Non-Cake Physical Object

0:21Dan Epps:Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

0:26Will Baude:And I'm Will Baude.

0:28Dan:We are back in the studios, so to speak, by which we mean our respective offices. We are experimenting with a new recording software we have. We haven't shared with our listeners all the travails, but we've had multiple instances where we almost lost our recording sessions.

0:49Will:Yes, or half the recording session, or—I think maybe we did lose one.

0:52Dan:I mean, losing half is losing the whole thing. I mean, at least if we lose one side of it. If we half of it temporarily, yes, we would have half an episode.

1:01Will:We had one where I think we were on the verge of having to release a 20-minute episode because we had a little bit of content before something cut out. And then my son's dream of an all chitchat episode would've been fulfilled.

1:12Dan:Yeah, that would've been good for some listeners, bad for others, and it would've been immensely disappointing. I've always wondered if that really happened. Would we try to just go recreate the episode, kind of like follow the beats of the original conversation?

1:30Will:Uhhh, no.

1:31Dan:You don't think so?

1:32Will:No, I don't think we could do it.

1:34Dan:Well, you mentioned your son. I had a son-related thing, which is—so, my oldest kid, he's 10. He doesn't have a phone as such. He has an old iPhone that is not like capable of calling or really using the internet, but he discovered recently that there is the podcast app on that device. And he found it and he found all the reviews and he came up to me and he said, Dad, some people think that you talk about yourself too much. And he had gone through all the reviews and picked out the negative ones to kind of razz me about, which I admired. I don't know if either of your kids has figured out that that's an option yet.

2:12Will:No, I don't let them figure that podcast out.

2:15Dan:Well, they might before long.

2:20Will:My son does like to point out that our podcast has several orders of magnitude fewer listeners than his favorite YouTuber, Natalie Sideserf, who makes custom cakes that don't look like cakes.

2:30Dan:That's like the Is It Cake? show, basically?

2:33Will:Sort of, but way more elaborate. Yeah.

2:36Dan:The ones on the show are pretty elaborate.

2:38Will:I know, but I'm just telling you, if you haven't seen Natalie Sideserf.

2:41Dan:Okay. I will check that out. I mean, I don't really know how you can be more elaborate than a cake that is indistinguishable from another non-cake physical object.

2:52Will:These cakes are even more indistinguishable.

2:55Dan:Okay. I will check it out, even if I'll be disappointed that we will never reach that level of listenership. Okay. So a few other things to discuss. One is an update, the kind of growth of the Divided Argument-ish universe, not exactly Divided Argument, but you and I are both now bloggers on SCOTUSblog's Interim Docket Blog, along with friend and mentor of mine, Jack Goldsmith. We don't exactly know yet what that's going to be. I've posted once. Jack has posted once. You've posted, as of our recording session, zero times.

3:36Will:Mm-hmm.

3:38Dan:But SCOTUSblog said, hey, would you like to just take this over, and you can kind of blog what you want, as long as it's about the interim docket. And so we said, sure, let's check it out. Already had a little bit of a kerfuffle about the title of the blog.

3:55Will:Interim Docket Blog?

3:57Dan:Yeah. So we launched it. Leading shadow docket expert and critic Steve Vladeck posted on Twitter saying he hoped we would defend the use of that title, which he thinks is misleading. I posted a short post of my own riffing on the Annie Hall joke I used a few episodes back, which is the idea that the two ladies criticizing a restaurant, one saying, the food's terrible, the other saying, such small portions, and just sort of saying sometimes criticisms of what the Court is doing on the shadow docket might have this feature in that when you're evaluating those criticisms, I think it's really important to pick apart which of the two problems is actually at issue, whether they're both at issue, what the relationship is. I thought it was a somewhat anodyne post. I think Steve hit back, I'd say, reasonably forcefully in his weekly newsletter, One First. So that's well worth reading. I don't know if you want to venture into any of these debates, Will.

5:09Will:Well, what is supposed to be misleading about the interim docket title?

5:13Dan:So as I understand the criticism, it suggests that these orders are really temporary and interim in a way that they're not, because there can be irreparable harm that occurs, and it is quite possible the Court will never actually reach a complete ruling. If this is a case where someone is wrongfully deported, it might moot the case. Or money is never able to be recovered if the Court allows it to be spent or doesn't allow it to be given.

5:47Will:I mean, look, sometimes they execute somebody. With the interim docket, its sort of core obligation, I think, is, do you grant a stay pending execution to this guy who has a cert-worthy or maybe arguably cert-worthy legal issue? Although I think, as I understand the SCOTUSblog organization actually, the death cases will have their own page. They will not just be—only interim cases there.

6:07Dan:I mean, formally, those are, to the extent that they are stays pending some further filing and some further action in the Court, those are interim in that sense.

6:16Will:Right. But I mean, I guess I don't see why the fact that they're life and death means they're not—the decision whether to grant interim relief can be very important. That's why there's an interim docket. That's why there's an Interim Docket Blog. I guess the idea is interim cloaks this important normatively laden topic in procedural legal language that sort of hides its true significance. Sort of like if you had a whole class about access to justice and the rule of law, and then you called it civil procedure, people might not understand what it was really about, I take it.

6:49Dan:Yeah, I mean, and I was also thinking about preliminary injunctions, right? That's a very standard procedure in district courts and in state courts. Sometimes those injunctions end up being functionally final.

7:04Will:Right. Well, and there is, I guess, a related critique. I saw this from maybe Marty Lederman, that of course there are other—the Supreme Court has lots of cases about preliminary injunctions that are not on the so-called interim docket. So it's not that the interim docket is all cases about any questions of interim relief. The interim docket is specifically about whether the Supreme Court should grant interim relief in the interim before the Supreme Court grants cert in a future case. But if the lower court has granted a preliminary injunction and the Supreme Court grants cert on that, then—

7:34Dan:It's a merits docket.

7:35Will:—it's a merits docket case about interim law. So really, you might need multiple interims, like a meta-interim or—but I don't know. I mean, emergency docket is obviously the other—the shadow docket, which is an umbrella term for all the Court's non-merits activity.

7:54Dan:Including summary reversals, which are merits decisions.

7:59Will:Yes, which are merits decisions, but they're not on the merits docket because they skipped the merits docket. And then other sort of more interesting stuff or more obscure stuff. And then emergency docket was Justice Alito's attempted coinage, which has the, I guess, virtue and vice of attempting to make a normative claim about what the interim docket is for. The ideas about labeling it the emergency docket, I think, Justice Alito likes it because it sort of provides a justification for why there is a special docket with short-circuited procedures, because there are emergencies. And I think Steve Vladeck likes it because it provides a normative test. So Justice Alito can say, we need to do these things quickly, they're emergencies. And Steve can say, well, are they emergencies? That's a useful lever to critique it. But I'm fine with interim docket.

8:46Dan:Yeah, I confess I didn't think that was going to be the most controversial thing. And I didn't necessarily think we were exposing ourselves to quite that much criticism, and that we—I sort of thought we were just searching for a neutral procedural term. And then within that, we can still criticize, and I expect to criticize the way the Court is doing it. And I do think that Steve has marshaled a lot of really important criticism of the inconsistency in the way the Court has used its interim docket, shadow docket, whatever, emergency docket authority. And so I guess I wasn't intending to say those aren't valid criticisms.

9:29Will:I think, Dan, you forgot that in this day and age, everything about the Supreme Court is controversial and sort of polarized. And because of that, an attempt to use neutral procedural terms to talk about the Supreme Court is presumed to be a very normatively laden rejection of all the people who think the Supreme—we call it SCOTUSblog rather than evil illegitimatist blog, which is a normative choice not to give it a new name.

9:56Dan:I mean, you're sort of joking, but you're sort of not, right? You're being a little dismissive.

10:00Will:I'm not joking at all.

