Advisory Opinions - The Shadow Docket

Episode Date: February 26, 2021

Supreme Court Justice Clarence Thomas made headlines last week for his dissent to the majority’s denial of cert in Republican Party of Pennsylvania v. Veronica Degraffenreid. Even though his dissent mainly focused on the mootness of the case, many media outlets seized on the opportunity to mischaracterize Justice Thomas’ argument by claiming he promoted President Trump’s baseless voter fraud claims. After Sarah and David give us their spiel about how media outlets often botch Supreme Court coverage, University of Chicago Law professor William Baude joins today’s show for an extremely nerdy conversation about the Supreme Court’s shadow docket that you won’t want to miss. Show Notes: -Republican Party of Pennsylvania v. Veronica Degraffenreid. -“Dissent by Justice Thomas in election case draws fire for revisiting baseless Trump fraud claims” by Mark Joseph Stern in Slate. -“Clarence Thomas Promotes Trump’s Voter Fraud Lies in Alarming Dissent” by John Fritze in USA Today. -“Foreword: The Supreme Court's Shadow Docket” by William Baude in the New York University Journal of Law & Liberty. -Feb. 18 House Judiciary Committee hearing on the Supreme Court’s shadow docket. -Supreme Court Practice by Eugene Gressman. -South Bay United Pentecostal Church v. Newsom. -Fulton v. City of Philadelphia. Learn more about your ad choices. Visit megaphone.fm/adchoices

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from oh to ah. Plan your getaway at ottawatourism.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is a good one. This is a good one. We have just finished recording a discussion of the Supreme Court shadow docket that you will not want to miss. This is a fantastic discussion with the University of Chicago Professor Will Bode.

And I'm just going to tease it like this. The nerd, Supreme Court nerd singularity was achieved in the middle well, towards the end of the discussion. I'm going to tell you this listeners, I had trouble

following it. I had trouble. Sarah and Will got into such a discussion, such a discussion grounded in the minutia of Supreme Court procedure that I was sitting there. At one point, I put my head in my hands because my head hurt as I was trying to follow it.

So I'm going to tell you this. This is one of the features of this podcast, y'all. You're going'all. Feature, not a bug. Feature. I said feature. Yeah. You're going to be in the elite of the elite of the elite in the United States of America in understanding Supreme Court procedure after you've listened to this podcast. Don't you think that's a fair assessment? Yeah. I'm not sure that he meant it as a compliment, but at the end, you will hear a Chicago law professor. Now, Chicago law is known as sort of the nerdiest of the law schools. A Chicago law professor, so the leader of the nerdiest law school, say that this is the nerdiest hour he has had in a long time. Wow. Yeah. Wow. Yeah. Yeah. This would be like the brigade commander of the nerd brigade saying this. I've yet to see such nerdery. But again, feature, not a bug.

a little bit two of our discussions that we promised for today. One is we're going to discuss a request for the Supreme Court to hear a challenge to the all-male military selective service registration, which is a very interesting topic. We're also going to push until the next podcast a discussion of another request of the Supreme Court to determine whether a single use of a racial slur can constitute hostile environment harassment. And this was, I'm looking forward to this discussion because we're going to clear up a lot of stuff that people just don't understand about workplace harassment law. But we're substituting in those two things for something better for this podcast and something a lot of readers have asked us about, and that is Justice Thomas's dissent from the denial of cert in the challenge to

Pennsylvania election law changes prior to the 2020 election. And we have things to say, Sarah. We do. We have things to say. Do you want to set it up? We do. We have things to say. Do you want to set it up? So this was the I mean, we talked about this case a few times, the Pennsylvania case where they're alleging that because the Pennsylvania courts changed the mail in ballot rules to accept mail in ballots after Election Day, that that violated what the state legislature had said, and therefore that violated the constitutional guarantee that the elections would be set, the manner of the elections would be set by the state legislature. It went up initially on a temporary basis. This was sort

of the merits stage basis, and the court denied cert. Not really a surprise there because the election was already over. All the contests were over. Someone had won. Justice Thomas writes a relatively short dissent. We can put it in the show notes. And the main point of his dissent was about the mootness of the case. Now, election cases and some other cases, but for me, it comes up most often in the context of elections, run into mootness all the time because election, you know, even if you did it the second the other election was over, you're talking about a two year period. Maybe there would be some election rule that only applies to presidential elections, but that would be relatively rare. So in a federal election, two years. And then once the election is over, your standing with your client would be moot. Well, the likelihood of having a trial, then at the appellate stage, maybe it would have to go

