Shoe of Damocles

Divided Argument

The podcast returns after a break to analyze two recent Supreme Court per curiam rulings: Trump v. California and National Park Service v. N

Key takeaways

• The Court stayed an injunction against Trump's mail-ballot executive order due to insufficiently concrete injuries from states, despite prior enjoinment of the Postal Service's final rule.

Main topics

• Standing and ripeness in federal court
• The Purcell principle and its application (or misapplication) in election-related cases

Notable quotes

"The Justice is treating them as something official. Is keeping them secret for a long time, roughly this amount of time, bad?"

Conclusion

The episode underscores ongoing tensions in constitutional law—particularly around

Transcript preview

Speaker 2 (0:00) Oh, yay. Oh, yay. Speaker 1 (0:02) Oh, yay. The judicial power of the United States shall be vested in one Supreme Court. Unless there is any more question, we have to find an argument in this case. All persons having business before the Honorable Bishop of the United Speaker 2 (0:14) States are advised to give their attention. Speaker 1 (0:20) Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps. And Speaker 2 (0:25) I'm Speaker 1 (0:26) Will Speaker 2 (0:26) Bode. I told a couple of colleagues this week that we were going to record on Friday and they said, wait, then Speaker 1 (0:32) it's no longer unpredictable. We now have a lead. For them, not for most listeners, though. And it has been a bit of a break after a pretty steady run. So I feel like that was unpredictable. Do you have any excuses for that? You were on vacation. And you started class. Semester started here. I am swamped teaching FedCourts for the first time using your book and with your guidance. That's been a lot of fun. It's not really my book. Speaker 2 (1:04) You're the first name on it. It's Bode et al. It's good for my citation counts. I'll admit that. But, you Speaker 1 (1:12) know, it's Hart and Wexler's book and we're all just holding it in trust. I mean, how many words remain from the first edition? That's an interesting question. Speaker 2 (1:23) Can't Speaker 1 (1:23) be Speaker 2 (1:23) that many, right? Well, I mean, a lot of things are cases that have not changed. Speaker 1 (1:29) Osborne. The Speaker 2 (1:30) edits Speaker 1 (1:30) in the cases. Marbury. Okay, but of the notes, how much is left? The notes have changed a lot. The notes have changed a lot. Well, it's fun to teach out of. I'm actually finding it slightly less challenging to teach out of than I was worried about. So we will see if I still say that. Two weeks in, 11 weeks to go. Learning a ton. having fun. Students are great. So I'm busy, but I got nothing to complain about. Yeah. Good. Teaching four days a week. I haven't done that. Um, maybe ever. That's good for you. Build your stamina. Yeah. Yeah. Law professors should have to work hard once in a while just to see what it's like. Speaker 1 (2:21) Well, speaking of Speaker 2 (2:22) standing in federal courts, I Speaker 1 (2:24) think we got some stuff Speaker 2 (2:25) in your wheelhouse to Speaker 1 (2:26) talk about. Yeah. So I actually just finished teaching standing. So I feel a little bit more knowledgeable about that area of law and a little bit more prepared to talk about the cases that we're going to talk about than I would have been otherwise. Speaker 1 (2:42) Any preliminary matters to get out of the way? One thing that was interesting was Jody Cantor's story about secrecy at the Supreme Court that had some interesting tidbits in it. One of which was that Justice Scalia didn't make any arrangements for what to do with his papers after his death, Speaker 2 (3:03) which Speaker 1 (3:03) is not. The norm. I think most justices have come up with some plan. Obviously, he died at someone unexpectedly, but I still think it's the kind of thing you might do a little earlier. Speaker 2 (3:16) I guess I wonder, you know, as of 2016, when Scalia died, do you think everybody else in the court already had plans to put papers in place? Or do you think... Speaker 1 (3:25) I don't know. Because he was the first person to die kind of quite unexpectedly. I mean, you know, several other Speaker 2 (3:33) people have died on the bench, but... Speaker 1 (3:34) But yeah, I mean, Justice Ginsburg, it sounds like did have plans. She, you know, she donated them to the Library of Congress with certain conditions. I don't know when that plan was made. Yeah. Speaker 2 (3:46) It seems like, are we trending to a world where the default plan is something like, my papers are being closed until everybody sort of in the relevant period is dead? Either everybody who was in the court when I was dead used to a whole period or maybe tranches, like, you know, Speaker 1 (4:04) the early part of my service. Yeah. I think that seems to be common. Now, there seems to have been some kind of... Discussion at the court after Justice Scalia's death about trying to come up with some kind of more uniform plan. But it seems like it's not actually clear from the reporting that it's not clear what the plan is. Right. Speaker 2 (4:32) But it might be something like that. Speaker 1 (4:34) You know, it might be. Everybody designates a custodian and designates a rough. I mean, because I mean, to the extent that that's what