Cruel and Unusual and Stupid

0:00The judicial power of the United States shall be vested in one Supreme Court. Listers need to get any more pressure to be able to find an argument in this case. The role versus having this list is put the honorable Supreme Court of the United States are advised to give their attention. Welcome to Divided Argument, an un-scheduled, unpredictable Supreme Court podcast. I'm Dan Ems. Well, bud, Will, as your prerogative, aren't you tell our listeners where we are today? We are here on my home court at the University of Chicago. We've got great group of students here ready to listen to us talk about some cases. Does home court imply some kind of adversarial relationship between us? Let's see when people share. Okay. So you had a plan for what we were going to cover today that seemed to me a bit ambitious, but we're still going to try to see if we can do it.

1:00So let me jump into it. I'm going to be the kind of taskmaster trying to keep us on pace. We're doomed. Okay. First thing, just to deal with a little bit of feedback from the last episode, we talked about the tariffs case learning resources. We talked about a lot of different angles in that case. People were very interested about one thing we said, which is our attempt to find the origin of the phrase no, no, a thousand times no. I'll just say that the investigation continues. We've gotten more email about that than we have about anything else in the history of the show. And it's quite puzzling. There's a lot of threads that go back hundreds of years. So you're going to have to wait for that one, but for those who've written in, we appreciate it. Another little tidbit that I don't think there's a ton to say about, but I thought it might have a slight scotus angle. Did you see how the Trump administration has brought these, tried to enforce these orders against law firms that the president dislikes, imposing all sorts of restrictions on them. Those have been enjoined by District Court within the DC Circuit.

2:04Appeals were pending by the government. The government filed a motion for voluntary dismissal, and then tried to unfile it the next day. Yeah, they filed the second thing, a motion to withdraw their motion to voluntarily dismiss. I don't know if you can do. Well, we're going to find out whether you can do it. The only kind of scotus-related angle is, you know, typically the solicitor general is involved and has to approve decisions to appeal lower court rulings. I don't know exactly what the solicitor general's role would be in withdrawing from appeals. It sounds like the White House Council's office may have come in and sort of countermanded the decision to withdraw the, you know, tried to dismiss the appeals, but, you know, I'm very curious if we'll ever learn whether the SG's office, you know, was in those conversations, which I imagine it was. Yeah. I know which side. Okay. All right. So we're two items down already. So next thing, we are going to talk about two orders that I think because this is,

3:06as you called it, your home court, something we're required to still call the shadowdocket, right? Great. Okay. First one, Mirabelli versus Bonta. You said this is maybe the thing people were going to be most interested in. So what happened here? Okay. So this opinion, along with the other order, we're going to talk about both came down on Tuesday evening. It is an application to vacate an interlocutor, interlocatory state order out of the Ninth Circuit. But what happened is a group of parents and teachers in California sued to challenge the California Public Schools policy to accommodate children who want to use different pronouns and transition genders in school and to not tell their parents about it. And the parents that teachers sued, saying this violates both the due process clause and the free access clause, a district judge had enjoyed the policy and the Ninth Circuit stayed the injunction. And so now the Supreme Court has stepped in to unstate the injunction, to stay the stay. And unlike sometimes issued a procuring opinion that appears on the Supreme Court opinions page,

4:07not on opinions relating to orders. Yes. We don't know, as with these kind of procuriums, we don't know who wrote them. I was trying to puzzle that out. I mean, there's six justices who could have, because the three liberal justices are in dissent. I don't think it could be justices, Thomas or Alito, because they say at the end that there's a note that says they would have granted the application in full. I think that means the court only acted with respect to the parents but not the teachers. And so those two would have granted relief with respect to the teachers as well. So it's not them. Then the other puzzling thing is we have a concurrence by Justice Barrett joined by the Chief Justice and Justice Cavanaugh. So that's three. Do you think that the act of, so I assume Justice Barrett didn't write the procurium because she wanted to concur separately. Do you think that the two justices who joined also did not write? Well, so if we were a signed opinion, that would be the norm, right?

5:08You can't have an opinion by Chief Justice Roberts and then a concurring opinion joined by Chief Justice Roberts concurring his own opinion. The court appeals to us sometimes, but the Supreme Court doesn't do that. But it's an unsigned opinion, right? So the only justice who can't join a concurrence is the famous Justice Curium. So I don't think that tells us who drafted the opinion on behalf of Justice Curium. And I mean, don't we think at this point the Chief just writes all these? I assume so. I mean, do you think it's weird that he would write the procurium and then join a concurrence? Because the only person, the odd man out there is Justice Gorsuch, right? Justice Gorsuch could have drafted that. Yeah, it didn't have a strong Gorsuch style feel to it, but you never know. He's restraining himself. Apparently. Okay. And just to understand the procedural posture, the ninth circuit was still possibly considering whether to stay or not on Bonk. Is that correct? Yes. So the ninth circuit, I think state decisions already gone on Bonk. The merit appeals pending.

