Advisory Opinions - SCOTUS Sides with Trump

Episode Date: June 27, 2025

Divided Argument hosts Daniel Epps and William Baude join Sarah Isgur to unpack the Supreme Court’s decision (ahem, non-decision) on birthright citizenship. Plus: a little showdown between two justices. The Agenda:—What the Supreme Court did NOT decide—What the Court DID decide—Similarities to Marbury v. Madison,Loper Bright, and Chevron—Justice Amy Coney Barrett v. Justice Ketanji Brown Jackson—Judicial supremacy?—Sir, this is not a Denny’s—Injunction influx—The future of forum shopping—A big July for Advisory Opinion Show Notes:—SCOTUSblog on the 6-3 decision itself This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at burfordcapital.com/ao. Learn more about your ad choices. Visit megaphone.fm/adchoices

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. ["Born Ready"] Welcome to our special crossover edition of advisory opinions and divided argument. That's right. You've got Sarah Isger of advisory opinions. No David French, the guest of the pod has left.

He'll be back. Don't worry. Dan Epps, law professor at Washington University and Will Bode, law professor at Chicago University. Guys, pretty excited about the crossover. All this and more coming up on Advisory Opinions. I'm not big on trends, but I am big on clothes that feel good and last. That's why I keep going back to Quince. Their lightweight layers and high quality staples have become everyday essentials in

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Condition supply. Visit your GTA Volvo retailer or go to volvocars.ca for full details. Okay, so this is a special emergency crossover episode of Advisory Opinions and Divided Argument to talk exclusively about the birthright citizenship decision from the Supreme Court that came out today on Friday. This came down 6-3 along ideological lines. I thought I would just run through what the court didn't decide and then ask you guys a bunch of questions. How does that sound?

Scary, but we'll try it. Including am I right about what the court didn't decide? Because some of these are a little bit shakier than others. First of all, the court didn't rule on the merits of the 14th Amendment or the Birthright Citizenship Clause. And just for especially our non-lawyer listeners, Trump's executive order on birthright citizenship

cannot go into effect for 30 days. It also cannot apply retroactively if you've already been granted citizenship or your child has. I just don't want anyone scared out there. This is a pretty nerdy podcast, so we're not going to talk a whole lot about birthright citizenship, frankly, because the court didn't decide it. Do we all agree the court did not decide at all what the 14th amendment citizenship clause means? I agree with that unless, unless you buy kind of, you know, the kind of

dissents framing that by, you know, the court is kind of just looking, looking away from this constitutional violation by refusing to address that question. I think that's fair too. I think both can be true. Okay. Next. I think that's fair too. I think both can be true. Okay, next. The court didn't actually say that you can't have a nationwide injunction barring Trump's executive order on birthright citizenship. And here I'm basing that on both Justice Barrett's majority opinion and Justice

Kavanaugh's concurrence where especially in Justice Barrett's majority opinion, she's talking about the state's argument, the 22 states that sued, that in order to get complete relief, they need to have nationwide injunction against this executive order. I'll read here from her majority. As the states see it, their harms, financial injuries, and the administrative burdens flowing from citizen dependent benefits programs cannot be remedied without a blanket ban on the enforcement of the executive order. Children often move across state lines

or are born outside their parent states of residence. Given the cross border flow, the states say a patchwork injunction would prove unworkable because it would require them to track and verify the immigration status of the parents of every child along with the birth state of every child for whom they provide certain federally funded benefits. So could a district court who's now been told by the Supreme Court to modify their injunctions, modify it and make it a nationwide injunction because that's what the states need for complete

relief? Will? Potentially, yes. and make it a nationwide injunction because that's what the states need for complete relief. Will. Potentially, yes. The government is gonna come in and say, no, there are narrower things you could do. Maybe we'll just give a social security number to everybody born at birth, even though some of them are gonna get a little asterisk

to say they don't really deserve the social security number. In our view, there'll be a fight about sort of whether something narrower is possible. But one of the state SGs, I think it was New Jersey, put forth a really compelling sort of picture about why none of that would work and why it was the government's job to figure out how to solve its own mess. And I expect at least one lower court will agree.

Dan, could we still have a nationwide injunction against the birthright citizen executive order, in which case, why are we here? So I agree with what Will said. I think there is still this other question floating around about whether the court might say, you know, the states aren't even allowed to bring a suit like that. You know, and so even if that would be, I think, you know, this isn't the thing we're talking about today is an antecedent question to the underlying constitutional question. And the standing question would be kind of antecedent to the question of relief. Dan, you anticipated my next thing they didn't decide. The next thing they didn't decide is whether the states have standing to

bring these lawsuits at all, because the states are suing not in their capacity as like the sovereign state of Massachusetts, but in their capacity, representing the citizens of the state of Massachusetts, but in their capacity, representing the citizens of the state of Massachusetts. Is that a thing? They also didn't decide third party standing like does CASA for instance have standing like do these third party organizations have standing to sue on behalf of, you know, peeps. Dan, why don't you go ahead and give me your thoughts on them not decide. You agree they didn't decide it? I totally agree with that.

And it actually sets up the possibility that we might see another case like this where it comes all the way back to the court, and then you see a majority again not actually decide the underlying constitutional question, which I think a lot of people would find pretty maddening. I don't know what the timeline on that would look like, but I imagine some lower courts might move expeditiously.

And I would imagine this could come back relatively quickly, perhaps even disrupting the justices summer vacations. I think that's right. I think the government did claim, SG John Sauer claimed that if the government loses on the merits in the courts of appeals, they will appeal that on the merits. So it could be that by the time round two of procedural shenanigans gets to the Supreme Court, there will also be a merits companion case that will just take over. And if not, like if the

court finds itself in December trying to figure out does New Jersey have third party standing to claim that the injunction violates the rights of its citizens, it's possible the court will be a little more interested in talking about the merits that time, even asking for a brief or something because they'd be like, we should just talk about what's actually going on here. But all those things are possibilities. But I mean, if the majority thinks there's not standing, they would also think they can't address the merits, right?

Right. But you might end up with a package of cases. You might end up with standing for one of the associations and not one of the states, or the state might have standing for some purposes and not others. Do you think this will get back next term? I think it gets back in the next 30 days. One possibility is that they will, because John Sauer promised to appeal these cases, and they might not want to appeal these cases, they might have to fire him, like they fire everybody else who makes representations in court that they don't like.

So. Okay, you guys are moving way ahead of what happens next. But okay, we're still going on what they didn't decide because we still have to go to what they did decide. They didn't rule on the Administrative Procedure Act. Kind of a big thing here because if the Trump administration can now issue guidance within the executive branch of who can enforce this birthright citizenship order and how that would work, the second it hits

an executive agency, you could trigger the Administrative Procedure Act. The Administrative Procedure Act basically says you can sue an executive branch official to enjoin them from taking some action. And at courts, per Congress, in the Administrative Procedure Act, courts may set aside that executive agency official's action or pronouncement or whatever else. So if that's still in place,

and the other thing they didn't decide is anything about class actions or changing class actions, are like, I guess my next question is, what did they decide here, Dan? Well, they decided, I think that, you know, individual plaintiffs cannot bring a suit like this and get a universal injunction absent some really good argument that it's necessary to afford them complete relief, whatever that means.

