Advisory Opinions - SCOTUS to Congress: Do Your Job

Episode Date: May 16, 2023

While host emeritus is off for a week on a mysterious mission, David Lat of Original Jurisdiction rejoins Sarah to sift through the latest Supreme Court decisions. On the docket: -Gettysburg update -Attempting to answer when individual members of Congress can go to court -The unsatisfying end to Pork Producers -Buffalo Billion, New York, and federal wire fraud -Setting the table for Title 42 Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to Advisory Opinions. I'm Sarah Isger and joining me this week is David, but not that David. It's David Latt from Original Jurisdiction. David Latt, so pumped to have you. I am thrilled to be here. This is kind of like my dream come true. David's been on the podcast plenty of times at this point. But David and I actually, I think we first hung out in the White House bowling alley in the basement. And I didn't bring socks. And that was a huge problem. And you loaned me your socks. It was love at first sight.

Yes. No, I think that is right. And I think there were some other legal luminaries in attendance, including some future or current judges. So yes, no, that was an exciting time. Oh, we can call him out by name. Judge Ken Lee of the Knights of it. Thank you for inviting us to the White House bowling alley. He has life tenure now. He won't get in trouble for having invited us. That's right. It was like 2007, 2008, something like that. It was at the very end of the Bush administration. So David and I go back a long time. And David's writing has always been the best to me. And so when other David decided

to take a week off, and we'll tell you more about that when he comes back, this David, of course, is the obvious person to invite on. And David, we have so much SCOTUS news. Oh my goodness. Yes. An embarrassment of riches. But no, I'm glad to make your job easier and you can still keep saying, but David, and it's all the same. Exactly. That's what's important to me. I can only have David's on the podcast. All right. So SCOTUS news, we got some cert grants. We got a ton of opinions last week, which still doesn't come anywhere close to getting them caught up

with where they would normally be at this point. And we're going to go through all of that. Plus, we'll do a little update on where Title 42 stands on the legal injunctive side of things, mostly to set the table for what I think is coming in the next couple of weeks

from some circuit fun times. think is coming in the next couple of weeks from some circuit fun times. And then we have a judicial ethics lawsuit that's getting weird. And finally, the corrected law school rankings, which I didn't even know was a thing to have corrected rankings. But we're going to need to complain about that a little at the end here. First up, thank you to all of you who had so many opinions about General Daniel Sickles from the Union side of the Civil War. So many fun facts coming in. Yes, I did know some of those fun facts. I did not know the thing about him visiting his own leg in the Smithsonian. He lost his leg at Gettysburg, where the Union had suffered a really humiliating and sort of shocking defeat, that part of what Sickles

blamed for that is that he wasn't on high enough ground, that the Confederacy had gotten higher ground. And so when it came to Gettysburg and he saw higher ground in front of him, he just kept going to the higher ground, thus breaking the Union line, almost losing the battle potentially for the Union. As General Meade told him afterwards, when asked why he ignored his orders to maintain the Union line, and Sickles was like, well, I went to higher ground, you know, like Chancellorsville. And Meade was like, you could have kept going to higher ground all the way to the mountain range that's right there. That's why those mountains are there.

You know that, right? Like, that was dumb. So it doesn't make it better, in my view. But I did appreciate that we had some Sickles defenders out there of a sort. And really think that someone should turn this into a Netflix series, honestly. Just the Dan Sickles story would be really fun. We also got lots of Bridgerton thoughts. None of you seem to have actually watched Bridgerton, but in true AO fashion, despite not watching the trashy TV show

that I'm watching, obviously, you all know a lot about Queen Charlotte, who, yes, there were rumors, whatever you want to call them, about her being of mixed race. That's not actually what the Bridgerton show is kind of getting at or about, and presumably not why they picked that time frame to begin with, but appreciated all the comments. It was really fun. All right, David, SCOTUS time. Let's start with our cert petitions. So the Supreme Court granted three cert petitions. petitions. So the Supreme Court granted three cert petitions. Two were consolidated on armed career criminal sentencing stuff. We don't need to worry about those for the time being. What we do need to worry about, though, is Article 3 standing for individual members of Congress Congress, and a DC Circuit brouhaha that is now going to be heard by the nine. So background on this. Basically, Democratic members of the Oversight Committee wanted

information from GSA about the leasing of the old post office building to Donald Trump for the Trump Hotel. GSA didn't do exactly what they wanted, gave them some stuff, not others, yada, yada. These members sue GSA. District court says, you don't have standing. Who are you? DC Circuit panel says, no, no, you definitely have standing. Come on in. Let's hear your complaints. There's a dissent in that from Judge Ginsburg. Then there's a petition for en banc review by the whole DC Circuit. That's denied. But you get a real nice... It's not that it's spicy. It's that it's, well, it's well-formed dissent from Judge Rao, friend of the pod, where she walks through exactly why individual members of Congress do not get to bring lawsuits like this. Namely, this wasn't brought by the whole

House. They were bringing it in their capacity as members of Congress, but not on behalf of Congress, that this would allow members, and especially members of the minority, to just wreak havoc across separation of powers. They can just come into court anytime they don't like the process by which documents are being handed to them. God knows I dealt with this a ton at the Department of Justice. And there's sort of a long accommodation process that Congress and the executive branch are supposed to be going through. But that case was not heard by the entire DC circuit. The nine justices have taken it. David, I'm curious if you had any thoughts on this. This seems, I got to be honest, kind of like an easy case to me. In the sense that you side with the judge.

Judge Rao, for sure. Yeah, and her argument that really the nature of this injury is institutional and not personal, and therefore that gives rise to the standing problem. Yeah, I mean, I actually wonder if this could even be a 9-0. issue of standing is getting and how something that used to be so in the weeds is now something that is surfacing now in articles and mainstream papers. And even your friends who are not lawyers will sort of understand the concept of standing. It's just become critically, critically important. And I think it is an area where the court wants to do more clarification. And there have been calls for more clarification. Judge Newsom wrote that opinion from, I don't know, a year or two ago, where he sort of was like, here's a roadmap to how to clean up standing.

