Advisory Opinions - Right-on-Right Violence

Episode Date: May 6, 2025

The Advisory Opinions extended universe kicks off as SCOTUSblog's Amy Howe and David Lat join Sarah Isgur to discuss the St. Isidore of Seville religious charter school case and the debate over school choice. The Agenda:—A ‘public’ public school or a ‘private’ public school?—Justice Amy Coney Barrett's recusal—Will Chief Justice John Roberts be the swing vote?—Will birthright citizenship end?—May 15: Mark it on your calendar Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Iskher and David French is doing some nonsense with his other employer today, which is great that I have the extended universe now. So we've got David Latt from Original Jurisdiction and Amy Howe from Scodus Blog joining us. We will walk through the arguments in

that Saint Isidore religious charter school case, then a little maybe circuit update world from David Latt, and finally, some May 15th preview on the arguments we're going to hear about nationwide injunctions, associational standing, birthright citizenship. Is that a thing? What happened to that 14th Amendment? So, I'm just going to run through what David and Amy are looking for in that case. Okay. We're going to start with the St what David and Amy are looking for in that case. Okay, we're going to start with the St. Isidore oral argument. This was the case about religious

public charter schools. David French and I talked about it on the last episode and really set up the facts and some of the law on this. So if you want a deeper dive about how we got here, check that out. But in short, St. Isidore is an online Catholic school. They wanted to be a charter school for Oklahoma. They applied to be a charter school. The charter school board granted them the charter to be a public charter school as a religious public charter school that would teach Catholic stuff. So, the legal question in this case is really, Oklahoma labels all charter schools public schools, but is this a public public school or a private public school? All turning around this idea of state action doctrine.

Is this a government actor in which case you would have establishment clause problems if you're teaching Catholic doctrine? Or is it a private actor getting a public benefit, the charter, in which case you would actually be violating the free exercise clause if you deny them the charter because of their religious status? So here's the interesting part. Justice Barrett has recused herself from hearing this case, meaning we only have eight justices. Now, if it ties 4-4, the charter school loses.

The state of Oklahoma, represented by the Republican attorney general, doesn't want this charter school. They think it violates the Oklahoma Constitution. So a 4-4 is a loss for the religious charter school, a win for the state of Oklahoma. You still got to count to five. If you're the charter school, you've got to count to five like usual. If you're the state, however, you only have to count to four. That's what makes the recusal interesting is that basically one side only needs one fewer vote.

Okay. So Amy, you were in the courtroom. What did you think? You know, we don't know exactly why Justice Barrett recused herself. Sometimes some of the justices will, you know, explain at least sort of cryptically why they are recusing themselves with references to prior judicial service. Justice Katanji Brown Jackson has included that a couple of times. Prior government service, Justice Kagan referring to her time as the Solicitor General, which seems kind of remarkable considering how long she's been on the Supreme Court.

But we don't know. One set of the parties in this case was represented by the Notre Dame Religious Liberty Clinic and Justice Barrett was a professor at Notre Dame Law School for a long time before becoming a federal judge on the Seventh Circuit. One of the leading advocates, one of the scholars advancing the idea that public funds should be available for religious schools is a law professor at Notre Dame named Nicole Stel Garnett, who is a very close friend of Justice Barrett. So from the get-go, she was recused. We don't know why.

That means effectively that if you think of this as the liberal justices against the conservative justices, that the liberal justices just need to pick up one more vote. It seemed pretty clear pretty early on that that vote was not going to be Justice Brett Kavanaugh. So it really seemed like the most likely vote was going to be the Chief Justice, John Roberts. And at the beginning of the argument, he had questions. And particularly at the beginning of his tenure, it seemed like he was the justice, he was most likely to be the devil's advocate justice.

He'd ask questions on both sides. He doesn't seem to do that as much these days, which I find kind of curious that he has been less likely to do it now that the time for arguments has sort of expanded infinitely. It's not like he doesn't have time to do it. But he did at least seem to be doing it during this argument. He had questions for James Campbell, who was representing the school board. So there are three sets of three cases that we'll call them the Trinity Lutheran Trinity, so to speak, or the Trinity Lutheran trio of cases that the school board and the charter school itself were relying on, a case called Trinity Lutheran versus Comer involving program to provide funding to resurface

playgrounds at school, a case called Espinosa versus Montana Department of Revenue involving tax credits for scholarships, whether or not they could be used at private religious schools in Montana, and then a case called Carson vs. Macon involving Maine's use of public funds for private schools. And he said to James Campbell, he said, those involved fairly discrete state involvement, and this does strike me as a much more comprehensive involvement. And then when he was talking to John Sauer, the new Solicitor General, he had questions about whether or not the state can impose requirements on charter schools. Do they have to teach Oklahoma State history and whether or not the extent of that state

involvement affects the analysis about whether or not these are public schools or state actors. But then he also had some pretty tough questions for Greg Gar, the lawyer representing the Republican Attorney General who was opposed to having St. Isidore, the Catholic virtual charter school, being a public charter school. And Greg Gar is a former Philistines General during the George W. Bush administration. So, you know, Roberts clearly seemed to me to be the key vote. I think most people coming out of the oral argument expected him to vote with the other conservative justices. But, you know, we'll see by the end of June, beginning of July. David Ladd, do you agree that the chief is the swing vote?