10:00Dan:Yeah. I mean, you're smiling. Your listeners can't see that you're smiling.

10:05Will:I'm always smiling, Dan.

10:06Dan:You're being a little flippant, but I mean, yeah, I think that's right. I mean, it is a much broader problem. Did we already talk about my remarks in Jodi Kantor's article—

10:20Will:We did a little bit.

10:20Dan:A few weeks ago. Yeah. I mean, I think it's the same question there, which is, it's a similar question, right? The question in that article was, do the liberals inside the Court basically attack what the majority's doing, or do they try to play an inside game and try to work within the system, try to get the conservatives to temper their rulings? And it's a similar question for commentators who, you know, not you, who thinks everything the Court does is beautiful and amazing, but, you know, for those like me who are troubled by a good amount of what the Court is doing, you know, do you try to kind of tarnish the enterprise and just say they're not doing law, or do you try to kind of take it on its own terms? I obviously have chosen path two.

11:18Will:Would you call that the path of darkness or the path of light? The high road or the low road?

11:23Dan:I think it's just like a door A, door B. I'm not sure I want to characterize it beyond that.

11:30Will:You won't even have a normatively laden label for your meta-choice not have a normatively laden label. I admire that. That's commitment.

11:39Dan:Yeah. I mean, obviously if I thought it was the evil path, I would not do it. But I mean, I have a lot of reservations. But I have reservations the other way. I think that there are things the Court does that are defensible, or at least semi-defensible, and just saying everything they do is suspect, I think, ends up being misleading. So I was talking to a non-lawyer, but very smart friend of mine about the tariffs case, and he had sort of said, do you think the Court is just going to roll over for Trump? And I said, not sure. And then after the argument, I said, it looks like there's a reasonable chance the Court might block the tariffs. And he was like, oh, well, the interests of capital prevail. That's the one thing Trump—that the Court would stop Trump on. And I was like, well, this is a classic definition of a non-falsifiable theory. If the Court rules in favor of the tariffs, it's because they're in the bag for Trump. If they rule against the tariffs, it's because of the forces of capitalism.

12:48Will:They strike down birthright citizenship, but that's because capitalism needs growth rates or something?

12:54Dan:That's possible. I mean, Elon Musk is a fan of immigration, at least legal immigration.

13:02Will:Yeah. So no, I mean, I'll just say I actually think this is part of the subversive premise of this podcast from the beginning, right, is that part of the question is, is it a useful enterprise to talk about the Supreme Court decisions through the lens of conventional legal analysis? And we certainly get enough people who think the answer is no, that it makes me think we're not doing something totally uncontroversial. One thing you may not know about me though is I don't think this is the only good way to talk about the Court. For me, part of why I like to talk about the Court this way is because so few other people do it. If we lived in a world where all the legal analysis was just dry, legal analysis with no attention to the broader social forces of what's going on, we might have a different podcast.

13:44Dan:Would we? Would you want to have that podcast or would you just say it's not worth having a podcast?

13:50Will:No, I think they're both—I mean, they're all useful. I just think—

13:54Dan:What would that alternate universe podcast look like?

13:58Will:I think we would talk about what was missing from the existing doctrinal stories, I guess.

14:05Dan:But I mean, isn't your view still that a lot of the doctrinal stuff is doing a lot of the work in these cases?

14:11Will:They're both doing work. I think this is why all fights between legal realism and legal formalism are like, it's not 100% law. True. It's not 100% politics. True. And then there's a lot of actual—it's an empirical question in a given case. What are the politics? What are the law? And how much work is each one doing?

14:31Dan:Although some people do believe it's 100% politics, because you can always come up with a theory for why the cases that on their surface don't fit the political agenda actually, in a meta way, fit the political agenda. It's like Scalia has to rule for criminal defendants sometimes to validate the entire enterprise of originalism.

14:50Will:Right. They have 17 unanimous cases a year about boring statutory interpretation issues just to lull us into a false sense of security. I mean, a few people do.

14:57Dan:Yeah.

14:59Will:A few people do, but even most of the standard people who think it's a lot politics still say, okay, yeah, sure, there are 20 unanimous cases a year that don't count or are not that interesting or are 5% of the R-squared.

15:13Dan:Yeah. And there's just kind of two distinct courts, the law court and the politics court.

15:20Will:Politics court in June and the law court the rest of the year. Except now the shadow docket means the politics court is available year-round.

15:28Dan:Yeah. But so I guess I'm not really trying to position myself as some defender of the Court, and I'm not really trying to position myself as some great defender of the Court's work on the fill-in-the-blank docket, such as it is. But I mean, maybe it looks like that. I mean, I think people also—there was a—did you show me or did I show you this post by Jonathan Zasloff about how SCOTUSblog has gone MAGA?

16:02Will:SCOTUSblog has gone MAGA?

16:04Dan:Yeah, but it was sort of prompted, I think, by the criticism of the interim docket blog.

16:12Will:Oh, we've gone MAGA?

16:14Dan:Well, it's sort of saying—it's like he was saying, I didn't realize that SCOTUSblog had been taken over by The Dispatch.

16:20Will:Okay.

16:22Dan:And I mean, it was weird because the post itself acknowledged that The Dispatch is actually not really MAGA, but it was kind of a very clickbaity headline. But I think some people like him may be triggered by the fact that The Dispatch is a right-leaning outlet. I mean, we've been in a lot of conversations with those folks about what they're trying to do. I really don't think they're coming at it with this strong political agenda. I think they're actually just trying to make a website that's going to be really valuable to people and trying to give people information.

16:56Will:Don't you think there's a bit of a centrist institutionalist agenda, which if you're far enough to the left, looks like the right?

17:03Dan:Yeah. I mean, again, SCOTUSblog is an institution that I think has always tried to take the Court's work seriously as law. It was previously created and administered by a Supreme Court litigator, right? So it was never the place to go for torch the Court rhetoric.

17:26Will:Yeah.

17:28Dan:So I don't know. So yes, to the extent that that—I mean, I don't know whether—

17:33Will:And to be fair, I think if you think the Court has become increasingly torch-worthy over time, you might've thought the Court was not torch-worthy when Justice Kennedy was granting gay marriages. But it became torch-worthy sometime after that. Then you could think it was neutral and good for SCOTUSblog to be non-torchworthy back when the Court agreed with me about important things. And now that the Court increasingly disagrees with me about important things, the neutral position is to torch the Court and anybody who doesn't agree with me is a raving lunatic. Sorry, that sounds belittling again. I actually think that's—

18:08Dan:No, it's reasonable. Yeah. I mean, and some people on Twitter were saying "oh the Court"—or Bluesky or whatever, I don't even distinguish between them anymore. I look at them both when I don't have my Freedom app blocking me out of social media during the workday. So during those brief windows when I can, I look at both. But people saying, oh, the SCOTUSblog is now much more reverential towards the Court. I don't think that's right. I mean, I think that there was a certain amount of pressure in the Goldstein era to keep it somewhat reverential so as to not interfere with the blog's ultimate purpose of promoting a Supreme Court litigation shop, right?

18:50Will:Yeah, sure. I'm sure they maintain a strict wall of separation between editorial and—

18:56Dan:I think in my experience, that was not 100% true. I think it was true a lot of the time, but there were some instances where that wasn't true. But I'm excited about SCOTUSblog. I'm excited to be part of it. I don't expect everything I say to be unctuous praise. But we will see. I may not be critical enough for the critics. So hopefully you will be out there posting soon.

19:27Will:As soon as the Court does something worth posting about.

19:30Dan:And I think we're hoping this is not going to detract from the separate Divided Argument blog. I think we're imagining these being kind of shorter posts, focused just on the interim docket. We sometimes have more complicated things to say that are not about the interim docket. Those will still be featured on blog.dividedargument.com.