So there are just a lot of really tricky aspects of this, but I'm actually glad to see them taking this case regardless of how it comes out, because this area definitely needs some cleanup. Yeah, and I've gotten this question from listeners before about when individual members of Congress can go into court. And honestly, for those of you who have asked me that question, I've dodged your question by and large. And this is why, because there's not a very clear answer. And part of the problem that the court's going to deal with is it's not like the DC Circuit made this up out of nowhere. There are Supreme

Court cases in which they have found individual injury to members, but as members. I mean, there's the one case, I think it was in the 60s, of the guy who said he wasn't seated in Congress, and that was unconstitutional, etc. That, to me, does seem different. Sure it's as him as a member of congress but it is specific to him their injury here of not getting information isn't specific to carolyn mahoney qua carolyn mahoney it's as a member of this committee or as a member of the house of representatives we wanted this information um that's pretty different. And I very much agree with Judge Rao that the result of giving standing

to individual members of Congress to enforce legislative acts on their own against the executive branch, this way chaos lies. Yeah, no, I think that's right. I don't think I disagree with your take on this. So that'll get argued next term. We don't have a date yet. I'll look forward to that argument. Interestingly, by the way, for those who think there's some political valence to this, so right,

it's Democratic members of the House who were trying to get information about the Trump Hotel, but who filed cert? That would be the Solicitor General, Elizabeth Prelogger, under the Biden administration. So this is actually Biden administration versus Democratic members of Congress. That's always fun. It's often a good sign that principles are at stake. I agree.

All right, now for the cases that came out last week. And David, I know you listen to this podcast and I know you know that my favorite case this whole term is pork producers. And there's a little piece of me that's disappointed that we got it so early and unceremoniously. And are you also disappointed by how unsatisfying it was or how inconclusive? So unsatisfying. I will tell you in talking to some friends on Friday night. Now, I'm pregnant, so I wasn't drinking, but it was never, you know, you get sort of like late night drunk just from it being late and tired. I was comparing this in less formal terms to coitus interruptus, right? You're heading in a certain

direction and then it doesn't happen and it's deeply disappointing. And that's how Pork Producers feels to me. There was a lot of buildup for the last year. I became friends with some of the people who had brought the case, Josh Balk over, who had been at the U.S. Humane Society. We had talked so much about this. And then to get this opinion, woof. Yeah, it was one of those opinions that's just super confusing, sort of one of those who's on first, who joined which portion. There are this many justices to hold this, and there are that many justices to hold that. It is really very confusing. And I think it's just kicking the can down the road on this issue of the dormant commerce clause, because I think they resolved very little. And if anything, they may have raised more questions than they answered. Yes. So, all right, let's try to walk through this. Reminder, pork producer's case. This is Proposition 12 that passes California in 2018.

It's a voter initiative about the humane treatment of pigs. And while there's actually some other parts to it, for our purposes, for talking about the case, this is about confinement of mother pigs during their gestational period. So mother pigs are often confined in gestational crates. They can't turn around, et cetera, et cetera. So this bans the sale of pork where mother pigs at the facility are kept in gestational crates. Again, for the purposes of us talking about this case.

Pork producers, the national pork producers sued claiming that this was a violation of the dormant commerce clause. But what's going to become really important here is that actually there were two questions presented about this case because as Supreme Courtese will tell you, the Supreme Court decides questions, not cases, which is deeply annoying in a moment like this where you're going to get concurring in part and dissenting in part even though there's actually a disagreement over the disposition of the case itself the concurring and dissenting comes with the qps the questions presented so i'm going to

read the questions presented we'll explain them and then we'll go through the three three three six three five four i mean it's a lot all right and it's not the three three three, three, six, three, five, four. I mean, it's a lot. All right. And it's not the three, three, three you think either. All right. So the first question presented is whether a state law that has dramatic economic effects outside of the state that would require pervasive changes to an integrated nationwide industry is a sort of per se or nearly per se violation of the Dormant Commerce Clause. So this extraterritoriality principle, if it affects a national industry and you can't break off pieces of that national industry, is it a fast track to striking it down? That was number one. Number two, for a law that is based solely on preferences regarding out-of-state housing of

farm animals, is that a claim under the pike balancing test? Okay. So generally speaking, Okay. So generally speaking, we had 9-0 on that first question, maybe for different reasons. But the idea that just because a law has a large economic effect outside of the state cannot mean that you get to strike it down under the Dormant Commerce Clause automatically. As Justice Gorsuch is going to point out, a state income tax does that, right? A state income tax means that businesses will move to a different state that has a large economic impact outside of the state. So now we can strike down state income tax? Obviously not. For the most part, and David, you're welcome to come back and talk about this one, but for the most part, we don't really need to talk about that question because it was 9-0. All the justices are on board.

What gets very, very messy is that second question on Pike balancing, because we're going to have, I don't like Pike anymore. There's three justices for no more Pike. There's three justices for yes, Pike, not here. And there's three justices for yes, Pike, not here. So, David, do you want to walk us through some Pike balancing? Walk us through your feelings on the 333 and who the 333 are? All of that. Take over. Yes.

So Pike is this key precedent in the area of the dormant commerce clause, dormant commerce clause being contrasted with what Justice Gorsuch refers to as the wakeful commerce clause, the commerce clause meaning that Congress has the power to legislate on these matters of interstate commerce, the dormant commerce clause basically saying, look, states can't really, I guess, to sort of be crude about it, discriminate against other states in these economic ways. Even if Congress hasn't made an enactment, states really can't just kind of mess with each other in these very intentional, deliberate ways. So under Pike, the test is that a court must assess the burden imposed on interstate commerce by a state law and prevent

the enforcement of the law if the burdens are clearly excessive in relation to the putative local benefits. And so here, of course, the pork producers are arguing that the burdens on the pork industry in terms of how it would increase the costs of pork production and how it would also require these other changes to the process are really excessive in relation to the various benefits. So you have, I guess, three justices who are, well, it's interesting. I guess they don't actually explicitly call for the overruling of Pike, but Justice Gorsuch basically is saying, well, judges are not in a position to be engaged in this balancing, and Pike is all about balancing. So to say that judges aren't supposed to engage in balancing is basically calling for Pike to be overruled. Although I don't think Justice Gorsuch explicitly says that. He didn't. I mean, the fact that Thomas joins him, I mean, Thomas loves overturning things. So it's sort of implied just by having Thomas there. So it's Gorsuch, Thomas and Barrett. And what Gorsuch says, it's like comparing the

length of a line to a weight of a rock, right? How are you supposed to balance the economic burdens against the benefits for pigs? And by the way, just footnote for those listening, yes, the pork producers made the argument that in fact, this is not better for pigs, that now little baby pigs are going to get trampled because their moms can't see them or other pigs can't see them. And this is not healthier for the pigs. That argument was made, but that sort of goes to the, again, the policy side. The courts aren't going to deal with that. And the other argument was, of course, that sure, this maybe helps pigs,