6:09As I understand it, there are several different sort of variations of this challenge as well. Because there's a state law that says that public school teachers shouldn't communicate to the parents any facts about their children's transitions. But then there are also policies that maybe go beyond or above the law. And there's a lot of different variations of what exactly is being challenged. But right now this could be going on Bonk and the ninth circuit and now maybe they don't have to. Yeah. And so I mean, normally wouldn't it be a typical practice to seek relief in terms of equitable relief at all levels, lower levels of the judiciary before you go to the court? I think that was traditional when we were in law school, but I think that's a lot has changed. It's an emergency that everything's emergency now. Yeah. Okay. So let's walk keeping our breakneck pace. Let's walk through the reasoning. Okay. Which, you know, and again, you know, I think we should give kudos to the court in that they actually give us seven pages of reasoning.

7:09Now, they're going to get criticized for that. And this is something that I've noted before about the shadow docket as the court gets criticized for saying too little. But then it often gets criticized for saying too much, you know, which I think in some instances really what it means is that the criticism is about the substance of the court's ruling. And there's, you know, there's plenty you could criticize. But I, my view is it's better to say a little bit more. It's better to say something rather than nothing. Okay. Well, we'll get to that with the other one. But so I agree. And I, somebody stopped me at coffee mass. We have a Wednesday mornings here. And the morning I said, you know, don't you think this opinion was reckless for the court to write so much, you know, before they got to the merits or maybe the rights a little. I think, but I think the rights so much. And my reaction was no, they may be wrong. But it doesn't mean it's reckless. Like conditional on them having these views. It's probably good that they told us what they were thinking. And reckless because as we'll get to the decision, you know, opines on the merits. Is that, was that the claim? Well, I think it is related to what it says about the merits.

8:10So that's, it's okay. So that there are, why is it that it might be unconstitutional? Why is that the Constitution might even speak to the question of what public school teachers are allowed to say to parents or require to say to parents about their children? Right. What part of the Constitution governs community parent teacher conferences? The parent teacher conference clause of the Constitution? There turns out there are two parent teacher conference clauses in the Constitution. One is the free exercise clause, which we talked about on this show, of course, before. So the Supreme Court last term in Mahmoud versus Taylor said sometimes requires schools to give parents notice and an opportunity to opt out before something happens to their children at school. In that case, the sort of instruction using LGBT plus inclusive children's books. And the court said, at a minimum, you should have told the parents what was going on and given them a chance to like pull their kid out that day as they weren't exposed to this. So that's at least like free exercise and it would only apply to parents within the class who have religious objections or parents within a subclass with religious exceptions, objections.

9:11Right. Right. And now Mahmoud did say, look, people are complaining this is going to totally overhaul everything about public education. But this is just a narrow decision about these facts. So we're not necessarily deciding that. So the ninth circuit took that at face value and said, well, that was apparently a narrow decision about its facts. So it doesn't apply to this, which is not about children's books and not about preschoolers. And the Supreme Court in the precarium now says that was wrong that the ninth circuit had too narrow of an understanding of Mahmoud. It does apply because there's a strong objection here. Indeed, the intrusion on parents free exercise rights here is greater than the introduction of LGBTQ story books. We consider it sufficient to trigger strict scrutiny in Mahmoud. So that's a modest extension or maybe significant extension of the free exercise right that would only apply to parents who have a free exercise right here. Yeah. And I think that this is a theme we tend to see in these short shadow docket orders, which is the court sometimes saying very briefly, oh, our precedent commands this result.

10:11And if you drill down a little bit, maybe it's a little bit more complicated. Well, they have a pin sight then. Okay. Well, that's that's that's all said. I mean, we should get some large view editors doing a site check on that to make sure that it's not a CF. Yeah. Okay. But then they don't stop there. So one of the criticisms of Mahmoud and one of the criticisms of some of these cases, premise on the precise clause is that this further exacerbates the sort of two tier system in which religious parents have a lot more rights about their kids, public school instruction than on religious parents. Maybe that's just a necessary consequence of having a free exercise clause, but does bother some people. So the court solves that problem by doubling down on the much beloved doctrine of substance to do process. Right. Okay. And some some people think and we're going to have a dissent that will get to in a minute by Justice Kagan that makes the claim that that the conservative majority has kind of gotten rid of substantive due process.

11:12But apparently that is not the case. So recall, there was a case called dobs from a couple of years ago, where the court overruled a precedent that had recognized a substance due process right right to abortion. Overruled Rowan Casey and said substance due process is very dubious. We've said you can only recognize substance due process rights if they're well supported by history and tradition. You have to do that history and tradition analysis at a very low and specific level of generality. Otherwise, it becomes a license for judges to just decide what rights they want to protect and protect those and others. Now, they did say we're not disturbing any of the substance due process rights. We've recognized in the past from Obergefell all the way on back to Pierce versus Society Sisters. Just as Thomas wrote separately to say we just about Catholic school education. Yes. Just Thomas wrote separately to say no, I would disturb all of them or I would ask about all of them. But they said we're not disturbing them. People said, yeah, right, we don't believe it. Well, now we have a case where the court says, look, here's a precedent. We have precedents, two cases that recognize the right. Essentially the right to send your kids to private school.