Ginsburg did, that suggests, you know, I mean, she could have broken with what the court wanted or not. Right. That's true. Speaker 2 (4:50) And you you're more of a transparency guy than I am. I think. Are you are you bothered by any of this? Speaker 1 (4:58) Where to start? I mean, so first of all. I don't love this notion that the papers are just the justices' personal papers, personal property to do whatever they want with. That doesn't strike me as obviously correct. I mean, the papers are printed on government-owned paper using government-owned printers. And so I don't actually think they are personal property. Okay. Speaker 2 (5:23) But I take it if one of the justices brought in their own printer from home and ordered their own paper on Amazon, that wouldn't impress you. You wouldn't say, okay, now you can. I Speaker 1 (5:31) don't know. I don't know if that would be, that also strikes me as inappropriate in the sense that, you know, we typically think that someone should. be using official government channels if they're in a government office. Speaker 2 (5:46) Yeah. It's hard to get, Speaker 1 (5:48) you Speaker 2 (5:48) know, I don't know. Here, at least, sometimes it's hard to get my, you know, office supplies in a timely fashion. So I frequently just engage in self-help. Speaker 1 (5:56) It could be, but to the extent that there's, this is in order to maintain secrecy. Yeah. You know. I Speaker 2 (6:02) do think that. Speaker 1 (6:03) But assume Speaker 2 (6:04) they were all, assume they were government. I mean, and maybe this move towards having a centralized plan is actually moving towards that. Assume. the justice are treating them as something official. Yeah. Is keeping them secret for a Speaker 1 (6:17) long time, roughly this amount of time, bad? You know, my preference might be a little sooner than waiting for everybody to die. I think maybe having a time limit relative to when the case is decided rather than relative to when each justice dies. I mean, I think that, you Speaker 2 (6:35) know, Speaker 1 (6:36) that seems more like... tied towards the like vanity of the justices then towards you know where the public interest lies Speaker 2 (6:45) Yeah, although the vanity of the justices might be relevant to the public interest. And this is the, I think we did talk about this in a previous episode, and I'm trying to be better about remembering when we're repeating ourselves. But, you know, if you know that Justice Blackmun keeps very good records and intends to release everything like ASAP, then that may affect what you're willing to put in writing. Speaker 1 (7:06) Maybe. Speaker 2 (7:07) Sometimes that'll be good. Maybe sometimes we think the threat of one day being read will cause the justices to behave better. That means that you, you know, I think for many things, there's a norm that memos and case discussions circulate among all nine. But you could imagine a world where the norm is more like you circulate on your team and then you only circulate things to the other team if you have to. And that seems like it would be bad. But it's kind of that's contingent on how the justices feel. Yeah. Like you might, ideally it might be that the justices feel totally happy conducting everything in the open with a lot of transparency. But if they don't feel that way, I at least want them to have what Speaker 1 (7:45) they need to Speaker 2 (7:46) feel comfortable. Speaker 1 (7:47) Yeah, I'm not sure that like if the time limit is 20 years versus after you die, it would necessarily make a big difference. But I mean, my general, without getting into exactly what the number should be, and I'm not sure, my view is the court exercises a ton of power and is not a very transparent institution. I do think that. people should be able to get a little bit more information about the institution in order to, you know, evaluate whether it should have as much power as it has. That's my view. Speaker 2 (8:17) So my one other, despite everything we just said, I have, I'm now flirting with a new view that is the opposite of one of my previous views. Oh, I like that. My new, so this is, this is tentative and maybe tongue in cheek. My new institutionalist proposal. would be a lot of transparency, like all the papers become public after 10 years or something. Okay. With the goal that the justices would feel more pressure to come into the office regularly and talk to one another in person. Like if you knew, okay, you could do it on the papers, but it'll be seen. And anything, you know, sensitive you want to talk about, you have to talk to people. Because, you know, that actually, I mean, you know, they all work in the same building. My sense is some of them work there more often than others. Some of them talk to each other more often than others. And Speaker 1 (9:07) your view is interpersonal face-to-face interactions would lead to different form of decision-making, less vitriol, et cetera. Speaker 2 (9:16) Well, you know, yeah, this is one of those things that can come both ways. There Speaker 1 (9:19) are Speaker 2 (9:19) people in the world who I maybe get along with better on paper than I do in person. Speaker 1 (9:25) I'm not saying the justice are in that category. Where am I on that? Speaker 2 (9:32) I wish we saw each other more. This is good. We record the podcast