but it also raises the cost of pork for everyone across the country. And why does California get to raise pork prices? Again, I actually am very sympathetic to the idea of like, how's Gorsuch, you know, and I just mean any justice supposed to weigh these benefits against inhumane treatment, or maybe the treatment isn't that inhumane. I mean, that is asking judges, especially justices of the Supreme Court, to have some pretty intricate thoughts on how one balances sort of a moral imperative versus an economic benefit. And this is also kind of where Justice Barrett comes in. And she says in her concurrence,

to weigh benefits and burdens, it is axiomatic that both must be judicially cognizable and comparable. And so she agrees with Justice Gorsuch's point that the benefits and burdens of Proposition 12 are incommensurable. She says, California's interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents. So there are three justices who are really very uneasy with basically the project of Pike. And if I think they had their druthers, they basically would make it a dead letter whether they would officially overrule or not, I guess is kind of a little vague. And don't forget, you have Justice Thomas, at least at one point,

also saying that the whole project of the Dormant Commerce Clause is folly, right? The Commerce Clause is written into the Constitution. There is no such thing as the Dormant Commerce Clause. There's no clause of any kind. It is supposed to be the negative, right? Like, meaning the picture negative. Like, well, if there's a Commerce Clause, there must be the negative of the Commerce Clause, which is the Dormant Commerce Clause.

And Thomas is like, says who? So what? Gorsuch's solution to this, which again, is a very Gorsuch-y solution, which in general, I've been pretty sympathetic to. And this is on my institutional access with Gorsuch as maybe the least institutional justice on the court. This is Congress's problem. justice on the court, this is Congress's problem. I don't care if it causes chaos. Congress at any point can step in here and set a national standard for the treatment of pigs or a national standard for the pork industry and solve this problem tomorrow. The fact that they don't do that or won't do that certainly doesn't make it my problem to then resolve your balancing issues. And as California pointed out in defending Proposition 12, Congress actually, members of

Congress rather, proposed, I think it was two bills, it might have been three, about a national industry standard for the raising of pork, pigs, and none of those went anywhere. So it's not like Congress isn't even aware that this is happening. They're aware. They just don't have the political will to do anything. Now, the non-institutionalist, or rather, sorry, the high institutionalist pushback against that is that Congress doesn't do that anymore, by which I mean legislate. It's certainly not in response to court cases or state laws. And that's what's getting us here. It's funny because we're going to talk about the last one of the last times that Congress really was strong in responding to Supreme Court cases when it comes to honest services fraud, for instance. The Supreme Court says, there's no such thing as honest services fraud.

And like three months later, Congress is like, yes, there is. So we know that they're capable of doing that. And Gorsuch is like, look, when it comes to Oklahoma or Dormant Commerce Clause, like this is a Congress problem, not a court's problem. So that's your Gorsuch-Thomas Barrett. But then walk me through the other blocks, because Robert here writes an opinion for

Alito, Kavanaugh, and Jackson, and that's four justices. And they don't completely side with the pork producers in a way, but they basically, as you mentioned, the main argument, the court is 9-0 on this notion that there's no per se rule against state laws with extraterritorial effects. But what they would do, what Roberts would do, along with Alito, Kavanaugh, and Jackson, and I think it's a partial concurrence, partial dissent, is they basically said that the Ninth Circuit here misapplied the Pike jurisprudence. And so they would basically vacate and remand and basically let the Ninth Circuit take another whack at it. But what are the other blocks here? Because I

have to admit, I was not really the best at logic games on the LSAT. So I was actually confused about what was going on here. Okay. Going to get a little bit messy, but the part where... Can I just... I'm going to read everyone what the actual syllabus says because it's pretty funny. Gorsuch announced the judgments of the court with respect to parts 1, 2, 3, 4, A, and 5, in which Thomas, Sotomayor, Kagan, and Barrett joined. Thomas and Barrett joined parts 4b and 4d. And then, an opinion with respect to part 4c, Thomas, Sotomayor, and Kagan joined. Sotomayor concurred in part, in which Kagan joined. Barrett filed her own, concurring in part. Roberts filed an opinion, concurring in part andberts filed an opinion concurring in part and

dissenting in part that's the two qps in which alito cavanaugh and jackson joined and cavanaugh filed an opinion concurring in part and dissenting in part okay so that's why everyone's a little confused here and i do mean literally everyone i actually would question if we put you know a bright light in front of any one of these justices' faces if they could tell us where this all stands. All right. So parts 4B and 4D have to do with the most shade thrown on Pike. That's where you're losing Kagan and Sotomayor. And the it's Congress's problem. Those were both in parts B and D. So Sotomayor and Kagan have their own little concurrence

where they're like, Pike's great. You can definitely always use Pike. It's just that here, this was weird. So whatever. And we just want to emphasize, we're not agreeing with the shade on Pike. We like balancing tests. Balancing tests are awesome. Of course, courts can balance things. XOXO, we miss you, Justice Breyer.

Yes. And they say that because of what Sotomayor and Kagan are doing, they say, nor does a majority of the court endorse the view that judges are not up to the task that Pike prescribes, namely the balancing. So you do not have a majority for judges can't balance, get rid of Pike. Or any, I mean, any balancing test, right? That's why Kagan and Sotomayor are going to be so clear about this because the liberal wing of the court loves a balancing test. Yep. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family

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Okay, so then we get to the Roberts part. I thought you described that very well, which is Roberts the minimalist, right? Roberts always wanted this to be a minimalist court. This was his dream project is that the Roberts court would decide in the narrowest fashion possible. And so when you think about it that way, Roberts is just saying, look, we just said that Pike doesn't have this auto extraterritoriality thing. So just go back, do it again, and we'll see you here in a few years. Thanks. And you can see why some justices are a little frustrated with deciding things that narrowly, because really you're just having the same cases come up again and again and again because you're not giving a lot of guidance to the night circuit except for saying you did it wrong. And then they do it wrong again. And

you're like, yep, still did it wrong. I mean, that gets frustrating. But again, it's on that institutionalist axis. And that's why I do find this case. It's so compelling to me. It remains super compelling. Okay, so then you're getting Kavanaugh filing his own little dissent, basically. Yes, it's a concurrence on the extraterritoriality, but for our purposes, it's a dissent. And what I also think is cool about this case is that you can strip away, because of the weird teams here, you can really strip away the political valence. That whole ideological spectrum isn't nearly as important to the outcome of the case, that x-axis, as that institutionalist y-axis. cosmo quiz over what justice are you, I think this is a pretty good example. And whereas I think I might have told you that I was probably more of a Gorsuch, like being more of a Samantha, as it turns out, reading this, I'm clearly more of a Kavanaugh.