But Will, if A, you can afford complete relief, and sometimes that'll be nationwide or universal, well, not universal, but nationwide. A, you can afford complete relief under your equitable powers of the Judiciary Act of 1789. We'll get to all of that question in a second. B, you can bring a claim under the Administrative Procedure Act

as most of the universal injunctions previous to this decision were. They were APA set-aside arguments. And C, you can bring class actions. Did anything happen today? I think we're back in 1995. So in the 90s, we already had universal relief under the APA. We had class actions. We didn't

yet have the explosion of nation-run junctions without that. So I think the court is resetting the last 30 years of public law litigation, saying it's gotten out of control. All the things you say are going to have their own procedural hoops. There used to be class action cases. We've figured out it's a good class action. There used to be more APA cases. We've got to figure out, is this final agency action? Did you exhaust your remedies? Is it non-reviewable for some reason? There used to be class action cases. We've figured out it's a good class action. There used to be more APA cases we've got to figure out. Is this final agency action? Did you exhaust your remedies? Is it unreviewable for some reason?

And so then the court is going to be sending us back down those procedural rabbit holes, which is good work for Fed Court's professors anyway. And I just wanted to add one thing. The court doesn't even clearly say you can't get these kind of injunctions. It says these injunctions likely exceed the equitable authority that Congress has granted to federal courts.

So it's only likely. Seems very, very likely after reading this opinion. Overwhelmingly likely, but it is only likely. I don't know what the wiggle room is we're preserving there. Like when it's raining outside and you're like, it's likely that there'll be rain today. So yeah, we're gonna get into epistemology, I think. Okay, well, Will, my question to you then,

let's do more divided argument than AO for a second here. Sorry AO listeners, but I've got these two guys and this is a real divided argument question I'm about to ask. So Justice Barrett makes very clear that her decision, the majority's opinion, is based on the Judiciary Act of 1789. That's an act of Congress that grants the courts these equitable powers. But what about inherent Article III authority?

Is there such a thing as inherent Article III authority? Because there's like a vibe throughout this that feels very inherent Article III. So that, I don't know, this has some Marbury versus Madison feels to it. What do you think, Will? Article III or statutory decision? I think this is technically a statutory decision.

And I guess the question is not just inherent Article III authority, but also inherent Article III limits. Could the APA's set-aside power be unconstitutional because of Article III, regardless of what the Judiciary Act of 1789 says, sort of like Marbury versus Madison, where they're like, yeah, not handing the commission

was unlawful under this act of Congress, but the act of Congress exceeds our Article III authority, therefore, sorry, Mr. Marbury. Like, could the APA be in trouble here? Yes, it could be, right? So I think what's gonna uphold the APA, it's gonna have to say that Congress does have power to grant, to create sort of de facto universal relief in some cases.

I think that's actually more plausible for the APA because the rules also come from Congress. So you could see that as like Congress creates the agencies, Congress can say their rules fall when they're when they're enjoined. I think the best parallel here is Loper-Brite and Chevron. Right? So the court said in Loper-Brite Chevron is wrong because courts are supposed to say what the law is, but it technically issued an APA decision, only Justice Thomas wanted to go further and say, I think Congress couldn't even Chevron if it wanted to. And so I think here it's kind of the same question that they're reserving. Now, given that they're talking about the original understanding of equity in 1789, which happens to also be when article three was adopted, uh, you know, you could easily imagine porting a lot of these arguments over to the

constitution, but, uh, that's left open. It has a, it has a feeling. Well, yeah, it has a, this opinion really has a feeling like the court's recent second amendment, jurisprudence, where it sort of says, well, we're, we're kind of looking for, you know, founding era and before analogs. And so, you know, if you just read it quickly, you're going to kind of think it, it has a constitutional flavor. But I guess what's really going on here is, Will, is this statutory originalism? That's what we call it now. That's what legislative history became when it was cool, I guess.

Well, this, as you say though, this has a very text history and tradition vibe to it, though that phrase is not used by Justice Barrett. And if you go back and look, each of the justices has come up with their own turn of phrase. Justice Thomas had sort of done the text history and tradition. Justice Kavanaugh, I think has done like text history and precedent. Anyway, so Justice Barrett doesn't ever say text history and tradition, but she's doing a version of that. As you say, she hates post-ratification or post, in this case, 1789 and I felt that we run into the same problem that we've run into with the second amendment, which is what is your level of generality when it comes to,

for instance, these bills of peace that both sides argued about. The dissent argues that a bill of peace looks a whole lot like a universal injunction. And the majority says, no, no, you're using too high a level of generality. They were very specific things. And if anything, they've evolved into class actions. How's text history and tradition doing for you, Dan? Yeah, I totally agree that there's this level of generality question because I don't think it's totally inconsistent with some version of statutory originalism. Maybe Will will correct me to say, you know, the understanding of equity in 1789 was this super, super flexible thing that let courts come in and kind of fix stuff in

ways that wasn't accounted for by legal rules. Now I'm not saying that's clearly right, but I'm not sure that would be in and of itself inconsistent with the approach that's taken here. Or you could also say, you know, it only lets, it completely freezes everything in amber and you can go get a bill of peace, but you can't get anything else. Will, what do you think? So I am one of the small number of law professors who thinks that the Supreme Court's interpretation of the Second Amendment in Bruin is totally right and totally cool. But this is even better because in equity, Bruin happened in 1999. So the court is building on a case that almost

no listeners of this podcast have ever heard of called Grupo Mexicano. And in Grupo Mexicano, the court basically said, the equitable powers of the federal courts are determined by some form of originalism from 1789. And we have a level of generality problem and Justice Ginsburg and Justice Scalia fight over the level of generality is. And then Professor Sam Bray, my newest colleague, has written five excellent articles on a remedies casebook explaining to everybody how to understand the proper level of generality. Sam Bray has cited 20 times in the opinions of the court today. I think what we're now saying is,

like Bruin, but for equity and with the benefit of all Sam Bray scholarship. Can we do a little cul-de-sac right now where we talk about who got love and who got shade today? So first of all, Sam Bray, the big winner of today's decision, so much love. Grupo Mexicano, a decision that nobody really had been talking about for the last 20 years, a back on the scene, right? Like lots of love for Grupo Mexicano.

Chief Judge Sutton of the Sixth Circuit getting what I thought was kind of a random shout out that was clearly just a like, I heart Sutton tattoo. And I'm here for that because listeners know that he is my number one judicial crush. A nice metaphor that he trotted out. The domesticated animal known as a bill of peace looks nothing like the dragon of nationwide injunctions. Did you like that one, Sarah? I do actually. I mean, but I like everything he does, thinks, says. Okay, on the shade side though.

Don't forget Judge David Strauss also. He has a opinion that gets cited, I don't know, a bunch of times as well. Oh yeah, Judge Strauss, a friend of the pod. I'm so sorry. Yes, absolutely. On the, the getting love side. Am I missing any love?

Well, are you going to give Will a little credit? He, he gets kind of, he gets taken along for the ride. I think more, yeah, more, more by way of citing Sam. Like Sam Bray yells, get in loser, we're getting equity. That's a Mean Girls reference, Will. Did Will get that? I have seen Mean Girls. Oh, well then you should have known it. Okay. Well, we'll be right back.