19:54Will:Yeah, I might have my content everywhere. We'll see.

19:57Dan:Okay. So other things to quickly talk about. I have not dug into this at length, so I don't know the underlying issues, but I just thought it would be worth noting, which is a very savvy court-watching listener wrote in about this recently filed CVSG brief, Agudas Chasidei Chabad of United States v. Russian Federation, which is a case about the Foreign Sovereign Immunities Act. And the only thing to note about it is that, I guess unusually, this CVSG brief has no career people on it. It's a very short brief, but it is, I'm told, the standard for such briefs to have the career attorneys listed on the front. There are certain briefs of which that's not true, reply briefs, for whatever reason, that's not the norm. Those just have the SG on them. This one just has the SG and the legal advisor to the State Department. So if anybody has any idea of what's going on, that would be interesting to know. I don't know if you've thought about this one at all. This one was not on my radar at all, and I haven't gone down to try to figure out what the deal is.

21:25Will:I have not looked at it at all.

21:26Dan:Now, I mean, I will say that this is a situation where the government seems to have at least either changed or kind of—I don't know, modified or kind of walked back a position it took earlier. The final paragraph says, in amicus briefs filed in response to this Court's invitations in two other cases, the United States took the position that the DC Circuit's current interpretation of something in the FSIA is correct. In the course of preparing this brief, the United States has not determined whether it maintains that position on the merits. So it's not—the government has not said it has changed its position, but has sort of said it does not necessarily adhere to that position?

22:13Will:Yeah.

22:15Dan:I mean, does that seem controversial in the abstract? I don't know. So anybody following this one more carefully, that could let us know what might be going on there. Other SG office practice, I hadn't really realized that it was this administration that had pushed the addition of introductions.

22:33Will:What do you think of those?

22:36Dan:I think I'm fine with them. I mean, I think that they should be short. I think that sometimes in some briefs, they end up being very long and maybe longer than the summary of argument, and they kind of have to introduce all the facts of the case and so forth. And then it ends up being kind of duplicative of other material. But I think to the extent you want to be hard-hitting with the themes and really kind of get the themes out there, I think they can be valuable. So I guess I don't have a super strong position. I'm not a traditionalist on that. I am a traditionalist on QPs. The argumentative questions presented on the first page of the brief drive me crazy.

23:25Will:Yeah.

23:26Dan:Where people have like three paragraphs, pitching the case. I don't think that's what they're for. I think it's supposed to just cleanly state the legal issue. You can shade it in a way that makes it favorable to your side, but I think you should try to neutrally tee up the legal question. What is this case about? And then you're going to have plenty of time later to tell us why your position is right.

23:48Will:Okay. But what if you shade it a lot? I mean, but you do it short?

23:53Dan:No, I think that's not good. I think you have some duty. I think it's kind of like a facts section, actually. I think that facts sections in briefs generally, you should try very hard. I don't think you should use a lot of adjectives. I think you should describe the facts in ways that are helpful, which means focusing more on the things that are helpful and focusing a little bit less on the things that aren't helpful. But I think they should be written in a way that the reader will come away and feel like you've tried to be somewhat fair.

24:28Will:Yeah.

24:29Dan:And then your argument is your argument.

24:31Will:One thing I don't like about the introduction is sort of the opposite of what you said. You were worried about it being too duplicative of the summary of the argument and the argument. And I guess I feel like to the extent the introduction contains things that are not just a summary of the argument or a legal argument, I don't like them. I feel like the point of the brief is to make a legal argument. And then sometimes the introduction is where you then say some other stuff.

24:54Dan:No, just a little rhetoric, a little bit of themes. I'm okay with that.

24:59Will:The rhetoric should be part of your argument. I mean, to the extent it's good rhetoric, and then you can summarize it.

25:06Dan:Yeah. But I don't know. I think it's useful to just—it's kind of like every essay needs an opening paragraph, right? Just get me in the mood a little bit.

25:20Will:Yeah. I mean, again, I think an opening paragraph is good as long as it's part of the argument. I just don't like the norm of like, okay, we have our legal argument, but first let's do a little real talk. Like, here's why we should win. Okay, now here's a legal argument.

25:33Dan:Okay. Yeah, fair. You're all about those legal arguments. Let's keep it all to the legal arguments. Maybe your intro should be your legal realism and the argument should be your legal formalism.

25:45Will:I mean, that would be a choice. That'd be an interesting way to brief it.

25:50Dan:Okay. So some pieces of feedback, unless you have more to say about that one. This is an old one from early November, but Jeff Walden wrote in to say that he had gotten a ticket through the oral argument lottery for the November 2025 session. And the Court had said in an email, If the current lapse in appropriations continues through that session, arguments will proceed as normal, with seating still provided to you and other members of the public. Which is interesting because we had speculated about what the shutdown meant for court operations.

26:30Will:Yeah.

26:31Dan:So that's good. That's good that they were still going to let people in the building.

26:35Will:Yeah.

26:35Dan:Okay. One other follow-up from two different listeners. We were having that side conversation about circuit justices and are there courts where it's not clear who the circuit justice is and so forth. And two folks, Jeffrey Ide and Mason Gonsisko, both wrote in to tell us about a couple weird ones. One is the Foreign Intelligence Surveillance Court of Review, right? And this is something from the part of the Foreign Intelligence Surveillance Act. That's these foreign intelligence surveillance warrants that are secret. The whole thing is a little fishy. And we don't have a lot of information. I think we know there's been some public information disclosed about the rate of granting such warrants, which are done by the Foreign Intelligence Surveillance Court. And then they go up to, as I understand it, the Foreign Intelligence Surveillance Court of Review. But these warrants are almost always granted, and some people are like, oh, does that mean it's a rubber stamp? I don't really know. But apparently, there was a case from a while ago, ACLU v. United States, where ACLU sought a writ of certiorari from the Foreign Intelligence Surveillance Court of Review, and the Court denied it, but there was some dissents from denial. And I guess the government had taken the position that the Court didn't have jurisdiction. Justice Gorsuch disagreed with that. That's a little weird.

28:12Will:Yeah. So we don't even know if there's a circuit justice because we don't even know if they are appealable.

28:17Dan:Well, maybe if they deny the petition, doesn't that mean there is jurisdiction to grant the petition?

28:25Will:I don't think—so, when you file—

28:26Dan:Wouldn't it dismiss the writ, the petition for lack of jurisdiction?

28:32Will:That's a good question. When you file a petition that's jurisdictionally out of time, do they not deny it? Do they dismiss it?

28:41Dan:It doesn't go to the Court. It's the clerk doesn't docket it.

28:45Will:Okay. But what happens to it?

28:48Dan:I think the attorney just gets a letter saying, go away.

28:52Will:This has never happened.

28:52Dan:Right. I mean, because I know they docket late-filed petitions from criminal cases, which are, in my memory from the Court, NJOT, not jurisdictionally out of time.

29:03Will:Yeah.

29:04Dan:But I think if it's jurisdictionally out of time, I don't think they get docketed, and I don't think that they proceed through the cert process. I think the clerk just has to refuse to docket them.

29:15Will:Huh. Okay.

29:17Dan:Okay. And then the other one, even weirder, new to me, is the High Court of American Samoa, which is a territory, but they don't have a federal district court there. They have something called the High Court of American Samoa, which is run by the Interior Department and has justices that are just appointed by the Secretary of the Interior.

29:40Will:Are they Article II officials or are they Article IV officials?

29:45Dan:Your guess is as good as mine. I don't know whether that has been resolved, but I guess you petition the Secretary of the Interior and then you file suit in a district court against the Secretary to challenge these decisions. So I don't know whether those have ever made their way up. That's a weird one.

30:04Will:Yeah. Okay. Interesting.

30:07Dan:All right, so those are the pieces of follow-up I have. Luckily, the Court has not done too much since the last episode. So it's been a while, but we don't have that much to catch up on. We have three summary reversals.