Yes, absolutely. I think that his vote is critical. And it's interesting, you have talked with David before about how this term is sort of a lower temperature term than in the past. And so I don't know if the chief is going to be as worried about causing a ruckus with this particular case. I think he's very sensitive to the institutional issues and standing of the court and how it spends its political capital. But here, I think this is kind of like, I guess, if we were on Capitol Hill, this is kind of like a free vote. I think he can kind of vote as he wishes and in the past he has voted to Protect the rights of the religious parties

he actually wrote the opinion of the court in one of the cases Amy just mentioned the case out of Maine the Carson V case out of Maine, the Carson v. Macon case. But it was interesting. One line in that opinion from Carson by the chief that recurred in this argument was there is an argument there where there's a statement in Carson where the chief said that Maine can set up, quote, strictly secular, close quote, education if it wishes. So it's interesting. This is definitely going to be moving the ball forward

for religious education in the sense that I do think as some of the liberal justices were saying, and as Chief Justice Roberts suggested with one of his early questions, I do think this is an extension of existing doctrine. I don't think it's squarely controlled by that Trinity Lutheran cases that Amy mentioned. Well, and the Trinity Lutheran, he also wrote the Trinity Lutheran case. And this is really sort of digressing into like inside baseball nerdery.

That was another one, like when it came out, like he has a footnote in that case that was like, this case is only about playground resurfacing. You know, that was a seven to two case in which Justice Kagan joined the full opinion and Justice Breyer was concurring. That was a really weird one because now we're really going to go down the inside baseball lane.

That was a case that was granted in January of 2016. You remember he was on the court in January of 2016. That was granted while Justice Scalia was still alive. Then he died. As many of your listeners may remember, they only had eight justices for a long time. That case was not argued until April of 2017, which was highly unusual. They were holding it for Gorsuch because I think they were worried about the possibility of a tie vote. Then it turned out to be kind of a nothing burger, at least in terms of the court being divided.

It was seven to two. But it didn't seem to be imbued with the sort of force that it then acquired as part of the Trinity Trinity. So there's a case you guys haven't mentioned yet, which I feel like far more controls the chief's vote than the Trinity Trinity, which is Fulton, also written by the chief justice. Fulton, for you guys who maybe don't have this at the tip of your brain, that's the case about the Catholic charities providing foster care service in Philadelphia. And Philadelphia did like basically refusing

to renew their contract to provide foster placement services because they wouldn't certify placements with same-sex couples. Here's just a few little lines from the Chief Justice from that opinion. The government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices

because of their religious nature. The refusal of Philadelphia to contract with Catholic charities for the provision of foster care services, unless it agrees to certify same-sex couples as foster parents, cannot survive strict scrutiny and violates the First Amendment. So, Amy, when you mentioned the chief asking questions of Greg Gar, who represented the Republican Attorney General. Remember, the state here, the very conservative state doesn't want this religious charter school. It's a little bit confusing if you're used to these very clear ideological slash partisan

valences. This is some right on right violence. So he says, why doesn't Fulton control this? And I thought that was interesting because really in the other questions the chief was asking to the other two advocates, they felt a little bit like, well, I'm starting this so I might as well ask a question. With Gar, he actually seemed to follow up more and was like, yeah, yeah, but like Fulton, am I right? So I feel like because we have the chief, you almost see, as David,

as you said, like it's an extension, certainly. It's not controlled by any previous cases, but it keeps extending. So like Trinity is supposed to be just about playground rubber resurfacing. It can't be about cement resurfacing or mulch resurfacing, right? It's only used tire resurfacing for playgrounds. And then it keeps extending, extending, with the chief continuing to write all the way up through Fulton, which is limited in its scope in some other ways,

but not limited in the chief believing that if you have this thing you're doing as the government and giving it to private actors and inviting them in to what would otherwise be a public service like foster care, like education potentially, I feel like he's saying, look, at minimum strict scrutiny applies here,

meaning you've got to have a compelling interest providing secular education, okay? And then it's got to be narrowly tailored. But in this case, of course, there are public traditional public schools that are government run in Oklahoma. Now in a different state, like New Orleans, as I understand it, has almost exclusively charter schools at this point. Maybe you could survive strict scrutiny in that state because you're compelling government interests, providing a secular education cannot be met if all of the charter schools suddenly become religious. But I felt like I counted to five

here. I feel like the chief is a pretty solid vote on the side of St. Isidore. I was surprised and I'm curious to get y'all's reaction to this. I was surprised with some of the ferocity of Justice Kavanaugh, our traditional swing vote in some ways. He was not a swing vote at this oral argument by any stretch of the imagination. And this exchange with Justice Alito, also very clearly on the Saint Isidore side, about a masterpiece cake shop problem. And remember, a masterpiece cake shop is whether you have to make the cake for a same-sex couple or whether that violates the public accommodation laws. We're all teed up to get what would end up being the 303 creative decision. But a masterpiece cake

shop, they don't decide on the merits. They really say, like, look, the Colorado board was so hostile to religion and showed so much religious animus. We don't even really need to get to the underlying legal merits because this itself was a legal violation. So you have just a solito saying, didn't the Oklahoma Attorney General, Greg Gar's client here, show that same kind of animus? He read the quote from him. This is the quote, while many Oklahomans undoubtedly support charter schools sponsored by various

Christian faiths, the precedent created by approval of the application will compel approval of similar applications by all faiths. I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenants are diametrically opposed to their own. And Justice Alito says, isn't that a very serious masterpiece cake shop problem? The whole position that you're defending seems to be motivated by hostility toward particular religions. And it goes on here, we have a statement after statement by the attorney general that reeks

of hostility towards Islam. And then we have the provision of the Oklahoma Constitution on which the Oklahoma Supreme Court relied that has its own unsavory discriminatory history. He's referring, of course, to the anti-Catholic Blaine amendments that swept the country at one point. David, I'm curious what you thought of the masterpiece cake shop part. No other justice picked up on it, but I'm wondering if we feel an Alito concurrence. I could definitely see that

because he has written over the years a number of concurrences where he laments what he feels is an increasing hostility to religion and religious people and branding them as bigots, et cetera. But I actually don't really agree with that point. If you look at the record in Masterpiece Cake Shop, which was about the baker who didn't want to bake the cake for the same-sex marriage celebration, the board there has a lot of stuff that basically involves them looking down their nose at religious people.

