Divided Argument is live from the University of Chicago Law School! In our first ever episode in front of a live studio audience, we catch up on recent Court-related developments, such as several Justices' recent public remarks pushing back on Court politicization and the Court's latest foray into whether capital prisoners can have spiritual advisors with them in the execution chamber.
Divided Argument is live from the University of Chicago Law School! In our first ever episode in front of a live studio audience, we catch up on recent Court-related developments, such as several Justices' recent public remarks pushing back on Court politicization and the Court's latest foray into whether capital prisoners can have spiritual advisors with them in the execution chamber.
Dan Epps (00:19):
Welcome to Divided Argument on unscheduled, unpredictable live and in-person podcast. I'm Dan Epps.
Will Baude (00:26):
And I'm Will Baude. Well, let's see, this is my first time in a classroom in 566 days. First in-person event for the Constitutional Law Institute here at Chicago, we'll have more. And most importantly, the first live recording of our podcast.
Dan Epps (00:40):
First of two this week, actually.
Will Baude (00:42):
Yeah.
Dan Epps (00:43):
Although I suspect that will be the only two of 2021 for some time. This is my first foray into live speaking of any kind in a mask, I wouldn't recommend it but let's get started. So, we have about an hour and we haven't recorded in a couple of weeks and court's not in session, but court seems to be generating news year round now.
Will Baude (01:05):
Yeah. I missed the time when the court would just go on vacation and nobody had to think about them until after classes started.
Dan Epps (01:11):
Yeah. Although it would give us less ammunition for our podcast.
Will Baude (01:13):
Yeah.
Dan Epps (01:14):
So, what do we got? So, one thing to note is just like University of Chicago, just like Washington University, the Supreme Court is also resuming in-person activities, although with some restrictions. They're going to be holding the Fall oral arguments in-person, but with a largely empty courtroom.
Will Baude (01:34):
Yeah. So, the lawyers are allowed to be there, the press is allowed to be there, right?
Dan Epps (01:38):
Are we allowed to be there?
Will Baude (01:39):
Us?
Dan Epps (01:39):
Yeah.
Will Baude (01:40):
No, you need real press.
Dan Epps (01:41):
Okay. Well it's worth a shot and they're still going to be live streamed.
Will Baude (01:44):
Yeah.
Dan Epps (01:45):
And we'll see where we go after that. So, maybe they will resume letting people in the building in the Spring. Even I had a little debate about this, about whether it was going to be possible for them to drop the live streaming after COVID ends. Do you think that they will just go back to normal, go back to a world where, you know, the argument is live to the press, you know, and to the 40 people in the room who aren't, you know, friends and family of the justices, and then everybody else has to wait for press reports, wait for transcripts or wait for the audio to be released sometimes days later?
Will Baude (02:18):
It's often the same day, right? It's often a few hours.
Dan Epps (02:20):
No. The audio, the live audio, no. They sometimes do the same day audio if they think it's sufficiently important case. But then when the press says, would you do same day audio for this case? They say, no.
Will Baude (02:30):
Okay. It's like the end of the week or something?
Dan Epps (02:32):
Yeah. Friday.
Will Baude (02:33):
I think they're going to go back. I think one big reason they don't like to release live audio is they don't want protesters to think that if they show up in the Supreme Court courtroom and cause trouble, that everybody will hear. And they had, a couple years ago, they had like a bunch of people who snuck into the argument and then started shouting like “Citizens United is bad, it should be overruled” or something like that. And they're like, one person will get arrested and the next person would stand up and they had to.
Dan Epps (02:56):
And so, basically millions of Americans have to not get live access to Supreme Court arguments because they're afraid of one or two hecklers.
Will Baude (03:04):
Yes.
Dan Epps (03:05):
That's not great.
Will Baude (03:05):
You have to wait a few days.
Dan Epps (03:07):
So, maybe the optimal situation is what they're doing now. Like in-person normal arguments and then everybody else can attend on cspan.org.
Will Baude (03:15):
You can't go.
Dan Epps (03:17):
Well, most people can anyways.
Will Baude (03:19):
Yeah.
Dan Epps (03:19):
Yeah. Okay. Justice Breyer had some views about this. This is going to give us a good transition to our next topic. He said he liked some features of the kind of world of telephonic arguments, where the justices would ask questions seriatim. He says, it stops me from rambling on and that's a very good idea. And that's an unusual degree of self-awareness from Justice Breyer, I think. And he says, I think we can probably agree that is a positive, that it may be putting a hard cap on the amount of time Justice Breyer can talk for. He says the other very good thing is Clarence Thomas asked questions each time. And I think that's also been good. We hear from him every time –
Will Baude (4:01)
Right.
Dan Epps (4:02)
We get a little bit more information about what the court is thinking.
Will Baude (04:05):
So, I agree about the second. I actually think Justice Breyer rambling might be the most valuable part of most oral arguments. Like, yeah, he's the one, I think I've said this before and I think I exasperated you before, but he's the one truly transparent justice. He just like, he tells you exactly what he was thinking about the case, you can tell, he's going to say, he said exactly the same thing to his law clerk the day before. He says exactly the same thing in conference next Friday, unless you say something to change his mind. You just get a sense of how he's actually thinking about the case. I don't know, that's like-
Dan Epps (04:32):
Yeah. Although, it turns out how he's actually thinking is often quite muddled.
Will Baude (04:36):
Well, he can't help that.
Dan Epps (04:38):
So, maybe-
Will Baude (04:39):
Plus they're all thinking pretty muddled. Right? It's just the rest of them don't-
Dan Epps (04:43):
Some more than others.
Will Baude (04:43):
Yeah.
Dan Epps (04:44):
Okay. I knew you were going to have a contrary intake, no matter what kind of anodyne take I try to offer you have some contrary intake-
Will Baude (04:50):
There is another solution too. So, I marketed this a little bit ago and you could just give all the advocates have a timer. So, they get to talk for 30 minutes and then, they get a white light and then a red light and they're out of time. You just get the justices a timer and run it like a chess clock. So, whenever you ask a question, it's coming out of your time and the advocate's answer comes out of your time until another justice speaks and then that just coming out of their time. So, you know, if you interrupt Justice Breyer monologue, you take off some of his time, if not, and you can just give them all, whatever, six minutes. When the justices time red light is up, that’s like, you've talked enough as argument. You've used up your-
Dan Epps (05:21):
I like that. I think that they would find it confusing. I mean, some of the justices are probably not as tech savvy.
Will Baude (05:26):
Well, I had a, the next step is your mic automatically turns off and your red light is on, so.
Dan Epps (05:32):
They're not going to like that.
Will Baude (05:33):
Yeah, they didn't. I froze it. It did not go over well.
