Divided Argument

Triple Bank Shot

Episode Summary

Will and Dan break down the Court's sudden burst of interesting opinions – California v. Texas, Fulton v. Philadelphia, and Nestle v. Doe.

Episode Notes

Will and Dan break down the Court's sudden burst of interesting opinions – California v. Texas, Fulton v. Philadelphia, and Nestle v. Doe.

Episode Transcription

Will (00:00:19):

Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

Dan (00:00:25):

And I'm Dan Epps. This is a big week, Will.

Will (00:00:28):

We got some opinions.

Dan (00:00:29):

Oh, yeah. I was thinking about something else. I was thinking about the fact that we have Divided Argument merchandise now.

Will (00:00:34):

That's more important. Start with that.

Dan (00:00:35):

Yeah, check that out. We've got T-shirts, mugs, stuff like that. It's on our website, store.dividedargument.com, or just go to Divided Argument. But I think you were talking about something else. You were talking about opinions. We did get some, right?

Will (00:00:48):

I think so.

Dan (00:00:48):


Will (00:00:48):

A couple we should talk about.

Dan (00:00:49):

What did we get? We've been getting all these boring, unanimous, 9-0 cases. Not the ones we were looking for. And then we finally seem to have gotten some of the ones we've been looking for. To some degree surprisingly, and maybe we'll talk about that in a minute. Where should we start? We're recording this on Thursday, June 17th. We've got three fairly significant opinions. Where do we start with those?

Will (00:01:14):

I think we have to start with the Affordable Care Act case. For the third time in the past 10 years, the Supreme Court did not invalidate or effectively hamstring the Affordable Care Act. And strangely, that seems to be news.

Dan (00:01:26):

This is California versus Texas. People may remember, this case was talked about a lot in the political sphere during Justice Barrett's confirmation. Senate democrats seem to have made a strategic choice to make the entire confirmation process about this case and arguing that the reason Justice Barrett was getting rushed through was in order to invalidate the Affordable Care Act in this case, California versus Texas. Is that what happened?

Will (00:02:01):

That is not what happened.

Dan (00:02:03):

Okay, not what happened. As I think a lot of people at the time said, that's not going to happen in this case. But before we get there, I guess we should try to explain what this case is about. To be honest, I find the legal arguments in this case a little odd, but I think we can try to do our best with them. I think we're going to have to give people some of the background. Let's start at the beginning. We have the Patient Protection and Affordable Care Act, also known as Obamacare, passed in the first term of the Obama administration in 2010. That original act had what we call an individual mandate that said, "You individuals have to go out and get health insurance. If you don't have health insurance that meets these minimum standards, you're going to have to pay some money. There's a penalty."

Will (00:02:56):

Yeah, the statute called it a penalty.

Dan (00:02:58):

Yes, that's going to matter in a second. Then we had a bunch of people, your colleagues on the Volokh Conspiracy Blog, gear up. There's the machinery of the legal challenges to this. It gets litigated all over the country, gets to the Supreme Court and the National Federation of Independent Business versus Sebelius. The court, through the fulcrum of Chief Justice Roberts, does something interesting. It strikes down part of the statute with the Medicaid expansion, but we don't need to get into that here. But the court, five justices, agreed that this individual mandate couldn't stand under the Constitution's Commerce Clause power, the commerce authority in the Constitution. But then-

Will (00:03:41):

And also couldn't stand under the Necessary and Proper clause.

Dan (00:03:44):

Yeah, which is a favorite clause of yours I think. But then Chief Justice Roberts ended up going in an unpredictable direction where he said, "Well, there is a way to sustain this. We should try to sustain this basically if possible. This can be read as a tax rather than as an attempt to regulate commerce. As a tax, this is constitutional." You had four justices in dissent who would have not only said the individual mandate was unconstitutional, but would have then declared the entire act unconstitutional and sent Congress back to the drawing board.

Will (00:04:23):

So then fast forward to the Trump administration where during that period of time where President Trump, I guess a republican, and Congress was controlled by republicans and had promised that if they got into power, they would repeal some or all of Obamacare. Then suddenly having caught the tiger by the tail, they didn't know what to do. It turned out they didn't actually want to repeal all of Obamacare. That would be very unpopular. They couldn't even muster up enough votes, enough filibuster votes, to repeal the individual mandate itself. But they could muster up the votes using the budget reconciliation exceptions to the filibuster in the Senate to what is called zero out the individual mandate. The statute still says, as it always said, "You have to buy health insurance." It still says, as it always says, "If you don't, you have to pay a penalty." But where the penalty used to be high three figures, now it's zero.

Dan (00:05:16):


Will (00:05:17):

Suddenly, they take the penalty and impose a penalty of zero dollars.

Dan (00:05:20):


Dan (00:05:22):

Very severe penalty, the zero dollar penalty.

Will (00:05:24):

Then come in three legal technicalities, which combine to make this lawsuit. One is the legal technicality of the Court's tax power jurisprudence, which the Court has generally been very, very generous about the power to tax, and it let Congress do all sorts of things that are shady like tax machine guns or drugs, even though Congress might not be able to regulate them directly. In the course of doing so, the Court said, "Well it's fine as long as the tax raises a non-negligible amount of revenue. That's what make it constitutional." Well, this language now comes back to bite Congress because a zero dollar tax raises no revenue. Suddenly you can say in the course of zeroing out the individual mandate, Congress either inadvertently or inadvertently made the mandate unconstitutional if you take this doctrinal test literally.

Dan (00:06:10):

It's not a tax anymore. It's not a valid tax, at least.

Will (00:06:13):

Right, it's now an invalid tax.

Dan (00:06:15):


Will (00:06:15):

Now, normally an invalid tax of zero dollars would not matter. All right, you don't have to pay the zero dollars that the statute says you have to pay.

Dan (00:06:23):

Yeah, who cares?

Will (00:06:24):

Who cares? Right. But because of the inseverability argument, which remember, four justices thought was correct that if the individual mandate is unconstitutional, it brings down the whole statute. Well, if the individual mandate has suddenly been made unconstitutional, does it now successfully bring down the whole statute? That's technicality two. But the threat when you think about severability, lots of questions. But that's at least an facially plausible severability argument. [crosstalk 00:06:49]

Dan (00:06:48):

Well, a lot of people think it's facially implausible, but we'll get to that.

Will (00:06:51):

Okay, that's the argument here. We can describe the argument. Then you need as the third technicality, well, how are you going to get standing? Suppose your theory is this zero dollar tax is now an unconstitutional zero dollar tax. Therefore, its unconstitutionality kind of dominoes down the whole statute. Somehow, we need to be able to get in the court to sue about that. That, it turns out, is where this all got hung up.

Dan (00:07:19):

Yeah, and we'll the to that last part in a second. I do want to linger on the merits a little bit. Just to make clear, a lot of people, not everybody, but a lot of people both on the left and the right, described the legal theory here as really wrong and maybe frivolous. I wonder whether we can sort of describe anything in a way that makes it a little plausible. I do think that this argument had this kind of weird, too clever by half, reverse bank shot thing to it, where you get enough smart conservative lawyers in state at AG and SG's offices trying to come up with the best arguments. They have this, string it all together. I think it's clever. But I just think if you take a step back, the whole thing, it just strikes me as a little ridiculous, and I'm not the only one.

Will (00:08:18):

I have to say, this has driven me crazy. I don't buy this argument. I think it fails on multiple grounds, but I don't see what's so ridiculous about it either at the micro level or the take a step back level. It seems not at all crazy to think that Congress might have done something to a statute, sort of a complicated interlocking statute, that broke it effectively. And not at all crazy to imagine that republicans in the 2017 Congress where in the breaking things mood.

Dan (00:08:50):

Yes, although there's a few arguments. One is if you're trying to figure out this severability question, doesn't it make at least some sense to look at what Congress did in 2017 and say, "Well, look. This Congress could have, if it chose to, gotten rid of the whole thing." They didn't do that. They didn't choose to do that. They chose to get rid of only this one piece of it.

Will (00:09:17):

Could they have though? Didn't they do the only thing they could?

Dan (00:09:19):

Well they had the power to do so, they didn't have the political ability to do so. They certainly could have done something.

Will (00:09:27):

I don't know what it means, could. Presumably, they did what they had the votes to do.

Dan (00:09:31):

Right, but the question is, we're trying to answer what Congress wanted. We're trying to figure out in some sense, and we can get into what exactly this whole severability inquiry is. I'm sure you have some interesting thoughts about that. I think I hopefully do as well. There's a couple things. One is, I'm dubious that the claim that Congress necessarily would have wanted the entire thing to be struck down by the Court just because the digital mandate, the original Congress, just because the mandate became zero dollars. That strikes me as, to the extent that that's the relevant inquiry, that strikes me as kind of an implausible claim.