Wow. Not even close. So David, I have a confession for you, which is that I was drafting an op-ed about this case before it came out. I had to rewrite it because it was too close to the Kavanaugh opinion. I think people would have thought that it was plagiarized. So Kavanaugh comes in at the end and he's saying the quiet part out loud, which is, let's be real, guys. This isn't about pork. This is about all of the other states coming up with their moral policy intuitions, and especially in these large, predominantly single-party states, using that economic power to enforce their moral intuitions on the rest of the country. He goes back to the 1780s and

the Articles of Confederation not working, and that one of the biggest benefits of the U.S. Constitution was this free trade between states, letting the states be these laboratories of democracy, etc. And that what this means, what Prop 12 is hearkening the beginning of is the end of that if a state like California can now dictate pork production. And again, he's like, but let's be clear, this isn't really about pork production. And this was brought up, of course, at oral argument. Here are the hypos that Kavanaugh puts in his. Notably, future state laws of this kind might not be confined to the pork industry.

What if a state law prohibits the sale of fruit picked by non-citizens who are unlawfully in the country? What if a state law prohibits the sale of goods produced by workers-citizens who are unlawfully in the country? What if a state law prohibits the sale of goods produced by workers paid less than $20 per hour? Or as those states suggest, what if a state law prohibits the retail sale of goods from producers that do not pay for employees' birth control or abortions? Or alternatively, that they do pay for employees birth control or abortions most court watchers david i think you'll agree i think that last part is what this whole case is about it's about abortion i mean that was basically what i think the political piece by josh kirstein was suggesting that this is basically about abortion but i'm surprised to hear how much of a fan you are of the

Kavanaugh opinion, because I have to confess, as a policy matter, I think the Kavanaugh opinion is great. I like business. I like having consistent nationwide regimes for things, etc. But just in terms of a matter of, again, text, history, tradition, etc., and just what is grounded in the Constitution, there is no actual dormant Commerce Clause provision. I know. I kind of agree with Gorsuch that everyone thinks the sky is going to fall. Well, maybe if the sky started falling or descending a little bit, Congress would wake up and do its job. So I'm kind of like, why are you with Kavanaugh on this? I don't know. Because if you

had just told me ahead of time that Gorsuch was the make Congress great again justice, obviously I'm for that. I'm actually a pretty low institutionalist, if Congress is the solution, at least. But I'm a high institutionalist on other things, David, and that's the contradiction of being me. And when it comes to what I think we see happening between Governor Newsom and Governor DeSantis, I don't think that's great for the country. I think you see some real balkanization coming forward.

And I'm actually not that teed up on the abortion stuff as I am on again. So take pork, for instance. If it were true that A, Congress could speak to it, and B, more importantly, raise pigs separately, make California pigs, or don't sell pork in California anymore. That's not actually how the pork industry works. You, the pork producer, are not going to get much of a say in any of this. And a little piece of your pork ends up in a larger pork container. And they're not going to divvy up that pork, if that makes sense. So it really is a fully integrated system.

They're going to have to deintegrate the pork production process in order if they want to separate out California pork. Now, there's an argument that they've done that with eggs, that eggs are now, you can buy eggs where you know your chicken's name. And that's worked out just fine. Gorsuch, of course, points that out at the whole opening of his opinion of the eggification of our grocery stores. But I am concerned about where this is headed. And that's where I thought Justice Kavanaugh's points. He's saying the quiet part out loud. It needs to be said, which is this is where this is headed. Congress isn't actually going to fix this. And you do end up with a problem, whether it's the social media laws that Texas and Florida have been pushing, or pork production, or abortion,

or minimum wage. All of these things provide huge political incentives for governors of, again, mostly single-party states to push around their economic power in a way that we haven't really seen previously because Congress, I think, was just a more robust institution. You go back to all of the previous cases that both sides cited, with the exception of one case that I do want to talk about, and they're all protectionist cases. We're trying to protect our in-state industry against out-of-state competition. Dairy, trucking, you know, there was a mudflap case that was bizarre. Those all make perfect sense.

And why you end up with something like a dormant commerce clause with a court, this is clearly just you trying to hurt your neighboring state and protect your in-state industry. But these cases are something very different. And what I found odd is that the one case that seems directly on point is Minnesota Creamery, where Minnesota says you can't sell milk in our state in plastic, non-reusable jugs. You have to sell them in something else. That's pretty close. That is just a moral intuition about sort of waste and whatever. And I went back to the briefs. I went to the oral argument. Nobody cares about Minnesota creamery. And I don't understand why I'm the only

one. Gorsuch does mention it. He says, other cases in the Pike line underscore the same message. In Minnesota versus Cloverleaf Creamery, the court found no impermissible burden on interstate commerce because, looking to the law's effects, there was no reason to suspect that the gainers would be in-state firms or that the losers would be out-of-state firms. That's it. That's all you get on Minnesota State Creamery. um you're right david that like my ideology is with gorsuch but my heart is with the kavanaugh descent well i will say in defense of people who are sympathetic to this project and i share your concern about this sort of red state blue state war of all against all uh i share your concern what justice kavanaugh does say in his separate opinion is, I add this opinion to point out that state economic regulations like California's Proposition 12 may raise questions not only under the Commerce Clause, but also under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

So he's kind of setting up a future Justice Kavanaugh project, which is basically how do I address the Sarah problem of the red states and the blue states all going at each other and going at the federal government and all hell breaking loose in a way that is also grounded in text, history, and tradition. And so basically he's saying, here are a bunch of other things that maybe we can think about that might address the problem in a way that doesn't involve making stuff up in the way that we have with Pike and the Dormant Commerce Clause jurisprudence. So, in fairness to the people who are really sticklers for text history and tradition, there may be ways to address this problem that don't involve something that people are as uncomfortable with as the Dormant Commerce Clause.

something that people are as uncomfortable with as the dormant commerce clause. Yeah. I mean, okay. So when the next case comes up and let's just, for our sake, make it as egregious as possible, it's abortion. And so everyone's going to go to their corners. Here's where I think you've ended up. You have Gorsuch, Thomas, and Barrett saying this isn't a balancing test, that the state gets to do what it wants. So a conservative state gets to have its abortion restrictions. You're going to have Sotomayor and Kagan saying, well, we've balanced this one on the costs versus the benefits, and it balances out the other way. So that's how they're going to get around that. And then you have Roberts, Alito, and Kavanaugh, which is interesting, potentially striking it down, that conservative abortion restriction law.