Dan Epps (05:36):
You should write an article about that?
Will Baude (05:37):
It's on my list, but you're going to tell me it's another bad article.
Dan Epps (05:42):
Yeah, I will.
Will Baude (05:42):
Can I write that one?
Dan Epps (05:42):
You can write a short blog post or maybe a-
Will Baude (05:45):
10 pages?
Dan Epps (05:45):
Yeah. Or you can do a 10 page online law review article on that. Anything more than that is waste of your time. Let's see. He also, Justice Breyer said, you know, in being in-person is great. We're not automatons, we're human beings. And I believe when human beings discuss things face to face, there's a better chance of working things out. That's true with the lawyers in our arguments and it's true with the nine of us when we're talking. Maybe, I don't know-
Will Baude (06:09):
It's somewhat true.
Dan Epps (06:11):
I don't know if there's any, do you have any soft, empirical evidence that the court was more divided during the pandemic period? I'm not really sure if I agree with that.
Will Baude (06:20):
Well, we do know the court is more divided on its so-called shadow docket cases than it is in its regular argument cases. It was relatively undivided during the pandemic, except that you take all the emergency applications, whenever they're five times as many, five-four decisions there. And those are the ones they never talk about. Right? It's all just on the paper.
Dan Epps (06:39):
Although, we can't really, empirically, you know, something really big happened during that time period is which a lot of unusual things were happening that prompted the court to feel like it had to intervene. So-
Will Baude (06:49):
It’s true.
Dan Epps (06:50):
Hard to know. More comments from Justice Breyer who faces no restriction on rambling outside of oral argument.
Will Baude (06:57):
We should get him on the show.
Dan Epps (06:58):
I'm happy if you extend the invitation.
Will Baude (06:59):
Okay.
Dan Epps (07:00):
Also, issued a warning on remaking the Supreme Court stating what goes around, comes around. And this is part of his book tour, “The Authority of the Court and the Peril of Politics”. Have you read this yet?
Will Baude (07:10):
I asked the library to get it for me.
Dan Epps (07:11):
Okay. I went old school and ordered it on Amazon and I have it. I got it. I got about third to half the way through it. Pretty bad.
Will Baude (07:20):
Isn't that only 10 pages long?
Dan Epps (07:22):
Yeah. I spend about 20 minutes on it and I was like, this is making me dumber. It's fine. It's just, and I mean this, to our audience in the nicest possible way. It's like 2L level Con law analysis, or even like, it's a pre-law school Con law analysis. It's the standard story about how the court in a court did Brown vs. Board and that saved everything and just no nuance, none of the kind of more complications that have been introduced by people that have been studying these questions for decades. It's just a very rosy eyed view of the Supreme Court's role in American politics and I just got to a certain point, I said, I can't do it. I can't do it.
Will Baude (08:02):
What did you expect to find?
Dan Epps (08:03):
Because I feel like it's part of my job. I don't know.
Will Baude (08:04):
Well, it's still part of your job-
Dan Epps (08:06):
So, do I have to go back and finish it?
Will Baude (08:08):
Yes.
Dan Epps (08:08):
Okay. Well, I will when the library gets it for you. How long has this library request been pending? Did you tell them to slow play it a little bit so you don't have to read it?
Will Baude (08:18):
I'm not in a rush.
Dan Epps (08:19):
Okay. But interestingly, he made some more comments yet. This is another round of comments where sort of about the court's abortion decision. And he said, well, that wasn't great timing for my book release just kind of a weird way to think about it, but, and he says, well, it's pretty hard to believe from that decision that we're less divided than you might think. So, he's sort of saying, we're not really that divided. He says, when a judge puts on that robe, he's not a junior league politician but having said that, there are connections with politics and so, it's a pretty hard message to get across. So, he's been in his public remarks has been trying to reiterate the argument from the book that we're not just politicians in robes.
Dan Epps (09:01):
And that seems to have, do you think this is a coincidence? We've got a couple more justices who have made similar remarks just in the last week or so. We've got Justice Barrett who, a lot to unpack here. But she was at an event at the McConnell Center at the University of Louisville named after Senate now Minority Leader, Mitch McConnell, who helped shepherd her nomination through. And he brings back the justices he's confirmed as part of his victory lap. He did the same thing with Gorsuch. I think Kavanaugh, did not do it but she said, my goal today, standing next to McConnell is to convince you that this Court is not comprised of a bunch of partisan hacks. Which is fine, which is the thing that justices say all the time.
Will Baude (09:43):
Right.
Dan Epps (09:44):
Just as Breyer says, what about the venue? Right. Is that the right venue?
Will Baude (09:47):
Isn't that good compare and contrast. Here is Mitch McConnell, a partisan hack and here am I, we are different.
Dan Epps (09:55):
She didn't say that part in fairness, but, you know. So, first of all, does Mitch McConnell invite the democratic justices to his special events, at his special center?
Will Baude (10:09):
I don't know, maybe.
Dan Epps (10:10):
Maybe.
Will Baude (10:10):
Do you think they would go?
Dan Epps (10:10):
I don't know, maybe. I think they'd be more likely to go than he would be to invite them but maybe, I don't know. Don't you think that was, it's an event that has at least political undertones.
Will Baude (10:20):
Sure.
Dan Epps (10:20):
It's not an official campaign event for McConnell, but it's not not related to-
Will Baude (10:27):
Look. I would like it if she would have, you know, been a little more bold, if she'd say, because it is interesting problem, right? That the justices arise through partisan politics, right? They're all elected by a bunch of, or confirmed by a bunch of partisan hacks on both sides. That's what the U.S. Senator is. Right? And so, it'd be nice to actually address, like, how is it that all of us are picked by a partisan process, then we walk into the Supreme Court and then immediately start telling you that it's not partisan and we have bipartisan view on that.
Dan Epps (10:53):
And then we come to events hosted by those partisan politicians as a favor to them.
Will Baude (10:56):
But like, here, Justice Breyer and Amy Coney Barett saying the exact same thing, but I feel like it's a pretty credible signal that they are not divided on partisan lines. They agree that they are not partisan.
Dan Epps (11:05):
Well, they want us to think that they are not partisan and maybe they believe that about themselves. That doesn't mean that it's true.
Will Baude (11:11):
Why would Justice Breyer want us to think it, if it weren't true?
Dan Epps (11:13):
Books sales, book sales.
Will Baude (11:14):
I assume if Justice Breyer really wanted to sell books, he could write a book called the “Supreme Court Conservatives are Partisan Hacks, We Should Burn the Place Down”. And he would be on every TV show. He would sell so many books. He could headline, like, rock concerts with that, I think.
Dan Epps (11:30):
That might be overstating the matter just a bit.