12:12They're seen to establish some kind of parental rights plus a few follow on cases. One of the court sites, a lot called Parham about basically the state's attempts to institutionalize your children. And in Troxwell versus Granville, right, which is I don't think there was a majority opinion in that case. Right. And a scully at a send. I think about the unconstitutionality of giving grandparents visitation rights over the parent's objection. So there's some kind of parents rights out there. So the court says, look, the same is true. The claims will succeed for the subclass of parents who object to these policies on due process grants. Under long established precedents, parents, not the state, have primary authorities respect the upbringing and education of children. That includes the decision not to be shut out of decisions about your children's mental health. And is that fair? I mean, I thought you just told me that we were supposed to define substantive due process rights at a low level of generality. Yeah, that seems like a very high level of generality. Yeah, I will say this is another one.

13:12If you go read the cited cases about parents rights, I mean, there are cases about parents rights. So there is some sort of substance due process limitation on the state's ability to interfere with parents. You know, they're all those other rights are sort of negative liberty cases where the parents are being stopped from doing something with their kids that they think is a good idea. None of them are about compelling the state to do something that the parents want them to do. Now, that's a plausible extension, right? And in these cases are positive rights cases. These cases, nobody's stopping parents from pulling their kids out of school or doing whatever they want to the kids at home. The question is whether the parents now have a constitutional right to force the school to do what the parents want, which I understand why the parents want it. But it's an extension. And part of the reason the court has said you have to do these things at a low level of distraction is that it couldn't over roll row. If you do things that this kind of level of distraction, you could say, look, we already have precedence recognizing the right with the two bear or forget a child as the court said in Eisenstadt. The idea that in general people have a right to bodily autonomy can make decisions about, you know, their own body and their own medical care.

14:13You know, unless the state has a really good reason is well grounded in hundreds of years of precedent practice, you could have said that. And so, Dodd said, no, no, no, we don't define things that that kind of level of morality. So let me just look at this couple of sentences of reasoning one very closely. Under long established precedent, parents, not the state have primary authority with respect to the upbringing and education of their children. Next sentence, the right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health. Okay. That at a high level of distraction, that is accurate. Okay. I mean, and, you know, at a high level of abstraction, that first sentence couldn't apply a lot of things, right? I think divided argument, blogger Richard Ray made the point that, you know, does this extend to the right of parents to completely control the curriculum in every way of a public school? Right. Does that, does that seem right? I'm sure it doesn't. I'm not sure why, but I'm sure it doesn't. So the other one floating around there with talking about is in Scrametti, which you may recall, right, where the court upheld state of Tennessee's regulations about medical care for trans children.

15:23The court decided at an equal protection grounds, but the plaintiffs brought to the court and had litigated in the six circuit, substance due process claims as well, parents rights claims, saying what's happening here is the state is interfering with the parents rights to direct the upbringing of their children to make decisions about their children's medical care, like a lot of the same claims, which the six circuit shut down and the Supreme Court did not review. Now, this one did not review them. So maybe they secretly had doubts about that and never mentioned it. Maybe now somebody can bring a claim against Tennessee's law of relying on Mayor Belly, but it seems like that there's a right not to be shut out of participation in decisions regarding children's mental health, but maybe also not a right to make decisions. It could be. And so there's a primary authority with respect to the upbringing of children that doesn't mean it's unregulated. There's a lot of questions. That's the thing when you do it a high level of generality. There's a lot of questions about why this violence at where the right comes from. So now look, it's just a precurion shadow doctor decision.

16:24So I don't know what it means. Yeah. And this is, you know, really just a paragraph of reasoning on the substance of substantive due process. Yeah. Okay. And then a reputable harm. You know, we've got the other factors for equitable relief, a reputable harm, even shorter analysis there. The denial of plaintiffs constitutional rights during the potentially protracted appellate process constitutes a reputable harm. That's the analysis. Yeah. So I think so just to put everything together, we've landed in a world where if the government can't, you know, follow one of its own policies, that's always a reputable harm. I think that's been pretty established over the last few years. And so now if a person is denied constitutional rights, that is also a reputable harm. Yes. Does that mean there's always a reputable harm in conlock cases? Basically, yes. Okay. That is why everything is an emergency day. Okay. All right. Everything is a reputable.

17:24Because every minute that one side or the other wins or loses is an emergency. But it only is true with respect to the party actually, you know, enjoyed or bringing the constitutional claim. Right? I mean, like in the sense that, you know, this came up, we talked about this in some of the immigration cases where I was sort of making the point, well, if the administration is allowed to continue this policy, there is some pretty irreparable harm to the people being deported. But I think your response to that was, well, you know, we look at the reputable harm to the person seeking equitable relief. Right? But that flips at each stage. So if the, when the state went to the Ninth Circuit to challenge the adjunction against them, I didn't read their papers. But I'm sure they said, we are irreparably harmed by the injunction because every day that we are not allowed to enforce the California law is a day that we are really harmed. And then I'm circuit agreed. And then the plaintiffs go to the Supreme Court and say, every day that you don't enforce the injunction, we are really harmed in the Supreme Court agreed. So I think we've irreparable everything is irreparable.