And Jackson striking it down for those reasons, right? It's not the balancing part. It's this other way to do it. And I find that Jackson split from Kagan and Sotomayor very interesting because, again, that is absolutely because of what's coming down the pike, if you will. Yep. No, exactly. That jumped out at me too. I said, oh, that's interesting. Justice Jackson went with the Roberts group and not with Justices Sotomayor and Kagan. Which maybe tells us something about where she is on that institutionalist axis. You know, again, we know where she is on the conservative axis, you know, conservative to liberal.

But, you know, maybe she is going to be a little bit more of a high institutionalist. I just don't think we quite know yet. This is, I think, this is the only case we've actually seen her different than Sotomayor and Kagan. So I'm reading a lot into this one case, but there's a lot here to read into. Yeah. I mean, we also don't know how that future abortion case might shake out because it could be a red state trying to limit the ability of its citizens to go out of state for abortions. It could be a blue state trying to protect the rights of people to come to them for abortions. We don't know whose ox is going to get gored, which is why this is interesting, because we are kind of behind this veil of ignorance. Which I love. I love this moment. Everyone should have to say where they're going to fall

with pork producers before we know what the next case is going to be. And you're exactly right. California, Governor Newsom canceled or did not renew his contract with Walgreens because Walgreens had said they were going to abide by state laws in other states. Some states were going to allow the distribution of abortion drugs. Some states weren't. And Walgreens was just like, we're going to follow law. And California was like, nope, we're going to work with companies who are not going to do that. I don't know quite what the point is. But certainly to send out a press release saying that Governor Newsom really cares about Mifeprestone, I suppose, that is not going to give rise to any interesting case like this. You're going to need an actual law that does something more specifically like saying a company cannot operate in the state of California

if it does not provide abortion-inducing drugs at all of its locations or something like that. And that's something I think that Team Gorsuch would be fine with in the sense that they're saying, look, that is not aimed at attacking out-of-state producers or economic actors versus in-state ones. It applies to the in-state ones too. Yep. Yep. And again, you can have the exact reverse coming out of Texas or Florida. And the reason, by the way, that we keep mentioning California, Texas, Florida, you've got to have a big enough state economically to do this to have any impact or else Walgreens is just like, cool, Vermont, I guess we won't have any Walgreens in Vermont. That's fine. Enjoy not having Q-tips. Exactly. The opinion points out that there

are other states that have laws actually very much like proposition 12 but it's california who's driving the bus because they're what percentage of our gdp and and pork consumption and what have you they're 14 of pork consumption and they are still the largest gdp in the country all right should we move on to the court's continued experiment in liking corruption? Yes, exactly. We're just going to do these two cases. There were some other cases decided. We'll save those for the next episode. Simonelli and Paracoco. Paracoco. Sorry, I don't know how to pronounce that guy's name very well. They are, we talked about them on the pod previously. I'm really into cases like this

because it's going to cut against your intuition of bad guys. As in, everyone knows these are bad guys. But does federal law actually make what these guys did illegal? And again, you're going to see Justice Gorsuch here as, you know, the seance with Justice Scalia being like, I may be a conservative, but I love criminal defendants. Yes, totally. All right. So Per Coco is Governor Cuomo's once-in-future chief of staff. So he's chief of staff, and he takes a six-month or so leave to become campaign manager, and then he comes back to being chief of staff. This is very, very common for anyone who works for a politician qua candidate. In his six months off, he gets a

call from a guy who's like, hey, they're telling me if I don't work with the union on this, they're going to shut down my project. Here's tens of thousands of dollars for you to make this problem go away. He takes the money. He goes back as chief of staff, makes a couple phone calls, and then boom, this guy's problem goes away. Is that illegal? And in the other case, which is a little more complicated, but this is the Buffalo, what was it called? Buffalo Billion. It was actually called the Buffalo Billion. That's a terrible name. This guy basically spends a bunch of money, sort of a kickback scheme, in order to get

premium consideration to get a contract from the Buffalo Billion. And he does. And so he gets a $750 million riverbend project in Buffalo. But he does it like he does the job. He doesn't just pocket $750 million. Is it illegal if he did the job and he was the cheapest and he did the best work and all of that stuff just because he kind of cheated to get the contract in the first place. This is going to involve the same statute, those slightly different parts of it, which is wire fraud, federal wire fraud.

By the way, funny that these are both in New York, right? Yes, and they're both involving sketchiness in the Cuomo administration. I think nobody would think that either of these people is a model citizen, even if they're not federal criminals. So on our Buffalo billions, the question is this idea, is it a right to control theory that the second circuit has? And if you're wondering a right to control theory that the Second Circuit has? And if you're wondering what right to control means, yeah, nobody knows. That's part of the problem.

So it's the right to have information. Was this sort of the right of government officials slash the public to know that this guy had basically bribed someone to get preferred consideration to get this contract in the first place. And the court holds that is not a tangible property interest that was thought of in the wire fraud statute. And the reason we know that is because we struck down this whole intangible la-ti-da feelings and knowledge. And Congress came back, again, I mentioned this earlier, six months later, and added honest services to the wire fraud statute.

So now it's wire fraud and honest services fraud. Well, right to control looks a lot more like the thing we struck down. So no, Simonelli, enjoy your $750 million for right now. They can always retry him under the theory that, in fact, he basically didn't do the work or there was fraud in the contract itself. That's all actual property interest fraud, if you will. Yes, exactly. So this is a unanimous opinion by Justice Thomas, but there's a concurrence by Justice Alito. He concurs in full with Thomas's opinion, but he leaves open the possibility of retrying Simonelli on

a more conventional fraud theme. But as you were saying, this is the Supreme Court basically swatting down the Second Circuit theory of the so-called right to control, where you're guilty of wire fraud under this theory if you scheme to deprive the victim of potentially valuable economic information necessary to make discretionary economic decisions. And so the right to control, I know you've talked about this in the past on the pod, and I believe you also interviewed some property scholars about this. The right to control is one of the sticks in the bundle of sticks of property. And therefore, if somebody is frustrating your ability to control your property by giving you false information or hiding material information or something like that, then that's fraud. But the Supreme Court is basically saying, no, no, no, it actually has to be property

