A Thriving Atrocities Practice

Divided Argument

This episode of 'Divided Argument' celebrates the record-breaking 29th episode of Season Six, reflecting on podcast production strategies and discussing Justice Alito's recent Wall Street Journal

Key takeaways

• Justice Alito has confirmed he is not retiring despite speculation, reaffirming his long-term presence on the Court.
• Alito was unaware that Calais marked the first time the Court explicitly referred to a 'colorblind constitution,' highlighting potential gaps in judicial self-awareness.

Main topics

• Justice Alito's longevity and public persona
• The Calais decision and its constitutional milestone

Notable quotes

"I'm here for another term." – Justice Alito, confirming his continued service on the Supreme Court.

Conclusion

The episode underscores both the personal and institutional dimensions of Supreme Court life—highlighting Justice Alito's enduring

Transcript preview

Speaker 2 (0:00) Oh, yay. Oh, yay. Oh, yay. The judicial power of the United States shall be vested in one Supreme Court. Unless there is any more question, we have a divided argument in this case. All persons having business before the Honorable Assistant of the United States are admonished to give their attention. Speaker 1 (0:20) Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode. And I'm Dan Epps. Speaker 2 (0:28) A record-breaking episode. Assuming we release this one. Speaker 2 (0:34) 29 episodes of season six, previous record set last season of 28. We did it. Yeah. Prediction fulfilled. How do you feel? Good. Good. It's been going well. We might even do more next season. Let's see. We're in a good rhythm. I think we've figured out a way to kind of... Make the recording sessions not take four hours, which helps. Which is by talking about one case at a time. I think that helps. And to try to rein in the intro chit chat just a little bit. There's often a lot of other interesting things to talk about, but trying to stay a little bit more laser focused at the target of the episode. Speaker 1 (1:19) Yeah. I Speaker 2 (1:20) think has some benefits. Yeah. Also scheduling them when we have other places to be later in the day. That's going to help. Oh, yeah, that works. Yeah. Hard stop is a good strategy, just like giving yourself firm deadlines for writing projects. Also a good strategy. Speaker 1 (1:34) Oh, does that work for you? Speaker 2 (1:36) Well, so far, it's always a little stressful. Where Speaker 1 (1:41) do you find firm deadlines, Dan? It's very hard to find them. Speaker 2 (1:43) Co-authors. Oh, that's true. Right. If co-authors are expecting things from you or you're planning to meet a co-author at a certain time, you have to do something. Journals. Right. Sometimes if you get a solicited piece, you owe it on a date certain. Speaker 1 (1:58) Things Speaker 2 (1:59) like that. Yeah. But there's a good reason for co-authorship is that you, you know, you're not just hurting yourself if you procrastinate. That's true. You are screwing over your friend and nobody wants to do that. So that's my advice. Doesn't always work, but doing my best. Speaker 2 (2:19) Okay. So we've got one case to talk about. What pre-case stuff do you have that you'd like to chit-chat about? Speaker 1 (2:28) Well, did you see that there is a new Alito Wall Street Journal interview? Mm-hmm. Which he, I Speaker 2 (2:35) think, somewhat conclusively made clear he's not retiring. I think we knew that, but... Speaker 1 (2:41) Yes, he's quoted. This is, again, an interview with James Toronto of the Wall Street Journal. It's sort of like a mix of an interview with Justice Alito and Toronto's thoughts about recent book reviews of recent biographies of Alito and a few other things. But it begins with, obviously, I'm here for another term. Justice Alito, 76, says a month later during a rare summertime visit to his chambers. Do I get credit for a prediction Speaker 2 (3:07) that comes true? Because I think I was pretty emphatic when the Nina Totenberg kerfuffle popped up that he was not retiring. Yeah. A lot of people said, no, it's an elaborate con. You know, it was an embargoed leak, you know. Speaker 1 (3:27) How deep does the con go? Speaker 1 (3:32) It's not pleasant in the sense that it's a reminder of mortality, Alito says. It's like, what are those vultures doing up there? They're flying around, but it goes with life tenure. Speaker 2 (3:44) Well, I'm glad he has that perspective to recognize that it must come with the territory. Yeah. But depending on how the midterm elections go, he may regret that choice or may not. Speaker 1 (3:54) Yeah. There were just two other interesting things in the interview that I thought were worth mentioning. So one is Toronto asks him about Calais and about the fact that I think as we noted on the podcast, Calais is the first time the court as a whole called it our colorblind constitution, not counting