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That's the fire.org slash network. Protecting academic freedom has never been more important and it can happen without principled defenders like you. There's two shades that I think are worth mentioning. One is the shade that Justice Barrett throws at Justice Jackson and it's not so much shade as one of the more explicit takedowns from one justice to another. I haven't seen this level of rhetorical animosity since the war of the War Hall footnotes between Sotomayor and Kagan, which got pretty feisty there over copyright infringement. Yeah, I was gonna say, not since Justice Scalia wanted to hide his head in a bag.

Oh, the Obergefell, if I signed onto a majority opinion like this, I'd hide my head in a bag. Yeah, that one was, that was pretty bad. So should I read the Justice Barrett take down of Justice Jackson real quick, since we're doing shade. Waving aside attention to the limits on judicial power as a mind-numbingly technical query, Justice Jackson offers a vision of the judicial role

that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to order everyone, including the executive, to follow the law full stop. This is now quoting Justice Jackson, the function of the courts both in theory and in practice necessarily includes announcing what the law requires in suits for the benefit of all who are protected by the Constitution, not merely doling out relief to injured private parties. And Justice Jackson

warns of courts lack the power to require the executive to adhere to law universally, courts will leave a gash in the basic tenets of our founding charter that could turn out to be a mortal wound. Rhetoric aside, Justice Jackson's position is difficult to pin down. She might be arguing that universal injunctions are appropriate, even required, whenever the defendant is part of the executive branch. If so, her position goes far beyond the mainstream defense of universal injunctions. As best we can tell, though, her argument is more extreme still because its logic does not depend on the entry of a universal injunction. Justice Jackson appears to believe that the reasoning

behind any court order demands universal adherence, at least where the executive is concerned. In her law declaring vision of the judicial function, a district court's opinion is not just persuasive, but has the legal force of a judgment. Once a single district court deems executive conduct unlawful, it has stated what the law requires and the executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere.

We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries worth of precedent, not to mention the constitution itself. We observe only this. Justice Jackson decries an Imperial executive while embracing an Imperial judiciary. It was, it was pretty brutal. And I will say it kind of left me with very high slash low expectations coming into Justice Jackson's dissent, which was, you know, I don't think anything in here is clearly unfair.

I think the dissent comes off a little better than this summary. You know, the big picture makes it seem like, but it was pretty, pretty effective. Will, there's also this line from Barrett, justice Jackson would do well to heat her own admonition. Everyone from the president on down is bound by the law. That goes for judges too. Uh, as Dan knows, justice Barrett was already one of my favorite justices in the Supreme court.

And she just became even more my favorite justice in the Supreme court. So you agree with that general assessment. Interestingly, and I want to spend some real time on the dissent, the primary dissent by Justice Sotomayor joined by Justice Kagan and Justice Jackson, Justice Barrett treats with quite a bit more respect and attention, disagrees with it obviously, but this does not seem to be like an ideological disrespect. Right, I mean part of what's striking about this little call out, I mean also since Justice Barrett is normally so rhetorically restrained, you know the fact that she's taking the gloves off here stands

out, but then she openly says she says you know the principal dissent focuses on conventional legal terrain like the Judiciary Act of 1789 and our cases on equity. Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources, nor, frankly, to any doctrine whatsoever. Right, so that's what we're saying, like, all right, we in the dissent,

we're having a normal legal dispute, and then Justice Jackson, she's off there doing something else. Dan, did Justice Barrett call Justice Jackson stupid? It has that feel. It has the kind of feel of this, this is, you know of this doesn't even get a passing grade as legal analysis.

That said, the one thing that might make it maybe unfair or just kind of the way she describes it, it doesn't grasp the one point that Justice Jackson is hammering home, which is this thing the president did is super, super unconstitutional. And the rules the court is putting in place potentially makes it nearly impossible for a bunch of people affected by it to who have a remedy for that. And that point, sure, you can pick at the way in which it's framed, the way in which it's a little untethered to legal analysis.

But that big picture point, I mean, I think that demands some kind of a response. Other thing I'd say in defense of Justice Jackson is that 50, 75 years ago, this kind of judicial supremacy was conventional wisdom. You know, so she is able to cite things like Cooper versus Aaron and other, you know, important sources. Now, I think that was a terrible mistake and everything Justice Barrett says about it in

her response is correct, but there's a tiny bit of gaslighting going on in acting like Justice Jackson is sort of not even a lawyer for repeating the basic things. You think Cooper versus Aaron was a terrible mistake? Yeah, the supremacy part. It's one of the worst things that's been put to have a set by the Constitution. Tell us more, Will, tell us about Cooper versus Aaron so that listeners can catch up.

So Cooper versus Aaron is in the wake of Brown versus Board of Education, which is a great and important decision about why segregation is unconstitutional. And then in the wake of the fight about how to implement and obey the courts or disobey the court's decisions, the court gets a case called Cooper versus Aaron arising out of a standoff in Little Rock where the court says, look, we already ruled this unconstitutional. you got to obey the fact that it's annoying, people are fighting each other is not an excuse. That's all correct. And then the court says, the fact that this has been a dispute and that the governor of Arkansas has said he's not bound by our decisions forces us to recite a few other basic truths that are settled doctrine. And then it goes

on to say that the decisions of the Supreme Court are the same as the Constitution, that because the Constitution is the Supreme Law of the Land and the Supreme Court interprets the Constitution, therefore the Supreme Court's decisions are the Supreme Law of the Land and everybody who takes a note to the Constitution has also taken a note to the Supreme Court's decisions. And these are basic facts that have been on question since the founding, which is just like literally not true. You know, Lincoln questioned them, Jefferson questioned them, Jackson questioned them. But the court just sets that up as like a basic civics truth, which I think does become

conventional wisdom for a while. People think like, well, the Supreme Court interprets the Constitution, the Constitution is the Supreme law of the land, therefore the Supreme Court is the Supreme law of the land. And if you buy that false syllogism, district courts interpret the Constitution too. They also have the Marbury power. So if the Marbury power is enough to turn a court into the constitution, it can turn a district court into the constitution. Now I see Justice Jackson as helpfully providing the reductio ad absurdum to that logic. Like this is why the power to interpret the constitution is not the same thing as the power to become the constitution. But, you know, in her defense, many people before her,

like Justice Warren, have been equally wrong. I think that there's, I will agree that there's a lot of the language about judicial supremacy in there that, you know, is questionable. And I, you know, I agree with some of what Will is saying. I was kind of trying to get him to say that he thinks it was a grave mistake to try to enforce the desegregation orders, but he kind of dodged and weaved out of that. I have a take on this. This might get me in trouble. There was a fight on the court about how to enforce the desegregation orders. There's correspondence about this between, I think it's the Hugo Black position versus the Felix Frankfurter position. And the Felix Frankfurter position was the Cooper versus Aaron position, basically, that we should say, everybody has to obey our decisions immediately,

like, or everybody has to obey our decisions, you know, period, the whole country. And therefore, we need to take a lot of time because we can't expect them to all obey right away. And so you get things like after Brown one, there is the second case called Brown two, which only law students read where the court says, well, I know we just said segregation is unconstitutional, but like, is it unconstitutional now? Well, you can all have all deliberate speed to implement our opinions. Hugo Black had a different view, which I think was correct and should have won, which was the court should stick to the anti-universal junction rule and only enforce segregation

in the specific name parties, but it should only enforce desegregation orders as to the name parties, but it should say to them, like now it's the law, you know, comply now, no ifs, ands or buts. So it would have come down faster and harder, but only in the districts that were sued. And of course the NAACP would then have to figure out which districts to sue in, and we'd like pick off the South one by one. And in my copious free time,