30:27Will:Yeah. This is interesting.

30:29Dan:Yeah. So let's talk about the most recent one, because it's very, very easy to talk about. Doe v. Dynamic Physical Therapy. This is a cert petition from the Court of Appeal of Louisiana.

30:42Will:Yep. So the intermediate appellate court in Louisiana.

30:46Dan:Yeah. So I mean, I guess I could just read the whole opinion.

30:48Will:Sure.

30:49Dan:It says, I'll take out the citations. "Louisiana immunizes healthcare providers from civil liability during public health emergencies. Below, Louisiana Court of Appeal held that this state statute barred plaintiffs' federal claims. That decision is incorrect. Defining the scope of liability under state law is the state's prerogative, but a state has no power to confer immunity from federal causes of action." And then, you know, citation to several cases. "The judges in every state are bound to follow federal law"—and we're quoting the Constitution—"anything in the Constitution or laws of any state to the contrary notwithstanding." That's from Article VI. "Plaintiff's federal claims may well fail on other federal grounds, but that is for the Louisiana courts to decide in the first instance." So that's it.

31:43Will:Yeah.

31:45Dan:It does seem like a pretty elementary legal mistake if that's what happened.

31:50Will:That's very interesting.

31:52Dan:No dissents noted. Super short. Everybody seems to agree with that one, or at least not want to disagree with that one.

32:00Will:It's also interesting in that the cert petition is not filed by a—this is not like a Supreme Court clinic or a Supreme Court practice or somebody came in and found this one and identified it for the Court. It's filed by a couple of practitioners in Louisiana, who, unless I'm misremembering, are not regular players in Supreme Court practice. They just convinced the Court this is wrong.

32:27Dan:Yeah. Yeah. And I think sometimes maybe someone just takes a look at this and says, this is so absurdly wrong, we kind of just need to do this. It obviously did not take a lot of work to write this opinion.

32:40Will:It has one of those three-paragraph QPs you don't like. But from the three-paragraph QP, it seems like this is also a COVID case.

32:51Dan:Sort of still trickling its way up.

32:53Will:In the decision below, the Louisiana First Circuit Court of Appeals held that for any claims made during the COVID-19 emergency, the ADA is violated only if the healthcare providers acted with gross negligence or willful misconduct drawn from the Louisiana Health Emergency Powers Act. Maybe if the cynics were here, they would tell us this is because the Court is still mad about government overreach during COVID and this is part of their attempt to remediate it.

33:24Dan:Yeah, that seems unlikely, but who knows?

33:27Will:Yeah. Okay. Interesting.

33:28Dan:Okay. That's a short one. What else? I'm noticing, by the way, that you are wearing your Wilkinson Stekloff hoodie.

33:35Will:I was waiting for you to notice.

33:37Dan:Yeah, from our live show there at the retreat last time. I thought that was a lot of fun. You were in and out very quickly, but everyone was very grateful that you came. I think it was a great episode, and you got some merch out of it. You got the hoodie. It's a very high-quality Marine Layer branded hoodie.

33:56Will:Yeah, it's great.

33:56Dan:So you must like it.

33:58Will:I do.

33:58Dan:It's very soft.

33:59Will:Yeah, it's great. It's also very cold here in Chicago.

34:02Dan:The hoodie is not super thick, so I'm not sure that it's really going to get the job done in terms of protecting you from the elements in the Windy City. Although the Windy City, the name is not actually from the wind, right? It's some—

34:15Will:It's the politicians are full of hot air.

34:18Dan:Yeah. But I guess now it has that meaning. So hopefully you have other layers.

34:24Will:Sometimes.

34:25Dan:Okay. There is no Wilkinson Stekloff down jacket to my knowledge, but maybe someday.

34:30Will:Yeah.

34:31Dan:All right. So that one out of the way. We've got some that are slightly, but not a ton, longer. What do we got? Let's see, how many pages is this one? We've got a five-pager.

34:51Will:Okay. Pitss v. Mississippi.

34:52Dan:Okay. We've got a five-pager, Pitts v. Mississippi, and then we've got a three-and-three-line pager.

34:59Will:Okay.

35:01Dan:Let's go shortest to longest. So next one is Clark v. Sweeney. This is a federal habeas case from a state prisoner. So this is a habeas case that is governed by the hated among many, Antiterrorism and Effective Death Penalty Act, AEDPA, which makes it very hard to get relief in federal habeas court. And I guess the short version of what went on here is this prisoner brought a federal habeas claim arguing ineffective assistance of counsel of his trial attorney for not seeking to voir dire the jury about some potential jury misconduct, to wit, one juror went and visited the crime scene, which you're really not supposed to do.

35:53Will:Yeah, this is kind of wild, right? Juror number four, after the state's rested its case, his curiosity got the best of him and he decided to check out the crime scene for himself. And then during jury deliberations, he told the rest of the jury, oh, I went to go see whether or not you could see the shooter given this location, and here's what I saw.

36:15Dan:Which is basically what happens in 12 Angry Men.

36:19Will:Yeah.

36:19Dan:Have you seen it?

36:20Will:But in 12 Angry Men, we're supposed to be cool with it, right?

36:23Dan:Yeah. I mean, one of the jurors in 12 Angry Men goes—I don't know if he goes to the neighborhood where the crime happened and is able to acquire a knife that looks exactly like the alleged murder weapon, which is equally misconduct, but maybe seems to be the morally correct thing there where the jury pushes the jury towards acquittal. It's a great movie.

36:46Will:Do you think he was innocent in 12 Angry Men?

36:48Dan:I really don't think they gave us enough information.

36:50Will:Okay.

36:51Dan:You don't see the trial, right? I think at the very beginning of the movie, you briefly see the defendant, and they don't even give you all the information about what the alleged crime is. It kind of trickles out over the course of deliberations. It's a great movie, maybe for that reason. So I don't think I have the answer. I do think that the movie made a persuasive case by the end. That there was reasonable doubt?

37:20Will:Yeah. Although depending in part on what you think of reasonable doubt, right? If you think reasonable doubt allows you to sort of nitpick each individual piece, you have reasonable doubt on each individual piece of evidence, do you have reasonable doubt on the whole or not?

37:32Dan:I think so. That has to be correct, right? You assess all the evidence, and if at the end of the day you think there's some weaknesses at various points, isn't the question, do you have reasonable doubt about the whole thing?

37:46Will:Maybe that's right. I'm not a—I mean, but I think it is actually a substantive question about how to think of reasonable doubt. A different view would be it's supposed to be your holistic sense on the basis of all the evidence, whether there's a reasonable doubt here. And the fact that somebody can come in and then say, well, but this thing could happen this way and this thing could happen this way, is a different way of thinking of reasonable doubt.

38:10Dan:I guess so. I mean, I guess it's hard for me to distinguish those things. I mean, I would think normally you would multiply across all the uncertainty unless that they're mutually inconsistent. If one piece of uncertainty is that there was some other killer and the other piece of uncertainty is that it was self-defense or something like that, maybe you don't multiply those across.

38:34Will:Yeah. Well, there is also, I think, this question about is reasonable doubt about a probability? Certainly, if it is a secret probability that we're just never allowed to tell you that it's 98%, then of course you multiply your uncertainties. For some reason, we don't like to let people tell you it's a number. And so then it's just more confusing how to think about it.

38:55Dan:Yeah. There's a couple cases from this. This is actually a beautiful segue where the Court has approved certain definitions of reasonable doubt and disapproved others. This is Victor v. Nebraska and Cage v. Louisiana. And in my crim pro casebook, it prints both the definitions that have been given in sort of block quotes, and then sort of says, which one do you think is okay? And reading them, it's actually not totally obvious, right? Which one is the bad one? Which one is the okay one? They kind of both seem like maybe okay, or both seem kind of bad. But segue time. We've got two hooks on this one. We have this short statement respecting denial by Justice Sotomayor in Davenport v. United States.