18:24Okay. And a little bit of analysis on the balance of equities. I don't think that moves the ball forward that much. Although Kudos to the Court for even mentioning these factors and giving them paragraphs, that's a little like a little italicized phrase that reminds everybody they're part of the test. That's at least like more doctrinal hygiene than the court often has in these cases. It's good, you know, legal writing practice to just like say something about every element of the law, even if it's kind of a satisfying. Okay. And then I think this is also something Richard Ray flagged. There's this standing paragraph. And I think this is maybe a bigger deal. Yeah. Okay. Well, what's going on here? This is part three of the opinion. The ninth circuit, circuit's procedural objections to the injunction are unlikely to prevail. First, the parents protected by the injunction very likely have standing because they are objects of the challenged exclusion policies. What does it mean to be an object of a policy? Okay. So this, we talked about this last term in this case, diamond alternative energy.

19:25This is a new standing theory, just as Kavanaugh came up with, to sort of thread the needle between the court's traditional view that if you are regulated by a statute, you should have a lot of standing to challenge it. Like the core people who can challenge things, people who are regulated. And if you were just a bystander who wants other people to be regulated, be regulated, you shouldn't have standing. And then just as Kavanaugh didn't entirely like that distinction because there were some non-regulated parties who he thought she had standing. So he created a new category of people who are objects of the regulation. They're not regulated by the law, but the law's purpose, although it's not supposed to be a purpose test, the law's feel, the law's vibe. I would sort of think someone's an object of a regulation if they're regulated by it. So the word doesn't really seem to make sense. Well, it's designed to elide that. So this was the example of, you know, if you sell hot dog buns and then they ban hot dogs at the baseball stadium, you're not regulated. You're allowed to sell hot dog buns, but now nobody will buy your hot dog buns because they're no hot dogs. But objects sort of implies some kind of intentionality to me. Well, that gets aimed at you.

20:25Yeah, so this test doesn't turn on intentionality, it's objective. Object is objective. Okay. Okay, but so this theory was floated and not actually fully endorsed in diameter of energy at the pages cited by the majority. But now apparently the kind of like floating of the test. President. Okay. Yeah, we've got a C site there and that resolves the question. Probably should be a CF. Or maybe maybe needs a, you know, law review favorite explanatory parenthetical. Never. Okay. All right. Second class certification was likely proper. This is the other procedural objection. The court is dismissing. This record addressed the requirements for certification under rule 23 and explained what concluded that they were met. And, you know, not a tend to say about this other than, you know, something that came up in Kasa, you know, which is about the possibility of these kinds of, you know, universal injunctions that apply to, you know, more people than just the plaintiff.

21:27You know, one way to get broader relief was through class action certification. Yeah. And that did happen here. Yeah. And we don't know why that's okay. Okay. You know, quickly trying to keep us on pace. We're already a little bit beyond my, my schedule, but we have a concurrence from justice spirit who is sort of responding to the dissent about the ongoing role of substantive due process. Yeah. And I think so she's trying as hard as possible. I think to signal like we are saying more here because people keep complaining that we don't say more. But we're trying to say only as much more as we should say, right? So she says, look, we only said it's likely. These are likely to succeed. It's not clear. And I think the best, I mean, as I read her, what she's saying is, look, these cases are pending in a bunch of lower courts. We've all looked at them and six of us think they're wrong. The thing is just approaching them in the wrong way. They've narrowed the precedents. They're not even really like considering the main precedents we think are binding. And it's probably better for everybody who just tell you that now.

22:27So you can start trying to get these cases back on track. There's a lot still to be decided about what exactly that means and what parts the curriculum can and can't be regulated and all the different permutations. And the courts try not to say anything about that. But we just got to tell you like you're over here. And you guys should be, you know, over here close at us. Okay. And then, you know, dissent by Justice Kagan raising, you know, a set of arguments that we see over and over. These days about, you know, the court's choices to intervene using the emergency docket. One thing that I thought was interesting was, you know, she sort of says, well, maybe on the merits, this is right. Yeah. I thought that was, that was kind of striking because a lot of times in these dissents, the dissenters are objecting both to the actual substance of the decision and the procedural way that the decision, you know, was reached. Yeah. And she doesn't do that. So just a subtle mayor does not join this dissent and just says she would deny relief. I think that's possibly because she doesn't think that there may be correct in the merits that wouldn't even.

23:31That seems, that seems quite plausible to me. It's also, I mean, this is interesting more generally. And then I think of all the things the immigrant has done on the emergency docket lately. This one may not make people as mad as some. I think the result here, I mean, it's very controversial, but there are a lot of people like Justice Kagan who might think like even Justice Kagan despite being a relatively liberal justice. I think there are some problems with these policies. I do think just as a matter of policy or at least political optics, a policy that says the government is allowed to keep secrets from parents about their minor children is, you know, likely to be unpopular. And I think, you know, likely to be, you know, at least at a national level hard to politically defend. Now, that said, the fact that this involves, you know, enforcing the non-existent parent teacher clause, the constitution is the thing that troubles me, but they not be what gets the news coverage. Okay. One minor thing, did you notice this? So Justice Kagan points this out, the majority doesn't call this doctrine substance due process. They just call it due process.