The comment by the Republican Attorney General here, Gertner Drummond, I think he was merely stating, look, as a logical matter, if we allow these religious charter schools, you can't just have your favored religion, which for the majority of Oklahomans is some kind of Christian faith, you could end up with, and I think the examples he gave were Wicca or Wiccan or I don't know what the, you know, Wicca, whatever, Sharia, Sharia law. He's really just explaining the logical implications. I don't think he was saying, I, Gentner Drummond, personally have a problem with, I mean, he probably does have problems with Wicca or whatever, but I don't think he was saying, I personally am hostile to these things. I think he's just saying, look, people of Oklahoma, if you allow this school because you like Catholicism

or Christianity, you have to understand that that rule applies to all faiths. You can't sort of have your Catholic wafer and eat it too. You have to understand that this is a principle you're establishing. You're not just thinking, do we like St. Isidore? Quick break to hear about Aura Frames. that this is a principle you're establishing, you're not just thinking, do we like Saint Isidore? Quick break to hear about Aura Frames.

My mother put her Aura Frame right next to the phone. Why? Because, well, every time we're talking to her, she's looking at the frame. Now, she's not looking at me because I am dead to her, basically, at this point. It's all about her grandsons and the latest thing that they're up to. It's so easy. The app on my phone gets pictures straight that I take from my phone and it's just great. I can do it all at once onto everyone's Aura frame in my family. They're all saved on my app. I have access to their pictures. You can also see what other pictures

they've added to your app that you didn't add, by the way. Aura Frames was named the best digital photo frame by Wirecutter and featured in 495 gift guides last year. So the next time you need to call your mom, you can also send her a new pic of you. You can also send her a new pic of the fur baby, the grandbaby, you too, you count, I'm sure, right from your phone. Aura has a great deal for Mother's Day. For a limited time, listeners can save on the perfect gift by visiting AuraFrames.com to get $35 off plus free shipping on their best-selling Carver Mat Frame. That's AuraFrames.com promo code advisory. Don't forget Mother's Day and support the show by mentioning us at checkout. Terms and conditions apply. All right, Amy, my question for you is about semantics here because a lot of this is going to turn around. Well, according to the state, the attorney general, this is about, you know,

the state of Oklahoma has already defined this. To become a charter school is to become a public charter school. Therefore, it's a public school. Therefore, it must be secular. Why are we even here? And the St. Isidore side says, yeah, yeah, we're a public charter school. But the word public doesn't mean what you say it means, it actually is a private public charter school. We basically just keep adding words on to get to where each side wants to be. We're taking your money, but we're not.

But we're not you. Public. Yeah. We're not government. We're not government actors just because you label us a public school. And a couple of things came to mind here. One, this was also a labeling issue in Fulton, right? Because the city of Philadelphia labeled foster care service a public accommodation.

And you do have the section in the opinion by the chief that's like, labeling it a public accommodation doesn't make it a public accommodation. It's not like a hotel. There's a huge amount of discretion involved in who gets to be a foster parent. That's very unlike a hotel where we basically say, everyone gets to stay here except you because I don't like you based on this immutable characteristic. That's what public accommodation laws are for. So you can't just label things so that you can exclude people. That again felt, it feels decisive for me for the chief. I'm curious what you think of the semantics issue.

And second, the attorney general's argument basically said, St. Isidore doesn't exist as a separate entity. It only exists once we gave them the charter. They really kept going back to that argument over and over again, except that would be true of corporations.

The state gives you your corporate charter. You're not incorporated until the state says so, right? So I was sort of curious what your reaction, Amy, was to the saying Isidore doesn't exist until it gets the charter, therefore it is an arm of the government. Why that wouldn't apply to corporations? Yeah. I'm not sure about that one. I think that you're right about the semantics because that's really what the whole case hinges on is whether or not it's either a state actor or a government entity. Just sort of slapping the public label on it isn't going to do the trick. of flapping the public label on it isn't going to do the trick. I think, you know, one of the things that Craig Gahr was, you know, he managed in the

Fisher case twice to sort of snatch victory from the jaws of the... Fisher is the affirmative action case. Fisher versus University of Texas. So two affirmative, you know, two cases challenging the University of Texas's consideration of race in its admissions programs. challenging the University of Texas's consideration of race in its admissions programs. And this was before the Harvard and University of North Carolina affirmative action cases.

And efforts by the same people who brought the Students for Fair Admissions case against Harvard and North Carolina, but just earlier and with a different court. So they hired Greg Gard to defend the program successfully twice. One of the things that he was also working against was the argument by the charter school board and the charter school that if St. Isidore's were a public entity or a state actor, that it might make all these other faith-based services state actors and could create real

problems there. And he was, you know, trying to differentiate those. And, you know, I think had some good arguments, but again, I'm not sure that there were five votes for it, or even four. What about my concern that I mentioned on the last episode that this is not legally relevant in a lot of ways, unless you're a consequentialist type, you know, Y-axis super institutionalist judge. But nevertheless, I want to ask you guys, because I am a big First Amendment fan, but I don't actually care myself about religious charter schools. That's not something on my bingo card that I'm like,

oh, the country really needs this to fulfill its manifest destiny or something. But I do really care about school choice. And my concern is that there will be a rule in this case, if I'm right, that the Chief Justice makes five, that will provide a lot of fodder to the anti-school choice movement. Because basically, if you have a relatively traditional school choice program, the whole point of which is to have schools not run by the government, but run by people who are

willing to try creative new ideas. And all of a sudden, that means you must include religious schools and all religious schools that both from the right and the left, you could end up squeezing out school choice in a lot of cases. As the attorney general mentioned, is Oklahoma really going to keep this program when you have some, you know, yeshivas and Muslim schools popping up or Wiccan school charter schools popping up? I don't know. And on the flip side, if you're in a very blue liberal state that has a strong teachers union, you just handed them a giant cudgel to be like, see, we can't have school choice

anymore or else all of these schools are going to be run by religious right-wing wackos. And now we just killed school choice. And it's a totally Pyrrhic victory for St. Isidore, because in 20 years, there won't be any charter schools, St. Isidore's or otherwise. David, is my concern crazy? No, I would call it a shirtless problem. Shirtless is the case about the flags in front of Boston City Hall. And they wanted to raise a Christian flag. And then the Satanists came along and said, well, what about the Satanist flag?