Dan Epps (11:39):
But, I know it's clear he believes it, I mean, I think that they all believe it, right? I think that you-
Will Baude (11:39):
That's good.
Dan Epps (11:40):
Well, is it? What if they're wrong?
Will Baude (11:42):
Then we really want them to believe it, right?
Dan Epps (11:44):
But I also think maybe dictators think that they're, like, ruling in the public interest and everything they're doing is for the greater good.
Will Baude (11:51):
Compared to the alternative, if a dictator re-thought, he was, like, just trying to, you know, murder his enemies and reward his friends. I think I'd rather have one who believe in the public good.
Dan Epps (11:59):
Okay. Wouldn't it be better to just have maybe democratic self-government?
Will Baude (12:02):
I don't know. Is that on the table?
Dan Epps (12:04):
Sometimes. Maybe not anymore, but she said more, she said the media along with hot takes on Twitter report the results and decisions that makes the decision seem results oriented. It leaves the reader to judge whether the court was right or wrong based on whether she liked the results of the decision.
Will Baude (12:20):
She said hot takes?
Dan Epps (12:21):
She said hot takes on Twitter.
Will Baude (12:22):
Great.
Will Baude (12:23):
Is she talking about me, was she talking about me, you think or?
Dan Epps (12:25):
Probably.
Dan Epps (12:26):
Did you also see that she was asked about the so-called shadow docket?
Will Baude (12:30):
Okay.
Dan Epps (12:31):
Which I like to call the lightening docket that nobody else does yet give it time. And she said, well, emergency decisions can come before the court again so, it would be inappropriate for her to comment on the case.
Will Baude (12:42):
[crosstalk 00:12:42]
Dan Epps (12:43):
She was asked about the abortion case. So, that’s a bummer.
Will Baude (12:46):
Yeah. Although, Breyer didn't hold back. Right. He was willing to talk about it.
Dan Epps (12:48):
Yeah. But he always does.
Will Baude (12:49):
Yeah.
Dan Epps (12:50):
He always, kind of, talks about whatever. And then also justice Thomas warns against at an event at Notre Dame, warned against destroying our institutions because they don't give us what we want when we want it. And he said, he acknowledged that the high court has its flaws, comparing it to a car with three wheels that somehow still works, but said, the justices are not ruling based on personal preferences and suggested that the nation's leaders should not allow others to manipulate our institutions when we don't get the outcome that we like.
Will Baude (13:18):
Uh huh.
Dan Epps (13:19)
So, why is this all in the air right now?
Will Baude (13:21):
I think they say this all the time. I have-
Dan Epps (13:23):
So, why are people suddenly paying more attention to it then? I mean, first off they don't say this all the time. They don't warn against restructuring the court, destroying our institutions-
Will Baude (13:34):
But they go around saying, we're not political.
Dan Epps (13:35):
Yeah, they say that.
Will Baude (13:36):
I don’t really get, get every justice saying more or less the same thing about how we're not political, we wear black robes to show they're all on the same team and blah, blah, blah. Like, you know they call balls and strikes and say that a while ago.
Dan Epps (13:48):
You don't think this is a little weird though? You don't think it's prompted by the, maybe the public's reaction to the Texas abortion order. And by the way, we haven't talked about this, there was a poll that came out after the court refused to block the Texas abortion law. And the court is down to 37% approval, 50% disapproval. Which is quite low in recent history for the court. It may be just a momentary blip but that's interesting, right?
Will Baude (14:14):
Yeah. I think that's good. Right.
Dan Epps (14:16):
That people don't like the court?
Will Baude (14:17):
Yeah.
Dan Epps (14:17):
You have a theory as the optimal amount of people disliking the court?
Will Baude (14:22):
20% approval ratings.
Dan Epps (14:24):
Uh, why?
Will Baude (14:25):
I guess two things. So, of course it's too popular, then they too much like the dictator, right? You'd rather have an unpopular dictator than a popular dictator, keeps them in line. And when a lot of people disapprove of the court, that's a sign that it's not consistently ruling in favor of either party, because if we're consistently partisan, you'd expect it to get 50, to hit the 50% that it's consistently approving, but it's doing enough to irritate the conservatives than a bunch of them that hate the court, and enough to irritate the liberals because a bunch of them hate the court. And they're the only people who don't pay attention or like this-
Dan Epps (14:55):
Yeah. It's more complicated than that. It could be that there are different sets of cases that each side cares about. And-
Will Baude (15:01):
Yeah.
Dan Epps (15:01):
To some degree, that's the story of the last 20 or 30 years, which is where the court has, sort of, veered left on social issues that rich democratic donors care about. And then a lot of the, kind of, big business issues structural questions, kind of, they've been very conservative and maybe that's made a lot of people happy and now we're seeing a kind of reconfiguration.
Will Baude (15:23):
Yeah. So, I think the last time there was a big hit and the approval ratings was the 2012 Obamacare decision. That it was one of those, like, the conservatives all hated the court because they had betrayed the country and John Roberts is a traitor and all that stuff. And then the liberals also hated it because they still snuck in a bunch of stuff that was going to be equally dangerous later, and didn't uphold the Medicaid expansion and so, everybody was mad at the court.
Dan Epps (15:42):
And voters were reading that?
Will Baude (15:43):
I don't know who reading it but they're probably, you know, who knows. But somehow everybody was being told by their partisan messengers that the court was bad and that seems like that was one of the courts, you know, great moments, right? So.
Dan Epps (15:55):
There's been 12 things you've said in the last six minutes I disagree with but I'm not going to be able to hit all of them. I'm just processing which of those I even can possibly respond to. I think maybe none of them. But I mean, a court that's very unpopular is when they probably can't do a lot and maybe it's that what you're thinking?
Will Baude (16:15):
I can’t teach you much.
Dan Epps (16:16):
Yeah.
Will Baude (16:16):
I mean, you don't want them to think, well, we have the people at our backs so, let's really run with this one. Right? You want them to be nervous about it. You want them to do things only when they think they have no choice when they have to, and the law commands it, rather than to think, like, Oh, here's a place where we've got some popularity we can use.
Dan Epps (16:33):
They do seem a little nervous. Right?
Will Baude (16:35):
Because they aren’t letting people in the building?
Dan Epps (16:36):
Well, because it's all of a sudden. You're like, okay, you don't do it. Don't do it. Don't mess with us.
Will Baude (16:41):
Yeah.
Dan Epps (16:41):
They seem a little nervous.
Will Baude (16:42):
I mean, what are you expect them to say, they're not going to stop doing speaking tours because they like doing speaking tours. People ask them these questions, then they say this, it's not their fault that it then gets reported like its news. The Supreme Court still believes in the Supreme Court. I hope there are nine people from the country who still believed in the Supreme court, they would be the justices.