I intend to write the alternate history novel about what the path of desegregation orders would have looked like if you go black at one. It's going to be a picture. What's the short version of that? I mean, does it take a lot longer to at least have the end of digioraria segregation? I mean, obviously, there's a lot of scholarship on the fact about the fact that Brown doesn't make that much of a practical difference in the South. Right. I think the basic pitch is that de facto desegregation would have happened faster and more thoroughly, although it's true that de jure segregation

might have been slower. So this is a kind of perversity argument, you're saying there would have been more desegregation if the court had been less willing to say that it was unconstitutional in individual school districts? Yes, because the NAACP would pick, the NAACP is strategic and smart and full of good lawyers. So they would pick the right people

and go after them one by one, achieve actual success, and then move on to the next one, rather than kind of trying to declare war on the whole South the whole time, and then fight a giant front war they couldn't win. I think this is a interesting on its own, but actually very applicable to what we're talking about right now of the judicial supremacy argument, which is kind of what this whole

thing is about. I want to now take it back to a really basic premise about complete relief versus universal relief. For a long time, we called them nationwide injunctions. We've gotten better, and I mean we, like the pundit-y class, about calling them universal injunctions. So I just want to make a point real quick about why we switched that. We called them nationwide injunctions because they would apply nationwide, but courts all

the time can issue injunctions that happen to apply nationwide because that's what the party would require type thing to do this. So we started calling them universal injunctions because that better captured that it's about the who, not the where. So a universal injunction is enjoining the president in this case from executing the law against anyone, whether they're a party or not. Nationwide, yes, but that's sort of a side point to the fact that he can't enforce it against anyone. It's universal. Complete relief can also be nationwide.

It just can't be universal. And Justice Barrett has this example of the neighbor who plays the loud music, which I thought was pretty good, right? So like your neighbor is plays the loud music, which I thought was pretty good, right? So like your neighbor is playing incredibly loud music. You go in to, you know, sue them. And the judge at that point,

like the only thing that can give you complete relief is telling the neighbor they have to turn down or as she says better yet, turn off their music. So you have granted complete relief to the single person who sued. As a result, of course, all the other neighbors now don't have to hear the music either, but it's not universal relief where the neighbor can never play music, so to speak. And if I, the person who sued, or you, I think I was saying you, the person who sued moved away, that injunction would disappear

and another neighbor would have to bring a new lawsuit basically, because it's not an injunction in that sense universally, it's just complete relief for the one neighbor. Do y'all have a better explanation about the difference between complete and universal relief? Because the punchline here is that the Supreme Court said, no universal relief, but yes, complete relief, right? Isn't it always true that if the actual plaintiff in one of these cases,

you know, goes away or at least no longer, you know, wants the injunction, then it goes away for everybody. So, so I guess that that distinction doesn't make a ton of sense. I mean, if the injunction issued to the neighbor says, don't turn your music up, that seems kind of universal, right? I mean, maybe the thing that's tricky, I mean, maybe that's a bad example for her to use because it's tied to real property, which is tied to a specific physical location. And so maybe in that way, it ends up being kind of misleading.

I wonder whether we could come up with a hypo that makes the same point that actually has some kind of no geographic reach on it that isn't necessary based on the fact pattern. Do you have one, Will? I don't, I think the way to think about this distinction is more like the distinction between complete relief and universal relief means the defendant is almost always invited to come back and say, hey, I've got an idea, can I do this?

Here's a way I could make the plaintiff happy, but still do a little bit more of what I want And in like a universal relief world Justice Jackson would throw something at them and say no no, no, it's unlawful Why are you coming back from posing her to do more unlawful things? Like that's that's not the point whereas Justice Barrett is gonna be more open to the person coming back and saying It turns out I had installed soundproofing on the south wall of my house So now when my music is on my you on, my neighbor can no longer hear it.

And Justice Bearer might say, all right, fair enough. That proposal also provides complete relief or whatever. To the single neighbor, even though the other neighbors will still be subjected to music that is above the decibel level allowed in the neighborhood, let's say. So the complete relief means like we're keeping our eye on the plaintiff the whole time. And they have a right to have their harm completely remedied, but, and that might sometimes require the defendant

to stop doing something altogether, but it might not. I wanna move to Justice Kavanaugh's concurrence, because by the way, we're still in the cul-de-sac about shade somehow, because I didn't, we're still in the cul-de-sac about shade somehow, because I didn't get to my second shade throwing moment. Do you remember last month, I'm not even sure it was a full month ago, Judge Ho on the Fifth Circuit issues this concurrence that can only be read as like a letter to the editor of the Supreme Court, where he says the district courts are not a Denny's. And when you file something after midnight, yeah, it might take until like the next afternoon for the district court to get around to it. And that doesn't mean they like ignored your petition.

And he was like really mad that the Supreme Court seemed to say this district judge hadn't discharged his duty. So without citing anything, there's no name reference. It's a subtweet, if you will. We have Justice Kavanaugh saying, by law, federal courts are open and can receive and review applications for relief 24 slash seven slash 365. I did see that. I mean, there's a statute that says this, by the way. So I think he does cite a statute, 28 U.S.C. I mean, he does, there's a statute that says this by the way. So the

only thing he does cite is a statute 28 U.S.C. 452, which Judge Hosh should have read, that says all courts in the United States shall be deemed always open for the purposes of filing proper papers and making motions and orders. So they are a Denny's. Yeah. I mean, they don't have to serve you. Like you have a right to file. So I guess if you imagine a kind of like a sort of weird passive aggressive Denny's where at any point you want to, you can go in and sit down at a table and place an order,

but you might have to wait until the morning for the cook to show up and make it for you. But like you can sit at the table for as long as you want. That might be a Waffle House actually. I just feel like our two most placid justices, Barrett and Kavanaugh, were the ones like throwing high fastballs today. Justice Sotomayor also cited Judge Ho,

the green bag article he wrote about why birthright citizenship is constitutionally required before he came up with the possible invasion workaround to allow him to get out from under that position, which I assume was intentional. It might be worth noting that Judge Ho and Senator Cruz are and have always been very close friends. And that perhaps that green bag article was in anticipation

of his friend Ted Cruz running for president and the natural citizen clause and some other related sundries. I'm sure that Jim Ho would not have written that if he didn't believe it from the bottom of his heart and think it should be true for everybody. I think that's true actually. I just am noting that there was a reason. It didn't come out of nowhere. Are you saying that his views are entirely consistent and totally offered in 100% good faith?