Dan (00:10:07):

Also, I think it's weird to say we don't look at all at what Congress did in order to figure out what the larger intent of Congress is. We don't look at the fact that Congress, the later Congress, didn't repeal the whole thing. They just took away this one little provision. Clearly if we're trying to make sense of what Congress did, Congress thought these two things could coexist, getting rid of the mandate and the rest of it. Because Congress certainly had the formal power to get rid of all of them.

Will (00:10:37):

This is the part I'm talking about, Congress. One majority of Congress had the power to appeal the individual mandate, or to zero out the individual mandate, which they did. A larger majority of Congress would have the power to do more. What happened was that the small majority of Congress agreed on what to do. The large majority of Congress didn't agree on what to do. And how to think about the respective powers of those two Congresses, the 50 vote majority congress and the 60 vote majority Congress, it's not obvious what severability doctrine wants us to do there.

Dan (00:11:09):

I thought they actually had the opportunity to get rid of it with the 50, with the bare majority. Because isn't there the famous moment where McCain gave the thumbs down?

Will (00:11:18):

Yes, but even that wouldn't let them get rid of... even McCain wouldn't let them get rid of the whole statute, which is I take it part of the question we're asking here.

Dan (00:11:27):

Okay, well let's circle back. Let's circle back.

Will (00:11:30):

I'll just say, I don't believe in these counter factual... this strikes me as a good example of a counter factual, what did Congress want inquiries are not necessarily the best ones. Maybe why this whole severability thing is not a good question to ask.

Dan (00:11:42):


Will (00:11:44):

I'll just say, I think it's not as ridiculous [crosstalk 00:11:48]

Dan (00:11:47):

Can we just basically explain, because we're probably going to get away from this in a second as you're talking about standing. But maybe we should just, for the un-illuminated, explain this idea of severability a little bit more. Basically, the idea being you have a lawsuit. You're challenging some statute. The court says, "This provision in the statute is unconstitutional." Then the court is making some kind of inquiry into... it's not exactly clear. Is this statutory interpretation? Is this law of remedies? But they're making some kind of inquiry into, well, if this provision is unconstitutional, what flows from it? Does it mean that this entire act that was passed simultaneously is unconstitutional? Does it mean we just kind of use a surgical knife and sever out this part of it, and the rest of it continues?

Dan (00:12:32):

I think, and I suspect you think too, that this is kind of maybe the wrong way to think about. It's this 1L conception of what courts are doing in common cases. They're not physically going in and editing statute laws. What you're doing is, you're going in and saying, "I want an injunction from a court that says you can't enforce this against me." It seems like courts got a little carried away with some of the language here. Some have this conception that we're just kind of editing the statute. We're kind of snipping out these provisions. That's not really what they do.

Will (00:13:10):

Right. You're exactly right about what the inquiry is and you're exactly right about the problem. Once we start talking about things like courts striking down statutes, then we can start to actually ask ourselves, okay, they struck down the statute. How much of the statute did they hit? Did they take a sledgehammer to the whole statute, or did they knock out just the drywall where they wanted to make a new door? What's going on?

Dan (00:13:32):

The statute is a house.

Will (00:13:34):

A little bit.

Dan (00:13:35):


Will (00:13:35):

But it's not clear that it's the right way to think about it at all. Thinking about it that way may just be part of what leads you into confusion. I'm actually working on a paper trying to clear all this up, so I've been waiting for the court to issue this opinion so I can see how much they messed it up.

Dan (00:13:47):

I feel like you've got a lot of works in progress that come up anytime we talk about any legal issue.

Will (00:13:52):

Yeah, but how many of them actually get published? That's the problem.

Dan (00:13:53):

We'll see.

Will (00:13:54):

I should do fewer podcasts. That's the severability question. One of the many questions the court asks when it does this is, can the unconstitutional... can the rest of the statute function without the unconstitutional part? If you imagine a statute that had a definition, a word that was defined throughout the statute. Somehow, the definition were unconstitutional. It might be that the whole statute would just kind of necessarily collapse once the word wasn't...

Dan (00:14:19):

Yeah. It's not just, would it collapse? It's kind of, at least this describes it sometimes, it's like a legislative intent inquiry. It's like, would they have thought it would collapsed? Or what would they have expected?

Will (00:14:28):

Yeah. As I understand it, the court says three things. They say, "We presume that the statute is severable, that the parts can function independently. Unless it's clear the Congress wouldn't have wanted them to function independently, or unless it's impossible for them to function independently." But why they presume that they function independently and then ask these questions is bizarre, because Congress didn't want them to function independently. Congress enacted them together. That's part of why we are sort of going into these questions about what Congress would have wanted.

Dan (00:14:55):

Congress could always include what are called severability provisions that say, "Look, even if this part is unconstitutional, keep doing the other parts." They don't do that that often for reasons I don't totally understand.

Will (00:15:08):

Yeah, so Congress can include severability and inseverability provisions.

Dan (00:15:12):


Will (00:15:13):

They often do, although the courts are a little bit equivocal on whether they have to follow them or not. Many court opinions say something like, "Those clauses are just kind of guidelines." When they do have them, they don't always answer the question. Sometimes they'll say things like, "These parts are severable from one another." But not actually crisply tell you what to do. There have been a few crazy opinions, I think they're crazy, sometimes trying to invalidate some severability and inseverability clauses. Because if you do them cleverly, you can do all [crosstalk 00:15:42]

Dan (00:15:42):

Can you sever the severability, or find the inseverability clause inseverable or something? Or the severability clause inseverable?

Will (00:15:49):

An example from the '70s is that Congress had a statute paying different amounts of benefits to men than to women, which is a form of unconstitutional gender discrimination, with a clause saying, "If this is challenged, everybody gets the lower amount." Then maybe you would lose your standing to even challenge the provision because if you won, you'd get nothing. The court worked its way around, but it raises constitutional questions.

Dan (00:16:12):

It's slightly different though. Isn't that more of a... it's like a remedial provision, not necessarily a severability provision?

Will (00:16:19):

This is part of the problem. Severability and remedies kind of go...

Dan (00:16:22):

Yeah. Okay, just one other thought about this, not exactly related to what we've been talking about, which is this whole severability inquiry. I think you and I both think this is maybe the wrong way to think about it, but it matters. The reason it matters so much, it would matter less in a world without a senate filibuster. Because the reason this matters so much is, if the... let's say the four Justice dissent and NFIB versus Sebelius got its way. Maybe ever, at least to this point. Because if you remember, the original statute was passed through a filibuster proof majority and then in the Senate. Then things got a little dicey. Ted Kennedy died. Scott Brown replaces him, and then basically they had to just pass the early draft of the bill. They weren't really able to make changes to it because of that unique set of events that happened. I think whereas in a world where we didn't have the senate filibuster, maybe the court strikes it down. Then let's say the 2012 election goes the same way.

Dan (00:17:32):

Then maybe that happens. Maybe then the democrats are able to, in part because of that, retake not just the Senate, but the House in 2012. Then they pass a different law. But in a world where four laws that have partisan valence these days, you really do need a filibuster proof majority. The rare number of laws that sort of sneak through, it's going to be a really, really big deal if you strike down the whole thing, as some justices wanted to do here.

Will (00:18:04):

I think this is true for anything. This is worse in some ways. It's not just about the filibuster and it's not just about striking down the whole thing. But anytime a court finds the provision of a statute unconstitutional, the result will be something that enacting Congress didn't intend, whether it's a halfway statute or it's a completely unconstitutional statute. You'd like a world where Congress would just say, "Okay, well let's try again. Here's our backup option." But in a world where that Congress may have changed, new parties, new presidents, new politics, that's just not consistently realistic. I would like it if Congress did that more often, but they don't. That's why it's so great when Congress does enact a really robust severability or unseverability clause. We can then say, "Okay, Congress says here's the statute and here's our backup plan." But it's hard enough to pass statutes, so it's really hard to pass backup plans.

Dan (00:18:50):

In theory, they could have maybe said, this is a totally alternate universe, but "Here's the Affordable Care Act. The backup is, if the whole thing is struck down, Medicare for all."

Will (00:19:01):


Dan (00:19:03):

Maybe there is an argument there why that's unconstitutional too.

Will (00:19:06):

Right. This is one of the debates that the court gets into a little bit here. There are some ways in which Congress' agenda may be at cross purposes. The individual mandate, the statute does include a bunch of explicit findings about how important the individual mandate is, and how if they don't have the individual mandate, the whole statute is going to be a disaster and not going to work. The purpose of those findings is to bolster the constitutionality into individual mandates that can make a strong, necessary, and proper clause argument that they need the mandate. But those same findings can be plausibly wielded against them on severability grounds.

Will (00:19:39):

You could say, "Look, you told us this thing is so important that if you couldn't have it, the statute was pointless. Well, we're not letting you have it, so I guess you don't want the statute." Of course, the truth is probably Congress would say both, "This is so important that if we can't have it, the world will fall. But also, if we can't have it, the world won't fall. We want to keep as much as we can." But it's hard to do both of those.