property, not just in this theoretical bundle in the bundle of sticks. It has to be the bundle, in a way, is kind of what they are saying. And I kind of understand where this is coming from. I don't think I disagree. And again, this is, remember, unanimous. You have the entire court signing on to this. So I think it's interesting. I think one thing you sometimes see in the circuit courts is circuit courts with specialized areas of expertise sometimes kind of like get really excited about their own areas and they develop all these elaborate doctrinal tests. So you see this with the Second Circuit and wire fraud and white collar crime and securities fraud. You see this with the Federal Circuit and patent law, and they develop these very elaborate doctrinal structures that they really are very proud of. And then the Supreme Court basically comes along and says, nice, cute theory, guys, but the law is the law. And the court just wants to take us back to basics and says,

there's no special rule for securities law, or there's no special rule for IP law. It's just law, guys. And I think that's kind of what's happening here. The Second Circuit got kind of a little clever. And Justice Thomas is basically saying, no, no, no, no, no. We've always said fraud is about traditional property interests and not just a theoretical component of a property interest like the right to control. So this leaves you with a few options. One, the state of New York absolutely can prosecute this, which we've known all along. Part of the reason that this got messy is like, why are the feds prosecuting a state corruption case that the state wasn't interested in prosecuting? By the way, when you said the second circuit is

a specialist, I thought you were going to say an Albany corruption. They are that too. They are that too. But in theory, what this means is if you are a contractor who wants to bribe someone to get you the contract, but then you are the cheapest and you do great work, you're fine federally. And that is sort of fascinating. So Alito seems to kind of say, well, maybe you've got this valuable thing by fraud.

You might be in trouble. But then I just wonder, well, why did they come up with this right to control theory in the first place? It has to be doing some work here. Yeah, I mean, and I get why the right to control has a problem. And we're going to get to it a little in Pericoco, which is your theory might sound nice as applied to Simonelli.

And maybe you can just trust that the feds are always going to go after guys who we all have an intuition is clearly a bad guy. But what happens if they choose to use that theory to go after someone who just paid a lot of money to a lobbyist who made a bunch of phone calls? And is that a right to control problem? And this is what's going to happen with Pericoco, our Governor Cuomo Chief of Staff, who so clearly, I mean, you don't have to be a lawyer

to think that this guy broke the law. He leaves office for six months, takes a bunch of money, goes back into office and does the thing that he took the money for come on uh that's not what the court's gonna say well the problem and this is in the opinion by justice alito is prococo was convicted based on these jury instructions which called for conviction if the jury found that, and I'm quoting here, he dominated and controlled any governmental business and people working in the government actually relied on him because of a special relationship he had with the government. So even though he wasn't officially in government at the time that he took the money because he was

in between stints, the instructions said, well, you can still convict him if he dominated and controlled government business and people relied on him because he had this special relationship because he really was besties with Cuomo. And so what Justice Alito basically says is, look, these standards misinstated the law and they set forth something that was just too vague to sustain the convictions. But, and I'm kind of with Justice Gorsuch on this. This episode is kind of like my man crush on Justice Gorsuch. I feel like he's right on like all of the things. You know, so he writes a concurrence in the judgment. So he doesn't sign on to the Alito opinion. And joined by Justice Thomas, he says, the court basically should have told us more about what exactly honest

services fraud is affirmatively. So Justice Alito basically says, well, it's not X, but Justice Gorsuch, I think, rightfully says, look, if people are going to be on notice of what could get them in trouble, and if lower courts and prosecutors are going to have any understanding of how to apply the honest services statute, they got to give us more. And I kind of see his point. I get that the court has to decide cases and controversies, and they can't be writing these little law review articles. But at the same time, I'm kind of sympathetic to Gorsuch here. What the heck does this thing mean? I mean, what's really shocking is just the statute is so underdeveloped. So this is the statute, 18 U.S.C. 1346. This is what they passed after McNally,

which is what you were talking about, Sarah, where the court in McNally said, well, no, there's no such thing as honest services fraud. And Congress came back and said, yes, there is. But Congress didn't deign to tell us what it is. All the statute says is, for the purposes of this chapter, the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services. Gorsuch is basically saying, what the heck does that mean? That's the entire statute. It's one sentence, basically. And how the heck are we supposed to apply that? So what the court did, the Supreme Court has done, is it basically looked at a lot of the pre-McNally lower court jurisprudence to kind of tease out some aspects. But that jurisprudence was actually kind of all over the place and the lower courts

disagreed on various sub questions under what constitutes honest services. So I'm kind of with Gorsuch, which is basically toss the thing out. He has a great line. This is what I love. He says, let me find, he says here, basically, under our system of separated powers, the legislative branch must do the hard work of writing federal criminal laws. Congress cannot give the judiciary uncut marble with instructions to chip away at all that does not resemble David. So basically, he's saying, look, it's not our job to sculpt this thing of beauty, Congress. It's your job.

And again, I understand the point that people make about how Congress is so dysfunctional and it doesn't do anything, et cetera, et cetera, but it's not the job of the court to then do all the things. Yeah. And I'll just read the questions that Gorsuch says are left unanswered because they're pretty good. Even on its own terms, the majority's reconstruction of the statute fails to eliminate its vagueness. The majority had not attempted to define what constitutes a breach of the honest services obligation, but sought to identify only conduct that fell within its core. Nor had the majority done anything to solve the most fundamental indeterminacy in honest services fraud theory,

for nothing in its decision explained what kinds of fiduciary relationships are sufficient to trigger a duty of honest services in the first place? Is the duty of honest services limited to public officials serving the government? Does it also apply to private individuals who contract with the public? Or does it apply to everyone who owes some sort of fiduciary responsibility to others, including, say, a corporate officer? What source of law, too, should a court consult to answer these questions? Must a fiduciary duty arise from positive state or federal law, or can it arise from general trust law, a corpus juris festooned with various duties? All these questions, the dissenters observed, had long divided lower courts and remained unanswered. Which dissenters is he referring to?

divided lower courts and remained unanswered. Which dissenters is he referring to? The Skilling dissenters. So this is the Jeff Skilling Enron case where honest services fraud gets his first big workout after Congress passed it, where Jeff Skilling is convicted of honest services fraud. Interestingly, by the way, that case is famous for two reasons. One, honest services fraud. But two, Jeff Skilling's other theory was that he could not get a fair and impartial jury in Houston, which had been so bombarded with Enron news and information. The court holding there by a majority, though not as much as you might think, saying, Ginsburg writing for that one, saying it would have to be exceptional to not have a fair and impartial jury without like real proof.