For what it's worth, I think Judge Ho absolutely believes that. OK. I'll let Will off the hook on that one. I think I'm the one who got Will off the hook on that one. But Justice Kavanaugh's concurrence is, to continue our Denny's metaphor, basically like this Denny's, this particular Denny's at one first street is open for business and excited to take your orders.

And kind of a fast food restaurant, not kind of a slow dining. That's right. Short order docket. I mean, he didn't use that term, but I now like it even more that we're using the Denny's thing. Like, yeah, he calls it, he's very into the word interim. So the interim relief docket,

I think would be something he'd be into us calling it. Definitely not the shadow docket, Will. It's okay, I'm gonna write an article called the emergency docket to try to reclaim all the cetacean space that I'm losing on account of the polarization of the shadow docket term? Well, actually let's spend a minute on this because we'll, you coined the term shadow docket, uh, for a long time.

We all liked that. And the point was that nobody was noticing it. They weren't really writing on it. We didn't know how people voted. No more. Right? It's pretty hard to say this is in the shadows at this point. So then everyone moved to emergency docket, but a, they're not always emergencies and they're not always treated like emergencies, right? This case was filed, what are we at now? Three, four months ago. Like hard to say that's an emergency.

So Will and Dan, what should we be calling this? We've debated this on the show and have not come up with the right answer. I tried to get the lightning docket out there. Preliminary relief docket, interim relief docket, short order docket, pinky docket, right? The applications come with the little pink cover. Should we call it the pinkies? Although in the Fifth Circuit pinkies are like, are bad, are totally different and not good. As I've said also on the show before, when I called it the shadow docket,

the original draft of my article was going to be called on paying attention to the orders list. And my friend, Justin driver, who is smarter than I am, said, well, if you call an article, paying attention to the orders list, nobody's going to pay attention to the orders list. You need a sexier title. And so we ended up a shadow docket. So I much prefer something like the All Ritz Act docket. Professor Driver, by the way, we have invited you on the pod, we continue to invite you on the pod,

please come on the pod, we're big fans. The All Ritz docket, eh? Yeah, because a lot of these cases, not all, a lot of them come from the All Ritz Act and the real question is what is necessary and appropriate relief in aid of the court's jurisdiction. But I'm pretty sure that calling out the All Ritzits docket is going to go over about as well as calling out the orders list.

So I think we have to accept the emergency docket is here to stay. We'll be right back. Your business doesn't move in a straight line. Make sure your team is taken care of through every twist and turn with Canada Life Savings, Retirement and Benefits plans. Whether you want to grow your team, support your employees at every stage, or build a workplace people want to be a part of,

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passes offer the same weekday travel flexibility across the network, starting at $30 for two people and up to $60 for a group of five. Buy your online GO Pass ahead of the show at gotransit.com slash tickets. Okay. Well, I want to read a couple of things from Justice Kavanaugh here, because I think he has two main points. Point number one, this is the Supreme Court's job, not the district court's job. They should not be the ones enjoining things universally. We should be. So here's him now. In justiciable cases, this

court, not the district courts or courts of appeals, will often still be the ultimate decision-maker as to the interim legal status of major new federal statutes and executive actions. That is, the interim legal status for the several-year period before a final decision on the merits. The Court's decision today focuses on the interim before the interim, the preliminary relief that district courts can award and courts of appeals can approve, for the generally weeks-long interim period before this Court can assess and settle the matter for the often years long interim before a final decision on the merits. Do you agree with that? Yeah, I think so. I mean, I guess it presumably will also apply to permanent injunctions,

which nobody cares about anymore because once the preliminary injunction is decided, we just treat that as the end of the case. But if there ever were permanent injunctions again, I think the rule, you know, I think there is this general point that I think there is this general point that how to think about these universal injunctions by district courts is inimitably tied up with what you think happens next in the courts appeals and so on. I mean, so one consequence actually, ironically of the universal injunctions is they force the Supreme Court to take these cases a lot more often because when Northern District of Texas has enjoined something on a nationwide basis, that's inherently cert-worthy in a way it might not be if it applied only in Amarillo

or only to the parties before the court. So this is part two I wanted to ask about Justice Kavanaugh's point. Part one is this is our job. And part two is like a promise that they're going to keep doing slash even increase doing their job. Now he says that it needs to be cert-worthy, borrowing from something Justice Barrett had written previously, but that's a bit of a sticky wicket right there because something that's cert-worthy, like you said, when something's enjoined nationwide, universally, is a little different than when it's only enjoined in Amarillo. but what he seems to be saying is, okay, yeah, I get that like we're going to have to redefine certworthiness. Any new big federal rule order law is by definition certworthy and therefore like our docket,

whatever we're calling it, the preliminary relief, the interim relief docket is going to have to take that into account if we've stripped the district courts of this. Dan, he doesn't say that at all actually, but I think it's implied. Do you agree? Yeah, I think he's sort of saying, you know, bring it on. This Denny's is ready for all of your hash brown orders. So he seems to be saying, though he doesn't explicitly say this, the interim relief docket is open for business

on big executive policy. We will take it. Come on in. The Denny's is open. Yes, I think that seems right, you know, but he is only one vote. And there is a world in which, you know, some of the others are not enthusiastic about taking these cases early.

And we have a certain amount of geographic disparities if there are circuit splits about these things. I don't know whether we think that in practice that's not going to happen because they're going to want to weigh in. But he also, you know, he says in footnote three that basically the court should have the same standard for an application for an injunction and an application for a stay of an injunction. It doesn't make sense to have asymmetry there, which I thought was interesting. Will, it takes four votes to grant cert.

Justice Kavanaugh is one vote. Is the cheese standing alone here or are we seeing the return of the courtesy fourth in the context of the interim relief docket? That's a good question. Yeah, I think we're seeing, I think Justice Kavanaugh is signaling he's often gonna be a vote to grant,

although it has to be, he calls it, it has to be a major regulation or statute. He even italicizes that once. It's gonna become like a Kavanaugh term of art. Is that related to being a major question? I was wondering that. The Gorsuch definition of major questions left something to be desired in my world.

You have a new rule. The major questions doctrine applies in all statute of interpretation cases in the Supreme Court because if the court grants cert, it must have been a major question. Ooh, I like it. And round the circle goes. But you can imagine times, I mean,

sometimes we call these defensive denials where other people in the court don't wanna grant something because they're afraid they don't know how it's gonna turn out. And you can imagine times when just this Kavanaugh can't find three other takers because while Justice Kavanaugh is very confident that Justice Kavanaugh should decide whether the rule is valid or not, other people on both wings of the court might be more nervous about that. This opinion sort of had a feel of SCOTUS supremacy.

I don't know if that means Will doesn't like it or if he likes SCOTUS supremacy, just not judicial supremacy. I do not like SCOTUS supremacy. Ooh, what? Huh? So I think Dan means two things. A part of what Jessica was saying is like,

yeah, we're getting rid of universal injunctions, but don't worry, because we're still here and our opinions are still, we're getting rid of universal injunctions, but don't worry, because we're still here, and our opinions are still. They have the effect of universal injunctions. Yes, which is true to some extent, but I think the formal distinction matters. And then Justice Kavanaugh doesn't care about that formal distinction very much.