39:44Will:Yep.

39:45Dan:Did you look at this one? This is kind of interesting. I don't fully understand why this was written, but—so two hooks here. So we're going to get to the reasonable doubt one in a second, but the first one is timeliness of the cert petition. So this is a late-filed cert petition, and Justice Sotomayor says she concurs because the petition is untimely and petitioner's counsel gave no explanation for the delay. And then she cites the Court's rules and precedent indicating that the thing I said, that the deadline for filing a cert petition in a criminal case may be relaxed by the Court in the exercise of its discretion when the ends of justice so require. So not a jurisdictional barrier in a criminal case, but she thinks it should not be relaxed in this case because there's no good reason.

40:33Dan:But in terms of the legal issue that was raised, as I understand it, the defendant asked the district court to give an instruction explaining and defining reasonable doubt, which was relevant. He wanted the instruction specifically as to proving an underlying state crime that was a predicate for the federal crime of racketeering.

41:03Will:Yeah.

41:03Dan:So he wanted that instruction. District court said, no, federal courts can't give instructions defining reasonable doubt. Okay. That was wrong. And they can. They don't have to, but they can. And Justice Sotomayor writes this opinion to sort of say, sometimes—to not say you always have to, but to say, well, sometimes you should.

41:33Will:Yeah.

41:33Dan:Sometimes it may be appropriate. And that district courts should weigh these things carefully. So I don't totally—

41:42Will:Well, I appreciate her writing this.

41:43Dan:Would she have wanted to grant the case to just say that? To say that sometimes you should do it, sometimes you shouldn't?

41:50Will:Right. So it does sometimes happen that a justice wants to grant the case, they don't have enough votes to grant the case, and so then they write a statement pretending there was some other reason they didn't grant the case. Like, okay, it's jurisdiction out of time. Or sometimes that's true. It's like, okay, this is a good issue in a bad vehicle or something. I will say I might have been under the misimpression that federal courts were not supposed to define reasonable doubt beyond what's in the instructions already. So I appreciate learning that I was wrong, as was the district court here, and that you are allowed to define it sometimes. So maybe it's just a civic education statement.

42:24Dan:But I mean, I guess I don't—the thing I'm confused about is why would she have wanted to grant it? Because she sort of seems to be saying she would have voted to grant it if it were timely. But then what would that decision look like? It's not like she would necessarily reverse. She would just say, well, you should have thought about it.

42:43Will:Yeah. The district court abuses its discretion if it decides on the basis of an incorrect legal view. It's a classic.

42:50Dan:Do you reverse the conviction on that basis?

42:55Will:I mean, this is one of the awkward things about these remands. Some courts of appeals do a special-purpose remand, like give it back to the district court and say, okay, now that you know that you could have, would you have wanted to?

43:08Dan:Yeah.

43:09Will:And then another problem is, of course, there's maybe a lot of pressure after a trial to say, oh, I wouldn't have done it anyway. Some courts, I think, remand it to a different judge that's like, imagine you were the judge and you now knew you could. Would you have wanted to? And then—but it was kind of awkward. Okay. We sort of went down the rabbit hole in the middle of our discussion of the Clark v. Sweeney sumrev, and we just forgot to mention—

43:36Dan:Whoops. Okay.

43:37Will:—that it was all an AEDPA case where the Court said none of these errors matter because it's AEDPA. You're not supposed to grant habeas. And there was a dissent by a Fourth Circuit judge saying that, and the Court said that. And it's like a throwback. The Court used to have, back when I wrote an article about the shadow docket, a non-trivial portion of the Court's shadow docket were summary reversals for lower courts that granted habeas under AEDPA, and the Court then said no. And this is just like a retro throwback.

44:01Dan:No, but this is weirder than that, right?

44:03Will:Is it?

44:05Dan:Yes, because the Fourth Circuit reversed the denial of habeas, but not for the reason that the prisoner had asked. Basically, Fourth Circuit just said, Sweeney's trial was marred by a combination of extraordinary failures from juror to judge to attorney that deprived Sweeney of his right to be confronted with the witnesses against him and his right to trial by an impartial jury.

44:31Will:Yeah, right. That's fair. I mean, they converted the IAC claim into a fundamental due process claim.

44:38Dan:Yeah. And so the main reason for reversal here, and what the Court tells us in the first paragraph is, "because the court of appeals departed dramatically from the principle of party presentation, we reverse." Basically sort of saying, you're not allowed to just make up some new overarching issue that's not the thing the party, the basis on which the party asked for relief. And they reversed that, send it back down and say, "on remand the Fourth Circuit should analyze the ineffective assistance claim that Sweeney asserted."

45:13Will:Yeah.

45:15Dan:So I thought that was a little—

45:17Will:That's fair.

45:18Dan:Striking.

45:18Will:That's fair. Should we talk about the other sumrev too?

45:21Dan:Yeah, sorry. You should have derailed me earlier. We have a nested discussion.

45:28Will:It's okay. I didn't know where you were going, Dan. I usually trust you.

45:31Dan:I didn't really know where I was going. All right. We could just back that whole thing up in editing, but we're just going to let that one stand?

45:40Will:Yeah, we got to let people see how it happens.

45:44Dan:Yeah. Okay. And then I guess we should do the other sumrev, and then I want to circle back to one other shadow docket-y thing.

45:54Will:Okay. The other sumrev—

45:55Dan:The five-pager.

45:56Will:The five-pager, decided the same day as the four-pager, or the three and a third pager, right?

46:02Dan:Not even a third.

46:04Will:Three and three lines.

46:05Dan:Yeah.

46:06Will:But coming out the other way, Pitts v. Mississippi is a Confrontation Clause case on direct review from the Supreme Court of Mississippi. So it escapes the strictures of AEDPA because the Court goes ahead and grants it on direct review from a state court. And it is a case about the Confrontation Clause and about the now 35-year-old doctrine, 37-year-old doctrine, about when the judge may screen a witness so that they don't have to actually look face-to-face at the defendant because the defendant is accused of abusing them. Right?

46:44Dan:Yeah. And there's a case, Maryland v. Craig, from 1990 that actually did say this was okay some of the time, even though a case from two years earlier, Coy v. Iowa, had said that is a violation of the basic right of confrontation, which is a face-to-face meeting. That case is a Scalia opinion, kind of left open, well, maybe this could be allowed sometimes. And then Maryland v. Craig said, yes, that actually is okay sometimes if you make a case-specific finding of necessity for why it's critical to do that here.

47:20Will:Yes.

47:21Dan:And I guess in Mississippi, they had a law that basically just made this a blanket right to screen off the child witness in this way?

47:34Will:Yeah, or at least that's how the trial court understood it.

47:38Dan:Yeah.

47:38Will:The trial court said—and not just a blank—the trial court said, look, we have a law that allows for doing this kind of screening. The trial court also said, look, our constitution, the Mississippi State Constitution, believes in promoting victims' rights. And so I'm going to grant the screening out of concern for the victim.

47:57Dan:Yeah. And this seems like just based on teaching this material, I do teach the Craig case in crim pro adjudication, it did seem like a pretty clear violation of that principle that you need a specific finding of necessity in the case. But the Mississippi Supreme Court came up with a bunch of reasons why maybe that isn't the case.

48:22Will:Yeah. Although it's also just like, what is it you have to find?

48:24Dan:All of which seem very unpersuasive.

48:26Will:I guess there is this question of what do you have to find? The trial court said, look, we've got a child victim, we've got a child abuse offense. The witness is four years old. What more do you want from me? And I guess the idea is you're supposed to sort of meet with the victim first and learn some—

48:45Dan:I mean, to be clear though, I don't think the trial court made that finding as such. I think these are efforts by the Mississippi Supreme Court to salvage the trial court's failure.