Dan (00:19:57):

Yeah. The argument from the challengers here does have this super clever kind of 'got you' feel to it. It's like, "Aha." But all that is neither here nor there because the majority doesn't even reach the merits. We have an opinion by Justice Breyer that says this case should go away because the plaintiffs, there's both individual plaintiffs and there's a bunch of estate plaintiffs. As well, by the way, as originally the federal government during the Trump administration had sided with the challengers and said, "We agree that you have to agree with this theory and declare the Affordable Care Act unconstitutional." But the court says, "You all don't have standing, so go away."

Will (00:20:46):

Right. The individual plaintiffs, again, they're challenging ultimately a zero dollar tax that they're being told they have to pay. But of course, you can't pay a zero dollar tax. The court says, "Look, what relief are they asking for? There are no damages. They didn't ask for an injunction. How could they have sought an inunction? The provision is unenforceable. There is no one and nothing to enjoin. They can't enjoin the health sector of health and human services because he has no power to enforce it against them. They can't enjoin Congress. What are you complaining about?" Which I think is a very good point.

Will (00:21:19):

The states are more complicated. There are also these state plaintiffs who have I guess what's now a triple bank shot theory. They don't have to buy insurance because they're not individuals. Their theory is that they are injured by the other provisions of the act that they say are unseverable from the part that's unconstitutional. The various parts of the ACA are being forced against us. They're not unconstitutional, but look over here. This other part of the act is unconstitutional. Because it's unconstitutional and unseverable, it like an anchor sort of drags down the rest of the act. Therefore, we should get the act discredited.

Dan (00:21:57):

Before we get into the specifics, I think that they may be on the standing point. There actually may be a better argument here than the Court conceded. But just taking a step back from that argument, I mean, it's really, as you said, kind of a triple bank shot there. I just kind of lose the thread at a certain point. I'm just like, "Really? This is getting preposterous." Again, ultimately it strikes me as, we need to approach this with a certain amount of common sense. If this kind of really elaborate Oedipus of doctrine and arguments are getting you to that result, I just think that maybe you should take a step back and say, "Is this really what the law requires, or is this just some really clever thing I've managed to convince myself of because I don't like this law?"

Will (00:22:46):

Look, this is why people hate lawyers. I'll grant you that. I do think there's a sort of common sense narrative in support of the challengers too that when you pass a statute that you know is kind of rickety and flawed, and that your supporters don't even necessarily want because you're unwilling to engage with them in a [inaudible 00:23:05] process, it shouldn't be a surprise that some of those mistakes, like fail indicator car maintained, later come back to haunt you.

Dan (00:23:13):

So, with a car...

Will (00:23:15):

The original Affordable Care Act is rickety.

Dan (00:23:17):

The car, okay.

Will (00:23:17):

It's the car. It's rickety. Then you lend your car to somebody who doesn't really take care of it. They're the Republicans.

Dan (00:23:23):


Will (00:23:24):

Who come in and take out some crucial pieces of your car.

Dan (00:23:27):

And they don't oil it.

Will (00:23:29):

Yeah, well more intentional. They intentionally, I don't know, the car is falling off. They take something out that's important, but it can still run. Then at some point, the car stops running as a consequence of the original rickety design and the subsequent sabotage. That's not crazy as a matter of common sense. It's not pleasant and it's not collaborative, but I mean, this is 2021.

Dan (00:23:51):

Yeah. We need to figure out exactly how much work that car metaphor is leading. Whether that's leading us down the wrong road, so to speak.

Will (00:23:57):

Crash the car. Forget the car.

Dan (00:23:58):

Okay, yeah. On this standing point, I do think that there is something, putting aside the merits, there is something to what they're saying. If what they're saying is, "Look, there's this unconstitutional law" basically. What they're basically saying is, "This whole law is unconstitutional," right? It's unconstitutional for-

Will (00:24:16):

No. This is what's weird about severability. They're saying, "One little piece of the law is unconstitutional. The rest of the law is not unconstitutional. Congress could reenact it if it wanted to, but because Congress left it strapped to an unconstitutional thing, it all [crosstalk 00:24:32]"

Dan (00:24:32):

Yeah, fair. But isn't that really a different way of saying constitutionality means of this one thing, it means the entire act has to go. The entire act is invalid. That's sort of what they're saying. They're saying because of constitutional law, this whole act is no good.

Will (00:24:52):

Kind of. This is what's weird about the severability metaphor. I don't know if this matters, but technically what they're saying is, "Congress instructed you not to apply any provision of the Affordable Care Act to us if you found the mandate unconstitutional. Because the mandate is unconstitutional, Congress has effectively sunsetted the Affordable Care Act." That's their claim. Now, I think we disagree with the severability claim. We don't think Congress gave that instruction. But if Congress did give that instruction, if Congress very clearly said, "Look, this whole act is," I'll try it one more time, "a finely tuned piece of machinery. If you take out one gear, we'd prefer for you to just drop the whole thing." If Congress said that, it wouldn't be crazy for the state to come in and say...

Dan (00:25:32):

Say what?

Dan (00:25:32):

Say the thing that I'm saying.

Will (00:25:34):


Will (00:25:34):

It's not technically invalid. That's the only [crosstalk 00:25:37]

Dan (00:25:36):

They're saying...

Will (00:25:38):

It's just not enforced.

Dan (00:25:40):

The car has no driver. Please don't make it crash into us.

Will (00:25:43):

Yeah, I'll take that.

Dan (00:25:43):

Okay, yes. Obviously if they were saying this entire law is totally unconstitutional, rather than just invalid through this kind of indirect means of severability. Clearly we agree there would be standing, right?

Will (00:26:00):


Dan (00:26:00):

Okay. The problem is, don't have any actual injury in fact from the specific part of the law that is actually the subject of the constitutional challenge.

Will (00:26:13):

This is part of the mystery. Is that the problem? They don't have standing and it's a little unclear to me why. I think one possibility would be you reject bank shot standing. You say, "You have to be injured by the specific version of the law that's unconstitutional. You can't don't crash the driverless car into me," argument. I don't think the majority says that. A second possibility would be to just say, "The severability arguments are really bad. Yes, you can get standing if you had good severability arguments, but your severability arguments are really bad."

Dan (00:26:44):

You interpret, decide those, at the standing stage, the merits of those.

Will (00:26:48):

Right. Or at least a different version of that would be to kind of at least peak at them. There are hints of this. When they start talking about how the injury the states have is not traceable to the unconstitutional mandate. I take it if they were really good in the severability argument, they would be more traceable. We would say, "It's very clear these things are connected the more distance they are." Then the third possibility is that the... you just put your fingers in your ear saying, "No, no, no. I can't hear you." There are places where the majority opinion does that where it just says, "Yeah, there are some other interesting standing arguments that weren't raised until the reply brief, that weren't adequately raised below, that we're not willing to talk about." There are parts of this that the majority seems to be trying to not...

Dan (00:27:32):

Yeah. We should talk a little bit about who is in the majority. The breakdown here is a little bit interesting. It's a Breyer opinion. Pretty good get for Breyer, although he is now one of the more senior associate justices. Joined by the Chief, Justice Thomas, Justice Sotomayor, Justice Kagan, Justice Kavanaugh, and Justice Barrett. Despite senate democrats' worries, their proclamations that she was being rushed through to strike down the Affordable Care Act. She doesn't do that.

Dan (00:28:03):

Then we have a concurrence by Justice Thomas, who does though, who does join the majority in full. Then in dissent, we have Justice Alito joined by Justice Gorsuch. Interesting here. Now, one could make sort of a more cynical argument, which is that the liberal justices tend to not be standing hawks. Standing is about, how do you get into court? What are the constitutional limits, both in terms of article three and then sometimes statutory standing requirements that say, "When are you allowed to come into court and sue for something?" The liberal justices usually are not as aggressive in dialing that back. They kind of like people to be able to challenge stuff.

Dan (00:28:47):

One of the cases that really kind of made it easier arguably for states to have standing was a case where Justice Kennedy sided with the liberal justices. Not all the same personnel who are on the court now, but in Massachusets versus EPA where they said the states consumed a demand that the EPA look into climate change. You have the liberal justices all saying, sort of agreeing, no standing here. What one might wonder is, is this the court trying really hard to find narrow grounds that basically people can live with to avoid doing something really controversial?

Will (00:29:25):

I do think there is some of that. We talked about this. Lawsuit is rickety. It has multiple steps you have to squint at to think about them. There are lots of different plausible ways to reject it, but no one of them is so clearly the silver bullet. You could easily imagine a world where there are like five separate opinions going off on different aspects of the analysis. It's nice that they seem to try to find some common ground the first step.