back down once, and then getting to the Supreme Court on the merits with an argument all within two years is nearly impossible. So they have this doctrine called capable of repetition, yet evading review, meaning this would just happen every two years with a different candidate and it would repeat itself, but it would keep getting mooted out before it got to the court. And in that case, they say it's not moot. We will still hear the case

because it's capable of repetition yet evading review. And the court here didn't, of course, per usual, and we'll talk about this in the shadow docket, didn't say why they denied cert on the case. But what Justice Thomas is saying is this should have fit in to the capable of repetition yet evading review because it will happen all the time where a court may change, you know, how long a polling place may be open or how long after they can accept mail-in ballots. And it would always evade review. And yes, some of this happened because it's a pandemic, but it actually happens pretty frequently. And it's not only because of the pandemic. Therefore, if it's really squarely into this doctrine that we have, then we should have taken the case. But that's not what any of the headlines

said. Let me just read you two of the headlines. Please. From Slate. So Slate, I get it. It's pretty left wing. This is Mark Joseph Stern, who I think is pretty intellectually dishonest when covering the court quite often. And the headline is, Clarence Thomas promotes Trump's voter fraud lies in alarming dissent. Fine. But here's USA Today. Dissent by Justice Thomas in election case draws fire for revisiting baseless Trump fraud claims. I know that mootness isn't sexy to a lot of people, but this was a dissent about whether the case was moot. It was not on the merits at all. And the reason that you know that

is because in the USA Today piece, they basically don't quote any of the dissent. And in the Slate piece, here's the quote of the proof of how Justice Thomas believes in all of Trump's baseless voter fraud claims. We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud. But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient

for election confidence. Also important is the assurance that fraud will not go undetected. Again, he's making that argument in the context for why the case shouldn't be moot, not for whether there was fraud in the election. In fact, in the first sentence, he says that there's not even allegations of fraud here. This is just about rule changes. And he also says, he also says in the opinion that the rule changes would not have altered the outcome of the election, of the presidential election. So he says that repeatedly, I believe, in the dissent. So he says, I'm not talking about something that will have changed the outcome of the election. That's very clear. He says that.

But here's what's really important about this. And here's why Justice Thomas is getting a bad rap. Article 1, Section 4, Clause 1, Article 2, Section 1, Clause 2, to give to Congress the authority to determine the manner of the state legislature. I'm sorry. Constitution gives to the state legislature the GOP made and Trump campaign made and others made was that if a state court changes the rules, then that's violating this clause. an absentee ballot deadline or a signature kind of matching requirement or you name it, or a poll, the hours in which polls are open or location of drop boxes, all of these things that were done, all of these changes made by various state authorities, whether they're secretary of state, whether they're Supreme Court, a state Supreme Court, does that interfere with the state legislature's authority to determine the manner of federal elections? And there's really sort of a bifurcated view of this.

And the one that has been the judicial conclusion reached by Trump-nominated judges in the lower courts during these disputes was that, wait a minute, wait a minute, that manner provision does not mean that we're going to step in when there's any sort of deviation from a statutory scheme that we believe as federal judges is improper. What that really means is a broad statement that manner means either by popular vote or you're selecting electors by popular vote or you're selecting electors by legislative vote or you're selecting electors by gubernatorial appointment. It's a very broad, it's a statute or a constitutional provision

that essentially is saying, look, we're just talking about how you choose electors, not the procedures that are within once you've determined the manner, not those procedures, but just the general manner. And there's a dispute about this. There's a dispute about this as to whether or not know what this really means is that the state legislature has to lay out all of the details of the elections. And if it's not going to lay out all of the details of the elections, precisely if it's not going to lay out all of the details of the elections, precisely specify who it's delegating those details to. And a state court interpreting state law can't depart from that

in any way that the federal courts disagree with. That's the key dispute here. And it's a dispute that has to be settled, quite frankly. It has to be settled. And what Justice Thomas is saying is, why not now? Because we know this is just going to keep coming up. It's going to come up every election season. So why not settle it now? We can fully brief it. We can fully develop the record rather than settling it on emergency motion practice, fully develop the record rather than settling it on emergency motion practice six weeks, five weeks,

four weeks, three weeks before election, or one week, two weeks, three weeks after an election. Settle it now. That's all he's saying. And Alito and Gorsuch wrote their own dissent expressing the same thing. This presents an important and reoccurring constitutional question. But if you can count, that's three. They needed a fourth, and they didn't find one. That leaves Kavanaugh and Barrett and Gorsuch and Roberts and the other three not voting to hear the case. I think that you could say that for exactly the reasons that you saw the headlines about Justice Thomas agreeing with baseless Trump's baseless voter fraud claims is why the court decided that they would wait for the next case that was like this. David, this is Trump distortion. Interesting. The case involved too many emotions, too many hot feelings, too much politics.