And finally, they ended up with a sort of this is why we can't have nice things solution where they said, OK, only the Massachusetts or the Boston flags will fly. So here, I agree with you. I share your concern. If we are now suddenly going to see applications for charter schools from wiccans, some states may say, we're not going to have charter schools at all. And remember, nobody is denying the power of a state to say no charter schools, even the conservatives. If a school wants public education to be administered strictly

by public schools, that can be done. And I believe there are something like 46 states that have charter schools, but that means there are four that do not. And so you could end up rolling back charter schools and school choice with a situation like this with an overly broad ruling. So I totally share your concern. Going back to your earlier point about the corporations, I guess I also am, I'm sympathetic to that argument in this sense. What they're trying to say is, look, St. Isidore has not opened its doors or its portal if it's an online school in the sense that it is a creation of this Oklahoma Statewide Charter School Board and Catholic entities,

whether it's the Archdiocese of Oklahoma or the Diocese of Tulsa. Now, with a corporation, say I have my little Schedule C business, Lat, legal, LLC or whatever, fine, I have recognition from the state of New Jersey. But even before I got that recognition, I had my little business and I have my newsletter and speaking and freelance writing and I run it. I was doing my thing before I got recognition from the state of New Jersey as an LLC. St. Isidore hasn't done anything. It hasn't educated a single student. It is created by the Archdiocese, the diocese, and this board. And remember, it's kind of weird you talked at the beginning about the sort of strange bedfellows thing here. The

Alliance here is St. Isidore, represented by Mike McGinley of Deckard, and the Oklahoma Statewide Charter School Board represented by the Alliance Defending Freedom or ADF. But that board is a public entity. So you basically have a public entity and a private entity litigating against a public entity, namely Oklahoma, represented by Greg Gar and Latham and Watkins. So I'm very sympathetic to Gar's argument. People kept pressing him at argument. Hey, why is this different from the Trinity Trinity case? And he said, look, this, unlike those other things, this is a public school. This is created by a public charter. This is created in part by a government entity, the Oklahoma Statewide Charter School Board. So I'm very sympathetic to that

argument. I do think this is different from the Trinity Trinity. And I think he also said that the money goes directly from the government to the religious institution. The other sort of strange bedfellows, you sketched out on the one hand, you had the charter school board and the virtual charter school on one side against the state's Republican attorney general on the same side, not arguing, but sort of as amigas briefs, as the State's Republican Attorney General, perhaps for the first and last time, you had the teachers' unions and the charter schools who hate each other like the fire of a thousand suns. Well, speaking of switching sides, Amy, also an interesting moment in the argument where Sotomayor

asks the Solicitor General basically why the administration has changed positions and then doesn't wait for him to answer and then says, because the administration has changed. Look, on the one hand, I thought that was kind of this odd snarky moment that was unnecessary. Was she saying that during the Biden administration to Elizabeth's prelogger when Elizabeth was changing positions for the Solicitor General's office? On the other hand. No, but somebody else was. Yes. Fair enough, actually. Well, I don't remember. Maybe I don't remember, Amy. Maybe you remember better. The sort of just snark attached to it felt a little uncharacteristic.

I'll take a look before the next time. Yeah, I'm curious. But my question to you is actually, do you feel like we're seeing more switches from the Solicitor General's office? It used to be a point of real pride that they would not change positions in cases. Their consistency was part of their legitimacy, part of what made the Solicitor General the 10th Justice and gave them so much credibility in front of the court. We've talked in other contexts where that presumption of regularity is draining quite quickly from the Solicitor General's office in how the justices are treating this administration.

That can certainly be from the litigation positions of this administration. But I also wonder whether it has happened over time, a slower erosion of simply flip-flopping where the Solicitor General's office comes in on these cases. Yeah. I mean, I think we tend to think of the Solicitor General switching sides think of the Solicitor General switching sides in a particular case that's currently before the court. When the Solicitor General, after the inauguration, came to the Supreme Court and said, there are these cases that you're going to hear on the merits and we're reconsidering our position, we'd like to push them back.

At least one of them, I think, is on hold. We were reconsidering our position. We'd like to push them back. At least one of them, I think, is on hold. There are a couple of them where the other side was like, no, actually, we'd like to go ahead with the argument. They did hear argument. There's some like Scrumetti where they switched their side, United States versus Scrumetti, the challenge to Tennessee's ban on gender affirming care for minors, where they switch sides after the argument. It's just sort of like, we're letting you know that.

But then there are these other issues that sort of bubble up. This was, I can't remember, it was the government's position in an amicus brief in a case involving a dress code at charter schools. It was a charter school in North Carolina where the female students were required to wear skirts or dresses to school and the Biden administration was like, I don't think so. And so this is, you know, took the position that they were public entities, I guess. So the Solicitor General, you know, obviously in this case was taking the opposite position. Well, it'll be interesting. All right, we'll put a pin in that until the opinion comes out.