Dan (00:29:54):

Yeah. Not as many people wrote as you might expect. Majority opinion, not super long. Only 16 pages. The Thomas concurrence is actually only six pages, which might be a record for him, because he tends to write really long opinions. But then we have a lengthier-

Will (00:30:10):

He has some good one pages.

Dan (00:30:12):

A lengthier dissent by Justice Alito. A 32 page dissent. I suspect he was kind of holding things up. I think he tends to be a little slow on dissents. I think that the longer the case had gone on, the more people started to really wonder, are they doing something that we're not expecting in this case? This was not exactly the expected outcome, because I think some people thought they would reach the merits. But this is at least the expected result, get rid of the case.

Will (00:30:42):

Yeah. One last thing I want to flag, which is the thing I am most interested in. In NFIB versus Sebelius, four justices, Justice Thomas among them, concluded that the whole statute was unseverable and had to fall. Since then, Justice Thomas has written a terrific series of opinions, joined by Justice Gorsuch most of the time saying, "The severability inquiry doesn't make sense." Along the lines of what we've been saying. That in general, courts don't have the power to do that kind of thing. You should just not enforce this particular commission issue. As far as I know, one thing he never did was explain whether that meant he was wrong in NFIB versus Sebelius. He doesn't quite do that here, although his concurring opinion seems to at least... I don't know. It's not exactly saying he was clearly right with NFIB versus Sebelius after all, which is interesting and I think potentially welcome.

Will (00:31:35):

Justice Gorsuch by contrast, the other member of this new theory, joins with Justice Alito. There are parts of Justice Alito's dissent that appear to be written sort of for Justice Gorsuch. Justice Alito says, "Here's why I think it's unseverable." And then says, "Here's why it's also unseverable under the new approach of severability that some of our colleagues have proposed." Which doesn't seem right to me at all, but it's just interesting to watch the working out of this new Thomas Gorsuch non-severability theory, and to see them I guess struggling with it amongst themselves. This is what my article is going to be about if I ever finish it.

Dan (00:32:07):

I'm looking forward to it. Yeah, so there's a lot to talk about within that Alito dissent, but we're probably not going to cover it all. There is kind of a spicy closing paragraph where he says, "No one can fail to be impressed by the lengths to which this court has been willing to go to defend the ACA against all threats. The penalty is a tax," referring of course to NFIB versus Sebelius, which we've been talking about. "The United States is a state." That's referring to another case, King versus Burwell, that we didn't mention, but it was a statutory challenge to something under the ACA that the court managed to dodge. 18 states who bare costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. A tax that does not tax is allowed to stand and support one of the biggest government programs in our nation's history. Fans of judicial inventiveness will applaud once again, but I must respectfully dissent.

Will (00:32:57):

Well said.

Dan (00:32:58):

Well, I mean, he didn't go quite so far as Justice Scalia, who I think it was in King versus Burwell said, "We might as well start calling this SCOTUS Care because given how much work the court has done to tinker with the Affordable Care Act.

Will (00:33:13):

Yeah, I think he's got a point. I'm not saying those decisions are all wrong, but I think he's got a point.

Dan (00:33:18):

Yeah, although you could say it would also be completely crazy for the Supreme Court to strike down one of the biggest government programs in our nation's history that provides many thousands of Americans, millions of Americans, with healthcare on this kind of very complicated bank shot, technical, super clever 3L legal theory.

Will (00:33:46):


Dan (00:33:47):

During a global pandemic.

Will (00:33:49):

Sure. I think this is the weakest of the three cases. But I would have thought that the people who support Obamacare would say, "Yes, the court should go to lengths to defend statutes against threats because it's an important social legislation. The court's job is to protect the product of democratic deliberation. If they have to stretch things a little bit to make that work, it's up to you."

Dan (00:34:15):

Say what you want about the other cases. The court should not stretch to come up with, to agree with these kind of convoluted theories. I think that part of what's going on here is Alito still agrees obviously with his original position on Sebelius. The whole thing was unconstitutional for that reason. But I think if you take that off the table and say, "Let's just accept everything that's happened as correct." It just seems like given the stakes here, maybe we should air a little bit on the side of not doing something quite as crazy as this, given the amount of, in my view, stretching that has to make the legal argument work.

Dan (00:34:54):

It just seems like that should give you a little bit of pause. I don't know, this is one thing that I kind of like about the Chief Justice more and more. I feel like he has a certain amount of, over the years, he's demonstrated a certain amount of just common sense. I feel like the ACA cases are ones where he has really brought that common sense to bear. Which is like, come on. Are we really going to do this? Some of the others don't approach cases that way.

Will (00:35:20):

He is a very sensible man.

Dan (00:35:21):

A ton more we could say about that, but we should talk about some of the other interesting cases. Kind of as predicted, they did try to jam us up a little bit. They gave us basically nothing to work with for a while, which is why we've been delinquent and not recording episodes. We don't really want to just talk for an hour about a case that you all, our listeners, wouldn't be thrilled to hear about. But now they've given us multiple interesting ones where we have to try to squeeze it all in. The other one is Fulton versus City of Philadelphia. Another case that we've been I think eagerly awaiting, it's a case about, at a high level, you could say it's a conflict between religious liberty and gay rights.

Dan (00:36:06):

Basically what was going on here is the challengers, the plaintiffs, are associated with Catholic Social Services, which provides adoption services, which is an adoption services provider in Philadelphia. They screen parents. They're not the only organization. There's a number of other organizations that do this, but they screen parents and try to pair them up with kids who are in need of adoptive parents. They're Catholic. They're connected to the Catholic church. The Catholic church has old school views on marriage and doesn't agree with gay marriage. So, the Catholic Social Services does not work with same sex parents, people in same sex marriages.

Dan (00:36:48):

As I understand it, this has never actually come up. No one has ever actually approached them and said, "Hey, will you work with us?" A same sex couple, and they've said, "No." But they've basically said, "This is our policy because of our religion." The city basically tried to say, "Well, that's not our policy. Our policy is you have to adhere to these nondiscriminatory rules. If you won't adhere, you can't participate in our program." The question is, does that violate the free exercise clause of the first amendment, or possibly other provisions we're not going to talk about?

Will (00:37:24):

Yeah. The court says yes, it does. Part of the drama in this case is not just about the facts and the conflict, although that's part of it. But there is also kind of a legal drama about a character named Employment Division versus Smith, which is the court's now 30-year-old precedent on what the free exercise clause means, which the court had agreed to consider overruling and at least purports not to overrule here. But under Smith, if a law is neutral, if there's a general law, a neutral law of general applicability, then there isn't a free exercise right to an exemption. In that case it was drugs, but whatever it is.

Dan (00:37:59):

In that case, it was a Native American, Al Smith, and another guy named Galen Black who is not a Native American, were basically using peyote. They were denied unemployment benefits because they were fired for using peyote as part of an Indian religious ceremony. Does that violate our free exercise Supreme Court? It does some kind of weird procedural stuff, but ultimately ends up with the rule that you just described. This is Al Smith.

Will (00:38:23):

I met him, but-

Dan (00:38:24):

He was old. Nice guy. Have you met any name plaintiffs in classic Supreme Court cases?

Will (00:38:31):

That's a great question. I don't remember. I don't remember. I don't think so.

Dan (00:38:35):

Okay. Well, if there are any listening, set up a time with Will so he can add someone to his list of famous parties in Supreme Court cases. Yeah, so the Court had said, "Should we overrule this?" Maybe they already did in a shadow docket order earlier this term, as we talked about a little bit in either our first or second episode of this podcast. The two episodes, dealing with The Shadow Docket. But here, when they actually are clearly addressing the question, they don't. They say they don't at least.

Will (00:39:08):

Well, so what they say is that this idea of a law of general applicability doesn't apply to a law that has say a standard of exception. Because the statute here, the sort of anti-discrimination policy of the city, also contains exceptions. Just contains a general, we can make exceptions. That's enough to make it not a general law. The city says, "We have another law. We don't really make exceptions." They get in the weeds about the exact state of Philadelphia's law and contracting about these things. But that's the general point.

Dan (00:39:41):

This is one of a couple dubious things I think the court says in this opinion. Before we get more in the weeds on that, we should just again talk about the line up. There's actually a little bit of a flavor of the other case, California versus Texas here, where what we have is an opinion that brings together some of the liberal and conservative justices. We've got, this is an opinion by the Chief, but joined by Justices Breyer and Sotomayor and Kagan, but also Justices Kavanaugh and Barrett. Kind of a right left thing going on here. We also have a separate opinion by Justice Barrett that Justice Kavanaugh joins. We'll talk about that in a minute.

Will (00:40:18):

And Justice Breyer.

Dan (00:40:19):


Will (00:40:20):

And Justice Breyer.