Dan Epps (16:58):
Yeah. Although, I mean, they choose what to talk about, this was kind of the theme of Barrett's spiritual marks.
Will Baude (17:04):
Yeah.
Dan Epps (17:04):
Right? And so, there's a lot of things you could choose to make people to talk around.
Will Baude (17:08):
Yeah. All right. So, I have to ask this. So, you accused Barrett of trolling us by going to the Mitch McConnell Center with Mitch McConnell to talk about how we shouldn't be partisan?
Dan Epps (17:18):
I think that is a not unreasonable way to interpret what she was doing.
Will Baude (17:23):
So, primary trolling or secondary trolling?
Dan Epps (17:26):
I've already forgotten the distinction probably secondary. Which is she's doing what she's going to do, but enjoys the-
Will Baude (17:32):
Right.
Dan Epps (17:32):
The troll effect.
Will Baude (17:34):
Yeah. Okay.
Dan Epps (17:35):
But I mean, come on, if you were going to pick a venue for that speech, why that venue? Why that venue? Why not just say something else, say something about the fine history of Supreme Court justices from Kentucky. Are there any? I don't know.
Will Baude (17:52):
I don't know.
Dan Epps (17:52):
Okay. I thought you would know.
Will Baude (17:54):
None come to mind.
Dan Epps (17:55):
And they give that speech at a more neutral forum. I mean, it is a speech that is not going to be taken seriously and it is going to be like the choice of venue seems so absurd as to make it hard to interpret as anything other than, you know, trolling.
Will Baude (18:11):
I think it shows a sense of humor. That's-, So does trolling.
Dan Epps (18:14):
Okay. Well, we'll see whether anyone was persuaded by that talk in that venue, but we should probably keep going because we have one semi substantive thing
Will Baude (18:25)
Yeah.
Dan Epps (18:26)
-to talk about, which is a case called Ramirez v. Collier, that was just granted and which the court just was involved in a little shadow docket activity. And this is one of a series of cases that have got to the court. One of the series of cases that have gotten to the court involving executions, where the capital defendant wants to have a spiritual advisor, an Imam, a priest, what have you in the execution chamber. And state officials in Alabama and Texas don't like that. Not really clear why they don't like that.
Will Baude (19:08):
Well, some prisons like rules, right? And they like denying prisoners things that are important to them because that's part of the show, the prisoners they're in prison in case they forget. I guess if you're about to be executed, maybe you might forget so, they really need to remind you of your place.
Dan Epps (19:20):
Yeah. It's one of these conflicts between two principles that may be conservatives like, and one is religious liberty on one hand, the other is, kind of, unspeakable cruelty to the incarcerated. So, you have to pick.
Will Baude (19:30):
You forgot executing people-
Dan Epps (19:32):
Yeah, and killing people.
Will Baude (19:33):
So, there are four cases where this has come up, right? So, it first came up with an Alabama inmate who wanted an Imam in the chamber with him and the Supreme Court let the execution go forward, said no. And then they turned around and had the same case with a Buddhist and they stopped that one, which better late than never is good, but it's a bad look to the-
Dan Epps (19:50):
It’s pretty hard to distinguish the two as I recall.
Will Baude (19:52):
Yeah.
Dan Epps (19:53):
Right.
Dan Epps (19:53):
And so, then they had more. Then they had, like, two more cases, I think one involving a Catholic inmate, I forget who the fourth one was, who was also stopped and then all the justice sort of like writing concurrences. And they snuck a footnote into a merits opinion at some point to keep dickering about what was going on here. And so, that this until they finally recognized that this is maybe not the best way to resolve this. It's just a series of last minutes, days of executions, they have another case and it put this one on the merits docket, right?
Will Baude (20:18):
Yeah. But this one, this case is going to go a little bit further because here the state is willing to let the prisoner have his chaplain, his priest, you know, reverend what have you in the execution room, but will not allow priest to say anything and lay hands.
Dan Epps (20:38):
Or touch him.
Will Baude (20:39):
Yeah.
Dan Epps (20:39):
Right.
Dan Epps (20:40):
So, two things. So, one is in the previous cases the states had probably got in trouble for discrimination because they had a prison chaplain who was Christian, and you can have the prison chaplain there, you just couldn't have an outside spiritual advisor. So, like coincidence, Christians could have a spiritual advisor at death, but nobody else could. And Justice Kavanaugh said, that's really not a good look, we can't do that. So, now, as I understand it, now this is the new policy for everybody. Texas says, everybody can have a spiritual advisor in the chamber with them, but they have to stand in the corner and not say anything and not do anything. And that will be comforting somehow. So, but it's not discriminatory now, it is to everybody.
Will Baude (21:13):
Yeah.
Dan Epps (21:13):
So, the cruelty to people we're executing principles has prevailed.
Will Baude (21:18):
Yeah. And so the question is, does this violate the exercise clause, the constitution, the 14th, the first amendment or the religious land use and institutionalized persons act, which is the one of the statues that was passed in the wake of Employment Division v. Smith to expand religious freedom beyond the point where it had been contracted by the court and Smith or arguably contracted by the court and Smith. So, an earlier statute was RFRA Religious Freedom Restoration Act was partially struck down. And so, far as it put broad restrictions on what states can do, but this one is more narrow and it applies to, has various federal hooks but one of them is it governs prisons.
Dan Epps (22:05):
Right.
Will Baude (22:05):
Where that they get federal money, which I guess is all prisons.
Dan Epps (22:09):
The claim seems pretty strong to me. I don't know. So, I was looking at the briefing and so, the basic idea is, if you can show that the state is burdening your religion, they need to come up with a really good reason that they have to do it and show that there isn't some less intrusive way to accomplish what they care about. And at the end of his brief, Mr. Ramirez has this, I thought pretty effective like litany right? It says, nothing filed in this litigation over the past month has shown anybody how speaking words of prayer or scriptures interferes with the execution function.
Dan Epps (22:39):
If Pastor Moore cannot lay his hands on Mr. Ramirez, he could sing his prayers and read scriptures while standing next to him. If he can't stand next to him, he could sing prayers and read scripture while standing away. If you can't sing and read from that point, he could sing and read from further away. If he cannot sing and read, he can at least say prayers, you know. If he cannot speak too loudly, he could at least whisper the prayers and scriptures in Mr. Ramirez ear, as he loses consciousness. Does the state really have an interest in stopping a pastor from whispering words of faith to me as I die?
Will Baude (23:07):
I mean, it seems reasonable to me. And let's dig a little bit more into the legal issues, but just let's just make sure we've explained everybody what happened, which is, this was an emergency application. Original application was granted no dissents, no noted dissents, right? And the simultaneously with that, the court granted the petition for certiorari and is going to hear this case on a somewhat expedited schedule. So, the case is going to be briefed quickly so that it will be argued in October or November of this year.