I also think this general point, I mean, Justice Kavana says, like all of these important interim decisions, right? Not just whether the rule is valid, but even whether it will be invalid, you know, in place for a couple of years. Determining the nationally uniform interim legal status for several years of say, the Clean Power Plan or Title IX regulations or MIFA-Priston rules is a role the American people appropriately expect this court and not only the courts of appeals or district courts to fulfill.

That has like a little bit of planned Perrin versus Casey energy, right? The American people are out there begging for us, the Supreme court to come and tell them that the Obama administration is wrong. The Trump administration is wrong or whatever. And that's a historical too, right? And that, you know, we didn't always live in this world

where, you know, we had't always live in this world where we had the Supreme Court there waiting in the wings to give a letter grade to every single thing the executive does. Now, I do think it's maybe true that people had that expectation because the court has led us to have that expectation. Just as Kevin was out there saying, the Denny's is open for business and we're going to weigh in on all these major rules and you should expect that. And if we don't, it's unusual. But the court took that role on pretty recently, historically, as Dan said, and I'm not sure it's, I mean, look, I'm not sure the food in this Denny's

is as good as it could be. Wow, throwing shade at Justice Kavanaugh's cooking abilities. They're doing their best, but you know. They're short order cooks. That's why we call it the short order docket over in just me actually. Just me and David Latt. But what's the alternative? The alternative is just, you know, having, you know, a lot of geographic disparities, right? Chaos, Will. Chaos. Or some more rules. So here is a rule, just as Kavanaugh has already said he doesn't like, that we used to have to handle this, which was called the presumption of constitutionality, where the strong presumption

would be these things are in effect for a while and maybe they'll eventually would start down and maybe there are unusual circumstances and the presumptions have overcome. But the de facto assumption is that laws go into effect for a while, even though they might become unconstitutional in a few years. He said in Labrador versus Poe that that was unworkable and bad for reasons, but that used to be a rule. You could have more nuanced presumptions, you could have a presumption of constitutionality

for statutes, but not for executive action because of the separation of powers and tradition and stuff. The other thing we used to do, so this, if I write the emergency doctor articles, kind of the actual topic, we used to pay more attention to irreparable injury. So we used to say, like the status quo will be the thing

that is kind of, the interim rule will be the thing that is more consistent with the previous status quo and doesn't cause irreparable injury. The court has now said, like anytime the government loses, that's a reprobable injury, which forces the court into these things a lot more than it used to. And so, we used to have that regime work pretty well.

The court has gotten rid of those rules because it doesn't like them and wants to do more stuff and has led us to believe that the court, that the Denny's is always serving. So, here we are. By the way, you have Denny's is always serving. So, you know, here we are. By the way, you have a Justice Barrett at one point defining the problem, reading from her majority. During the first hundred days

of the second Trump administration, district courts issued approximately 25 universal injunctions. One study identified approximately 127 universal injunctions issued between 1963 and 2023. So this is not including those 25 that she just mentioned. 96 of those 127, over three quarters, were issued during the administrations

of President Bush, Obama, Trump, Trump won, and Biden. But then there's this nice moment where Justice Kavanaugh sort of answers the why. He says, the volume of preliminary injunctions and other pre-enforcement litigation over the new federal laws and executive actions coming to this court has been growing in recent years. That trend is in part the result of the increasing number of major new executive actions by recent presidential administrations of both parties that have had difficulty passing significant new legislation through Congress. I just sort of liked the call and response, A, because of course he was staff secretary

to President Bush, so he's like, oh, you want to know why we were doing so many executive orders? Like, let me tell you. But two, I mean, that's just what he's saying as to the why is obviously true. But there's something he's not saying, which is A, have the courts themselves changed, and B, have the nature of the executive orders changed as well. They're not simply filling in what Congress would have done. They're basically doing like base maintenance where they're owning the libs or owning the cons through executive orders because it is really fun knowing that it would never have gotten through Congress that way.

This isn't replacing legislation, I guess is my point. So Dan, have the courts changed? Is that part of the reason that we're seeing three quarters of these injunctions happen in the last 25 years? I think it may be kind of a, both answers might be true, that we do see a lot more aggressive executive actions. But you know, we also see some of this with statutes too, right? You know, we had the Obama administration, you know, got through the Affordable Care

Act and then immediately, you know, the next step was the Supreme Court is going to decide whether that is constitutional. And it's not to say that never happened before, but it felt it had a little bit more of a feel of inevitability than maybe it would have a generation earlier. Maybe that's because of just the stark ideological difference between the majority of the court and the presidency. But it does seem like there's because of just the stark ideological difference between the majority of the court and the presidency. But it does seem like there's more of an expectation today that the courts are going to come in and weigh in on these things quickly,

and it's not 100% just the kind of executive order phenomenon. But Will, there is something happening at the judiciary. It may not be the judges changing, though I'm curious if you think it is, in especially a post-Philibuster world where the judges no longer need votes from the opposing party. But forum shopping feels like it's changed a little so that maybe it's not the judge's fault that you picked them. But the numbers are pretty bad when you look at the injunctions against President Biden.

Every single one came from a Republican appointed judge and the injunctions against President Trump in his first term, almost the vast majority came from judges appointed by Democrats. Again, that could be because they filed the lawsuits intentionally in front of a judge that had been appointed by that party. So it's not that the judges are corrupt in some way, but it is undermining the institution. I think it's eating away at credibility. Can I poach that just quickly? Which is just to say that I do think our legal culture is more polarized today than it has been for quite some time. We really are seeing just

two different schools of thought and how to, you know, approach the judicial role. And, you know, I think there's more emphasis on ideology and judicial selection now than there was a couple of generations ago. And I think that has to be part of the story. I think it is part of the story. So I think there's a, in the article that Sam Brann and I wrote that gets cited here, we dig into this a little bit in one

of the footnotes and there is some evidence of increased politicization of district court nominees happening more recently, court appeals nominees. Like it used to be the district courts nominees were more of a like, all right, those are just either good lawyers or lawyers who know a Senator or whatever. I think there's more attention to who those people are. And then to agree with Sarah, it doesn't take that many relatively extreme judges, whether right or wrong on both parties to make a big difference, given all the options for venue shopping and forum shopping,

nationwide injunctions, increase the rewards of going to those judges, because you get a really big relief. I think Massachusetts versus EPA gets part of the blame here for helping to at least send the vibe that state plaintiffs would be good in these cases. Seeing the first few bars of Massachusetts for EPA. In Massachusetts versus EPA, the Supreme Court says that when states are plaintiffs against the government, they get special solicitude. They get sort of extra bonus points on their standing.