face to face and that's Speaker 1 (9:39) good. Speaker 1 (9:41) Yeah, it's been a while since we've done a live show. Yeah, we never. Is that last one May, mid-May? That's right. We never succeeded Speaker 2 (9:49) in our plan to create a sort of like podcast studio in, you know, Dunst, Illinois in between where we could meet Speaker 1 (9:55) in person. A Peoria, perhaps. Yeah, and I don't think we have, we don't have any, we don't have any live shows on the calendar for this fall. I'm pretty busy this fall. I think we may be doing one or two in the spring, but that's TBD. Yeah, sounds good. Speaker 1 (10:13) Yeah. Okay. That's an interesting story. In Speaker 2 (10:15) the scheme of Jodi Kantor exposés, this one seemed pretty tame. Speaker 1 (10:20) Mm hmm. Mm hmm. Yeah. This wasn't super, super leaky, but a little bit of new stuff in there, which is good. Speaker 2 (10:28) So Speaker 1 (10:28) I liked it. By the way, in response to what I said, you don't buy any of the, you know, public interest in disclosure arguments. All of your your new view is is still more about like making the court better. I mean, I do. I do think there's a public interest in disclosure. So I do think like. Speaker 2 (10:49) As a background norm, we should want the papers to be public as soon as possible. And the question is, how soon is possible? Well, as soon as not possible. I mean, it's possible to have it. As soon as reasonable. As soon as, you know, as soon as we can without that causing big problems. Okay. And then the question is, what counts as a problem and how much do we know what that is and so on. But I do think the background norm of... You know, we want government records, especially for the historical Speaker 1 (11:17) record to be disclosed. That's, I think that's true. Speaker 2 (11:21) So Speaker 1 (11:21) it's just my question how strong it is. Speaker 1 (11:25) Okay. Feedback. We actually have a huge amount. We had compiled it all, and there's a huge amount, and I think we're going to talk about practically none of it. Did get an interesting email from a friend of the show, Daniel Greco, who is a philosopher, professor at Yale, about formal logic that... takes issue with the claim that we dealt with about whether a conditional statement where the condition is false turns out to be false is always a true statement. Yeah. I'm going to butcher this, but he says, you know, basically, people tend to see the system you learn in introductory logic as an artificial language whose connectives are stipulated to obey the rules you learn rather than as an attempted theory of natural language. So basically, it might be true in formal logic that if A, then B is true always as if not A is true, but that isn't necessarily true of, you know, how we understand those kind of statements in spoken English. Okay. And that seems persuasive. Formal logic is a programming language, essentially. Speaker 2 (12:36) Yeah. And we could, you know, often render our English statements into that language, Speaker 1 (12:42) but maybe not always. Speaker 1 (12:45) So it's nice to occasionally hear from listeners who are experts in non-law things. You know, first of all, it's always surprising to me that we have listeners who aren't lawyers. And it's particularly nice to hear from listeners who know a lot about other stuff. Speaker 2 (13:04) Yeah. Somebody asked me recently, was our podcast only, you know, only for lawyers? And I came to the view that, you know, I think it's for nerds and lawyers would be a natural set of people to be law nerds. But I do think we have, we have a solid block of people who are nerds about something else, but who, you know, then want to, they understand what they're getting with us. Speaker 1 (13:29) So that's great. Yeah. Okay. What else have we got? Speaker 2 (13:34) I learned that I have become old enough to repeat myself without remembering it. So the story I told that became the title of our last episode about law firms with thriving atrocities practices, apparently I've already told the last time we talked about an ATS case in the show back in season one, Speaker 1 (13:52) which I had forgotten, but some of our listeners remembered. It's embarrassing. Yeah. CJ Lombasi wrote in. To say that. That was a long time ago, though. Season one, episode seven. Speaker 2 (14:04) Yeah, we at this point, we probably have some listeners who weren't listening back in season one. So maybe maybe every five years is good enough. But but I take that as a sign that I can't be relied upon Speaker 1 (14:14) not to repeat myself. So there we go. Speaker 1 (14:20) So, yeah, there's a lot of times when I tell anecdotes and things like that, and I know that I must have said this before at some point, but I couldn't tell you exactly when. So, I mean, with luck, at least a lot of the listeners have memories sort of like ours where they don't necessarily remember either. Speaker 1 (14:42) But, you know, for some people, you know, I'm sure as we go on, as we eventually hit the double digits of seasons, which I very much hope and expect that we will, there will be more of that. Because, you know, we only know so much, you know, it's possible that our collective learning is being outpaced by the pace of episodes. Speaker 2 (15:06) Yeah, I hope we can learn new things at a fast enough rate to still have Speaker 1 (15:10) something to talk about. Okay. Speaker 1 (15:14) Anything else or should we just, you know, I think we have like many, many emails, but I think that, you know, rather than spend forever on them, I think we should just get to the substance such as it is. Speaker 2 (15:26) Yeah, let's talk about it. Speaker 1 (15:27) We have Speaker 2 (15:28) two per curiam decisions from the interim docket to talk about, right? Okay. Both involving standing. Yes. And I should say we're recording this on Friday, September 4th. It would not shock me if by the time this airs, there's been something else, a development or follow-up to these things. But in terms of catching up on the August interim docket, we've got two per curiam standing rulings. 