48:59Will:Right. Okay.

49:00Dan:Right. And so let's—let me just go through some of those. Reason one, well, there's a—the Mississippi Supreme Court says there's a victims' rights provision in the Mississippi state constitution. Does that work?

49:13Will:No.

49:14Dan:That doesn't override this federal constitutional right. Second, the court stressed that Mississippi's statute mandates screening, while the Iowa statute in Coy only afforded discretion. Okay, but that's the problem. That's the whole problem. Okay. Third, the court emphasized that AGC was four years old, but Craig involved a six-year-old witness. And there it made clear that the Court has to hear evidence and make a case-specific finding. Fourth, the court observed in Coy, the government and the defendant disputed who committed the alleged assault. Well, in this case, the identity was not in question. Okay, that's not persuasive. And finally, the court noted that the child witness and lawyers in Craig were placed in a different room from the defendant with cross-examination conducted over closed-circuit television. Here, everybody was in the same room with just a screen.

50:07Will:Yeah.

50:07Dan:But no, that doesn't work because that's still a violation of the face-to-face right. And then the thing that's funny, which is the Court says, "these are the most salient theories the Mississippi Supreme Court pressed." So I guess they pressed some other less salient theories. None of these work.

50:28Will:Yeah. Also, interestingly, this time the cert petition is from a Supreme Court clinic. It's from Stuart Banner of the UCLA Supreme Court Clinic, who, taking a flyer on a state supreme court sort of error correction, even one full of errors, is an interesting choice.

50:48Dan:Got the job done.

50:48Will:Good work.

50:50Dan:So a couple paired sumrevs, pro-defendant, pro-government. Nobody dissents publicly.

50:58Will:I feel like it's 2015 again.

51:00Dan:Or 2009, right? Your days of clerking?

51:04Will:Sure.

51:05Dan:And then there were more of these kind of sumrevs?

51:07Will:Yeah.

51:07Dan:Okay. And then one small shadow docket-y thing, Hutson v. United States, which is about whether a district court was authorized to order New Orleans to construct a new facility for inmates with mental health needs.

51:24Will:Uh-huh.

51:24Dan:I don't have a ton to say about this other than just I got very confused by it. It's a Justice Alito dissent from denial, where he says he acknowledges there is a circuit split about which party bears the burden when an injunction like this is issued. So first of all, there's a question about whether these are ever allowed. And then there's the second question about which party bears the burden. It says, Fifth Circuit precedent places the burden on the party supporting the injunction, not the party seeking to terminate the injunction.

51:59Will:Uh-huh.

52:00Dan:Which would be the state that's been ordered to construct the prison. Here, the lower courts did not hold the government or private plaintiffs to their burden. Okay, so there's a circuit split on that question, and here the problem is the lower courts didn't hold the government or private plaintiffs to their burden.

52:16Will:So is that saying the Fifth Circuit failed to follow Fifth Circuit precedent?

52:24Dan:That's what I was understanding it to be, but I'm just confused.

52:26Will:Yeah.

52:28Dan:So I don't—it says, in short, the Fifth Circuit erroneously resolved an important issue of federal law in which there is a circuit split. So is he saying that I would resolve the circuit split in one direction?

52:39Will:Well, if he thinks that they resolved it erroneously, he must think that the Fifth Circuit precedent that they didn't follow is on the right side of the split.

52:47Dan:Yeah, it's weird. Okay, I found that one confusing. No more to say about that. I guess we should finally talk about the biggest thing on our docket for today, so to speak, which is Abbott v. League of United Latin American Citizens.

53:06Will:LULAC, we call it in the election law biz.

53:09Dan:Oh yeah. So relatively short one. This is a true interim docket decision, I guess, even though it—

53:17Will:Well, this is a true interim docket, also permanent docket decision.

53:22Dan:Yeah, that is going to have semi-permanent effects.

53:26Will:Yeah.

53:27Dan:So basically, as listeners probably know, there's been this big push by Republican legislatures to redistrict after Trump basically ordered them to because he wants to maintain a majority in Congress for the second half of his hopefully final term. And Texas did ultimately take up that invitation over much controversy, and there was a lawsuit challenging the new Texas map as a racial gerrymander.

53:58Will:Yeah.

53:59Dan:It went to a three-judge district court, as these redistricting cases do. Unusual procedure used to be much more common. Now it's limited to a very, very small subset of cases. That court heard a bunch of evidence. Had a long hearing, ultimately made credibility findings and said, yes, this was gerrymander. It had partisan motives, but it was actually consciously done in a racial way, right? The argument is that that violates the 14th Amendment. My colleague Travis Crum has argued that these kinds of issues are better dealt with under the 15th Amendment. 14th Amendment doesn't regulate redistricting, but it seems like the Court is not going to accept that view.

54:45Will:And this lower court opinion made a lot of waves for two reasons. One, the majority opinion by two judges came out without the dissent, with a notification that we decided to rush this thing out and Judge Smith will get back to you later. And then Judge Smith got out his dissent, which was 100 pages long, shortly thereafter, and full of extensive meta-commentary criticizing his colleagues and George Soros and various other people who were responsible for sort of a miscarriage of procedure and justice. So it attracted a lot of attention and drama even before the Court granted it, right? Until five or 10 years ago, again, back in the throwback days of 2015, when Justice Kennedy was on the Court, everybody would've argued about this as a bald political gerrymander. We would've said, look, it's a mid-decade redistricting, which the Court did say in the previous LULAC case is allowed. But maybe not carte blanche. Texas is already gerrymandered. Its congressional delegation is already gerrymandered for the Republicans, but now they're squeezing the gerrymander even tighter right in advance of the midterms. Come on, Justice Kennedy, this has got to be the one. You've got to stop it, otherwise democracy's going to slide into a tit-for-tat of partisan chaos. But because of Rucho, which says partisan gerrymandering is non-justiciable, and quickly that has slid into not just non-justiciable, but totally okay, totally cool, and as American as apple pie.

56:16Dan:Yeah.

56:16Will:Nobody can complain about that. And so instead, it's the defendants saying, this is a bald partisan gerrymander that we're doing to screw the Democrats, while the challengers in the lower courts say, oh, you might think it's a partisan gerrymander, but it's actually predominantly a racial gerrymander. And as I understand it, there arguments—their pieces of evidence for that are two. One is, at first, the Texas legislature didn't want to do it. When they first tried to call them into a special session, there were sort of no real takers for that until they got a letter from Harmeet Dhillon saying, oh, you've got to dismantle some opportunity districts that were erroneously created in the Voting Rights Act. And so the narrative is, when it was just partisan, they weren't willing to do it. But once you told them it was about hurting Latinos, they were more excited about it. And then there was a trial at which the district court purports to rely on a bunch of evidence that convinces it that it's race rather than politics. And Judge Smith dissents.

57:14Dan:Yeah. And there does seem to be some evidence that looks like the resulting districts were drawn incredibly narrowly to create majority-minority districts, but by the slimmest of margins, 50.2%.

57:29Will:Yeah. This is the other confusing thing about this whole field is that the definition of what counts as using race in election law is somewhat confusing because in most areas we have a colorblindness test. And so we ask, why are you even talking about race? But in election law, that's not true. In election law, you're supposed to consider race except when you're forbidden to consider race. The Voting Rights Act requires you to consider race. Except then if you—it sort of creates a strict liability Voting Rights Act thing where it's, if you don't consider race enough, you're probably violating the Voting Rights Act, but if you consider it a hair too much or interpret the Voting Rights Act differently, then you're suddenly engaged in race discrimination.

58:06Dan:Yeah.

58:07Will:So it could be. I'll say I found Judge Smith's dissent unhinged and 111 pages too long, but also correct. It does seem intuitively more plausible that this is a partisan gerrymander?

