well, not on the merits. He says, in a nutshell, what the district court did is plainly right under the current precedent. So, we shouldn't stay it unless we're willing to overrule that precedent. I assume he will be willing overrule that precedent. It'll be interesting if there were a flip. It’d be interesting if the Chief’s view is, “We should overrule the precedent, but we shouldn't grant a stay until we overrule the precedent.” And Justice Kavanaugh’s view is--
Dan: [01:24:14] Yeah. It's the two things he hates the most, which is race consciousness and voting rights. I'm not even really trying to be unfair. What issues do you think he cares about more than that, based on his published opinions?
Will: [01:24:28] The rule of law, judicial independence, American prosperity, apple pie.
Dan: [01:24:34] Legal doctrines.
Will: [01:24:35] If you like to get biographical about this, Chief Justice Roberts when he was John Roberts was an attorney in the Reagan administration, heavily involved in the reauthorization of the Voting Rights Act 1982, which is where a lot of these things come from, and very concerned about both the potential interpretations of that statute and potential unconstitutionality of that statute. So, it's been in his radar for a very long time.
Dan: [01:24:58] Yeah, but that doesn't actually explain anything. You're just saying he was concerned about being unconstitutional. Now, he believes it's unconstitutional, but where does it come from?
Will: [01:25:10] I was trying to agree with you after I disagreed with you.
Dan: [01:25:12] Okay. [crosstalk] So that is an unfinished story, because we're going to see a case. I guess it'll get decided next term.
Will: [01:25:25] I think that's right. Especially they're going to let the election go, so it doesn't rush. They've also granted the Harvard affirmative action case for next term, which will happen--[crosstalk]
Dan: [01:25:34] Yeah. It's going to be big.
Will: [01:25:35] There's going to be a lot of-- Yeah, it's funny. People are like, “This term is the blockbuster. This term is going to have the most--” Look, this term still might overrule Roe v. Wade, and create a major new Second Amendment precedent, and who knows what else? But next term is going to be a blockbuster too.
Dan: [01:25:51] Yeah. I'm just wondering, it does seem to me like we might really start seeing the five most conservative Justices really being feeling they're off the leash and just letting loose. I wonder what that's going to look like, and I wonder if they're quite prepared for what the pushback is going to be, because I think if they overrule Roe, whether you think that's right or wrong, it's going to be the biggest public crisis for the court in decades.
Will: [01:26:23] I don't know about crisis, people are going to be very upset.
Dan: [01:26:25] Yeah. It's going to put the court at the center of the political system in a way that it has not in a very, very long time. I think more than Bush v. Gore.
Will: [01:26:35] More than NFIB?
Dan: [01:26:37] I think more than that. Yeah, I do, actually. First of all, maybe not more than if they had actually struck down the Affordable Care Act, I'm not sure. I think at that time, people were less invested in the ACA than they are in 50 years of abortion precedent. So, it's going to be big. I just wonder whether they're fully prepared for that.
Will: [01:27:03] It's going to be big. I think we've hinted at this. I'll say two things. I don't think the conservative majority is anywhere near off its leash. I think if these decisions have you worried, you have a real failure of imagination. I don't think that there's going to be any public crisis.
Dan: [01:27:21] Why? If they overturn Roe, that'll be what the midterm elections are about, right?
Will: [01:27:27] Ah, I'm not even sure if that’s true. I assume that if they overturn Roe, the midterm election is going to be about COVID and inflation.
Dan: [01:27:34] I think there will be a big slice of abortion, which they were not going to be before.
Will: [01:27:37] That's true. I just think it will be the third most important issue in the terms.
Dan: [01:27:41] Possibly. It'll be big. I don't know. Historically, the court, you see this pattern over and over, where they sometimes get ahead of themselves and start acting in ways that arouse a lot of public interest. That pushback seems to kind of often push them a little bit away from the precipice.
Will: [01:28:01] On the other hand, here is the thing, it's a little like the crying wolf problem. There are a lot of people who've been really upset about the court for a long time. They're really upset, and they've turned the volume to 11 already and now they’ll turn the volume up to 12, or whatever the number is. What I'm less sure about is how many people who are really disengaged with the court are going to move into being really, really upset. And Roe might move some. Affirmative action--
Dan: [01:28:24] I think that’ll move a good number. Affirmative action, I'm not sure.
Will: [01:28:26] Affirmative action might move some the other way.
Dan: [01:28:29] Yeah. I think affirmative action, probably, if you look at the numbers is-- I think a decision by the Supreme Court saying, “You can't explicitly consider race,” I think would actually be something fairly popular, although extremely unpopular with a big chunk of the population but it probably would get majoritarian support. Those amendments pass in what Michigan and California getting affirmative action.
Will: [01:28:51] Right. Once you add them together, it might be that the court will, in practical terms, make up in striking down what affirmative action-- what it loses and striking down Roe, if it even loses something.
Dan: [01:29:02] Maybe, but they're going to be doing other stuff too. So, I don't know.
Will: [01:29:07] I'm just saying, you and I care about those things. Our listeners care about those things. But I'm not sure the listenership of Joe Rogan or whatever cares about those things.
Dan: [01:29:16] [chuckles] Yeah, I'm not sure if they're the audience I'm talking about.
Will: [01:29:22] I'm just trying to pick a really popular podcast.
Dan: [01:29:25] You should have picked us.
Will: [01:29:27] Right, okay. Our following is loyal, and we really, really appreciate your loyalty.
Dan: [01:29:31] Yeah. Okay. But that probably is a good time to wrap things up. I mean is there anything else? There's other stuff that happened, there's the merits opinions--[crosstalk]
Will: [01:29:39] There's other [crosstalk] shadow docket, but we'll just have to let it go.
Dan: [01:29:43] These are the highlights. We're coming in much later than a lot of other people who had takes already but we have our own things to say. We have set up a chunk of them and we will be back. I think it will be less than two months before we're back again. No promises as to when, but I'd like to get back out there in the next week or two if you have time, Will.
Will: [01:30:03] Yeah. Cold takes.
Dan: [01:30:06] Very cold, ice cold. The absolute zero takes as cold as it gets.
Thanks very much for listening and bearing with us during our absence. Please rate and review the show on the Apple Podcast app or wherever else you happen to listen. Please do what you can to help other people discover the show. We are still in the kind of discovery phase and a lot of people haven't heard of us. So, send it to your friends, share on social media, all that stuff.
Check out our website dividedargument.com. We have transcripts of the episodes that are put up, usually within a few days after the episode, if you try to remember something we said and you want to look it up. We have merchandise at store.dividedargument.com. And you can call and leave us a voicemail that we might play on the show 314-649-3790. And you can shoot us an email at pod@dividedargument.com. We're not always great about responding to those but sometimes, we pull stuff from that to talk about in the show.
Will: [01:31:11] Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks to Dan for finally making time to reemerge for the show. And thanks to all of our listeners for bearing with us.
Dan: [01:31:22] Yeah, and thanks to you, Will, for not being too mad at me for not being able to record for a long time.
Will: [01:31:27] We made up for having a good fight in the show.
Dan: [01:31:29] I didn’t think we're fighting. We're jousting.
Will: [01:31:32] It's a good fight.
Dan: [01:31:34] All right.
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