Dan Epps (23:36):
Yeah.
Will Baude (23:36):
I'm just stepping back before we dig back into legal issues. It is very hard to believe, for me to believe that after granting this case, the bottom line is going to be sure, go ahead and don't let the pastor read the bible.
Dan Epps (23:49):
Bottom line states will win. Well, so.
Will Baude (23:51):
No, the prisoner's going to win.
Dan Epps (23:53):
Oh you think the - Wait, who's going to win?
Will Baude (23:55):
The prisoner.
Dan Epps (23:55):
You think the prisoner is going to win?
Will Baude (23:56):
Yeah.
Dan Epps (23:56):
Yeah. So-
Will Baude (23:58):
I don't think he'll grant, I think it's just, you don't grant the case if you're going to just say, write a long opinion saying, and this is “what the state is doing is fine”.
Dan Epps (24:06):
Yeah. That seems right to me at the first cut although, if I were petitioner's lawyer, I'd be nervous that two days after they grant the case, instead of argument, they then instruct the parties to brief four additional questions none of which are good for the petitioner. Has petitioner adequately exhausted his audible prayer claim out of the prison litigation reform act, which is a very stringent statute that makes it hard for prisoners to file lawsuits? Has prisoner satisfied his burden under the Religious Land Use and Institutionalized Persons Act?
Dan Epps (24:32):
Further, whether the government satisified it's burden, finally, the parties are directed to address the type of equitable relief petitioner is seeking. And whether that standard has been met here see Hill v. McDonough sitting for the four factor test for equitable relief. I would be very nervous I got this briefing that they're going to say, Oh yeah, in theory, you have a right to have somebody present and even praying for you but between the prison litigation reform act and Hill v. McDonough, and some other bullshit procedural hurdle, we'll find some-
Will Baude (25:01):
There goes our clean reading on the show.
Dan Epps (25:03):
Sorry. We did this once before?
Will Baude (25:05):
So, what do you think is going on there? So, it comes out a couple of days after, do you think they, in the middle of the night, they grant the application, go ahead and grant the petition and then someone takes a closer look at it and then says, there's a lot of stuff going on here?
Dan Epps (25:19):
Yeah, probably. And maybe some of it's already floating around, but I do think this is the good thing, right? At some point once they started actually paying attention to these cases, they realized there were a lot of legal issues that maybe they should slow down and look at.
Will Baude (25:30):
In this case at least, the prisoner has been making this argument for about a year. So, it's not something that just emerged a few days ago. He'd filed an earlier suit, there'd been some, sort of, limited settlement, but yeah, not clear whether he has jumped through all the many hoops that are in place.
Dan Epps (25:50):
Yeah. There's a lot of weird back and forth about, what exactly did he ask for? When did he ask for it? When did he say he wanted the pastor to be able to speak? And did they say that in time? And The Prison Litigation Reform Act has this rule that before you can sue, before a prisoner can sue a prison for any civil relief, you first have to go through all the proper prison procedures and if you don't go through all the proper prison procedures then you can't bring the claim and prisons, maybe because of this, have very complicated procedures. So, you've got to, the briefs are full of, first he filed the level one grievance, then he elevated it to a level two grievance, then he did this. And so, I think if you dropped the ball somewhere-
Will Baude (26:24):
TPS reports. Filed the TPS reports.
Dan Epps (26:27):
Yeah.
Will Baude (26:28):
Movie reference, sorry. So, let's talk about the merits of the issue though. The merits of the actual LUPA and free exercise issue and then maybe we can talk about your fear that there, your prediction that maybe they're not going to even get to that because if they find some holdup, they're not going to even in, whether he didn't file the right paperwork or whatever, they presumably will maybe not get to those issues or maybe they'll get to them and say, but you lose. Maybe that's the way they do it and, sort of, not look too cruel but let's just talk about, if this is actually goes to the merits, what do you think? I mean, so under Smith, the current leading free exercise precedent although we can talk about whether we think it's been undercut by recent cases, but under that, is this a neutral rule?
Dan Epps (27:20):
Yeah.
Will Baude (27:20):
It's hard, it also applies to non pastor.
Dan Epps (27:23):
I think they've done it to everybody. I think they've totally satisfied the constitutional tasks and neutral rules tasks they've said, all right, neutral rule, all spiritual advisors have to stand in the corner and be quiet.
Will Baude (27:32):
But it's not just spiritual advisors, to be truly neutral, it'd have to be neutral as to religious and non-religious people. Right?
Dan Epps (27:39):
Sure.
Will Baude (27:40):
The rule is that people can't be in there saying stuff.
Dan Epps (27:43):
I think they're a little more generous to religious people, which is fine. But I think if you wanted your life coach in there with you at the end-
Will Baude (27:50):
They would be clear if the rule was yeah, your life coach, but a spiritual advisor no, that obviously wouldn't be good.
Dan Epps (27:55):
That would not be.
Will Baude (27:56):
So, it has to be a neutral rule that applies across the board. And so, under Smith probably, okay. What about under where the free exercise clause seems to be today?
Dan Epps (28:06):
Well-
Will Baude (28:07):
Then weird stuff that's been happening,-
Dan Epps (28:10):
I think
Will Baude (28:11):
-stuff on the shadow docket, the COVID cases.
Dan Epps (28:14):
The big advances there have been these equal treatment requirements, even if we have a souped that equal treatment requirement, it still seems okay. It still seems like there's not an equal treatment problem.
Will Baude (28:21):
Yeah. And some of the COVID cases, it was unclear what they were taking to be the comparator for equal treatment. They're like, well, you're saying churches have to close and all but you're not saying, Walmart has to close. So therefore, no equal treatment. But here, I guess, harder to identify what the comparator would be, where there is an equal treatment. So, at least as a constitutional matter for this claim to succeed, does the Smith test, the Smith test being that neutral rules of general applicability are permissible even if they pose a burden to someone's religious practice, does that rule have to go for this to win under-
Dan Epps (28:57):
It would.
Will Baude (28:58):
Okay. Will it in this case?
Dan Epps (29:00):
No.
Will Baude (29:01):
Why not?
Dan Epps (29:02):
Because they have a LUPA.
Will Baude (29:03):
Okay. And they think that is the way out?
Dan Epps (29:05):
That is the way forward.
Will Baude (29:07):
Okay.
Dan Epps (29:08):
And the way out, the way out, whatever.
Will Baude (29:09):
Yeah. So, it would not be the right moment to even have to address those issues because LUPA goes beyond-
Dan Epps (29:17):
It gives all prisoners the benefit of the old pre-Smith rule that if you can show your religious practices being substantially burdened, the state estimates strict scrutiny.