24:32Like substance due process is bad. This is just due process, the good kind. And then she's like, by the way, that is substance due process. But it's a bad word. It's not to say it. Okay. So tons more we could say about that. We could have an whole episode, but we're not going to next thing, an order in Maliotakis versus Williams. This is your an election law person now, right? I am. You got to get your law faculty. Okay. Okay. This case was cited by the Supreme Court at the same time as Mirabella, also granting a stay of something happening in the lower courts. This time in the state course of New York, a redistricting fight about essentially the constitutionality of the New York equivalent to the Voting Rights Act. And this time, the court, again, grants a stay with no procurement opinion, with no court opinion at all, just the standard one paragraph. The application for a stay is granted while you wait to decide whether to grant it. Justice Alito, right second currents, and Justice Sotomayor joined by Justice Kagan and Justice Jackson, ready to set.

25:32Okay. So this one, you know, does not, does not appear on opinions of the court. Yeah. So we don't have the full scope of the court's reasoning. Does it make sense to talk about the dissent and then the Alito response of the dissent or go in the other order? Right. So Justice Sotomayor's dissent begins with a great summary. So she says, the court's 101 word unexplained order could be summarized in just seven rules for the, but not for me. Right. And then she's like, look, time it again. You've been telling me that federal courts are the courts of limited jurisdiction. You shouldn't interfere with state court litigation. That federal courts shouldn't meddle with state election law. Like, you know, just a couple of months ago, we learned that it was the eve of the 2026 election. And so the Texas courts, the federal courts should not step in and stop. Texas is mid death for your redistricting. I think by some mathematical principle, it must still be the eve of the election. Or at least it's no, it's no earlier than the eve of the election. Well, it's different timing with respect to the primary, right? True. And in Texas versus New York.

26:33Right. But I think in both cases, it's about three months, right? Yeah. And the general election is still coming. So, yeah. So it's, it's, it's eveer now. Right. So I think Justice Sotomayor's dissent could be summarized in four words. You know, give me a break. And I thought this, especially this opening paragraph, was pretty effectively written. Actually, I confess, when I printed this out, I read the first paragraph, which appears in the first page of this sentence. And I thought she'd gone for a one page, one paragraph to send. And I was like, that was bold and effective. And then I learned that there's the 12 more pages. Yeah. But really the first paragraph, it was great. So there's a few things going on here. There's a jurisdictional question. Yeah. I'm sure we can clearly explain exactly why in the time a lot of it. Oh, that's where the bodies are buried. Can you do like a two sentence version? Okay. The search for Rory Statute says that the Supreme Court has jurisdiction of a state courts

27:35only when the lower court case is final. This case wasn't final. And that's a big problem for the court wanting to intervene. So what's the justification? Okay. Good. I can work senses. Justice Alito writes for this one, right? So he has two justifications. One is, well, we did it in the Skokie case, which is one of the Supreme Court famously intervened to allow the Nazis to march through Skokie, Illinois. And there are some similarities from that case in this one. Although there are actually some crucial formal distinctions. Like there, the Illinois Supreme Court actually denied the stay, whereas here, the New York's highest court sent the stay back. So I'm going to bring it back to them. But like that's argument. Yeah. And there still was a possibility that the applicants could have gone back to the highest court of New York, right? Yeah. And if you read the Skokie opinion also, which talks about this issue, they say, also the first amendment is special. Like the reason we have to intervene here, even though it kind of straights our jurisdiction principles, is because there's a special first amendment right to get an education of your right to speak before you go to the parade. So unless that principle somehow been expanded to here, it wouldn't work. Justice Alito's other argument, which might actually be correct,

28:35although is exceedingly technical and it requires us to make up a bunch of new law, is that the All Ritz Act maybe allows us to evade the finality requirements of the search for a statute. So the argument would be, this case is not final yet, but it will be one day. And the All Ritz Act allows us to act to preserve the jurisdiction over our eventual search jurisdiction. So even though it's not final, we can act now because we won't be able to act later. Because the case would be moot. Well, okay. So just the grant, the idea first, like if a state has an execution pending, and they're about to execute the condemned person, and the state court is still sitting on the case, you might say, look, we can keep him alive to make sure that we can still hear the case later because it would then be moot. It wouldn't exactly be moot. It's just that eventually the Purcell principle will kick in. Eventually, it really will be the eve of the election. And so the Supreme Court won't be able to act because of its own equitable principle that it shouldn't act too late. Yeah. This is a rule that I think that federal courts are not supposed to metal too close to an election. Yes. So because that rule does not apply to state court. Right.

29:35But it would stop the US Supreme Court from intervening in whatever is going on in the state courts if we wait too long. So because we have created a rule that we can't intervene too late, we now have an extra power to intervene early to ensure that because we wouldn't have allowed ourselves to intervene late. Even though it's technically late under the court's reasoning from an earlier interim order decision habit. Might not be that late. Okay. It's not as late as that. It's not as EV. Okay. So that would be still confused. The thing that's actually most like, which just as Lido can't talk about because he descended in that case, is ARP versus Trump, where the court intervened in a sort of non-final lower court decision in the middle of the night to stop a deportations of a group of accused enemy aliens out of the country. And part of the reason they felt like they had to intervene then is that even though the lower court hadn't acted yet, the lower court was clearly not going to do anything before it was too late. And the court was worried it would be too late. And it was going to be too late in a kind of similar fashion. Obviously, the court can't still do something about people who've been already been deported, except that the court is concerned that it can't.