involved too many emotions, too many hot feelings, too much politics. Donald Trump still hasn't conceded the election in some sense of the term. And so they're like, you know what? Sure, we get it. And yes, we do need to take it. We agree with David. But if we take this, it throws the court into this spotlight about Trump's baseless voter fraud claims that we don't need to do because the court has no problem being slow to resolve issues. They'll wait two years. They'll wait four years. Right. Right. Now, let's just put a pin in something that you said, Sarah. Let's put a pin in something. You said Kavanaugh, Roberts, Barrett. There's another thing that you said. Thomas joined with Gorsuch and Alito.

Yep. Too soon to tell. Is it? Too soon to tell. It feels like it's not. Feels like it's not to you? No, I think those lines are set. I'm saying it's a 3-3-3 court.

Yep. It's a 3-3-3 court that Justice Barrett might not be the sort of like hardcore originalist revolutionary that perhaps some of the people who voted for her thought she was going to be? What'll make this fascinating is before when you had a 5-4 court, there was gamesmanship in terms of taking a case because even if you were in the minority, you had four votes to take a case, but there were lots of cases you wouldn't want to take because you didn't want to make bad law if you knew the five were going to vote the other way. In a 3-3-3 court, I think the politics with a little p will be fascinating because each of the three will have its own cases that it wants to resolve. It needs now a vote, though, from another of the two buckets of justices to even hear the case. And then it will need to know where they're getting two votes to

win the case. It changes the dynamics of the court wildly, interestingly. And I think that we'll just start to see this outline forming for the rest of this term. I think next term is when those politics with a little P are really going to play out. And David, I couldn't be looking forward to anything more than to talk about it with you. I can't wait. The next big case to see about the alignment issue is, well, one of the big cases that we'll see about the alignment issue is the Fulton case. This is the Fulton v. City of Philadelphia challenging Employment Division v. Smith. And if we end up with a quite narrow ruling in that case, which the oral argument seemed to be screaming was going to happen, then we're going to be, I think, talking more about this 333.

But where it smacked me in the face was the South Bay case with Justice Barrett saying, nope, I'm okay with the ban on singing. I'm okay with the ban on singing. I'm okay with the ban on singing. I think you're going to see it most purely in the cert decisions and cert denials because you're going to see three dissents. And that means you know that they couldn't get someone from either of the other two justice buckets.

And so that's what we're going to know about the 3-3-3 the most. When we then see decisions about the 5-4, you're going to see it play out in those concurrences, those middle concurrences like you did in South Bay. And yeah, Fulton's going to be really interesting. I predict that you're going to have those middle concurrences from the middle bucket. Yeah. It's fascinating. It's fascinating. And it's absolutely exhibit 183. Have there even been 183 Supreme Court justices? Exhibit 183 or whatever that you cannot predict a justice's jurisprudence with specificity, you got to let them be a justice before you know what kind of justice they are.

And so placing everything in the basket of I know what I'm going to get out of a Supreme Court nomination is just a fool's errand. It always has been. David, as of October 2020, there have been 115 justices. Interesting. Okay. Well, so it couldn't possibly be Exhibit 183, but if we expand it to the lower

courts, then I can even add to that number. Some things are meant to be shared, like sunsets over the Pacific, picnics in Central Park, or aeroplane points. Up to eight family members can share aeroplane points together. With the TD Aeroplane Visa Infinite Card, earn up to 50,000 aeroplane points. Aeroplane family sharing is a feature of the Aeroplane Program. Conditions apply. Offer ends June 3, 2024. Visit tdaeroplane.com for details. Conditions apply. Offer ends June 3rd, 2024. Visit tdairplan.com for details. All right, shall we move on to our fantastic conversation about the shadow docket? I am so excited to introduce you to Professor Will Bode. He, I mean, there's so many reasons that he's on this podcast today, but let me just tick through a few of them. One,

undergraduate degree in mathematics. Already, I'm in. That's huge for me. My oldest daughter is getting her degree in mathematics right now. She's a senior. We're big math fans on this podcast. Yes. My dad is a math professor. What? Yeah, he was a math professor. He got his PhD in 10 months, but that's all another story. in 10 months, but that's all another story. Yale Law School, so we'll forgive that. He's a Judge McConnell clerk.