Dan (00:40:21):

Yeah, and Justice Breyer joins in part, except for a key paragraph, which we'll talk about in a minute. Then we have Justice Alito joined by Justices Thomas and Gorsuch writing a separate opinion of how they don't agree with how the majority is dealing with it. They say that they would have gone much bigger and actually overruled Smith. In both this and the previous case, we've got the court coalescing, a majority coalescing, on kind of a narrow ground of decision. And arguably a ground of decision that you wouldn't necessarily have expected the liberal justices to agree with. But that heads off an outcome that maybe liberal justices wanted to avoid the court reaching. They don't say they're doing that. That's not the only way to interpret what they're doing here, but it was notable to me.

Will (00:41:11):

There's a really interesting dynamic going on here. Probably somebody needs to write an article about it if they haven't already. We talk a lot about constitutional avoidance, how the court might read things in a shady way to avoid having to declare something unconstitutional. That's what the court was accused of doing back in NFIB versus Sebelius. In a way, we have here something more like overruling avoidance. Here, the Court finds what Philadelphia did unconstitutional. Somebody maybe has to squint to make it really unconstitutional, so as to avoid having to overrule a precedent. Which is another thing that some people on the Court think is really costly, and other people on the Court urge them to get into. Instead of constitutional avoidance, it's precedent avoidance of anti-precedent avoidance. But it's part of-

Dan (00:41:57):

I feel like this is a good article for a very early career scholar.

Will (00:42:01):


Dan (00:42:01):

It just needs a clever title. Unconstitutional Avoidance. Does that work? I don't know. See if it works.

Will (00:42:08):

The New Avoidance, I don't know. I'm bad with titles.

Dan (00:42:11):

Here, the court is stretching to find-

Will (00:42:12):

Why people should care about the order docket. Was that the original title of The Shadow Docket? Paying attention to the orders list.

Dan (00:42:18):

I thought it was like why people should pay attention to the orders list, or something even worse than that.

Will (00:42:22):

I think it was going to be called on paying attention to the orders list.

Dan (00:42:26):

Oh, that's even worse. Start with the preposition, great.

Will (00:42:27):

It was that.

Dan (00:42:27):

Okay, but yeah. Back to what you were saying.

Will (00:42:27):

Here, the Court is squinting in various ways at the facts of the case to make something unconstitutional. Everybody is onboard. The Court is unanimous to find this unconstitutional so that they don't have to decide whether to overrule the Employment Division versus Smith.

Dan (00:42:46):

Yeah. I think if you and I had talked about this case and December or something, I mean, wouldn't you have thought maybe the most likely thing would be, you have the three liberal justices in dissent saying, "This is constitutional. This is fine." Then some number of the conservatives, five or six maybe, coming around and saying, "This is not fine." And probably that Smith should be overruled.

Will (00:43:11):

That's probably what I would have said, yes, if you asked me to predict. But there are some of these opinions in the free exercise area. I'm thinking of, I think it was called Our Lady of Guadalupe versus Morrissey-Berru. Sort of a ministerial exception case where it was not a 5-4 lineup. I think Justice Kagan and Justice Breyer joined a free exercise case you may not have expected. It may have had a similar dynamic. I do think the free exercise area seems to be a place where there's not a... yeah. It's usually a place where the justices are sometimes able to find common ground.

Dan (00:43:46):

Yeah, and we'll see a little bit of that when we get down to talking about Justice Breyer or Justice Barrett's opinion that he joins. But just sticking with the majority for a minute, I found that there were a couple moves in this majority opinion that I found kind of less than persuasive. One was the one you mentioned where they basically say, "Well, we read this policy that you have. There's this thing in it that says there's other exceptions that the director may make." Apparently no one has ever done this. This has never actually been granted but they're like, "Ha, we found this. Therefore, this is not a Smith case anymore." I wasn't totally convinced by that.

Will (00:44:24):

Because you don't think that's the best reading or because you don't think the court should be engaged in this kind of precedent avoidance, collide with employment versus Smith without worrying about it?

Dan (00:44:33):

Well, I guess I'm going to put aside whether I think they should do that or not. But I think it at least seemed like a place where they were desperately looking for something to hang their hat on, right?

Will (00:44:44):

Yeah. I guess in defense, there is this funny dynamic where suddenly, when litigants get to the court on the respondent side and they can tell that they don't have the momentum, they suddenly concoct new readings of what's going on that try to make the case go away. I'm sympathetic to justices who think it's usually a little late for that. If this is really the best reading of the statute, maybe we shouldn't have gotten here. You should have told us that before.

Dan (00:45:12):

Yeah, that's fair. There's another thing the court does which I thought was a little questionable. I want to hear what you think about this, which is later on, the city points to state law. State public accommodations law, to justify their decision not to permit Catholic Social Services to participate. I think it's city law, right?

Will (00:45:39):

Yeah, it's public accommodations.

Dan (00:45:41):

Yeah. One other thing, argument, that the city makes, is it points to the city ordinance on public accommodations as justification for why we're not going to let Catholic Social Services participate. Basically, that ordinance says public accommodations, if you're in a public accomodation, you can't discriminate against people more or less. Interestingly, what the Court does here is it says, "Well, we're going to interpret that law for you." Which is a little unusual. It's not normally what the court does, is engage in the interpretation of city ordinances. Sometimes it'll talk about the constitutionality of city ordinances. But here they're just like, "No, we read it and we don't really think that applies."

Will (00:46:26):

Indeed. No, the normal thing to do is some federal court may well have to interpret the city ordinance. But normally, the Supreme Court would defer to the lower courts' interpretation of it. They don't do so here. I agree, it's not usual. I think maybe it's wrong. I think that part of what's behind it, common sense Dan should like this I think, is you're the city. You get hauled into the federal court on a federal constitutional question. Then suddenly you come up with some clever state law argument that's going to insulate you from the federal constitutional challenge for technical reasons and say, "Well, it's state law, so you've got to believe us on what it says." I think that's a posture where you're less trustworthy about what state law means because it's being used as an escape hatch. It's not crazy.

Dan (00:47:09):

Isn't the right thing to do there to just say, "This is too late in the game. We're not going to bother getting into that. You can make that argument later." Something like that?

Will (00:47:16):

Well, I gather it's not too late in the game, because I gather they raised this for the district court and the district court bought it.

Dan (00:47:20):

I guess so.

Will (00:47:21):

Maybe that's the reason this is just a bad vehicle.

Dan (00:47:25):

Yeah. The thing that I'm confused about is, let's say this goes back through the state court system somehow. There is some new preceding. Someone goes to state court, or I don't know, Philadelphia city court. We get some kind of definitive state interpretation of the city ordinates that says, "No, this actually does apply." We've got to do this all over again, right? The city court was just wrong. They misread Philadelphia local ordinates.

Will (00:47:57):

Under current Erie doctrine, that's right. Under current Erie doctrine, I believe the state Supreme Court's construction of state law would bind the U.S. Supreme Court.

Dan (00:48:06):

I'm not even sure that that's different even if we change Erie. As I understand, a lot of the pre-Erie cases would find general law independently, but they would often defer to state constructions of state statutes.

Will (00:48:20):

They would defer to them, but not invariably. The question is whether under the Rules of Decisions Act, a state Supreme Court decision is a law that's binding or not. That's one of the things that Erie talks about.

Dan (00:48:30):

Yeah, but you might defer to it even if it's not conclusive.

Will (00:48:34):


Dan (00:48:35):


Will (00:48:35):

But you might also defer to it, but still reject it sometimes. The Supreme Court might say... look, there's a lot of funny stuff going on in this opinion. If that's your point, I agree.

Dan (00:48:44):

The city could also just say, "Okay, our policy, we're getting rid of this discretionary exemption thing, which we've never used anyways." Then we also have to do this whole thing over again, right?

Will (00:48:54):


Dan (00:48:54):

It has the feel of kind of a, I think this has been... tell me if you think this is fair. This has been kind of a feature of Robert's court jurisprudence, the kick the can down the road move. Maybe we'll go big, but let's just drag this out a little bit. Now, the court, it's not like the Robert's court invented that move. The court has done stuff like that many times over the years. But I do feel like there is that... it does happen a certain amount of the time.

Will (00:49:22):

Yeah, although I think this is another area where... yeah, the court could have gone bigger, and it didn't. I think reasonable minds can differ on whether that's the court stretching to avoid reaching a big issue, or just not stretching to get into the big issue. Which is the rationale, which is the stretch. But more than anything, this case reminds me of Masterpiece Cake Shop four or three years ago, where we also had a conflict between religious liberty and gay rights. We also had these big arguments about how to resolve the conflict that the Court declined to answer by instead kind of resolving in a fact specific way that kicks the can down the road if it were to happen again.

Dan (00:50:00):

They are noting that there were some comments made earlier in the case by, I think it was by the State Human Rights Commissioners, which seemed to indicate hostility towards religion. They said, "Okay, on those specific facts, this is not permissible."

Will (00:50:16):

Here, it's not hostility.

Dan (00:50:17):

That's going to come back. We can get to that in a minute. Masterpiece Cake Shop itself is going to come back.