So that's part of skilling. But the other part, he sued and said honest services, appealed rather, and said honest services is too vague, void for vagueness. You can't possibly know what you've done wrong. And look, the court does actually void it for the purposes of his conviction,

but doesn't answer any of the questions that Justice Gorsuch is pointing out there. It instead starts chipping away at all the things that aren't David and says, well, it has to be an actual bribe or kickback. Okay. I don't know why we assume honest services means only bribes or kickbacks, but after skilling has to be a bribe or kickback, but we still don't know who it applies to. And, you know, David, the oral argument in this case was pretty interesting because, you know, you have Kagan, I think at one point saying, what if he left his job for one day, took the money and came back? Surely that's an honest services problem. And I am very sympathetic to Gorsuch saying,

then make Congress tell us who it applies to, what honest services means. This isn't some term of art that we all use in our daily lives. Like nobody, I've never heard that term before. So you're not putting people on notice for what they're doing wrong. Prosecutors have no idea what to spend their resources on.

A lot of money went into trying this case and resources from AUSAs, and now they're going to have to go back? Okay. In terms of skilling, I like what Gorsuch says about it in this case. He says, Justice Scalia, Justice Kennedy, and Justice Thomas declined to participate in skilling's rescue mission, meaning the mission of the court to rescue this statute from basically unconstitutional vagueness. And he says that those justices who declined to participate in the rescue mission, they saw the court's decision as an act of not interpretation, but invention. And again, I'm very sympathetic to Justice Gorsuch on this. And maybe, look, full disclosure to Justice Gorsuch on this.

And maybe, look, full disclosure, my husband's a white-collar defense lawyer. He loves these decisions. And maybe I've been spending too many dinner table conversations hearing him rant about how these statutes are so vague. But I do kind of see the point here. How the heck am I supposed to know? So the court, Justice Alito, rejected the contention advanced by Percoco's lawyer, who I think was Jakob Roth. And I think that what he was saying is, well, let's have a bright line rule that if you're not employed by government at the time of the

malfeasance, you're good. And Justice Alito, who at the same time still has a very strong law and order streak, doesn't want to go that far. He's not going to say, well, we're not going to set up that Brightline rule because people could just game it all the time. They could resign, collect the money, and then come back

and do the thing or do the thing and then come back, what have you. So I get that concern, but still, this thing is a mess. And Percoco, presumably,

is getting retried. You know, I wonder, I was wondering, I wonder about that. Same thing with Simonelli where that's explicitly left on the table. On the one hand, you would think, wow, this was really kind of gross. On the other hand, I do think that sometimes when you have these high-profile Supreme Court decisions, I don't know, are prosecutors chastened? I don't know. Well, I think the problem here is it was the jury instructions themselves that the court is actually striking down, meaning now the government would have to come up with new,

and the court, new jury instructions. They don't give them a lot of guidance on what those correct jury instructions would be, which is another Gorsuch complaint. Okay, those jury instructions weren't right. So what are the the right ones because you also said it's not a bright line rule that because he was a private citizen fine what huh um and i agree with you yeah if i'm the government i'm thinking oh gosh i don't even know what our ideal instructions would be to the court because we want instructions that are going to get the kai convicted but we don't want them to be so woolly that we're going to have this problem again when this case goes up again. And I don't know, I could see, and maybe

this is a good thing, I could see prosecutors being just less willing to bring these cases unless it's the really obvious slam dunk. You know, sort of like, remember that Congressman William Jefferson who had the money in the freezer? The money in the freezer. Yeah, like, I want the bribe of money in the freezer. And if there's no bri the money in the freezer? The money in the freezer. Yeah, like I want the bribe of money in the freezer. And if there's no bribe money in the freezer, then if it's shady and kind of icky, but it's just not money in the freezer, we're just going to take a pass. It'll be interesting if this is good news for Senator Menendez, who is once again under Department of Justice investigation for corruption.

Look, DOJ is not getting a good track record appellate-wise on these corruption cases. You have McDonald's. You now have these two. You have Menendez One. Bridgegate. Bridgegate, yeah. But woof, nobody's for corruption. But I don't know if I can blame them too much in the sense that this statute provides so little guidance.

Anyone who's on Capitol Hill listening to this, you should get on this. Yeah, I mean, politically, this should be pretty popular. Write a better statute to capture this type of honest services corruption, but provide some definitions, provide who it applies to. This isn't that hard. And it's not partisan. Nobody's for honest services corruption. We just don't know what it is. Exactly. Exactly. Justice Gorsuch has another funny line in his

opinion where he says, look, I'm sure that the nine of us, if you gave us enough time, could put our heads together and come up with something great, but that's not our job. And he's again, kind of right. Yeah. The, the justice Gorsuch project of continuing to try to force Congress to make itself great again. It continues though. Congress has not taken him up on it since he got on the court in 2017. So we'll see five years in maybe. Maybe this is the year. All right. Title 42 expired last week. This is that public health part, Title 42, which allowed the Trump and then Biden administrations to expel anyone crossing the border without allowing them to claim asylum. That's what expired. anyone crossing the border without allowing them to claim asylum. That's what expired.

However, the Biden administration then put in different rules at the border. Some might argue better rules if enforced, because under Title 42, if you were then caught crossing the border, they just brought you back like a kid who ran away from home. There was no penalty then if you tried to cross again an hour later, which is why you saw those illegal crossing numbers, at least in part why you saw those illegal crossing numbers just skyrocket. A lot of those were repeat crossers. And I mean, multiple times a day, a week, because there was no penalty. So what the Biden administration has said is, so instead what's going to happen is we are going to put in place rules that if you don't come through a port of entry, if you just cross the Rio Grande, for instance,

if you travel through another country where you could have applied for asylum, so you're coming from El Salvador. Well, in order to get from El Salvador to the US by foot or over land, you had to cross all these other countries that weren't El Salvador. If you didn't apply for asylum in those countries, you can't apply for asylum here. And if you try to come in again, you now have criminal penalties for illegal reentry. But they also said that they have no possible way of containing everyone who's coming in the country. And so a lot of those people are going to get paroled into the country, some not even with court dates. Although I saw on Twitter, one person's court date who was detained, I think,

over the weekend is in 2026. So even if you are getting a court date, it's a long time from now. getting a court date. It's a long time from now. So, David, I feel like part of this podcast is talking about the damage when a hurricane hits land. And part of this podcast is pointing out hurricanes forming in the Gulf. And this is a hurricane that's forming out there. You had the ACLU suing once again in the same Northern California district they sued in before when the Trump administration tried to do the same. You have to apply for asylum in the country you touched on the way here theory. They got an injunction on that one, by the way. So we assume they're going to get an injunction on this one up in Northern California. And then you have Florida also suing.