That's not Mitch McConnell. That's Michael McConnell, for those who don't remember. And clerked for the chief, John Roberts, at the Supreme Court. So we can ask him some SCOTUS clerk questions. We've been getting an uptick of those recently. But he's now at the faculty at Chicago Law School. He and my husband have been doing sort of an academic back and forth

on qualified immunity. So my husband has a serious crush on Will Bode and Will Bode comes up on our dinner conversations more than is appropriate, I will tell you. But none of that is why he is here today. He is here today because in 2015, he wrote an article in the Chicago Unbound called The Supreme Court's Shadow Docket. That was a term nobody had ever heard before. Will Bode created that term. But now it is the hotness, as the kids used to say.

And just last week, the U.S. House of Representatives had a hearing on the shadow docket. And everyone talks about the shadow docket. There was a symposium at SCOTUS blog on the shadow docket, a term that the court has never used, except the justices now secretly use it too, all because of- Is that correct? Yes. All because of Will Bode. And so without further ado, Will Bode, ladies and gentlemen. Fantastic. Now, I have a question for you, Professor Bode. Please. Are you familiar with the Lord of the Rings trilogy? Yes. Books or movies?

Both. He's a math major who went to the University of Chicago and now teaches at Chicago Law. It's mandatory. Exactly. So, I want to know if you've ever said these words

in the land of Mordor, where the shadow docket lies. No, I'm embarrassed to say I haven't. That's horrible. So, all right, Professor, let's start at the very beginning. And you can take credit for that, David. Let's start at the very beginning here. When most people think about the Supreme Court, they think about, you know, 30, 40, 100 page opinions coming out, five, four decisions.

Walk us through the non-shadow docket, the light docket. Yeah. So the Supreme Court has a very orderly process for the kind of famous cases it hears. It gets requests to hear thousands of cases a year. Out of that, the court picks a handful, 50, 100 cases to listen to, to hear that year. And when it hears a case, that means they first grant the case. They tell everybody, we're going to decide this case. Then the parties file briefs, and everybody in the world who wants to file a brief of their own

called an amicus brief, sort of coming in as a friend of the court or sometimes an enemy of the court, can file one and tell the court what they think. And then once the court's got this pile of briefs, they bring the two lawyers in for oral argument or for the past year, they've been doing this on the phone, but until pre-COVID, they'd come into the courtroom for oral argument and spend an hour getting peppered with questions by the justices. And then after that, the justices would, later in the week, go into their private conference room, talk about the case, come to a tentative agreement about who wins and who's going to write the opinion and who's going to write the

dissent. And then weeks, months later, the court releases one of those 50 or 100 page opinions with tons of footnotes that resolves the case. That's the normal process. It's got like months and months of deliberation, you know, hundreds of pages of briefs and hours of argument. And there's also a lot we know about that process. So, for instance, for the court to agree to hear a case, to grant certiorari, we know that it takes four votes. Yes. So four of the nine. Four of the nine. And then also when they issue that opinion at the end, we know where each of the justices voted. Exactly. So it takes obviously five votes out of nine to write a majority opinion.

And everybody is supposed to say, to line up and and either say i joined this opinion or i refuse to join this opinion and then you almost always write your own opinion i dissent so everybody everybody tells us where they stand on every case okay so this is regular business the sun is shining on this docket but what lurks in the shadows will bode so besides that the court it turns out does a lot of other stuff uh much of which turns out to be quite important um for for sort of technical practitioners people often call this the orders list uh but it's a whole separate set of stuff the court has to decide which ranges from i mean in a way way, the decision whether to grant the case is sort of one of those kinds of decisions. That doesn't get nearly as much publicity. They don't tell us if they decided not to grant.

They don't tell us who voted to grant it or why not or anything like that. the shadow docket are things like a last minute request to stay in execution, uh, an emergency request to set aside some lower courts ruling, especially if lower courts are issuing a nationwide injunction against some federal policy, which is now, uh, happens every week.

Um, or something called a summary reversal, which is when, uh, the court thinks the decision is so wrong that they don't need to bother with that whole process we just described. They just, they look at the lower court decision, somebody asks them to hear the case, and they say, you know what? We don't even need to hear the case. Like, we can look at this, tell you what's wrong, let's save every bit of the trouble and write an opinion and just,

you know, get it over with. Those kinds of things the court does with increasing frequency and increasingly important areas. So we have a term of art for summary reversal here on this podcast, don't we, Sarah? Oh, really? Yes. We do. Yeah, that's the gnaw dog doctrine. That's where they just look at the- No, gnaw dog, no.