Will Baude (29:26):
That's a hard test.
Dan Epps (29:27):
It's a hard test.
Dan Epps (29:28):
So, what do you think? Apply that to the facts here?
Will Baude (29:30):
So, the state, as far as I can tell,their argument is they're not really imposing a substantial burden on Mr. Ramirez's religion. And I think their argument is that a substantial burden is when you make somebody do something that violates their religion and they say in their brief, we are not forcing or enticing Ramirez to do anything. We're just going to kill him, we’re not like, he doesn't have to do anything, he lie there. I think this is the argument. And so, it's not, you know, it’s not requiring him to violate any of his religious beliefs, that's just, he's just not getting something he wants, that's their spin on it.
Dan Epps (30:03):
Is that the right way to think about it?
Will Baude (30:05):
Didn't seem right to me? I don't know, I mean, I don't know. There's a lot of doctrine defining these things in various ways, but just at a basic level, it doesn't seem right. It seems like it's a burden on his religion.
Dan Epps (30:16):
Yeah. I mean, because I'm just trying to think about it has every free exercise claim, I mean, some of them obviously involve situations where the person seeking the exemption would be forced to do something they don't want to do like work on Saturday, work on Sunday.
Will Baude (30:31):
And the cases that don't, I mean, the cases that produce this doctrine are like, if we go destroy your sacred monument, that's not a substantial burden on your religion because it's just the government destroying stuff, it's not doing anything to you. If we give you a social security number, when you believe that social security numbers steal your soul, that's not a substantial burden because you're not involved, we're just stealing your soul privately with the social security number, you can ignore it. That's the theory of the cases. So, I think they're same idea here.
Dan Epps (30:59):
And so, what if it were, I'm just thinking through, I mean, there are things where they wouldn't necessarily require people to do something they are obligated to do or that, but let's say there's a rule that says all indoor gatherings require masks of any kind. And so, people have to wear masks in churches. Maybe that doesn't strictly violate any particular command of any church or other religious organization, but that does seem like it would be such an intrusion, that it might be problematic?
Will Baude (31:31):
I think, so, there are a lot of, you can't come in this government building, if you're wearing a hat or if you're wearing a face covering. Used to be they were against masks for a few of them.
Dan Epps (31:40):
Then that would be under the first part because you're required to do that.
Will Baude (31:42):
Well, we're not doing anything to you, we're just telling you that it's the same thing. While he's being executed, he can't have the spiritual advice he wants just the ban on spiritual advisors while he's going through this government service, I guess, is there conclusion, but again it's yeah, it doesn't.
Dan Epps (31:56):
So, your prediction is on the merits this claim is a winner?
Will Baude (32:00):
His odds look good on the merits.
Dan Epps (32:01):
Sure, winner.
Will Baude (32:04):
Uh, yeah.
Dan Epps (32:05):
Okay. And so now, what about these hurdles? Do you think that these are now going to be?
Will Baude (32:11):
These seem like problem.
Dan Epps (32:12):
Do you think that they will actually hear oral argument and then at the end, they'll say, yeah, you didn't check the red box and you lose?
Will Baude (32:20):
Yeah.
Dan Epps (32:21):
That's not going to help with that approval rating, I fee like, though.
Will Baude (32:26):
Well he could, I mean, you could get the conservatives back in the sense that you simultaneously could say something good about religion. So, everybody has a right to a spiritual advisor and also, we're still going to execute the prisoner because of the Prison Litigation Reform Act. So, you get a win-win.
Dan Epps (32:38):
Yeah. Let's presume the liberal justices are not going to want to permit the execution to go forward. And so, they will side with the prisoner. And so, at that point, you just need to peel off to who might say, look, maybe it would have been better to check all the boxes, but here, think this is enough, but you still think the state will get five.
Will Baude (33:00):
It's there argument. I guess, one last out, which I haven't seen raised is, is it possible the Prison Litigation Reform Act is unconstitutional as applied to these claims or it self-violates our LUPA. So, our LUPA says you can't impose a substantial burden to someone’s religious exercise without a really good reason, the Prison Litigation Reform Act imposes a burden on these religious exercise by if it's going to be the right for a cause and he's not getting his spiritual advisor. So, then does it have to meet strict scrutiny too? Because that-
Dan Epps (33:28):
Yeah, I don't have the statute in front of me because it have a superseding clause that says other federal statutes because that's a federal statute, a document of conflict between two federal statutes.
Will Baude (33:37):
I guess it would actually be RFRA, especially also because RFRA still applies to all federal statutes. The Religious Freedom Restoration Act, says all federal statutes have to meet the strict scrutiny.
Dan Epps (33:46):
That's a good argument. So, I hope somebody is listening because I don't think, is that in the brief yet?
Will Baude (33:49):
No.
Dan Epps (33:51):
I like that one. Can you do a blog about that or something?
Will Baude (33:54):
Sure.
Dan Epps (33:54):
Tweet it. Let's get that out there.
Will Baude (33:57):
I’ll work on that later today.
Dan Epps (33:58):
Okay. All right. More to say about Ramirez v. Collier?
Will Baude (34:02):
Well you've made me take a stand, you haven't given your own predictions.
Dan Epps (34:05):
I've made a prediction as to the three liberal justices.
Will Baude (34:08):
The only ones you understand.
Dan Epps (34:10):
It's the only ones I can predict.
Will Baude (34:12):
Yeah.
Dan Epps (34:12):
With some regularity.
Will Baude (34:13):
So, I only have one last ridiculous thing to say, and then I'd let to get some questions from our audience. So, there wasn't amicus brief in the case filed by the Becket Fund files in a lot of these cases and has been urging the court to take these claims more seriously and supplement things so sometimes less good briefing in some of the cases. They filed a motion for leave to file brief amicus curiae and motion for to file brief amicus curiae on eight and a half by 11 each per paper because apparently, we've now reinstated the old rules about the size and shape of amicus briefs. So-
Dan Epps (34:44):
You have to do the booklets?
Will Baude (34:45):
Yeah. But you're filing the middle of the night in death case and with no time to do a booklet. So, you have to add to your amicus brief motion to file it on a eight and a half by 11 inch paper, which is just another one of these procedural requirements that-
Dan Epps (34:56):
That violates RFRA.
Will Baude (34:57):
There you go.
Dan Epps (34:58):
That's my argument. I was looking at our email. We get a lot of email, we do our best to respond to it on the show. One thing we got, a friend of the show, Nebby Mima, is requests that we talk a little bit more about just the standard for issuing stays and emergency relief. And Nken v. Holder, which is one of the cases where the court really lays out the task for emergency relief. Anything, sort of, way you can make that more concrete? The court has this four factor balancing test, likelihood of success on the merits, reparable injury, public interest, and the one I'm forgetting-
Will Baude (35:37):
Balance equities?