the... sort of ambiguous block quote in SFFA. And so he, you know, he asked Alito about that. And the interview says, Justice Alito, who wrote for the majority in Calais, didn't notice the milestone. I was not aware that was the first time we'd ever said it, he says. Then he double checks my claim asking, the court hadn't said it in students for fair admissions? Speaker 1 (4:34) Which was Speaker 2 (4:34) exactly my reaction. You were the one who noted that. So you were a particularly observant court watcher. Well, but you are actually more in the mind of Justice Speaker 1 (4:44) Alito. He wrote it the way you read Speaker 2 (4:47) it. Speaker 1 (4:47) Very simpatico. Yeah. Same way of length. You should write about him. Just might. And the one other, apparently an anecdote in the two biographies of Alito that came out this summer, there's one that's a glowing biography and one that's a scathing biography. And in the scathing biography, the author apparently tracks down Justice Alito's high school English teacher to share her thoughts. You must be quite aged. Well, it was 60 years ago, and I don't know what age she was at the time, but 60 plus X is... Not a small number. Speaker 2 (5:23) Yeah. Speaker 1 (5:24) And she says, when he was on that short list and a couple of newspaper and TV people came to interview me, I remembered saying Sam had a strong moral compass, she says. That's what I believed at the time. He was straight and narrow. I think he had a sense of right and wrong. Where Sam has picked up all these ideas now, he's got me. How has he become this ultra, ultra conservative? Then she takes a stab at psychoanalysis. He was very responsible, made sure everything was on the dotted line. Even his penmanship was very well formed. There was nothing sloppy about it. He was very methodical, very methodical. Does that equate with rigidity? I'm not going to answer that one. How flexible a thinker was he? I'm not sure about that either. Speaker 2 (6:01) What would your high school teacher say about you? Nobody would Speaker 1 (6:05) say that I had good penmanship. In fact, many of them might say that my penmanship was sufficiently abominable. They wondered whether I'd be able to make anything of myself. Speaker 2 (6:15) What about your views? Would they have been surprised to know that you're a... A darling of the right? You're not really a darling of the right anymore. What Speaker 1 (6:25) am I? I don't know. One of my favorite high school teachers, after I said several things in class, said, sort of looked at me very skeptically and almost angrily and said, Will, are you some kind of libertarian? And I did not know what that was. And I went home and looked up and thought it sounded pretty good. And so Mr. Flannery said I've awakened me to my libertarian instincts. And at the time it was hard to find things. So I actually ended up having to set up, my parents were, my dad especially was an early adopter of LexisNexis. And so I set up Lexis News Alerts for the word libertarian and the... named Ayn Rand, so I could read any newspaper story in the country that mentioned either of those things, which were not that many. Speaker 2 (7:15) I mean, wasn't she dead by that point already? Speaker 1 (7:17) Yeah, but there was, at the time, it turned out a professional golfer who briefly was sort of one of the, briefly was like made a run at being one of the best golfers in the country. David Duvall was apparently an Ayn Rand fan and a libertarian that would occasionally come up in profiles of him when he was winning some tournaments. So I got into golf so I could be a Duvall fan. I read some Ayn Rand. So, you know, making an impact. Justice Alito, by the way, answered, she was a very good teacher and she did make an important contribution to my education by urging me to read more broadly. So I won't say anything. I didn't know that she'd said that. I didn't know that her views about me had changed in that way. So anyway, that's news to me. Speaker 2 (8:00) Sounds kind of sad. Yeah. I think people don't Speaker 1 (8:03) know that Justice Alito is a very nice man. Speaker 1 (8:07) Just like as a man, he's very nice. Whatever you think of his opinions and everything else. But I'm not surprised that he had a sort of Speaker 2 (8:17) gracious take. I mean, even his public persona can sometimes have sharp edges, though. Not Speaker 1 (8:24) just his writing. His public persona, yes. I was trying to distinguish the man from the justice. Whatever you think of the justice. His persona, you know, as Speaker 2 (8:35) a man. I don't know. I mean, I guess there's what comes across from the justice's writing, and then what comes across for how the person holds themselves out in the world. you know, what happens behind closed doors, I guess. Speaker 1 (8:52) Or even, I'm just saying, I mean, I've never, if you were to run into him at the airport, I just predict even among the