30:39So there's a kind of like, we have our own equitable principles that are going to keep us from intervening later. So we got to, got to act now. Okay. A lot to say about that one. Is there anything else we should say or should we try to get to the third thing we were going to talk about? We can try to get to the third thing. Okay. Well, then we are, we should do it now. All right. Okay. The third thing we were going to talk about is a merits opinion that came out last week. And I should note there were some merits opinions this morning that we are not going to talk about today. We may get to eventually. This is a case called via Rial versus Texas. And it is about the scope of the Sixth Amendment right to council. And the power of trial courts to restrict the ability of a lawyer to consult with their client in the middle of the client's testimony at the trial. And there's this general principle that, you know, when someone is testifying, they're not supposed to kind of consult with the lawyer to have the lawyer kind of craft the testimony.

31:42Right. We, we think that's meddling. Right. Although it's testimony. In depositions, we do this all the time. Right. Yeah. That's true. The lawyers right there and saying, you know, don't answer. Right. Yeah. Or so, so one kind of crafting is the well-known, an impermancible tactic of subordinate peritory. Right. We are like, don't forget. You're supposed to say whatever. Right. That's really admissible. But a lot of the kind of crafting might be going on is more like, look, when they ask you a question, stop rambling. Right. Like one of the first rules of teaching you somebody testifies just like answer the question and stop. It will be tempting to just keep talking, but don't keep talking. So you can imagine a lawyer who just wants to go to their client and say, like, shut up. And so this is, you know, one of these cases where a circuit split evolves because there's two serving court precedents with kind of polar different results. And then there's a fact pattern that emerges that is exactly in between those precedents. Yeah. Right. And so precedent one was the court said, you cannot. Trial court cannot tell a lawyer that they just can't consult with a client overnight because of the risk of meddling in testimony.

32:45And that's a situation where client is testifying. There's a break in the trial and the client is going to continue testifying the next day. You cannot just say lawyer, you cannot talk to the client at all. There's lots of other stuff to be able to talk about. Yes. But the court could say lawyer, if there's a sort of middle of the day break in the testimony, the court could say lawyer don't talk to the client right now. Because, you know, we think there's a significant enough chance that the thing the lawyer would want to talk to the client about is the substance of the testimony. We don't like that meddling. Like even the middle of your client testifying, you're like, can I go talk to my client about, you know, what witness should call after this? The trial could be like, you can wait until after the testimony is done to that. Yeah. Right. Okay. So this is in the middle of those two because this is an overnight break. But it was not what we would call a total denial of the right to counsel. The trial court just says, you know, look, you can talk to the lawyer, you can talk to your client. You can't, you just can't, I'm going to limit what you can say. You can't manage the testimony.

33:45You know, I, not totally clear how this is enforced, right? Because the trial court is not there listening to the privileged conversations between lawyer and client. Right. But, you know, it's enforced, I guess, by the lawyer's ethical obligations to follow the court's order. Yeah. Plus, I think the risk that the client might later say, you know, the lawyer told me to do X. Yeah. Okay. Okay. So is that okay? I think that's, that's the issue. Answer in an opinion by Justice Jackson. What the trial court there did was fine. Yeah. An overnight limitation is fine as long as it's limited to don't talk about the testimony and they could have talked about other stuff. Yeah. And I thought this was, you know, a pretty clearly written, effective opinion. It's got, you know, I think seven justices. So everybody but Thomas and Gorsuch who are going to concur in the judgment. A little bit, maybe a little bit of disagreement between the majority and Justice Alito who does join, but I think concur in order to shade a little bit.

34:49Yeah. Because the majority sort of suggests, well, there are lots of things that a lawyer might want to talk to the client about that might be sort of like incidentally related to the testimony. Right. And Justice Alito sort of seems to think that it's more restricted. The kinds of things that the lawyer should be allowed to talk about are more restricted. Right. And Justice Alito is the one that brings up this hype out of like. So, you know, what if I want to talk to you about is like, you just said a bunch of stupid stuff on the stand. Unless you fix it in the next two hours of testimony, you're going to have to plead guilty. But if you go back to the majority, it says, for example, a court cannot prohibit a defendant from obtaining his attorney's advice on whether and why he should consider guilty plea. Even if the why includes the impact of his ongoing testimony on the trial's prospects. Yeah. Isn't those two things contradictory or is there some daylight?

35:51I mean, Justice Alito then, right, this is, I can't, they seem to be, you know, walking through various typos. Justice Alito thinks it would cross the line to say, we will really need to secure a detail. Unless you clean up mistakes, A, B, and C that you made today on the stand. So, maybe what they agree is if you've just committed an irreparable stake on the stand, then you can talk about the consequences. But if it's irreparable. So, if it's backwards looking, it's okay, but if it's forwards looking, it's, it's bad. Now, if you're client is smart enough to infer from your backward looking commentary, what they could do forward looking, I'm not sure which way that cuts. Okay. What else to say about that? Can I ask a broader question about this? Sure. Okay. So, Justice Jackson, I think it's a great Justice Jackson opinion, by the way. We sometimes get accused of not praising her enough, so this is a great opinion. And it starts at this really nice framework about how like the criminal defendant has all these rights. If and when a criminal defendant takes the witness standing in his own defense, his status shifts. Right. He doesn't shed his rights as a criminal defendant, but he assumes some of the burdens of a testifying witness. And this is like an important interesting to name. I can try else.