David Latt, your newsletter this week highlighted a few interesting circuit decisions. We're not going to spend a lot of time on them, but I just thought you could give us a tour of what's going on in the circuit courts these days, because AO has not gotten into the circuit level in a few weeks. And I'm feeling sort of like when you eat a whole bunch of steak, but there's no side dishes. I'm longing for some carbs, you know? Well, I think one issue is you mentioned a few interesting circuit decisions. Emphasis on a few. I feel that lately there have been fewer notable circuit court decisions. I go to Short Circuit by John Ross and How Appealing by Howard Bashman to check out what's going on in the circuit courts in addition to what I hear from readers in terms of readers who flag opinions for

me. I don't know if judges are holding back on issuing opinions in the circuit courts that they want to get noticed because they're competing with everything in the news cycle or whether the circuits themselves are so busy with Trump stuff because the circuits have their own version of the shadow or emergency or equity docket, whatever you want to call it. The DC Circuit, for example, has this special panel which sits for a month and hears requests for emergency relief.

They actually had a pretty interesting case recently, the National Treasury Employees Union v. Vought, where there was the issue of whether or not to allow layoffs at the Consumer Financial Protection Bureau, or CFPB, to proceed while the merits case in the DC Circuit goes forward, or whether to put those on hold until the DC Circuit gets to hear the merits there. And there you had a split between two notable conservative Trump appointees. Judge Cassis said, let's put it on hold.

He joined with Judge Pillard, who's a pretty liberal Obama appointees. Judge Cassis said, let's put it on hold. He joined with Judge Pillard, who's a pretty liberal Obama appointee. And Judge Rouse said, no, let the layoffs fly. So I think the circuit courts are kind of busy too. I guess I can mention a couple. One that was sort of interesting is this United States v. Chattery case out of the Fourth Circuit. It's about the constitutionality of geofence warrants, which are these warrants where you tell law enforcement to search a database to find all mobile devices within a specific geographical area and timeframe so they're not as targeted as normal warrants.

And so there are questions about their constitutionality. So the Fourth Circuit goes en banc, meaning that all the judges hear the case, not just a panel of three. But basically there is one sentence that is precedential there. The judgment of the district court is affirmed. And then you have a gazillion concurrences, more than 120 pages of opinions, which, as John Ross pointed out, is longer than Heart of Darkness, the novel. And you didn't really get anything out of it.

But that's a situation where the Supreme Court's going to weigh in soon, I think. The Fifth Circuit had its own geofence opinion. Professor Oren Kerr, our friend of the pod, has been writing a lot about this issue. So I'm not getting hugely worked up about that because I think SCOTUS is going to step in before too long. But that's one case. Another case that I mentioned in original jurisdiction was this United States v. Bricker case out of the Sixth Circuit. This is about the First Step Act,

which allows judges to essentially change the sentence of somebody they previously sentenced, sometimes years after the original sentence, which you really weren't able to do until the First Step Act, which was actually a criminal justice reform that happened during the first Trump administration. And so there's a question about whether if the law changes, a non-retroactive change in the law, that means that some defendant who got sentenced

to something really harsh would have gotten a lower sentence under the new law. Is that a ground for a sentence reduction under the new law, is that a ground for a sentence reduction under the First Step Act? And there, the Sixth Circuit, pointing to a prior Sixth Circuit ruling saying no, said it is not a permissible ground for changing a sentence, even though the Sentencing Commission,

the administrative body, had said yes, and essentially kind of became a separation of powers thing because Judge Alice Batchelder, who wrote the majority opinion, body, had said yes, and essentially kind of became a separation of powers thing because Judge Alice Batchelder, who wrote the majority opinion, said that this policy statement of the Sentencing Commission is plainly unreasonable under the statute and in conflict with the separation of powers. So it's kind of also a Loper-Brite sort of issue in the sense that if we're not going to defer to any kind of agency like the sentencing commission,

then a judicial decision saying you can't do this under the First Step Act, that kind of is the last word. So those are a couple of decisions that I mentioned. There are also some from a few weeks back, but perhaps you or Amy have thoughts on those. I have a question for you about this, Amy. So let's assume for a moment, and I'm not saying that's true, but that these circuit judges are being strategic in when they release opinions. And next fact that I want you to assume in our world, but this one's true. The long conference, basically if you file a cert petition over the summer, the justices will not consider it until that first conference of the new term, OT25, called the long conference. And statistically, you are less likely to get your cert petition granted at the long conference. Now, it's sort of weird because on the one hand, it's also when the most

cert petitions get granted, but your percentage chance- Right, but it's still statistically much lower. Much lower, okay. So, if you're a circuit judge and you want your case to get taken by the Supreme Court, you need to hurry because you're running out of time for them to actually grant cert. If you're a circuit judge that doesn't want your case to get overturned by the Supreme Court, for instance, then you

want to hold it to make sure it goes up in the summer to get to the long conference? I mean, I think that if you are a circuit judge, you know that there are so many other factors that are out of your control, like, A, I suppose it depends on what the practice is in your circuit of like how often people seek rehearing or rehearing on Bonk. And then everybody at this... There used to be a thing in the Fifth Circuit where Justice Scalia never gave extensions to file your cert petition. So coming out of the Fifth Circuit, you knew you were going to have to file your cert petition

in 90 days, come hell or high water. But I think everybody will give at least one extension these days. And I think most people will give two. So you're looking at like 90 days plus another two months until the cert petition gets filed if somebody wants to try. If you're dealing with a savvy Supreme Court advocate who wants to try and push it past the long conference a Supreme Court advocate who wants to try and push it past the long conference. And then the possibility that whoever is the respondent, if they are savvy, can do the 30 days to respond plus another one or two extensions. And so trying to time your Supreme Court cert petition, like unless you really want to get

tricky like and file right away and then be a real, I don't think I can say this. Jerk. Be a jerk in terms of- This is a family friendly show, Amy Howe. Rejecting requests for extensions from your, I hate the term friend on the other side, your adversary. Okay.