justices that he'd be one of the more polite and gracious people. Have you run into him at the airport? No. But I would like to. Of all the justices, he might be the one I'd most want to run into at the airport. Speaker 2 (9:12) He might actually use an airport. Speaker 1 (9:14) As opposed to a private jet Speaker 2 (9:17) hangar or an RV. Yeah. He has done the private jet thing some, but I think he probably does Speaker 1 (9:22) regular Speaker 2 (9:22) airports too. Yeah. Speaker 1 (9:25) Although his, you know, I think he splits his time up and down the East Coast. He may well be a... a driver a 9.95 for a Speaker 2 (9:33) amtrak guy Okay, so other things that happened. Not much happening on the court. Well, at least as of the time we're recording. By Speaker 1 (9:45) the time this gets released, we may well be out of date on that. Speaker 2 (9:47) Yeah, that's almost certainly true. We're recording on Monday, August 10th. I think last episode we mentioned the applications about the mail-in voting thing. Still fully briefed, Speaker 1 (10:02) still no action by the court. And this is dangerous prediction territory because, of course, by the time this episode airs, the prediction may already be true or false. Speaker 2 (10:13) But Speaker 1 (10:13) so it goes. Speaker 2 (10:15) I think, I don't think it's been filed yet, but I think, are we expecting soon an emergency application about the D.C. Circuit opinion about the White House ballroom? Speaker 1 (10:29) Yes, I think we've, I mean, no. The DC Circuit itself stayed its decision for 14 days. I think we've seen various public statements that a steady repetition is coming. The smart money on the internet commentariat seems to be that the DC Circuit will be reversed on standing grounds, which does not seem obvious to me, but if that's what everybody thinks, I assume they're right. Speaker 2 (10:53) You don't actually assume that. You don't assume that everyone on Twitter is right. Speaker 1 (10:58) No, but when a bunch of people have predictions, I try to downgrade my confidence in my own prediction unless I'm confident they're missing something. Like if my prediction comes from just my assessment of the objective materials, then I try to downgrade my confidence. Speaker 2 (11:14) Okay. The deadline for petition for rehearing in Trump versus Barbara passed without any such petition. There had been some talk that the administration might try a rehearing petition, which would have gone nowhere. So instead, the administration seems to be doing something different. They've released some new executive orders aimed at trying to carve out a little space theoretically left open by Barbara to deny birthright citizenship for narrower classes of people. Speaker 1 (11:49) Yeah. I Speaker 2 (11:50) don't know if you've looked at the substance of these yet and have a view on whether they. Speaker 2 (11:55) Are, you know, within legitimate space left by that decision or whether they're, you know, something closer to defiance? Speaker 1 (12:03) Not careful. So, and maybe a mix. I've not looked at this carefully, right? So there's a, the exceptions include kind of trying to broaden the Children of Ambassadors exception to include a broad range of embassy staff, which I think is contrary to the original. meaning slash common law, but I guess raises the question about like how fixed that category is. I think there's an exception for the territories where the lower courts have held that, which the lower courts have held are not the United States for purposes of born in the United States, although there's statutory birthright citizenship for every territory except for American Samoa. And so in that one, I think he's sort of lining up with the lower court cases, but maybe this actually increases the chance of Supreme Court attention to the issue. And then also some sort of a... birth tourism exception and a surrogacy exception whose details I don't totally understand? Speaker 2 (12:55) Yeah, I think it's aimed at saying that it's fraud to come here for birth tourism. Speaker 1 (13:02) And then Speaker 2 (13:03) that would provide some basis for, I don't know, Speaker 1 (13:07) criminal prosecution. I don't totally understand. So I have not looked at these carefully, and I guess I should. Speaker 1 (13:15) And I hesitate to say anything that's an untutored reaction given the stakes of this, but my untutored instinct is... Who would be tutoring you? Be tutoring me. Speaker 2 (13:25) You'd be self-tutoring? Speaker 1 (13:27) Self-tutoring? I could not be tutored by many experts in this field. We have friends who've written on both sides of this, or I could take a class, presumably some law school class that covers these materials. I guess I teach that class, so... Unstudied instinct, is that better? Sure. Yeah. Speaker 1 (13:45) I think this really tees up the statutory question. Like several of these, you could at least