58:23Dan:Yeah. But I mean, there was this factual question about whether race was used at all, right? And the mapmaker said, oh, I didn't even look at it, even though his software allowed him to. That seems implausible, right?

58:37Will:Yeah. Okay. That might also be implausible.

58:42Dan:I don't think that it requires denying that there were partisan motivations to also conclude it's impermissibly a racial gerrymander, right?

58:51Will:No, although you do have to conclude that race I think was the predominant factor.

58:56Dan:Yeah.

58:56Will:So I mean, two possibilities, right? One is ultimately the Texas legislature is not as partisan as we thought it was, but they were excited to dismantle opportunity districts. The other view is they do want a partisan gerrymander, but they need some kind of fig leaf even in Texas for what they're doing. And so they needed to also be doing something or other about the Voting Rights Act as a mechanism for their partisan gerrymander. And those might, this might be a little different.

59:26Dan:Okay. But let's focus on the specific things that the Court says were wrong.

59:34Will:Okay. Three of them, right?

59:37Dan:Yeah. And the Court is granting a stay, granting—says, "based on our preliminary evaluation of this case, Texas satisfies the traditional criteria for interim relief." There's that interim word. It says, Texas is likely to succeed on the merits of its claim that the district court committed at least two serious errors. You said you've got a 3rd one somewhere. We'll get to the 3rd one. First, the district court failed to honor the presumption of legislative good faith by construing ambiguous direct and circumstantial evidence against the legislature.

1:00:11Will:Okay.

1:00:11Dan:Okay. So we can debate how strong that presumption is supposed to be. "Second, the district court failed to draw a dispositive or near-dispositive adverse inference against respondents, even though they did not produce a viable alternative map." These are both coming from this case from two years ago or a year and a half ago, Alexander v. South Carolina State Conference of the NAACP.

1:00:36Will:Yes. So those are the two possible merits errors.

1:00:39Dan:Yes. Yes. And then there's this other one. I don't know whether this—would we call this not a legal error as such?

1:00:47Will:Well, I think it doesn't go to the merits.

1:00:49Dan:It goes to the standards for relief.

1:00:52Will:Right. So Texas is likely to succeed on the merits of its claim are the first two, and this goes to interim relief. Texas has also made a strong showing of irreparable harm and that the equities and public interest favor it. So those are the three non-merits factors. And then the Court quotes a case that I believe itself is quoting Purcell, which is its sort of infamous shadow docket equity case, that says, this Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. The district court violated that rule here. The district court improperly inserted itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.

1:01:29Dan:Okay. This is the—I thought the kind of craziest thing in here, right? So the eve—we are at the eve of an election? So first of all, the general election is—we're talking about November 2026. Is that correct?

1:01:45Will:I will say, I described this case at lunch yesterday and somebody said, "but the election is next year." But of course, Dan, we're always on the eve of an election.

1:01:55Dan:Yeah. Well, that's the takeaway I think from this, right? Is that basically, when can you challenge? If now, 11 months away, and I think the primary's in March, although that could be changed.

1:02:06Will:My understanding is that the filing deadlines for the primary are roughly now. Yes. And of course, it is also the state that controls the rules also does control the timing of the primary. So I wonder—

1:02:23Dan:And also controls when they do the redistricting, right?

1:02:25Will:Yes.

1:02:26Dan:So I mean, basically, you can never—is this now like if you're a year out from an election, you can never get relief?

1:02:35Will:Until now. This is the most aggressive Purcell principle case I've seen. And I don't think it makes any sense. And until now, you might have said, okay, how long is too long? I'm not sure, but yeah, it can't be a year.

1:02:49Dan:Like a month, two months, three months.

1:02:51Will:There are some previous primary cases, it's true. And then you might have thought, as long as you challenge it as soon as the administration, as soon as the government does its thing, then surely that's soon enough. But in the Court's defense, I guess, if Purcell is ultimately a principle to lower federal courts, then the answer is, yeah, the legislature, they're allowed to alter the election rules at the eve of election if they want to. And then even if they do it—

1:03:18Dan:There's just nothing you can do about it.

1:03:19Will:At least not before that election.

1:03:21Dan:I guess you could challenge it for the subsequent election. They could challenge it for the 2028 election.

1:03:28Will:I'm not sure if it's ripe for the 2028 election.

1:03:31Dan:So the right time is never?

1:03:34Will:I mean, I will say this is already, as you know, how federal injunctions against state criminal prosecutions work. It's like if you're too early, it's not ripe. And if it's after the state criminal prosecution is pending, it's Younger. And if it's even before the state criminal prosecution is pending, but then after the injunction, the state decides to bring the prosecution pretty quickly, then it Hicks to Younger. And there is a sweet spot where it's not too early and not too late, but it takes a serious lawyer to be able to hit the sweet spot.

1:04:05Dan:Yeah. So I think this is ridiculous. I think this is absurd, this aspect of it at least. And I'm willing to say that notwithstanding my new affiliation with the MAGA-affiliated SCOTUSblog.

1:04:20Will:So look, I agree. And I agree even though I think the lower court, even though I think Jerry Smith was probably correct. I mean, I didn't sit through the trial, but from what I read of the opinions, he seemed to have the more persuasive view of it to me. Here are two kind of weird paradoxes though. One is, because one of the bad things about the interim docket, especially election cases, is how politicized and subjective it is, and how much there's a sort of—it's all those sort of bad parts of smooth decision-making. And so one good thing about this principle is it's the most procedural and neutral principle available.

1:04:59Dan:Yeah.

1:05:00Will:So you could imagine the Court being extra attracted to it, because they want to find some way to say, look, it's not that we like what the Texas legislature is doing, or even think it's totally okay. It's just like, we got some neutral rule, we don't want to interfere.

1:05:18Dan:Yeah, but they're stretching it. Would you describe January 13th as Christmas Eve? Is that the eve of Christmas?

1:05:29Will:Well, so in my—you make a good point, Dan. I guess if you had a Christmas primary. So if there was some part in March where the family had to debate where Christmas was going to be that year, because usually you do it at grandma's house, but this time we're going to do it at the uncle's house. And if that—

1:05:51Dan:So Christmas Eve 2026 would be Christmas 2025?

1:05:55Will:Well, the idea would be Christmas in—the idea would be on January 13th. It might be an active primary campaign about where to hold Christmas.

1:06:08Dan:Okay. But so is September 13th Christmas Eve?

1:06:14Will:No.

1:06:16Dan:Only other notable thing about the majority, such as it is, is the opening paragraph, which I think sort of tries to gesture at bipartisanship. "With an eye on the upcoming 2026 midterm elections, several states have in recent months redrawn their congressional districts in ways that are predicted to favor the state's dominant political party. Texas adopted the first new map, and then California responded with its own map for the stated purpose of counteracting what Texas had done. North Carolina followed suit, and other states are also considering new maps." Now, North Carolina did not follow suit by trying to counter Texas. That's a little misleadingly written. But—

1:06:56Will:I think it followed suit in the first sense. Redrawing congressional districts in ways that are predicted to favor the state's dominant political party.

1:07:04Dan:Yes. But I think it's not really legally relevant to this.

1:07:09Will:No. Although, again, it is the best reason for the Court to insert its bogus Purcell principle, is that's the principle that will apply to all these cases. So if you want to say—I mean, again, this is totally on the mirror universe Divided Argument legal realism podcast. Presumably what it would say is, look, gerrymandering is this complicated political tit-for-tat, and Texas has done something kind of wild, and California's counteracting it, and there's actually a kind of relatively delicate balance. And so obviously the bad and partisan thing would be for the Court to intervene and uphold Texas's gerrymander while also finding a way to strike down California's gerrymander on some technical ground that we haven't thought of yet. There, they really did consider race or something. And so for the Court to just send a message like, look, they're all fine. Lower courts, don't try to mess with one and then the other. And of course, each lower court only has jurisdiction over one piece of the tit-for-tat assault. So just, they're all fine. That is a statesmanlike thing for the Court to do.