So there's no strategy. David? I would agree that there isn't really a strategy in the sense that if you're a circuit judge, I look, I do think that they might decide, okay, you know what, this was a hectic news week. I don't want this to get lost in the shuffle. I'm going to hold it until next week. But in terms of a circuit judge wanting their case to get granted, I think, and I'm going

to kind of congratulate present company here, I think there's less of a concern about cert-worthy cases getting overlooked because there's a lot more coverage of them than there used to be. They hear about these cases on advisory opinions and SCOTUS blog and original jurisdiction. And if you have a good, juicy, cert-worthy case, I think it's less likely to get lost in the shuffle because clerks and maybe even justices are reading newsletters and listening to podcasts and saying, oh, that's an interesting case about geofence warrants and there's a big circuit split on that. I think we should get on that. So I think that if you have a really cert-worthy case, your chances of getting it granted in a day and age

where there's so much more coverage of the lower courts, I wouldn't worry too much about it because they'll get to it. Yeah, if you really want to get attention, you can write some snazzy, especially if you are in dissent, write a snazzy dissent. The other thing you do, if there's a genuine circuit split, and you want want just put a little header that says like the circuit split. One of the

cases I argued had a header in the lower court opinion that said like the circuit split. Or grant cert here. And so when I went to call the lawyer in the lower court, we were like the third clinic to call them. Yeah. I mean, and this gets by the way for our non-lawyer, non-Supreme Court advocate lawyer listeners, right? There's like square circuit splits.

I would define a square split as where the circuit judge writing actually acknowledged the circuit split, for instance. That, to me, is a square one. But really what it means is it's a true split on a real question of law. And then on the other end of the spectrum are the manufactured circuit splits, where they're like, well, if the case is decided on a Tuesday after 4 PM, the fifth circuit went this way, but the ninth circuit went this way.

And everyone's kind of like, oh, I'm sorry, that's not real. But anything to get that circuit split for your cert petition. Okay, I've got another question, David. This one's on the fourth circuit case that you mentioned in the Heart of Darkness. Do you feel like the lower courts,

particularly sitting on Bonk, but there's certainly examples where it's not just that, are writing more and more concurrences and concurrals and dissentals that's when it hasn't even been taken on banque, but they're writing about whether it was taken on banque or not taken on banque as it were. Do you think that that is leading or following the Supreme Court trend? Cause there's certainly more separate writings at the Supreme Court, which again, on that like institutionalist axis

that I like talking about is like very low institutional behavior. You are not acting as an institutionalist if you're writing in your own voice and really feel like the world needs to hear your thoughts on this case, whatever those thoughts may be. But one more thing. I feel that I'm seeing more of that behavior from the circuit courts, but I don't know whether it's leading or following or whether it's just everyone having extra time on their hands. But a lot, you know, I remember when concurrals and dissentals were suspect,

like people weren't sure if they even should be a thing. We're way past that world now. Yeah, no, I think it is both following and driving. There may be a whether, whether you like this trend of separate opinions or not, there may be a virtuous or a vicious cycle going on. Certainly the Supreme Court justices are, in a sense, modeling opinion for the circuit judges. And so if the circuit judges see lots of separate writings, some one paragraph thing by Justice

Jackson, they'll say, hey, well, why shouldn't I do that? The other contributing factor I would mention is I think also some circuit judges see these separate opinions as an opportunity to quote unquote audition for a Supreme Court seat, where they essentially say, hey, look at me. I have really conservative views or really progressive views or really interesting theories, and that helps put me on the map.

So for example, it wasn't really as much of a thing back then because he's been on the court for a while now. But Justice Gorsuch, when he was being considered as a potential nominee, jumped out to people on the conservative side of things or the right side of the aisle, because he had written a series of separate opinions about Chevron, which was a kind of bugaboo of the conservatives.

And so it works, I think the strategy works in terms of writing separate opinions that get you notice. I think it does. But I will say what made Gorsuch stand out was that he was writing in a pre filibuster, as in it there was still the filibuster. So it made him particularly brave, if you will, to speak out on issues when at the time, it looked like you would need to be confirmed by members of the other team. Now without the filibuster, I think we're seeing a lot more

auditioning behavior or at least the barriers to auditioning behavior or the risk of auditioning behavior is basically at zero. Because if the president of your side and the Senate is controlled by that president's party, you don't need any votes from the other side because the filibuster is gone. Something I have decried as I think really changing which types of people want to be judges, what they act like when they become lower court judges.

I think we're just at the very beginning of that behavioral shift because we still have by far a majority of justices and judges who came in during filibuster behavior time. You're not going to see the switch, like a light switch when the filibuster goes away. They're just starting to realize, the velociraptors are realizing that the electric fence doesn't work anymore. But like, does it work over there? I don't know. Does it work over there? It's going to take them a minute to just totally break out of the pen.

But I totally take your point that at least some of this proliferation of separate opinions and concurrences is probably driven by the end of the filibuster, would be my argument. Amy, thoughts? Yeah. I mean, that all sounds right. And again, it's like another way to sort of link back to the idea of like, if you want the court to take up a case, it is another way to get the court's attention. Okay, I want to talk about the May 15th birthright citizenship argument that won't be about birthright citizenship except it might be.