They already got an injunction for at least a two-week temporary injunction. So once again, like the MIFA Press Stone stuff, the sides have figured out that the best way to do this in the biggest political splash is to get dueling nationwide injunctions. You get a fast track to the Supreme Court's emergency docket, and the Supreme Court then has no real choice but to at least make some sort of decision in the interim. And boy, everyone benefits except the Supreme Court, who gets dragged into these

political fights and gets a headline about which side of the immigration fight they're on, when in fact it's usually far more about the sort of process and statutory side of this. My big takeaway, David, I now am fully committed to the project of getting rid of forum shopping. I wasn't before, and now I'm like wholly on board. I will march in favor of this because how easy it is to get these dueling nationwide injunctions now

is getting pretty gross. I totally agree with you. And there've been a lot of scholars. I know one of your former guests, Steve Ladek, who has a book coming out about the Shatter Docket, has written about this. There has to be something to be done about this because the ability to just find your favorite district and your favorite judge and get this judge to enjoin whatever you want to enjoin, whether you're on the left or on the right, is just out of control. So as you were saying here, the ACLU is getting to block the provisions that it views as too stringent or harsh on migrants, like this requirement they apply for asylum somewhere else along the way, like in Mexico. But then the state of Florida went to Judge Wetherill in the Northern District, and he's a Trump appointee. And he basically blocked these rules of parole that would allow the Biden

administration to permit some migrants to be out and about because you can't keep them all in detention facilities. And so that's something that the conservatives don't like. So it's just really difficult. And I agree with one of the Biden administrations who was quoted in one of these news articles basically saying that the status of this just shows how broken the immigration system is. Basically, again, if one of the themes today is Congress, do your job. They need to actually do their job here. And again, I can't fault the Biden administration too much. And I also can't fault the courts too much in the sense that, look, you're the judge. You're presented with some arguments.

And if you think the arguments are valid, then you have to uphold them. And it's just, I don't know, it's just a mess. But I will join your march against form shopping. Because in theory, right, they could file these same lawsuits in 100 jurisdictions. 99 of the judges are like, I'm not putting in an injunction for this and certainly not a nationwide one. As long as you get one to say yes, it doesn't matter how many said no. And I guess some of my beef with the Vladek theory is that he seems to lay the blame largely on the court. Oh, the shadow docket. It's so secretive. There's not argument.

We don't know what the votes are. Yeah, fine. We've talked about that before, but you have to back up. You don't want the court not having an emergency docket. That's how these death penalty cases are getting decided. That's how the dueling nationwide injunctions that you don't like are getting decided.

So we know they have to have an emergency docket. The question is, why is the emergency docket growing so much? That is because of forum shopping. So get to the root cause of this. But one of the things that he has also written about is this notion of forum shopping. I think he had a Times op-ed some time ago where he was basically saying, look, if you're going to either have certain things happen, like an act, maybe it could be, and look, there are different proposals. It's not just Steve was writing about this.

Whether it's a nationwide injunction, whether it's striking down some statute, you should have the old school requirement of, say, a three-judge panel or something like that. Because at least that's just not one judge who's known for being really conservative or really liberal or progressive doing this thing that binds the entire nation. At least you can't shop. You can't just go to this district and say, oh, I know this is going to go to Judge Kaczmarek or something like that, the Pressstone judge. I think if you just made some structural reforms like the ones that maybe Steve and others have floated, you might be able to cut back on the problem that then winds up at the court. Let's be honest. The D.C. Circuit, and I mean the district judges and the circuit judges,

largely take the summer off. They could be assigned jurisdiction over all APA injunctive relief. That's another possibility. Exactly. And that would, again, make some more sense. You would have some more uniformity. And they'd be just fine. Yeah, exactly. That's another possibility that has been floated. Send this stuff to DC, which makes sense. That's where these agencies are based.

Something has to be done. It's a mess. Well, David, I wonder if we should save our judicial ethics lawsuit, which is pretty interesting and weird about the 95-year-old judge on the bench who has, well, she's feisty. We'll give her that. And the law school rankings. We'll save that for the next episode since we're running a little long here. And also, I just want to leave this with our

theme of Congress, do your job. Hill staffers listening to this, WTF, man, this is all your fault. And the court's approval rating sinking i put at your feet because the headlines are you know court sides with x court isn't doing anything court's having to clean up your mess the court's not pro-corruption they just don't know what you meant by honest services fix it no totally and i think that there are many members of the court especially say chief justice roberts who don't want to be weighing in on everything under the sun. They're just forced to because Congress has abdicated the field. So again, I know this has been a hobby horse of yours, Sarah, but I'm entirely with you on it. Congress just needs to do its job. And I'm with Gorsuch to the extent that he's saying, maybe we should just let things get worse before they get better. Let the sky fall a little bit and then maybe Congress will do its job. But isn't it remarkable to you? I mean, the epitome of that theory for Gorsuch has to be the Oklahoma, you know, not being Oklahoma anymore case. I think everyone thought that Congress surely will step in

now that Eastern Oklahoma is not under the jurisdiction entirely of the federal government when it comes to some criminal law. But then they got bailed out by Kavanaugh in that follow-up opinion, which Justice Gorsuch vigorously dissented from. So sometimes, you know, again, the court sometimes kind of keeps doing Congress's work for it. I guess that's right. Look, then fine. Then I have a separate message to the court, which is, you got to let Justice Gorsuch at least get one of these big experiments to sit for a minute, see if the pressure can build on Congress politically. I saw someone with a hat, by the way.

I won't say who. They just said, let Oklahoma be Oklahoma again. Sorry, make Oklahoma Oklahoma again. Like stop lettering. It was a very nerdy lawyer. I'll just say that. And it was a very funny hat. So yeah,

yeah. The experiment needs to play out a little bit. I agree with you. That would be, it's just kind of maybe, maybe readers can nominate areas where they think that would be good for the experiment. Yeah.

Yeah. All right, David, thank you for joining us today. Original jurisdiction. You can sign up for it's original jurisdictionjurisdiction.com, David? No, it's actually just davidlatt.substack.com. But yes, I refer to you and David so much,

I kind of think of it almost as like the companion Substack newsletter to this podcast. So I feel that if people enjoy this podcast, they will hopefully enjoy Original Jurisdiction. Yeah, it has become a little circular. You're just the third leg of our stool. You're the written version, the audio version. And David will be back for the next episode as well, where we have more Supreme Court

cases, that 95-year-old judge sitting on the bench, maybe doing crazy stuff, but maybe she's not. We don't know. And the law school rankings and who knows what else will come up in the interim. Plenty to talk about. David, talk to you in a couple of days. Looking forward to it.