1:08:14Dan:Perhaps.

1:08:15Will:No, the thing about statesmanship is often it's not supported by legal materials or logic, and it's hard to defend with a straight face.

1:08:21Dan:Well, that's why you put it in your intro.

1:08:24Will:Do Supreme Court opinions need an intro? I guess they also have one sometimes, or that thing after the three asterisks.

1:08:33Dan:The dinkus.

1:08:34Will:The post-dinkus.

1:08:36Dan:Yeah. Okay. Very short concurrence from Justice Alito joined by Justice Thomas and Justice Gorsuch, the kind of extreme right wing of the Court. Sort of saying there are two points that he thinks are decisive. Dissent does not dispute that the impetus for the adoption of the Texas map was partisan advantage, pure and simple. And second, the clear error standard of review does not apply because the trial court based its findings on a mistaken impression of applicable legal principles.

1:09:07Will:Yeah.

1:09:10Dan:And then we have a more lengthy dissent from Justice Kagan, joined by Justices Sotomayor and Jackson, that I think was well done, but sort of hits the points you would expect at this point, and kind of points that are familiar in these kind of redistricting cases, emphasizing the findings of the district court and so forth.

1:09:34Will:Yeah.

1:09:36Dan:I thought generally reasonably persuasive.

1:09:39Will:Yeah.

1:09:41Dan:And as always, when you have a super short majority-ish opinion and then you have a long dissent, I mean, it lets the dissent score a lot of points that go unanswered.

1:09:53Will:Yes. But I don't know.

1:09:58Dan:But if you've got the votes, you don't have to respond. And she says, just following up on our Purcell conversation, if Purcell prevents such a ruling—after describing the timing—it gives every state the opportunity to hold an unlawful election.

1:10:13Will:Yes. One free unlawful election.

1:10:16Dan:Which I think is true.

1:10:17Will:Yes, that's true.

1:10:18Dan:Basically. And if you change it every cycle, as long as you change the map every cycle, you can always do it forever.

1:10:29Will:Yes. Every state could have a special Purcell session where they say, okay, it's now officially November 2025, which is to say Christmas Eve. And now we can enact all of our unconstitutional schemes and they'll expire immediately after the next election. I assume at that point even this Court would stop that.

1:10:52Dan:Maybe.

1:10:53Will:But given their qualified immunity jurisprudence, maybe I shouldn't be so sure.

1:10:59Dan:Well, maybe we will find out. Maybe we won't. Maybe we just will stop doing elections. Who knows? That would simplify election law.

1:11:07Will:I was going to say—so in defense—the one thing I was going to say in defense of the majority, although maybe it's not really a defense, is that it's a lot like what Justice Frankfurter did in the one-person, one-vote cases back in Colegrove v. Green.

1:11:17Dan:This is the thicket? Don't go in the thicket?

1:11:19Will:Well, the specific theory of the thicket was, it's not that this is okay, but just as we think ahead about what all the remedies would be, all the remedies seem bad. Courts—the only thing we could do really would be to have injunctions that would superintend this, and we're not willing to do that, and we're not willing to do this. And because there are no great remedies, we're just not going to do anything about it. Sorry. And I think that is the logic, is sort of like, no good will come of adjudicating these things, and therefore, yes, we're just going to let unlawful stuff happen. Now, the reason it's not a defense is, of course, that's not the law. We overruled that a while ago. And so if the Court's really saying, we're going back to the old non-justiciability era, that would be the huge abdication of constitutional responsibility of the century.

1:12:09Dan:That's bold. By the century, do you mean starting in the year 2000, or do you mean in the last 100 years?

1:12:14Will:I mean in the last 100 years.

1:12:16Dan:So you would say that would be worse than Korematsu?

1:12:20Will:It would be a bigger abdication than Korematsu. Korematsu was an abdication just during wartime. This would be like a categorical abdication of all election law. I'm not saying it's worse normatively or whatever. I just mean—

1:12:32Dan:Yeah, we can debate.

1:12:34Will:It's size—it would be a large one.

1:12:35Dan:Yeah. Well, I mean, I don't know what the axes are, what counts as size. It could be severity or it could be number of cases potentially. Okay. One of many of these interim docket dissents, which is, I fear, not the last.

1:12:51Will:Well, if we just called it the emergency docket, Dan, then everybody would understand why it was so bad.

1:12:56Dan:This was kind of an emergency, right? Ish. Because we're on the eve of the election.

1:13:00Will:The emergency is that Texas is trying to gerrymander and the federal court might not let them?

1:13:07Dan:It's the eve, right? It's the night before. I mean, that is what it means. I know it's used metaphorically, but when you've stretched it that much, maybe from what the metaphorical phrase is, maybe that's a signal that things have gone a little awry.

1:13:29Will:You make a good point, Dan. I mean, George Orwell criticized dead metaphors that you use this metaphor, but you no longer remember the thing it was a metaphor for. And maybe eve is dead.

1:13:45Dan:Yeah. But he's okay with stuff where it's clear it's not even a metaphor anymore, right?

1:13:54Will:Yeah.

1:13:54Dan:Like the head of the organization. That's not—at this point, maybe that was once a metaphor, but it's just a word now. But I think eve is probably somewhere in between, right? In that dead metaphor no man's land.

1:14:09Will:It is also funny, by the way, that the presumption of legislative good faith is the presumption that the Texas legislature was engaged in a hyper-partisan gerrymander.

1:14:19Dan:Yeah.

1:14:20Will:I understand—I don't know how we got to using the words that way, but—

1:14:25Dan:This whole enterprise is really terrible. If this becomes the new norm, we're just going to redistrict every election. I think that's horrible. I think it should be unconstitutional, but the Court disagrees.

1:14:37Will:I mean, so Congress has enacted a statute that requires districts. Certain states can't have at-large districting. Maybe they should enact a statute that even if they can't agree on whether to forbid gerrymandering or require—maybe they should enact a statute that—just one redistricting per decade.

1:14:53Dan:Yeah. Or you could have to—what if you had some kind of time lag? Because the longer that goes on between the districting and the election, the more the gerrymander kind of breaks. It doesn't break completely, but it's harder. People move around. Coalitions change.

1:15:12Will:Watch this. So we have the 27th Amendment, which says no congressional pay raise takes effect until an intervening election.

1:15:18Dan:Yeah.

1:15:18Will:What if we had a statute that did that for redistrictings? No redistricting takes place until an intervening congressional election. And that would also—

1:15:25Dan:I would like that.

1:15:26Will:—create a Purcell space.

1:15:28Dan:Yeah. Yeah. I like that.

1:15:33Will:Yeah. Okay.

1:15:35Dan:All right.

1:15:35Will:Tell your congressman.

1:15:38Dan:We'll see. My congressman, I think, does not get a lot of traction in this Congress, but maybe someday. All right. You want to lead us out?

1:15:50Will:Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. And thanks as well to the University of Chicago Women's Board for its support for the podcast this season.

1:16:01Dan:Please rate and review on the Apple Podcast app or wherever else you get your podcasts. Please know that my 10-year-old is likely to read your reviews, for better or for worse. So keep them family-friendly, ideally positive. Our website is dividedargument.com. We have transcripts of the episodes, blog.dividedargument.com for commentary from the larger Divided Argument extended universe, store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com, and leave us a voicemail, 314-649-3790.

1:16:38Will:Thanks, everyone.

1:16:42Dan:And if there's a long delay between this and our next episode, it will be because we are getting ready to celebrate Christmas 2026 with our families, because now people think it might be soon Christmas Eve 2025. It's actually soon to be Christmas Eve 2026.