imagine, depending on how you've, you know, your method of originalism and the level of distraction problem, you could at least imagine a constitutional argument. But it will really tee up the question of like, where did this come from and who gave the president the power to define these sort of workarounds? And that's also, I was just thinking about it because you could imagine. How this litigation works is a little less obvious, who the classes will be, who the plaintiffs will be, what the relief will be. But if you were the parent of a child covered by this order, might Speaker 2 (14:20) you just wait until 2028 and Speaker 1 (14:22) see if the order goes away? Speaker 2 (14:24) And Speaker 1 (14:24) if the order goes away, is that good? Like, do you need... Do you need to have an executive order on your side at the time your child is born? Or is it enough that we just later all agree that that was the right answer? And so when, apply Speaker 2 (14:37) for a passport Speaker 1 (14:38) later, don't even apply for a passport now? Speaker 2 (14:40) Yeah. Speaker 1 (14:40) Although, again, if you waited until, I mean, now who knows, the next president may well continue this order, depending on who they are. But yeah, if you imagine a different president rescinds the order on January 20th, 2029, you apply for a passport then. Maybe that's fine. Although then I guess if a new president puts in place a new order in 2033, then you lose your passport, which might all be reasons that a court might just say, this is not how citizenship law is not made by the president. Speaker 2 (15:12) So we'll see if anything happens with that. Okay, what else? We've got already, you know, summer is really ending because we've got our argument calendar for October. Speaker 2 (15:24) In keeping with the court's slower pace these days, we've only got seven cases. Speaker 1 (15:32) Let's Speaker 2 (15:32) see, what's on the argument calendar? Oh, they're starting with Suncor. That might be a case that we actually have to Speaker 1 (15:40) preview, Dan. I'm willing to do that. It Speaker 2 (15:44) might Speaker 1 (15:44) be the most, it's a Fed court's case, it's a constitutional law case, it's a conflict case. This is the case about whether state law torts can hold energy companies accountable for the harms of climate change. Big deal. Speaker 2 (15:59) And it's an interesting preemption question, right? Speaker 1 (16:02) Yeah. And it's an interesting, it's one of these conservative intuitions in search of a constitutional clause questions. I think that, you know, the standard view would be the court granted certain in this case to say, no, you know, Boulder County and the state courts of Colorado cannot hold to account the, you know, global energy industry. But exactly what provision of federal law says they can't is confusing. Speaker 2 (16:29) Well, you know, give people enough time, enough briefs, enough lawyers, they can find something, Speaker 1 (16:35) right? Yeah, well, it's interesting also, I haven't even read all the amicus briefs, but there are also some interesting crossovers. You know, Jonathan Adler, relatively conservative libertarian scholar and author of The Full Conspiracy, had a solo amicus brief on the side of the plaintiffs. Which Speaker 2 (16:50) is Speaker 1 (16:51) not maybe what people would normally imagine his political instincts, but saying, you know, this is what... Congress can preempt this if it wants to. That's what the Commerce Clause is for. So we'll see. Speaker 2 (17:02) Okay. Other follow-up. Joe DeMott wrote in to say that we noted the weirdness about Justice Thomas only wanting to talk about Rooker but not Feldman. Speaker 1 (17:16) And Speaker 2 (17:16) apparently Justice Stevens in dissent in a case called Lance v. Davis also took the position that Rooker is good and Feldman is bad. Speaker 1 (17:25) Yeah. I mean, this is not actually my view. I'm skeptical of both of them, but I really like the idea of, you know, recurrent anti-Feldmanism as a position to put back on the table. I still haven't gotten to the bottom of why, like what's different. Well, Speaker 2 (17:39) when you teach FedCorp, you can figure it out. Okay. I'm covering that towards the end of the semester. Yeah. Okay. So anything else from the mailbag or... Speaker 2 (17:56) Yeah. Speaker 1 (17:57) One other mailbag. A long and very interesting comment from Michael Rosman about our Title IX and equal protection sex sports episode. Just pointing out, among other things, that lower courts, he says, have, without exception, held that schools cannot stop women from playing football on the men's team. I guess it's not the men's team. And thus, he can't see how a public school could. preclude a transgender person from doing so either. Speaker 2 (18:29) But they wouldn't let a male student play on the girls' team? Well, there isn't a girls' football team, I think. Well, I know, but