Dan Epps (35:38):
Balance equities. How is that even different than the other ones? Public interest? I don't know.
Will Baude (35:43):
So, I think the balance equity is the fourth factor was the factor that Justice Kavanaugh used when he decided not to stay the federal eviction moratorium, the first time around. It was an example of, I think the moratorium was unlawful, I think there is a reparable injury to the landowners affected by it, he didn't necessarily think it was in the public interest, but he thought, look, it's going to expire anyway. So, in terms of the equities, we just let it expire in a couple of weeks that'll work out better.
Dan Epps (36:11):
And so, is your view most of the time, the likelihood of success on the merits is the one doing most of the work?
Will Baude (36:17):
Yeah. At least in practice. Right, so, I mean, really, it's the first look is, are you the person who's likely to win when we get to the case and it's something going to go wrong if we don't act now and if so, then we'll probably gear up and act now unless there's some special reason not to. A judge, a DC district judge does Trevor McFadden recently did a study, just published an article where he looked at all the Supreme Court's stays and then those subsequent merits cases. And I think it's the case that 100% of the time the state decision predicts the merits decision. Maybe there's an exception, maybe I've forgotten one but basically when the Supreme Court decides whether to grant stay or not, they're just telling us how they're going to vote with this.
Dan Epps (36:55):
That's interesting in a few ways, because one way it's interesting is it suggests that all that additional briefing and everything doesn't help at all. So, maybe they should just decide everything in these reflexive, middle of the night, shadow docket thing and we could just save a bunch of time.
Will Baude (37:10):
Yeah.
Dan Epps (37:11):
Or it means that having already made the decision, then they feel bound and they ignore all their briefing.
Will Baude (37:16):
Yeah.
Dan Epps (37:16):
Which one?
Will Baude (37:17):
I think in some of my writing of the shadow docket said, we ought to have more transparency in the shadow docket, the justice ought to write more opinions that was, tell us how they voted so we know in the state decisions what's happening. I'm worried now that maybe that was a bad idea, maybe one consequence of that is lock-in. So, if we had an anonymous vote in the stay, or it's just granted or denied, but nobody knows how you voted then in the merits decisions, you don't have to explain yourself to anybody other than your colleagues maybe when you say, Oh yeah, I voted against that stay, but now I realize it's wrong. But now that we're forcing them to, kind of, gear up and articulate a reason that time one, even though it's fast, maybe it makes it too hard to change your mind, attempt to.
Dan Epps (37:54):
So now, you need to write a sequel.
Will Baude (37:56):
Yeah.
Dan Epps (37:56):
And speaking of writing with the shadow docket, Steve Vladeck, professor at U Texas, has a new book coming out called the Shadow Docket.
Will Baude (38:02):
Good title.
Dan Epps (38:03):
And that will be interesting to see what he says. We've talked a little bit about some of his critiques of the shadow docket don't fully overlap I think with the ones you have. And I imagine, we're going to see more shadow docket activity in the next year and that will be interesting to see where people, different people land on whether they think there is a problem here, what the problem is.
Will Baude (38:24):
Yeah.
Dan Epps (38:24):
Because I mean, we do need to have, as we've talked about, we do need to have some way to get emergency relief from the court.
Will Baude (38:30):
Sure. I mean the execution cases are a good example, right? There's an execution, somebody is about to die and if there's a problem with that, the court needs to, like, do something about it now. They can't wait.
Dan Epps (38:39):
But it is a good thing that they granted the case because hopefully if they can get through all of these procedural hurdles, they can give some guidance so, we don't have to keep doing this. I mean, this is the fifth one that came up on the shadow docket, right?
Will Baude (38:50):
Yeah.
Dan Epps (38:50):
So, maybe we could have just figured this out earlier.
Will Baude (38:53):
Yeah. No, well also, I mean, at first the problem was the inequality and so then the states say, okay, fine, we'll deny everybody their spiritual advisors, call the courts bluff and now the courts as well. Okay. Maybe that wasn't so good. I think the first cases didn't involve the LUPA statute, they were just about the constitution, even though the statute spreads much more protection.
Dan Epps (39:12):
Is that just because people in the rush of things you think just didn't think of probably those arguments?
Will Baude (39:18):
Yeah. Oh, and then it turns out a bunch of these clams have this prison litigation or format problem. So, in the briefing, several of the states that were granted were not properly exhausted under the PLRA and nobody thought about it. So, it's probably good if they slow down and-
Dan Epps (39:29):
Yeah.
Will Baude (39:30):
Yeah.
Dan Epps (39:30):
Let's figure this stuff out. I mean, I think that in general, doing all these things at the last minute probably does create some problems, create some likelihood of a mistake. Okay. More we could say about that, but I think we wanted to save a little bit of time for questions from our audience. We don't have a mic stand, but I have a mic here with the longish cord. So, if you want to ask a question, you're going to need to come down to the front, grab the mic, introduce yourself for posterity and ask your question.
Will Baude (39:58):
Yeah.
Dan Epps (39:59):
And then he's going to answer.
Will Baude (40:01):
Wait, what do you mean?
Dan Epps (40:02):
Your home turf.
Will Baude (40:03):
Okay. All right.
Dan Epps (40:05):
If it's a hard question.
Will Baude (40:06):
Okay.
Dan Epps (40:07):
Who wants to do it.
Will Baude (40:08):
Anybody?
Evan (40:09):
Hello? I'm Evan, a 1L. And I was wondering, you were talking about the prison reform act and whether that itself is unconstitutional. I was wondering if a case like these, the state cases staying an execution could be a venue or an avenue through which such a challenge could be brought?
Will Baude (40:27):
Yeah. Okay, good. So, I'll unpack this, my harebrained theory a minute later and yeah, we only had the, so the question is, my idea that the Prison Litigation Reform Act might be unconstitutional or might violate the Religious Land Use and Institutionalized Persons Act can this kind of case, I got a stay of execution, the shadow docket case be used to litigate this? The answer is, yes, I think so. So, in general one of the great things about the American system of constitutional litigation is the constitutional issues are always in play even in the course of anytime, a federal statute comes up, you get to ask, wait a minute, is this federal statute constitutional or not? Or does it violate this other principle?