36:52Like the defendant who doesn't testify has like iron-clad rights. The defendant who does testify. Suddenly, there's evidence that can come in. It wouldn't go coming otherwise. And it's part of it makes taking testimony a really high stakes decision. Is it possible there's a third way here? So, there's a recent article coming out in our law review, actually, by Laurent Sakharov called the accused speaks, that describes the common law right defendants had to talk at trial without testifying? Oh, interesting. Because there was a rule that you couldn't testify under oath, right? At the founding, you couldn't testify. The founding idea was that it would be cruel and unusual and stupid to let the defendant take an oath. Because he would damn himself, right? Obviously, the defendant will deny that he did it, whether he did or not. And that will damn his soul before God. And so rather than... That was the rule. That's actually the rationale. That was the theory. And so it would just like be stupid and cruel. It's let the defendant swear. But obviously, it would be kind of Stalinist, not let the defendant talk. So you just kind of let the defendant talk. Then there was some of that was representing yourself. Some of that was like there was a special space. You just like comment, like you were on trial, so you can say whatever you want.

37:54Like were you like providing commentary in real time, like shouting, like, well, other witnesses were testifying or... I think you were getting up on the stand and sort of saying, I'm going to say stuff. It's not under oath. I think you would like... I do some of the examples. There are a bunch of state cases about this. Some of the examples are like the defendant, you know, the witness would talk. And then the accused would comment on why it was false. Not like the same thing. And like a bunch of states have this right and their state constitutions. Some of them erased it. I don't know what the status that right is under the privilege of community clause or whatever. But it actually seems like it might be an important piece of the puzzle here. Is that the current framework assumes you have only two options. The formal role of witness for all the law applies to you. Or the role of defendant, we got all these like special rights. And if you have both, then we got to kind of... But if we just had the old system where you don't take the stand, you're in defense. You're not a real witness, but you get to talk. Then I assume you could talk to your lawyer of what to say. Interesting. Is there an argument that that should be constitutionally required? I think there might be. I mean, I've run it to ground. But I would think the privilege of community clause, if it protects other kinds of...

38:54I mean, it's at least as deeply rooted as the right of parents to parity to conferences. Okay. And then, you know, anything to say about the concurrence and the judgment by Justice Thomas, joined by Justice Gorsuch, it's not altogether that different. It's not a radically different approach. I think it... Oh, interestingly, it has a whole fact section. Yeah. Justice Thomas does this sometimes. Sometimes that's a clue. When other justices do it, that maybe there is a stolen majority. I don't think that's the case here. I think he's just being thorough. But he seems to think that the majority opinion kind of opines on too much. Yeah. But, you know, not a radically different approach. Yeah. Okay. Okay. That was our substance. And you said we should leave about 10 minutes for questions. And we've left eight, so we kept on track. Okay. So we made people come up and use the mic. I think, unfortunately, one of our mics is not working.

39:54So people are going to have to come up and speak. If they want to be in the show, speak into one of our microphones. You can say your name or you can be anonymous. So just look at what guests who are. First, thank you both for coming. I am a big fan. So this is a great, great time. I guess I'm hesitant to say this, since you both seem to think Veil Rial was a good opinion. I did not necessarily think that. So I'm curious as perspective. I would have thought that if anyone on the court was going to sort of champion the Douglas Brennan Marshall type views, it might have been Justice Jackson. So what are your thoughts on the fact that she wrote the majority? I think that's a great question. And, you know, I confess to being a little surprised at how much unity there was on the court. I, you know, I wonder whether the court saw it as an easier case because, you know, the instruction that the trial court gave was, I think, pretty narrow. Yeah. You know, I mean, it just said, don't manage the testimony. Right. Well, I also wonder if this is part of, like, the opinion might have read very differently if Justice Alito had the majority opinion.

40:58There might have been five votes for something more like Justice Alito's that says, look, they could prohibit a lot more than this. And we don't really trust lawyers to obey these instructions. And so, of course, this is fine because anything didn't go far enough. Versus Justice Jackson, this seems to say, look, this is fine. You know, there's a sort of limitation. But after all, we're trusting the attorney to side of the draw the line. So sometimes you might want to write it up in like that so that you can characterize what happened in a less bad way. And I'd say, I think, you know, we both thought it was a reasonably effective and well written opinion. You know, I think the merits are a little bit more complicated. And I think there, I think there's a decent argument that maybe trial courts should just not be allowed to tell lawyers what they are allowed to speak about. That is too much of an intrusion into the attorney-client relationship. That once the attorney and the client are speaking, that's really beyond the bounds of what the trial court can supervise. Would that be your view even for lawyers of the defendant's lawyer?