Will (00:50:22):

They may well come back. I think it's invoked in one of the Senates. There are many other similarities. They're both enterprises where there are a bunch of enterprises that you could use. But for some reason, it's this cake shop and this social service agency that they want to litigate about. Complicated city politics, religion, and gay rights. On sight, there are a lot of similarities. Maybe the can is just going to be kicked down the road a little further until Masterpiece 3 or something else.

Dan (00:50:51):

Yeah, okay. Is that enough about the majority? Should we talk more about-

Will (00:50:56):


Dan (00:50:57):

Okay. Majority successfully kicks the can, but then we have separate opinion concurring. Justice Barrett concurs with the whole majority. She is joined by Justice Kavanaugh, and then she is joined by Justice Breyer except for the first paragraph. In the first paragraph of this opinion, she says basically, "Look, there's Smith. A lot of people say Smith should be overruled." She says, "I think the historical record is more silent than supportive on the question of whether the founding generation understood the first amendment require religious exemptions from generally applicable laws, and at least some circumstances." That was interesting. She started saying, "Look, as an original matter, I'm really not sure." But there are textual and structural arguments that she finds more compelling.

Dan (00:51:39):

I'm not ready with you to say Justice Barrett is my favorite justice. She'd have a long ways to go before I get there, but I actually did like this. I liked this opinion where she says, "Look, if we get rid of Smith, what happens after that?" Here's where Justice Breyer comes in. I want to try to figure out exactly what he's saying by joining this part. She says, "Some people say we just would go to strict scrutiny for all laws that burden religious exercise in some way." But she says, and I think this seems right, "That seems a little too broad. In these other areas of the first amendment, the doctrine is a lot more nuanced. We'd have to really kind of work that out. But we don't need to figure that out because here, we have a basis for deciding the case that doesn't require us to overrule Smith."

Will (00:52:31):

Right, this is great. This is the good question that justices should be asking about precedent. Fine, I'm inclining that this precedent is wrong, but we should think about what's right. If we don't know what's right, that's maybe a reason not to be in a rush to rule it. I do also love just the pure semantics of this. As you said, the first paragraph is, "I think Smith is probably wrong, although I think it's complicated and I don't endorse all the echos against it." The second paragraph begins with the question, "Yet what should replace Smith?" Justice Breyer doesn't join the first paragraph. Justice Breyer's opinion just begins, "Yet what should replace Smith?" Sort of out of nowhere, which is exactly the way Justice Breyer would begin. It's very well done.

Dan (00:53:13):

Except he would have an appendix.

Will (00:53:15):

That's true.

Dan (00:53:17):

Yeah. I guess by joining that part, maybe he's saying, "Look, if you're going to get rid of Smith, I agree with these reservations about going too broad in the other direction."

Will (00:53:26):

Yeah, I think that's right. I think that's exactly right. And maybe signaling, maybe by joining this the three of them are signaling together, to the extent we're going to overrule Smith, the three of us are interested in trying to find some common ground about how to do that.

Dan (00:53:39):

Yeah. It would be pretty significant. I think as I understand it, not really the way the law worked pre-Smith. It would be pretty significant to say, "Every time there's a law that in some way burdens religious exercise, strict scrutiny." That would be messy. There would be a lot of potential challenges to a lot of potential loss. A lot of loss.

Will (00:54:00):

Yes, although the devil would be in the details. I think what counts as a burden, which may have once been a more restrictive inquiry and has now become a more lax inquiry. What does strict scrutiny look like? Which may have once been more permissive but has now become more strict. It's funny because Justice Breyer-

Dan (00:54:14):

Fatal [crosstalk 00:54:16] as they say.

Will (00:54:16):

Yeah, I think as they say. Justice Breyer's actually one of the big believers in kind of more nuanced balancing tests. He would be the national person to say, "Oh yeah. Actually, I think there is a... we don't have to go to strict scrutiny. Here's how I would balance burdens and government functions and religious exercise if I had to."

Dan (00:54:34):

That was all interesting. Now we have Justice Alito's concurrence in the judgment, he's got Justice Thomas and Justice Gorsuch. This is a long one. This is 77 pages. I did read the whole thing. I can't say I read parts of it super carefully because there's parts of it that are just really... he goes through everything. It's basically written like this is the opinion that would overrule Smith. He goes through all of the original understanding, goes through a bunch of history. Then he goes through the stare decisis analysis. All the factors for why you should or shouldn't overrule an opinion. I don't think so, but I should just ask the question. We don't think that this started out as what the court was going to do, and then people jumped off the ship, right? Sometimes stuff like that happens, where somebody writes a really broad thing.

Will (00:55:25):

I don't think so. I think if I remember correctly, the Chief needs an opinion from that sitting. It seems most likely that he took this opinion on himself to begin with. Once the opinions are out, I do want to go back. Maybe in a future episode just go back to the... for people who are not this far into the chronology, you can take the month by month argument boards and the assignments. You can sometimes play a kind of LSTAT logic game where you can say, "Oh wow. Justice Thomas ended up with two opinions in this sitting. Justice Alito ended up with zero. That means he must have lost one." I'd like to go back and do the math at some point.

Dan (00:55:56):

Yeah, I'm looking at the SCOTUS blog statistics page, which it looks like has been updated today.

Will (00:56:02):

It is now.

Dan (00:56:04):

According to this, it really actually could've gone either way because the Chief had two, heading into December and Alito had two heading into December. Alito doesn't end up with one coming out of December, interestingly.

Will (00:56:17):

Right, but the Chief had surely given himself one in December. That's one.

Dan (00:56:21):

That's the thing that kind of makes the difference, is that he doesn't usually give himself none and give everybody else something, right?

Will (00:56:28):

And I don't think we have all of the December opinions yet, do we?

Dan (00:56:30):

Oh yeah. We don't have Collin's. Yeah, that's true. We don't have Collin's.

Will (00:56:36):

If Alito writes Collin's...

Dan (00:56:37):

If Alito writes Collin's, that definitely rules out my theory. If Breyer writes Collin's...

Will (00:56:42):

Or if the Chief writes Collin's, yeah. Now, that's interesting.

Dan (00:56:48):

I'm on SCOTUS blog statistics page, and the Chief authored one in October, one in November. Alito offered two in October and none in November. We now have all the November and October cases. That does suggest that you're right that probably it's unlikely that the Chief would have assigned this to Alito and not assigned himself anything.

Will (00:57:16):

Unless there are more moving parts with some other opinions [crosstalk 00:57:18]

Dan (00:57:18):

Yeah, some kind of per curiam we don't know about or something. Probably not, but it's always fun to guess about that. Super long opinion, super long. Lots of things to talk about here and I don't know where to begin. In terms of the substance of the arguments about original understanding of free exercise, I don't really have a lot of priors about that. It does seem like there's some pretty strong arguments that Smith is wrong. One thing that I thought was interesting was Justice Alito trying to justify how Justice Scalia could have faltered. How homer nodded in this one cases is Smith, because Smith is a Scalia opinion and the conservative justices are... It's kind of like after Caesar dies, Caesar gets to be a god. I think the conservative justices have kind of elevated Justice Scalia to the pantheon at this point. But they're now having to reconcile how this revered figure could have screwed up so badly in Smith. In Justice Alito's opinion, he talks about how the Smith doesn't really interpret the text of the free exercise clause in a way that Justice Alito finds persuasive.

Dan (00:58:37):

He says, "This strange treatment of the constitutional text cannot be justified. It is especially surprising since it clashes so sharply with the way in which Smith's author, Justice Scalia, generally treated the text of the Constitution, and indeed with his entire theory of legal interpretation." Then he quotes from Scalia's book A Matter of Interpretation, cites other Scalia opinions. Then says, I like this, "Justice Scalia's opinion for the Court in District of Columbia versus Heller," the famous second amendment case, "is a prime example of his usual approach. It is a model of what a reexamination of the free exercise clause should entail." I thought this was interesting. They're basically saying, "We need to out-Scalia Scalia. We need to adhere more to Scalia principles by reconsidering Smith. Scalia, in that case, he kind of just lost sight of his own Scalia-ness. We can honor his memory by overruling this case."

Will (00:59:33):

That's great.

Dan (00:59:34):

Have you struggled with that, Will? I don't know how much of a Scalia fanboyism you have. You seem to suppress it.

Will (00:59:41):

I think it's correct that DC versus Heller is a model traditional opinion, and that we should rewrite all the opinions to be more like Heller.

Dan (00:59:49):

Okay, we may given time, given time.

Will (00:59:52):

Apparently Scalia is going to help.

Dan (00:59:57):

Yeah. Although interestingly, Justice Alito is not a consistent originalist. He makes fun of originalism sometimes, but he thinks Heller is great and it's a model. Here at least, it is a place where he wouldn't want to really lean much more on...