163-154. Do you want to talk about the ballroom or the Speaker 1 (16:00) election? Maybe we should do the election one just because it was earlier in time. Okay. Okay. So there is this executive order that the president has issued that has a number of sections. What exactly the order... Speaker 1 (16:25) Requires and says seems to be a matter of contestation. Yes. In the case itself. Yes. Speaker 2 (16:34) So this is Executive Order 14399, ensuring citizenship verification and integrity in federal elections. issued by the president under his authority to execute the Help America Vote Act, the National Voter Registration Act, and to guarantee a Republican form of government. Every state capital capital R. It's lowercase R in the second order. Should we read that as capital R? You know, there is actually this very funny wrinkles that the Supreme Court has held that claims under the Republican Guarantee Clause are non-justiciable. Famously, in Luther versus Borden, Congress decided which of two warring governments in Rhode Island was the lawful government. And then Congress used this power during reconstruction to be able to decide without judicial review. you know, when the Reconstruction governments were legal and when they weren't and so on. Speaker 1 (17:32) Is that the first political question doctrine case, basically? Basically. Speaker 2 (17:36) Yeah. There are cases about treaties and things Speaker 1 (17:39) that you Speaker 2 (17:39) could see that way, but basically. Speaker 1 (17:41) Yeah. Speaker 2 (17:41) If you take that really seriously, I don't think the government's made this argument, you could say, well, then the executive order should be non-justiciable because it's a Republican-formal government clause. Yeah. So there always still has to be some judicial review about whether a thing that invokes the Rehabilitation Reform Government Clause sort of properly invokes it, which then raises the puzzle about, you know, is it really a political questions doctrine or is it just a merits doctrine? Anyway, the general shape of the order is to order some kind of greater verification that the states should participate in, in figuring out who is lawfully entitled to vote and create a more federal driven verification. Yes. And then also to get the post office involved in scrutinizing the mailing of ballots. And there has been some debate, which we'll talk about in a minute, about how do these things relate. One proposal that was discussed was maybe that the post office would refuse to deliver absentee ballots to anybody who wasn't on the approved list or maybe refused to deliver them in any state where the state had not cooperated and Speaker 1 (18:42) maintained the list. And so just to be clear, the idea is the federal government is going to make lists of eligible voters. Yes. I don't totally understand where those come from, but the order says, to the extent feasible and consistent with applicable law, the Secretary of Homeland Security, through the Director of U.S. Citizenship and Immigration Services, in coordination with the Commissioner of the Social Security Administration, so I guess that's how they're doing it, shall take a... It says, take appropriate action to compile and transmit to the chief election official of each state a list of individuals confirmed to be U.S. citizens who will be above the age of 18 at the time of an upcoming federal election and maintain a residence in the subject state. Speaker 2 (19:31) The list shall be derived from federal citizenship and naturalization records, SSA records, saved data, and other relevant federal databases. Yeah. I mean, this is famously an odd thing about the United States is we don't have one national database registry that just has, like, Everybody in the country in it and has all the info about us. Like there's much data about us, but there's not one database. And this is one of the reasons we don't have national, a single national ID card or a single, you know, thing like that. So apparently we're going to create one on the fly right before the election and make everybody use it, even though they've been using other things. Or at Speaker 1 (20:12) least so the executive order suggests requires. Contemplates, but doesn't quite, it's not like totally done yet. Speaker 2 (20:22) And I should say, this is the kind of thing the president has done several times before, where he issues a broad executive order on a topic where the president has expressed extreme views. Speaker 1 (20:35) orders Speaker 2 (20:35) some more specific things like that are not exactly the