41:58Like if I'm testifying somebody else's trial, I have a lawyer. Can he come up to me on the stand and talk to me as I'm testifying? I don't think you have a, do you have a Sixth Amendment right to have a lawyer with you at a trial? No, but I probably would do process writing something. Maybe. I wouldn't extend it that way. I would say, you know, as part of the Sixth Amendment right, you know, clients have the ability to, you know, the right to consult with their attorneys. And then beyond that, we can't kind of look inside the black box. I think that's one argument you could make. Yeah. Maybe. So you, you, you totally buy the majority. I sort of skeptical about all these cases, I got this. I mean, I, you know, I think I'm going to go full, full accused speaks in this one. Okay, but so with respect to this, I don't quite understand your skepticism. You're saying that you're skeptical that the, you know, client should even be allowed to testifying. Well, maybe. Underroad. Okay, but I guess we have to do that. I'm skeptical even about the case that says you could stop their lawyer from talking to them overnight.

43:01The question is the precedent, but I'm not sure where that comes from. But then I'm also. You can't, you can't stop the lawyer from. Right. Right. You, you think they should be allowed to stop the lawyer from consulting overnight. Yeah. Yeah. I mean, the Sixth Amendment does say you have the right to the systems of counsel. Doesn't, don't you think that, you know, it implies that you can't stop the client from consulting with counsel over at least some period? Sure. Like, what if there is a rule that says you can have an attorney, you just can't speak to the attorney during the trial? That doesn't work. I agree. But also does the right have to be 24 seven. Like if there was a, you know, business hours before trial. Right. Right. Before trial, if the lawyer says I want to go, you know, visit the jail and talk to my client or talk. They say, well, okay, but not in the middle of the night. I mean, maybe there'd be some case where it really does have to be the middle of the night. I'm not saying it would never, but it wouldn't be crazy to think like sometimes you have to wait because of the other things to do. I'm not sure. Okay. I think we have time for one more. Remember, we did one of these live shows here, you know, a few years ago and we had similar, similar issues. People, people, little nervous to ask questions.

44:02I guess you're intimidating. Okay. There you go. You provoke them. Shame to them. Thank you both for coming. I was a little surprised in the Bonta case, not to see any concurrence probably by Justice Thomas about privileges or immunities. I was wondering what you guys thought about that and what you would think are probably your privileges or immunities analysis might look like. One of the complaints I think the descent makes this right is that in dobs, Justice Thomas was the one who said, I'm not okay with all of the substance due process rights. Like we should reconsider all of them and only recognize the ones that are grounded under the privilege of community clause or Justice Thomas thinks all these rights belong. And so then I had to go back and check like what did Justice Thomas say in his dobs concurrence. What do you say in Troxel versus Granville? I do think it's a puzzle. Now again, maybe this is where the fiction, this is not a real opinion and only a procurium opinion kicks in. And Justice Thomas will feel the need. Maybe he's already drafting his concurring opinion for the merits case they'll get in two years. And which will lay out his sort of comprehensive theory of the original understanding of parents.

45:02And he may not have joined the procurium, right? The procurium must have five justices who were willing to sign it, right? Well, does it, can it be the narrowest opinion? Because if there were two justice who would have done more like a Marx rule, well, he's a, yeah, I don't know. I mean, I think I think a procurium has, if it's actually the opinion of the court, it has to be the opinion of the court. Okay. But Alito and Thomas would have granted a release beyond what doesn't mean they, one of them could have said. One of them could have said, okay, I'll agree to the procurium and the other said, I won't. Okay. And this one posture, this is a situation where it's okay for a justice not to join, not to tell us whether or not they joined. Yeah. Okay. But the other thing about Thomas is that he has a longstanding skepticism of the rights of children in public schools. Right. So then he's the one person who thinks that children have absolutely no free speech rights or fourth amendment rights when they're in public schools. So when he does write this great concurring opinion about the privilege of community's clause and parents' rights, it's going to be interesting.

46:03Now, I think he could all be consistent. I think he thinks that children have no rights because schools stand in local parentists and because children have no right against their parents, they have no right against their schoolmasters. Now that he could say, therefore follows from that, that the schools really have to stand in local parentists and can't interact their own view. But it's going to be a complicated story. I had a student a couple of years ago write a research paper trying to dig into sort of do an originalist privilege as a community clause, sort of analysis of parents' rights. There's a lot there that hasn't been fully canvassed and laid out. I mean, now's the time for everybody to get to start writing. And as Justice Kagan noted, there are a bunch of these cases already pending at the court or working their way up. So presumably we will see a fuller opinion on this eventually unless this precurium just is seen to resolve everything and that's it. Well, it does happen. So I've heard from some people who are working these cases, like you see this opinion, you think, well, maybe we just shouldn't bother. But maybe at this point, just abandon all the cases because it's clear which way things are going. So it does sometimes happen as people like to say that the Supreme Court's interim orders turn on not to be very interim because once the court has told us what they think about it, everybody just goes home.

47:11Okay, do you want to lead us out? Yeah. Thanks to all of you for coming. Thanks to those of you listening. Thanks to the University of Chicago Women's Board. The University of Chicago Federal Society and the Constitutional Institute for sponsoring all of our endeavors. And if there is a long delay between this and our next episode, it will be because we've been barred from conferring with each other. Thank you. Thank you.