Will (01:00:12):

I think it's a well known fact for Justice Scalia that he had two commitments, one to rules and one to originalism. That was fine when in the model case, he thought the original meaning of the constitution contained a rule and has been replaced with the war in court with some sort of goofy standard. Sometimes it's easy for him to pitch against it. Then the cases where the original meaning of the constitution might have actually been more of a standard sometimes caught him up. I think this is one of them. This is not my area, but I tend to think the critics of Smith are probably right and that Justice Scalia's fear of standards, traditional discretion, and anarchy probably let him put his thumb on the wrong side of the scale.

Dan (01:00:54):

One final thought. The Scalia fanboyism on the right is just the conservative version of the RBG worship on the left, both of which I find kind of annoying. But your mileage may vary depending on who you like and who you don't like among those justices.

Will (01:01:12):

I love them both. They're both great.

Dan (01:01:13):

You don't love them both. Do you really?

Will (01:01:16):

In different ways, very different ways.

Dan (01:01:18):

I don't really love either of them. I think they're people. They did some stuff that was good, some stuff that was bad. Some things I like, some things I don't like. You've got to take a balanced view.

Will (01:01:28):

That too, sure.

Dan (01:01:29):

I'm not going to do this court worship here. There's a lot of things to like, a lot of things not to like. Don't get too reverential, Will.

Will (01:01:39):

Good point.

Dan (01:01:39):

Okay, what else? Let's briefly talk about Nestle USA versus Doe. This case, this is another one where hopefully we can provide some help to our listeners. Because this is another one that I think requires some kind of scaffolding to understand it, because there's a lot of... there's some moving pieces. There's a history in precedent here that the court is building on. This is a case that is about the alien tort statute, which is a statute that has precursor, I think, in the first judiciary act, right?

Will (01:02:19):

I'm not even sure it's a precursor. It's basically the same.

Dan (01:02:22):

It's basically the same. I think the language was like they added a comma or something.

Will (01:02:26):

Right. Since 1789, federal has given federal courts jurisdiction to hear suits by aliens in violation of the law of nations.

Dan (01:02:35):

By an alien for a tort only, committed in violation of the law of nations or treaty of the United States. This is now codified at 28 USC 1350, or those of you who like following along at home with your statute book. Here are our plaintiffs, people who are alleging that they were forced into slavery. The country, the Ivory Coast. They're from Mali and they were trafficked into Ivory Coast as child slaves to produce cocoa. They're suing Nestle and another company, Cargill, who Nestle you're familiar with, is a chocolate company I'm sure, who didn't actually own or run any of these cocoa farms in Ivory Coast. But they were kind of involved. They bought cocoa or they kind of helped the farms with training, supplies, things like that. These folks who have these really horrific allegations, which I have no reason to doubt, but we are not established as a matter of fact at this stage, are trying to sue Nestle and Cargill under this act. The theory being that slavery violates the law of nations. Slavers are basically hostis humani generis, enemies of the human race.

Will (01:03:59):

Like pirates.

Dan (01:04:00):

Yeah, like pirates. They frankly seem worse to me than pirates.

Will (01:04:03):


Dan (01:04:04):

Under this statute. Okay, but then here is where... it seems like the kind of thing that someone should be able to get redressed for somewhere, but here is where it's going to get complicated. They're suing under this old, frankly a little mysterious statute. What was this statute doing?

Will (01:04:21):

Okay, so I think what this statute was doing, and I guess much of what I say is the same as what Justice Gorsuch says and what some scholars have said. The statute was giving federal courts federal jurisdiction in a set of cases where there was a suit between an alien and a U.S. citizen, because that's under article three. That's ahead of federal jurisdiction, so diversity for foreign countries. If there was a law of nations common lawsuit available. In technical federal courts terms, you need subject matter jurisdiction and you need a cause of action. This was checking the jurisdiction box saying, "If you have a cause of action, you can go to federal court and enforce it." It was not creating a cause of action. It was just leaving those causes of action to the law of the nations. We talked a little bit about Erie. This was the pre-Erie world where they still had a general common law. The most important general common law they had was the law of nation.

Dan (01:05:12):

Yeah, so this is here where it gets interesting. When they're doing that, they're not creating cause of action, but they thought these causes of action were kind of out there in the general common law [crosstalk 01:05:23]

Will (01:05:23):

The bruiting omnipresence in the sky.

Dan (01:05:25):

Here's where it gets interesting. As I understand it, the court has thus far, although not conclusively, ruled out the possibility. The court has thus far said, "Look, the only causes of action we're really ready to recognize are these things that would have been at the core of law of nations violations a couple hundred years ago." One example being piracy. You can sue a pirate I guess, or you can sue a foreign country who... you can sue somebody who is engaged in piracy against you, right?

Will (01:06:01):

Yeah. The puzzle is what to do now in this world where we don't believe in this bruiting omnipresence in the sky anymore. One option would be to say, "Sorry, no causes of action anymore. The law of nations is dead, so the statute is effectively meaningless."

Dan (01:06:15):

I know some people who still believe in that.

Will (01:06:18):

Right, or we've got to go back to the pre-Erie world. If you're trying to adapt it, I think the best way to understand it is it's just pseudo-dead in the Court's first opinion about the statute Sosa was to say, "Well, basically yes. We technically can create causes of action now because that's what we do now to make the statute work. But we should be really careful about it. We shouldn't do it very easily." We've got a lot of flesh on the bones of what that means.

Dan (01:06:45):

Going back 200 years ago, I think jurisprudentially how they would have understood it is there just is this kind of law of nations out there. It's not this fixed set of things that settled for all time. You can find more rules, find more customs over time I think. It does seem to me maybe a little bit ahistorical to do what some of the justices want to do here, which is just to say, "Okay, this was meant to codify the existing recognized causes of actions, and that's the end of the story."

Will (01:07:24):

Yeah, I agree with that. I agree with that. I think the right inquiry would be to ask something like, is there currently a bruiting omnipresence in the sky, a tort of aiding and abetting slavery as a general... that this meets? Part of the problem is, as I understand it, in this world, so many people don't believe in this inquiry. It's very hard to do it now. International human rights lawyers are-

Dan (01:07:48):

I'm surprised you're being a little dismissive of this inquiry.

Will (01:07:51):


Dan (01:07:51):

You had Steve Sacks on your other podcast describing his theory of how there still can be... you can still have courts finding law that's out there without believing it.

Will (01:08:02):

Right. No, I'm not dismissing it. I think that's exactly what courts need to do. It's just that-

Dan (01:08:05):

Yeah, but it's not a bruiting omnipresence. The argument, which I think is pretty good, which is that courts are kind of looking out there for customs. They're looking out. International law at least strikes me as a place where that's actually not a crazy way to think about it. You look at the way countries are interacting with each other. From that you can say, "Yeah, there is a norm. There's a norm that you don't put people into slavery. There's a norm against child slavery," or something.

Will (01:08:32):

Right, although I think the question wouldn't be disposed as a norm against child slavery, but whether there's a norm against aiding and abiding child slavery.

Dan (01:08:37):

Fair, fair.

Will (01:08:38):

Which would be harder.

Dan (01:08:39):


Will (01:08:39):

No, I'm with you on that. I think it's the right inquiry. This is where the realist formalist thing comes up again. Given the realist turn to international relations and a lot of the recent scholarship in international law, I think there is just a valid question of whether there really are such norms anymore. Whether it's a matter of custom we have these kinds of norms, or whether things are just falling apart too much. It's just a harder translation problem in the modern world. I think it's the question the judges should ask. I think it's actually just really hard.

Dan (01:09:06):

I think the current state of international law is, there's a bunch of people who say there's a bunch of norms. But they tend to be kind of lefty international law professors who just read a bunch of articles and say, "Now we've recognized a norm against stuff we don't like." Then some people, conservatives, are quite skeptical of that. There is some reason to be skeptical of that.

Will (01:09:28):

Maybe it does mirror the public law problem where a bunch of conservatives think there is no such thing as federal common law. All there is, is the tax that's written down. Then a bunch of liberals think, I don't know. There's common law in everything. Miranda is common law. The death penalty is common law, unconstitutional. We have a common law constitution that can include also new things. The truth is somewhere in between those two, where there are principles outside of the text that are real customs.

Dan (01:09:51):

The Goldilocks solution.

Will (01:09:52):


Dan (01:09:56):

Yeah, sometimes there is a Goldilocks solution.

Will (01:09:57):

But it's hard. That's all, that's the right question and it's hard.

Dan (01:10:00):

Okay. That's the kind of background. This is another case where the court was maybe going to do one thing and then kind of goes in a different direction. One of the questions the court was supposed to answer here was whether you can sue corporations under the alien tort statute. They ended up saying, "Forget about that. Instead, the problem is the alien tort statute doesn't apply... doesn't create extra territorial jurisdiction. It doesn't let you sue for stuff that didn't really happen here, or didn't have a really intimate connection with the United States, but happened somewhere else."