And if you're wondering what special solicitude means, none of us really know. None of us really know. And then, you know, pretty quickly when Texas wanted to start bringing a lot of things to the Obama administration, like this was their favorite citation, they were like, well, Massachusetts got special solicitude when it was suing the Bush administration. So Texas gets special solicitude when suing the Obama administration. It's not actually clear doctrinally this makes a huge difference. Catherine Crocker has an article called not so special solicitude,

where she goes through all the cases that supposedly give special solicited to the states and includes that, like it's not clear it really makes a difference. But vibes wise, and in terms of then setting up all these SG's offices filled with talented lawyers, some of whom are friends with the pod. There's a whole like there's a whole equilibrium of all those things rolling together

that I think helped produce the current state of affairs. Well, this takes us to the Alito concurrence. Justice Alito has been banging his spoon on this high chair of standing for the whole time. And not just on the special solicitude for states, but like literally all of standing doctrine. He's just like, everything is wrong. Everything's a mess. There's no consistency. And he joined by Justice Thomas,

basically like have a warning sign that like, A, class actions could end up out of control. So like just noting class actions are rules, like this isn't nom. And two, now the pressure is gonna be on standing doctrine. And now we need to actually like focus on this. A, obviously just reactions to that. B, that concurrence by Alito joined by Thomas

made me think that this was probably a pretty hard six to hold together for Justice Barrett. That she must have had to thread some needles here to keep Alito and Thomas on the one hand and Kavanaugh and probably the chief who's not fond of joining concurrences, so no surprise there. Um, on the other hand, to all be like hang out in one six person tent together. Cause if you lose either two, you no longer have a majority and then you have a fractured opinion that would be a hot mess. Yeah. I mean, the opinion obviously is, you know, careful not to, you know, careful not to resolve everything. You know, it says something very important is likely

to be true, very, very likely. You know. Yeah, but I mean, standing in class actions, like on the one hand you have Alito and Thomas saying, talk about not likely, they seem to think the states probably don't have standing here, at least they're implying it. And Justice Kavanaugh is like, let's do emergency docket. Whoo. Meaning to him, at least it looks like the states very much have standing. So if you're not deciding standing, you're not deciding the APA set aside question, you're not saying anything on class actions, although do go look at Justice Kavanaugh's dig in LabCorp again. I was flagging that that dissent to me or dissent from the dig meant that we were about to strike down universal

injunctions. I can't believe I was right about that. Like I said it out loud thinking I was probably wrong, so that's like a huge moment for me. There's a lot not decided because I don't think there were five votes to decide it. Yeah, but not everything was clearly presented. Like the glass action question is not clearly presented by the case. It would have been kind of an overreach. They could have reached the state standing question. They couldn't reach APA set aside. Yeah, they couldn't address that. They could have reached the constitutionality question. This could have been an Article 3 decision, but I think the Judiciary Act framing is very elegant to have enough of an originalist flavor that Thomas and Alina were happy to join it in full, but enough of a, maybe it could be different, in the nation that does this

Kavanaugh and Judge Roberts are happy to join it in full. That's evidence of the ammunition that does this Kavanagh and Judge Roberts are happy to join in full. That's evidence of the Barrett brilliance at work. I think that we got to give it a lot of credit for what it does resolve because I think until now I had said the problem is the reason the court can't issue a universal injunctional opinion is they don't know what to say because they don't want to say they're forbidden because it seems like sometimes in exceptional circumstances they're going to want them but they don't want to say they're allowed because the current state of affairs is intolerable. And so being willing to actually bite the bullet and say,

no, universal injunctions as such are forbidden. It's true that you might sometimes have to grant a very broad injunction to grant complete relief or grant injunction to a class action, but those are not universal injunctions precisely because they're still plaintiff focused. Like biting the bullet and just saying, no, that's the rule, six votes.

It's something I actually wouldn't have predicted until maybe after oral argument. If this had been on the eviction moratorium or student loan debt relief, would the vote had looked different? Is this Trump distortion is why it's six, three this way? I mean, I think it is unfortunate that the conservative court ends up deciding this issue during a Trump presidency.

I think it optically would have looked better if they could have come up with consensus a little earlier. The majority opinion does try to, and the Kavanaugh opinion too, does try to say, you know, this is a both sides issue. The Barrett opinion specifically says the Biden administration and the Trump administration, but it would have been nice if we could have gotten this, you know, three years ago. I mean, wouldn't Elizabeth Prelogger say like, yeah, we asked you to do this during the Biden administration

and you didn't. Well, I mean, so yes, she will say that she, they clearly asked them to do the ABA thing thinking in some ways that would be the easier one for the court to swallow for getting to account for the DC circuit mafia. The leg justice Kavanaugh, just to say, so it's might be a little thing. Universal injunctions are forbidden. They're not forbidden in DC. That is the one place they are allowed. Um, but that was hard to know in advance. It was kind of teed up in the student loans case, there versus Biden where, uh, full disclosure, uh, Sam brand.

I wrote an amicus brief. That's what turned into the horror law article that's cited here. Uh, but then it kind of fell out of the case awkwardly. So it would have been better to, for the court to ask for a self-loan briefing on it and do it in that case. Um, for all the reasons you say, but I do fear, you know, the universal injunctions are, you know, unconstitutional, except for during the four years of the Biden administration, when we kind of needed them, um, is not a good look

for the court. Maybe the most sympathetic account since that's my shtick is some members of the court believe they're impermissible for formalist reasons. That's Thomas, Alita, Gorsuch, and Barrett. That's only four. And to get this opinion, you needed two of the more pragmatist justices, Kavanaugh and Roberts, to also be willing to pull the trigger and have a hard and fast rule against them,

even though in their heart of hearts, they would like a more pragmatic rule. And it took the first hundred days of the Trump administration to get them to see that there just was no pragmatic option that would work. There are too many district judges and too many crazy things being done by the Trump administration to be able to say, only do it in extreme circumstances. So it took the Trump administration to get Kavanaugh and Roberts on board. I, a hundred percent by that. I think that is a very good, uh, potential explanation for the why now. And interestingly, like it's not necessarily good for Donald Trump, right?

That the chief and Kavanaugh now are on board. Um, why, why? Because I don't think it means that they think what Trump's doing is legal necessarily. They think it's so extreme that it forced all these district judges into this position and they want to take the heat instead of the district judges. And that's sort of a pragmatic problem for the judiciary institution as a whole. And they're two of the most institutional justices like ever to sit on the court.

If you were a justice who wanted to participate in some showdowns with the two of the most institutional justices ever to sit on the court? If you were a justice who wanted to anticipate at some showdowns with the Trump administration that you wanted to win and be on the strongest possible position, you might have wanted to get rid of nationwide adjunctions precisely because they put you on better ground, both legally and strategically. I mean, Justice Barrett wrote this opinion, first of all. Does she get an apology now? Like, I don't read all these people who write all the nasty things about Barrett

very much, but have they already apologized yet or is that up and later? I mean, so interesting for the chief to assign this opinion to justice Barrett, right? Dan, I mean, this was his choice to give it to Barrett. Now on the one hand, she may be the one to thread needles very well. So that's a reason, um, you know, you're not going to give it to Justice Thomas. He's not your needle threader on the court. But I do wonder if it's a little bit of like, Hey, you guys have been attacking her. You know, her sister's getting death threats. Don't be so quick to judge or think you know her because of a couple, you know, interim relief decisions that she made. Okay, I want to move to the prediction part of the

pod, which you guys are going to try to weasel out of. I already know. What effect does this have on forum shopping, Dan? This idea that you're going to go pick your judge because the relief that you were going to get was going to be so important. As, you know, as, as many have noted, the government has to win every time, but the plaintiffs only have to win one time. That's no longer true. So forum shopping still. Yeah. Although don't we need to resolve the state standing question in the scope of

state relief question before we get an answer to that, right? Because if it's true that the state of Texas can still go to, you know, one of the, you know, single-judge districts in Texas and make an argument that we actually need this super broad injunction because otherwise it's way too complicated, you know, only provide relief to our citizens. I mean, everything stays the same, except you need a state, SG, to be willing to do this. But given how polarized those offices have become, that's not going to be hard. So I think we need the answer there before we can make any kind of competent prediction.