Will Baude (41:07):
So, it can come up, even when that wasn't the main point of your challenge even if it's just a potential ancillary issue. In fact, in Marbury v.Madison, the case that establishes judicial review, this is, kind of, how it works. The central claim in Marbury v. Madison is Marbury wants his commission, to be a justice of the peace, there's a fight about who gets to have this office. And then in the course of litigating his claim, this procedural question comes up but whether or not he can sue whether he's gone to the right court and seeking a writ of mandamus and that produces a constitutional question that the court has to resolve and say, look here, we are trying to resolve this substantive question. I guess we can answer this procedural question as well.
Dan Epps (41:44):
Can you just break down for me though? I understood there's a conflict here maybe between the Prison Litigation Reform Act and RFRA?
Will Baude (41:53):
Yeah.
Dan Epps (41:54):
What's the constitutional argument? Let's take that out of the picture. Do you think there would be an argument? So, post overruling of Smith argument that having litigation requirements, you know rules about how hard it is to file suit, that's a substantial burden on religious practice?
Will Baude (42:11):
So, it'd be harder without the statutes. It'd be harder to say the constitution itself forbids statutes that make it harder to bring claims, although not impossible. So, there are, there's a whole rich jurisprudence about when you have some constitutional rights to a remedy because so, and there's sometimes we restrict remedies when we restrict them too much and make it effectively impossible to vindicate their constitutional rights, sometimes that's a constitutional problem. That actually is one of the constitutional issue in the Texas abortion litigation we're talking about earlier, there are a bunch of cases from 100 years ago that are about this. So, I do think you could make some constitutional claim there, but the stronger claim is just to say federal laws says you're not supposed to burden people's religions without are really good reason. The Prison Litigation Reform Act by saying, I can't have my spiritual advisor because I didn't go through the step two grievance process and the right way, imposes a burden on my religion and not for very good reason.
Dan Epps (43:03):
I hope capital lawyers are listening. There was another question-
Dan Epps (43:08):
Over there.
Carl (43:08):
Hi, my name is Carl, I'm also a 1L. So, you talked a little about how the cases are brought at the last, at midnight, a stroke of midnight and a lot of other cases. I mean, the court is hearing a bunch of cases coming up in a few weeks. Is there ever the concern that just having all these cases rushed last second leads to a lot of unforced errors and maybe there should be a different court that handles these cases rather than overloading SCOTUS?
Will Baude (43:32):
A different court. Okay, great.
Dan Epps (43:34):
The shadow court.
Will Baude (43:35):
So, yes. The question is we have these last-minute cases, should we have a second court to handle them, like the shadow docket court? So, there was a proposal, I don't know, 40 years ago now, that in general to create a second Supreme cCurt, that-
Dan Epps (43:51):
Is that like the emergency Court of Appeal-
Will Baude (43:52):
Was before emergency. It was when the Supreme Court had a big docket, which it doesn't anymore and the idea was we should create a second court, the National Court of Appeals whose job will be to resolve circuit splits, leaving to the Supreme Court, the big constitutional principle-
Dan Epps (44:06):
Sounds terrible. It's terrible.
Will Baude (44:08):
I agree. I mean, resolving circumstances is the Supreme Court's job, and they occasionally get distracted from doing that, which is a problem.
Dan Epps (44:14):
That's the one thing they do well, right?
Will Baude (44:15):
Yeah. So, the last thing you want to do is create some, I mean, this would be the political problem, even bigger, like creating some job. Okay. You guys are the non-political court and we'll just be the dictators, just doing the fun stuff.
Dan Epps (44:26):
Although, that's how it works in some other countries. Right?
Will Baude (44:27):
Yeah.
Dan Epps (44:27):
They have the constitutional court, whose job it is to opine on the big issues.
Will Baude (44:33):
Yeah. So, the emergency court is a little different because it's easier to divide the issues not just by importance, but either you have a right of appeal from the emergency court to the Supreme Court, in which case you're still going to have a last-minute problem when there's an emergency court decision and it has, you know, to be reviewed at the last minute. Or you don't, at which point the emergency court starts to look a little bit like the Supreme Court and you start to worry about, are we violating the rule that we only have one Supreme Court or instead having two. We do, I guess the closest we have is there is this foreign intelligence surveillance court that does a whole bunch of reviews of government warrants for also the national security stuff. And in theory, you can appeal from them to the Supreme Court, but nobody ever does. So, they get to do their own weird emergency stuff that the Supreme Court doesn’t have to do.
Dan Epps (45:15):
And nobody knows what they're doing. We just get some summary statistics about what they're doing and that's it.
Will Baude (45:21):
Well, they don't let the defense lawyers be there either, it's just the government and the judges. So, we really don't know what they're doing.
Dan Epps (45:26):
Yeah. I think they've released data that shows that they've granted almost all of the warrant requests that-
Will Baude (45:31):
Yeah. Not the best model.
Dan Epps (45:33):
Yeah. I mean, I guess the alternative is to have stricter rules about timing, I mean, obviously there are some things that just come up where you need to resolve them quickly. Some of the capital cases, I don't think the one we were just talking about fits into that, but some of them do involve claims that maybe could have been litigated earlier. And then it's not always clear to me, why it's landing at the court the last minute, sometimes, it may just be probably his attempts by capital lawyers to really gum up the works at the last minute. But other times there've been various obstacles. But that seems like figuring out some way to manage the flow a little bit better, seems like a good idea.
Will Baude (46:11):
So, my other proposed rule, which nobody's going to take me up on either will be the Supreme Court should just put out a rule saying if it's a capital case, you try to file more than 48 hours before the execution and if it's less than 48 hours, you have to make a clear and convincing case for why you couldn't file before. And if there's one then fine, but, like, presumptively you'll be warned that less than 48 hours is probably not going to work.
Dan Epps (46:34):
No, of course they still have to make that clear and convincing determination on an emergency basis.
Will Baude (46:39):
Yeah. Although it looks, for instance, if you're temporary stay to resolve that whatever.
Dan Epps (46:44):
Yeah.
Will Baude (46:44):
They would still-
Dan Epps (46:46):
And that would be not potentially precedential on the underlying issue, it would just be, you haven't made the relevant showing to establish why you couldn't have filed this earlier.
Will Baude (46:56):
Right.
Dan Epps (46:57):
Okay.
Will Baude (46:57):
All right. We're out of time.
Dan Epps (46:57):
I think so. Do your outro-
Will Baude (47:02):
Wait. Wait, wait, what do I do?
Dan Epps (47:04):
Just say thanks so much for listening, please rate and review. I see a bunch of people here in the audience, but a bunch of you have iPhones open up your Podcast App, give us a five star review and we won't penalize you on your grades.
Will Baude (47:19):
Fair enough.
Dan Epps (47:19):
And keep listening. We have another live show coming up. We're recording tomorrow at National Association of Attorneys General. So, keep your feeds open, that one will be out too. And we really appreciate it.
Will Baude (47:29):
Thank you all for coming. Thank you.