So this is President Trump's, one of his first executive orders, which for all intents and purposes ended birthright citizenship. So Section 1 of the Executive Order identifies two circumstances in which a person born in the United States is not subject to its jurisdiction. And remember, that's really relevant because of the 14th Amendment's language. Well, let's even back up from there, right? Dred Scott, really bad decision, says that Black people, slave or free, can never be citizens of the United States. We fight a civil war. It's very violent and bloody. After that, there's an amendment to the Constitution,

the 14th in 1868, I believe, and it has the language, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside." That is a direct superseding of Dred Scott. Thank God. Okay, so here's what this executive order does. Two circumstances in which they are not subject to the jurisdiction thereof, therefore they are not given that protection of the 14th Amendment to become automatic citizens. One, when that person's mother was unlawfully present in the

United States and the father was not a U.S. citizen or lawful permanent resident at said person's time of birth. Two, when that person's mother's presence in the United States at the time of said person's birth was lawful but temporary, such as but not limited to visiting the United States under the auspices of the visa waiver program or visiting on a student work or tourist visa and the father was not a citizen or lawful permanent resident at the time of the person's birth. Okay, so then right, we're off to the races. You have a whole bunch of states that sue and you have some associations that sue that represent or have as members undocumented people residing in the country. All of them get nationwide injunctions.

This is basically going to be about three nationwide injunctions. And by definition, those universal slash nationwide injunctions cover states that weren't part of the lawsuit and all the people, right, regardless of whether you're a member of CASA, for instance. So the United States goes to the Supreme Court, this is back when Sarah Harris was acting attorney general, and says, this exceeds the jurisdiction under Article 3 of federal courts. You simply cannot decide a case on behalf of people who were not injured or interested parties of any kind. Therefore, you need to take this and limit the jurisdiction of these injunctions to only

the states that were parties and only the associational groups. And by the way, side eye on those associational groups too, maybe they don't have standing either. So we've got, I'm gonna call two buckets and one bucket has two issues. So bucket one, believe it or not, is this universal injunction,

nationwide injunction bucket. Within that bucket, I think you have both the scope of relief question and the associational interest question of these groups that come in to sue and say, well, we have members across the country, therefore it has to be nationwide anyway. We're an association. Thanks. So that's bucket number one is sort of this like non merits. What do you do when a president has a big executive order like this?

Bucket number two is the birthright citizenship question itself. Nobody knows whether we're getting that bucket, but I will note that every single the petition, the briefs, all of them do talk about the merits. So while it may not be decided on the merits, I'll be shocked if the merits aren't mentioned in oral argument because it goes to the relief that they're asking for. And how messy it would be if, for instance, 22 states had birthright citizenship as we've understood it for a long time, and 28 states don't so that you have to file all sorts of paperwork to sort of prove citizenship and

a birth certificate won't be enough, for instance, to get a passport like it is now, among many, many other things. Okay, so, I mean, maybe the first question is, we've got to count to five here on any sort of outcome. Amy, the justices on that nationwide injunction and associational standing, this has come up many times to the court. You've had separate writings on it. We've never had a decision, of course.

But we're not coming into this blind either. If you were to run down each justice, where do you sort of place everyone in sort of their beginning markers? I wanna back up for a second because, I think you've sort of said this implicitly and I think you've said it on earlier episodes, but part of the problem is,

the Trump administration came to the Supreme Court in March, asking the justices to put these district court orders on hold. Normally when somebody comes to the Supreme Court, they come with what's known as a petition for certiorari, and it has a question presented. And when the Supreme Court grants a review, it either sort of accepts by not changing the question presented, and that's the question before the justices, or it rewrites the question presented, and that is the indication of what justices

want to talk about. But because it came as a request to put these orders on hold, what's known as an application for a stay, there was no question presented. We don't really know what the justices want to talk about. They opened up, they gave people the opportunity to file amicus or friend of the court briefs, but the United States and the challengers in this case, they didn't file any more briefs.

They kind of don't really know what the justices want to talk about either. Finally, there are a lot of amicus briefs, especially on the side supporting Trump administration, that are just about birthright citizenship. But there's really very little discussion in the party's briefs, because this was about universal injunctions, about birthright citizenship. So it seems kind of like, on the one hand, one of the criteria that the court is supposed to consider when it's deciding whether or not to issue this kind of temporary relief is sort of the underlying merits.

But there's the idea that they would actually weigh in on birthright citizenship when the parties don't really address it. This seems kind of bizarre to me. I have a question, Amy, for you as a court watcher of many, many years. Are we too close to the argument date for the court to issue some kind of clarifying order

saying the parties are instructed to focus on this issue or that issue? Like, has the train left the station on that or could we get an order? No, I think they could do that if they wanted to. But I mean, they could do that, you know, yeah, no, I mean, because it's we're still 10 days out. There's plenty of time.

Well, they've been working like crazy over time. I think people usually do moots up until a couple of days before. So they could certainly end it. And, you know, I assume that they're going to be ready to discuss forthright citizenship. But, you know, it's just a little odd. Another thing that's weird about this, David, is that. In a lot of these nationwide injunction cases, we're talking about them in the context of the

Administrative Procedures Act. And the Administrative Procedures Act has language passed by Congress that at least seems to give the courts the jurisdiction to, quote, set aside regulations that were not done correctly under the Administrative Procedures Act. Well, that sure looks like you can do a nationwide injunction because you're setting aside the regulation, meaning the regulation cannot be in effect. I always thought when we did nationwide injunctions, we would start with the low-hanging fruit as the court normally likes to do. You start with the easy narrow stuff. In this case, an APA set aside nationwide injunction and say like, yeah, that's okay,

but here are some examples of things we're nervous about, blah, blah, blah. I don't know. Hand ring, hand ring, concurrence. But we're starting here with the whole fruit tree because this is an executive order. It's not through the APA. Now, executive order is the president at his weakest in many ways. I will also note though that not a single brief that I read, and I didn't read all the amici yet, but of the actual party's briefs, none of them talk about the fact that the president was acting without Congress, if

that makes sense. And so a nationwide injunction setting aside a congressional statute, I sort of think of this in a Youngstown framework, right? Nationwide injunction against a statute, the most disfavored. Nationwide injunction against a regulation, ooh, you've got that set-aside language, that's pretty good. Nationwide injunction against an executive order Oh, you've got that set aside language. That's pretty good. Nationwide injunction against an executive order that purports to do something that maybe even Congress

couldn't do statutorily. That seems like the most ripe thing for a nationwide injunction, setting aside what it's about at all. So, I mean, to me, if I didn't sort of know the moment we were in, and how much I think the justices are sick of these nationwide injunctions, I would think that this was the perfect vehicle to approve of nationwide injunctions.