Will, I assume you agree with that. I was just going to say, I think it may just add a month to the timelines because it may mean that the district court's going to issue these rulings, they're not going to be as original, the district court has ruled, but then the fifth circuit and the fourth circuit are going to rule. And then we'll have a circuit split pretty much 100% of the time. And so we buy ourselves the time it takes to go from the Northern District of Texas and Maryland to the fourth circuit and the fifth circuit, which is not nothing. Okay. so forum shopping, still a thing,

length of time probably extended by a few weeks. Is the interim relief docket, my short order docket about to explode? Will it look about the same? What do you think? Just sheer number of cases that the Supreme Court is deciding on that side of the ledger. My prediction is the past few months of the new normal.

So it has exploded. And until either somebody in the Trump administration decides to start doing less legally edgy things or the district courts decide to chill out, or the Supreme Court decides that maybe the country didn't need to hear from us in every single constitutional case, that this is where we are. And I don't think any of those things

is going to happen. Hope they didn't have a lot of travel plans this summer. Like now the DC Circuit, what was the chief judges line, only school children and Supreme Court justices get the summer off? Now it's just going to be school children in the DC Circuit kind of. Yeah, that was John Roberts, right? In a memo. All right. One other take, sorry, is that I think this could be very bad, because I think the Supreme Court's summer vacation is one of the most important things for our constitutional culture. At least the constitution is safe for the summer, also said by the Chief Justice before he was a justice.

You know, the idea is that it makes them more collegial. Yeah, the idea is that they tempers fly in June, and then they chill out and they can come back. The only reason they're able to keep coming back and acting like normal people again is that they had the summer to chill out. And if we don't have the summer to chill out, I worry that that's gonna really defray the court's ability to work together. Okay, we touched on this very briefly,

but Solicitor General John Sauer promised that even if, let's say, the circuits in the 22 states that we're talking about all say that the birthright citizenship executive order is unconstitutional, the only people who can appeal that are the ones who lost, meaning the government. But if they think the Supreme Court is going to say it's unconstitutional and that would then apply to all 50 states, or they can leave it just applying to 22 states and let it ride in the other 38, they have no incentive to appeal. This was brought up many times in the oral argument and Solicitor General Sauer promised that they would appeal if they were on the losing side to the Supreme Court, even if they thought they'd lose at the Supreme Court. Will, you mentioned the possibility that

they'll just fire John Sauer so as not to keep that promise. Dan, what's your prediction on whether the government appeals any of these in a timely fashion or if they find some other work around or they just fire Sauer? I'm really not sure. I think that one of the hallmarks of this presidency is unpredictability to some degree like this podcast, but probably to a much greater degree. So I don't know. I mean, the other tricky piece of it is that the government's refusal to say that they would always defer to circuit precedent. So it does create a hypothetical where every circuit in the country, let's just imagine, rules against a particular thing the executive wants to do. And yet there's still lots of people who don't have any relief from that because they don't have the wherewithal to file their own suits.

And maybe there's not a class action that gets going for whatever reason. Well, predictions is sour out of a job. I think he'll hold on somehow. I think at this point, the administration has to be incredibly pleased with John Sowers record at the court at the lower courts for his briefs. So I predict that John Sowers pluses massively outweigh this one promise that he made and that they actually don't mind going up to the Supreme Court and losing on something like birthright citizenship because it's a win-win in some ways. Either you get your birthright citizenship executive order. I think there's a 0% chance of that, or you get to rail against the Supreme Court and they've shown that their side, their base, actually is great with that too. They love

the sort of victim side as much as they like the winning side. So no downside in appealing to the Supreme Court. You either win or you win by losing. All right, final thoughts on anything we didn't get to, any amazing insight that we don't want to have to wait to read your law review articles. Although again, my god will, if this wasn't an advertisement for writing great law reviews or maybe writing law reviews with Sam Bray, I don't know. But again, like you're looking pretty good. You're sitting high on the horse today. So I can't believe you joined us. I mean, I'm surprised you weren't invited to like the Met Gala or Davos or something.

Uh, you know, I turned down the Aspen ideas festival for this. All right. Last ideas, Dan parting thoughts. We didn't get deep in the weeds on the Sotomayor descent, but you know, it had a lot of the stuff that you would expect in it, a lot of just responding to majorities' arguments. Obviously goes through the merits of the underlying constitutional issue. I do think it's fair to say there is sort of a Hamlet without the Prince feel to this whole thing that the major just the majority is just completely

Dancing around that issue and they have formalist reasons for why but it It does feel a little strange This is not a good vehicle in some sense for the court to decide the universal injunction issue. Although my future colleague Notre Dame's colleague for a few more days, but my future colleague Sam Bray disagreed. He thought in some ways, if the court shows that they are willing to stick to the actual principles of no universal relief, even in this case, where the government's eventually losing the merits, that's actually, that shows it's like a real rule. It's not like we do this only when we kind of like the policy anyway or something like that.

Like, you know, that's showing their really principles. Although in the interim, you know, there still is actually a lot of uncertainty. You know, I'd like to think that the, you know, this will lose on the merits, but I think a lot of people are really not sure. And in terms of the political optics, you know, it's already being interpreted as, you know,

a partial win for the birthright citizenship order, which it is. With that, we will conclude our crossover episode of Advisory Opinions and Divided Argument, or Divided Argument and Advisory Opinions, depending on how you came to this podcast. I'm Sarah Isger. I've been joined by Dan Epps and Will Bode. This has been a real treat. I cannot thank you both enough. I think we need to do crossovers more, although I guess we'll see if your folks complain. Mine aren't gonna complain, mine are gonna be thrilled.

Your people though, who knows. I think you have about 10 times the listeners. So just to remind everybody, dividedargument.com, we're in your podcast apps. If you've never heard of us, check us out. And you know, this is actually the 100th episode of Divided Argument. So Sarah, thank you for celebrating our hundredth birthday with us. Oh my God.

I had all sorts of elaborate ideas for how to do the hundredth episode. And I think this actually, this was, this is better and also simpler. And will y'all be having another Divided Argument episode to cover the rest of the cases that we didn't obviously get to, we didn't intend to get to today. The Supreme Court obviously decided four other cases, six, three, though not all along the same ideological lines. We had three on six, three ideological lines and two on six, three my like three three three where the Gorsuch Thomas Alito group was in descent. Um, will y'all be covering those in your next divided argument or certainly not all of them. Maybe, maybe one of them at a time. All right. Well definitely

go check that out on divided argument. David French and I will, I mean, we've got a whole post David French and I will, I mean, we've got a whole post OT24 plan for y'all, our advisory opinions listeners. David and I will be breaking down the rest of the cases in the next episode. We have the extended universe joining us for the episode after that with David Latt, Zach Shimtov and Amy Howe from SCOTUSblog. So big July coming up for advisory opinions. Dan and Will, thank you again for joining us.