Will (01:10:40):

Yeah. I'm glad I didn't answer that corporate liability question because I agree with, I think it's Justice Gorsuch and Justice Alito who say, "Yes, of course you can sue a corporation. There's no reason to think... nothing in the statute says anything about corporations. There's no reason to think being a corporation gives you a special immunity from the statute." I think what's going on here is that the court has the correct intuition towards the statute, and it has grown in a way that it was not what it was originally intended to do. They're struggling with figuring out how to articulate what it's supposed to do and what its limits are. They're unwilling to just go back to first principles. There's just been case after case where this comes up, where it doesn't apply territorially. It doesn't apply to this, it doesn't apply to that. Because they're struggling to find limits to the statute, and they're unwilling to really... I would say unwilling to dig in and find the right ones.

Dan (01:11:29):

Yeah, okay. Here, another one of the cases where you kind of have to go to the end of the syllabus and look at who is joining what. This one is a little weird because the majority opinion is by Justice Thomas, but he doesn't actually have the majorities of the whole thing for parts one and two, which address this question of extraterritoriality. He has got Justices Breyer, Sotomayor, and Kagan, Gorsuch, Kavanaugh, Barrett. He's got the liberal justices and the Trump appointed justices. But then he had this third part of the opinion where he also says, "In addition to this extraterritoriality problem, there is no cause of action here in my view." He doesn't get everybody for that. I thought it was a little odd that he was assigned to write the opinion given that he doesn't... he has this view that doesn't command a majority. It seems like, why not have somebody else write it who can just write an opinion that is the full opinion for the court?

Will (01:12:26):

Yeah, well sometimes that shakes out only in the course of the opinion writing.

Dan (01:12:30):

Yeah, maybe some people were iffy on that and they ultimately decided.

Will (01:12:37):

When you write a draft of an opinion and you circulate it, and people say "I'm onboard with parts one and two, but not three." Some authors are just more willing to say, "Okay, fine. I'll ditch part three. I just want to keep this simple." Other people are more inclined to say, "Well, it's fine. Part three is there. Join it or not." I think Justice Thomas is probably just more willing to say, "We've got a majority for the rationale, part two." He still thinks part three is right, and so do several other people, so just put that out there.

Dan (01:13:00):

Yeah. Then we have a separate opinion by Justice Gorsuch, and enjoined in part by Justice Kavanaugh. He said-

Will (01:13:10):

Or joined in one part by Justice Alito and then joined in another part by Justice Kavanaugh.

Dan (01:13:13):

Oh, sorry. Yeah.

Will (01:13:15):

I love this.

Dan (01:13:15):

I keep getting confused with who is joining what because it's too complicated. He's got two parts. Alito with him for part, Kavanaugh with him for the other part. In part one, he says, "Look, this idea that there is corporate immunity, that's wrong. Nothing in the statute says you can't sue corporations, so that's wrong." But also the second part, and this is where Justice Kavanaugh joins and says, "I agree that we shouldn't recognize new clauses of actions under the alien tort statute."

Will (01:13:47):

Shouldn't create new clauses of action.

Dan (01:13:49):

Yes, shouldn't create. Explain to me what the difference is.

Will (01:13:53):

This goes back to the finding law thing. He is clearly saying we don't have the power to create a new cause of action if there wasn't one before. He is subtly hiding the question of, well, what about a cause of action that's just out there in custom? It doesn't have to be created by this. It would still have to be recognized by us. I think he's not writing that possibility off, but he's not really talking that through.

Dan (01:14:19):

Interesting. I wonder whether for him, it would end up in the same place. But maybe he is giving us-

Will (01:14:24):

I guess here's the thing. For him, it would not end up in the same place. But for his colleagues, it would end up in the same place.

Dan (01:14:30):

I guess the question is, do we think that he thinks there actually are such unsound norms out there?

Will (01:14:35):

I mean, he is the one justice who co-sided Steve Zack's fighting law, so...

Dan (01:14:39):

That's pretty good. First so far, and then we have Justice Sotomayor writing for Justice Breyer, and Kagan sort of disagreeing. Agreeing with the extraterritoriality bit of the opinion, but disagreeing about this cause of action issue. Basically saying there should be other things that we can recognize that you can sue under.

Will (01:15:06):

Right. Yeah, so I take it they are the pushback against... we don't like part three of Justice Thomas' opinion. We didn't join it. We don't agree with it. Then my favorite part is the solo dissent from Justice Alito. Remember, he agreed with Justice Gorsuch that there shouldn't be a special exemption because you are a corporation. For various reasons about how complicated they are, how the claims are raised, he doesn't necessarily agree about any of the other limitations. He is the one justice who is in favor of the plaintiffs this state of the game, right?

Dan (01:15:34):

Yeah, he would send it back down to figure out this other stuff.

Will (01:15:37):

Right, so I will say this. When this case was argued and people were attacking Neal Katyal for representing slavery and all this stuff. If I told you that there was going to be one justice voting in favor of the plaintiffs of this case, a solo dissent, would you have guessed it would be Justice Alito?

Dan (01:15:53):

He would probably be in the bottom two or three maybe I would have guessed.

Will (01:15:59):

Yeah, so good for him.

Dan (01:16:00):

That was an interesting thing about the dynamics of this case, which is Nestle, the corporate defendants, were represented by Neal Katyal. A superstar serving court litigator who is also kind of seen as, during the Trump administration, as a kind of #Resistance lib hero. But this is the case where kind of his new role is as a corporate litigator and resistance figure have came into conflict. He got dunked on a lot on Twitter, in the liberal commentary and some slate and so forth, for being pro child slavery. Now, obviously that's not exactly what he was doing here. That's reducing it. That's being quite reductionist. Nonetheless, I think it is a case where it shows you that maybe doing high paid corporate law is not always consistent with pursuing a particular political agenda, or being seen as a particular political figure.

Will (01:17:00):

Yeah, I interviewed at a law firm a long time ago. They knew I was a sort of Supreme Courts nerd. They were talking to me about all of these various cool jurisdictional cases they had pending that I could be working on, but they were all pending on a tort statute case, a black water case about federal preemption. There were two or three of them at which point the partner sort of laughed in a kind of apologetic way, kind of not, saying "As you can see Will, we have a really great atrocities practice." It was the pro-atrocity side in all these cases.

Dan (01:17:32):

Of course.

Will (01:17:32):


Dan (01:17:33):

There's not the money in anti-atrocities. I know which firm that is. I'm not going to blow them up here though, I'm pretty sure.

Will (01:17:41):

Please don't. Yeah, no. That's part of the way it works.

Dan (01:17:44):

Okay, so those are interesting opinions. Lots more we could talk about. There are some other kind of random things that happened that we're not going to really dig into. One thing that I thought was interesting, maybe we'll just talk about it for a second, is when the Court called for the views of the solicitor general in a case where the plaintiffs are challenging Harvard's basically affirmative action politics and saying they're discriminatory against Asian applicants. Harvard's policy were upheld. To my understanding, I haven't really dug into this, there is a statutory framework that basically applies constitutional rules to private educational institutions. It was upheld, and then the court called for the views of the solicitor general. I thought it was kind of an odd move because what do we really think the Biden's OSG, the Biden's solicitor general office, is going to say in this case? Yeah, you should grant it and overturn affirmative action, and say it's unconstitutional? No, they're not going to do that. I wonder whether that was a kick the can down the road move [crosstalk 01:18:43]

Will (01:18:42):

Yeah. Who is kicking the can in that theory? The people who want a grant are kicking the can because they want a grant later, or the people who don't want a grant are kicking the can?

Dan (01:18:48):

People who don't want a grant. If you don't want the Court to do something, it's always better to kick the can because something could happen, but I don't know.

Will (01:18:56):

It would be interesting to see. I think in the case, there are both legal and factual disputes. Both about sort of, what is Harvard doing to Asian American applicants? Then is it okay? It's interesting to see where... presumably they're going to defend Harvard.

Dan (01:19:10):


Will (01:19:11):

On the facts around the law, or both. It's interesting to see what they...

Dan (01:19:14):

Okay, so I think that's all we can talk about for today. I'm hoping, presuming, we're going to be back early next week, because we're finally in that part of the term where the Court has to keep giving us some interesting stuff. We're certainly not going to take a couple weeks off again for the next end of the term bit. There will be more soon. But in the meantime, that's all we can talk about right now. Thanks so much for listening. Please send us an email at pod.dividedargument.com. Check out our website, dividedargument.com. You can check out our merchandise there, T-shirts and other stuff. You can leave us a voicemail. 314-649-3790. We've already gotten a couple. We will play some of those down the road when the court maybe takes a little bit of a breather. Thanks for listening.

Will (01:20:11):

Most importantly, remember you can rate or review us on iTunes or wherever else you listen to your podcasts. That is really important for helping us find more listeners and helping more listeners find the show.