But it doesn't feel that way, I guess, because I'm not in a vacuum. I mean, one thing I will say about this is, I think it is a very messy vehicle for tackling the nationwide injunctions issue. And here's another thing I'll point out. So the justices set a deadline now past of April 29 for the amicus briefs. They also set a deadline of April 29 for motions related to the oral argument.

So the plaintiffs, the folks here who are defending the pre-Trump approach to birthright citizenship, they have moved for divided argument, meaning that we want different lawyers to present for different parties. And so there are some states here. There are three cases, and two of the cases are Trump v. State of Washington, Trump v. New Jersey. And so for the states, the New Jersey Solicitor General, Jeremy Feigenbaum, would like to speak for them. And then the motion of the plaintiffs,

the challengers of the order, they would like Kelsey Corcoran to speak for the private individuals and non-governmental organizations. And here, that's the case of Trump v. Casa, which is an association or organization not governmental that is challenging this executive order. And the reason that they want divided argument they say is look the governmental and the private slash associational parties have

different interests here and you can think about that they have different interests with respect to interests here. And you can think about that. They have different interests with respect to universal injunctions, because sometimes the governmental respondents, they're here, they're challenging the federal government. But sometimes, so the better term, I think a lot of people say is universal rather than nationwide injunctions, because sometimes you might have an issue of a statewide injunction. You have a state law. And the question is, is this federal court going to block that law across the entire state? Or is it going to block it only as to the specific parties in the specific case before that judge? So if I'm New Jersey, say, I might be rah rah universal injunctions when New

Jersey is suing the federal government. But when some person comes along and sues New Jersey and wants to block a New Jersey law across the entire Garden State, I might say, whoa, whoa, whoa, I don't know about these universal injunctions. So it's a kind of a messy case for, in addition to the fact that we don't even know what the heck they want to talk about, it's also messy because the challengers to the executive order have somewhat conflicting interests. And then on the issue of standing, you may have a similar issue. The associations like CASA say, oh, we want very liberal rules for associations to have standing and bring lawsuits.

These state governments, the state governments get sued all the time by associations on both the left and the right. The Harvard affirmative action case, Students for Fair Admission, that's an association. They may not want liberal rules on associational standing. They may want tighter rules on associational standing. And then you have the issue of state standing, the standing of state governments to sue the federal government, the EPA, this agency, that agency. So maybe on the bright side, you could think of this as, look, it's kind of like a salad bar or a Vegas buffet, and the justices can kind of choose what they want this case to

be about. But if I'm the advocate, I'm like, I have no idea how to prepare for this. So, this is why on May 15th, we're going to have our Extended Universe Extravaganza. This will age some listeners, and this is a bright dividing line, I think. So, we are going to do Mystery Science Theater 3000 for the oral argument. And if you don't know what that is, then you're young. And if you also don't know what that is, then you might also be very old. But if you know what it is, you're exactly David Latanai's age and you were super cool

as a teenager, basically. By cool, I mean you weren't going to parties at all. So what that means is that we'll have the live blog, because it also happens to be an opinion hand down day. You've got to be kidding me. So the live blog will start nice and early. We'll get the opinions that are being handed down that day, do a brief little discussion of those.

Then the oral argument will start, in which case Amy scurries into the courtroom to hear the oral argument. Grace is a good word, like a rat. And then the rest of us will be listening to the live audio feed and typing in our thoughts as they go. Those thoughts will be substantive and because Amy will not be able to monitor us, they will also be funny. We're like funny? Amy, I've never seen you be funny. We're like funny?

Amy, I've never seen you be funny on the live blog. I think you take the responsibility that you have very seriously and I actually very much appreciate that about you. I'm offended. So then, once that argument is done, however long it takes, they've said that it will be an hour, it will not be an hour. Like, lol, if this is under two hours, I will be impressed. I think it will be a little bit over two hours,

is my guess, now that they've done divided argument. So we have three people coming up. Three lawyers, yeah. Two hours seems, yeah. That's your over-under, at least. So we'll live blog during that whole thing, mystery, MST 3000 style. Then after that, Amy will run victorious out of the courtroom and join us for a live video, A.O.

to talk about what we learned. And that will be substantive and probably not all that funny. Because there'll be a lot to talk about. As I'm there, apparently. Amy the buzzkill finally coming back. I consider you the adult in the room, Amy. Unfortunately, that's often true just by default. Thank you guys so much for joining me today and replacing the inimitable David French, who is, as I said, off in New York City somewhere, like, you know, small town boy in the big city. Who knows whether he'll get lost.

Sounds like a sitcom. But don't worry, David French will be back for our next episode. And we will be talking about May 15th many more times. I think we'll get more briefs. We'll have to at some point go through those amicus. Do you all say amici? Amicus is how Justice Breyer used to say it, I think.

That's violence. Amici. I think there have been articles written about this. Well, there's the whole thing about how each of the justices pronounce Sir Sharari too. Right. And what's weird is that I think I switch in and out of various pronunciations. I'll say amici. This is why I just translated into English.

Friends of the court. Review. So with that, plenty more to talk about, including on the substance, the birthright citizenship issue itself, and everything in between. So more to come on Advisory Opinions.