Yeah. Yeah, that's about right. GVR was getting a little, you know, burdensome to say every time. So you write this thing in 2015, naming it the shadow docket, talking about why you think it has been controversial in the past, but why it should become increasingly controversial. What are some of your shadow docket red flags concerns? So there are a couple of things. One is just that until recently, people weren't paying attention to this at all. So this is sort of an area where, you know, if you're a recent Supreme Court clerk or a appellate litigator who's really in the weeds, you might be kind of watching these orders the

court is giving. And occasionally I'd like email with my friends who followed the court to say, you know, what is the court doing here? What's going on? But you couldn't find academic coverage. You often couldn't even find press coverage. And when you found press coverage, you didn't seem to misunderstand what was going on. So one thing I wanted to do was just say, you know,

there's a lot going on here and somebody ought to write about it. That said, when you start looking at it, some disturbing things are the justices don't tell us often why they're doing what they're doing. And they often don't even tell us who's doing it. So the norm from regular opinions that, you know, you're either with it or against it, you're either joining the majority opinion, or you're telling us why you dissent doesn't apply.

So when the court decides to stay in execution or decides not to stay in execution, we don't even know, know like was it all of them was it close who disagreed and why um sometimes there's also an issue where we don't actually know how many votes are needed for those summary reversals yeah so there's a very expensive book uh called stern and gressman that costs over a thousand dollars that all serious Supreme Court litigators have to buy that tries to piece together from following all these things, all of the unwritten rules of Supreme Court procedures. And it's like, it's, I mean, it's an incredibly valuable book. Even it is sometimes like, well, it seems to us like these

are the rules. And if you want to, if you want to do kind of hardcore practice in the Supreme Court, one of the many things you need to do is buy this like super expensive book put forward by private people trying to figure out what the hell the court is doing. We have it upstairs. You reference it in footnote 66. We will put your piece in our show notes. And I think footnote 66 is really helpful for people to see, even for the smartest, most in the weeds folks, there are things that we don't know. I am confused because you clerked for the chief, so if anyone should know who is not actually a justice on the court, one might think it would be Will

Bode. I'll just say this. I'm using no inside information in writing this piece. There we go. In fact, this is one of those things that when I wrote it, a little voice in my head said is the chief gonna be mad at me for writing this uh and i thought probably but you know you gotta make it

mad once in a while was he uh we never talked about it i have had bad experience with former bosses and it's best just pretend it didn't happen yeah so so the other thing the court often doesn't do in these cases is write opinions at all. So, you know, in a lot of these cases, the court will, you know, grant a stay sometimes with, you know, major consequences and just literally it won't say why it won't say like what argument it found persuasive, you know, the, it will literally read, you know, the lower court opinion is stayed until further order of this court or something like that. And the litigants, you can now go find the briefs and see what the litigants argued and see they argued four things. And you're

like, we don't even know which of these four things the court bought. We don't know who bought it. We don't know. We don't know why. So then when you want to file another one of these stays, you know, first of all, only if you're really sophisticated, do you know anything? You're really sophisticated. You found this stay hidden on the orders list. You found the brief. So you know what might've been going on in the case. And even then you have to say, our guess is you granted this thing before for this reason, and our case is kind of like that, so could you do it again? And you have no idea if the justices are reading this and being like, ah, they have no idea. This isn't what we did. Well, you should have listened to us trying to decipher the South Bay Pentecostal Church case

a week or so ago, where that was one of the cases where there were more people writing, but at the end of the day, the math didn't actually kind of add up on all of the elements of the ruling. And we're just trying to figure out, wait, hold on, where is everybody exactly here? And it became, we knew the bottom line, but the, so here's my question. Is the reform, what's the reform here? Because it's at some level, what you're talking about is the court responding to the way litigants are litigating, because as you said, there's a lot of, a lot of this is coming up on, on, um, injunction practice. So you have the nationwide injunction of a major federal, of a, of a executive branch policy races up through the system. And then there's kind of an interest

in the Supreme court, not necessarily wanting to put the brakes on and say, we're going to do our normal months long briefing schedule. And there are cases where cert is granted and we don't get a decision for six, seven, eight months on the case. When there is injunction practice, a lot of times time is kind of of the essence. So is your issue with the speed of it, or is your issue much more with sort of the way in which all aspects of it are opaque? Is there a way to do this,

to respond to injunction practice expeditiously while easing your concerns about the shadow docket? You know, I'm sympathetic to the speed. And I should say also, I don't, you know, I'm not a court basher, at least here. So there are people who use the shadow docket as proof there's some, you know, nefarious conspiracy. Yeah, but no, look, they're working quickly. These cases, they can't deal with them in the way they deal with regular cases. The most important thing, and I do think the court has actually gotten better about this in the past

five years, is just for the court to be careful about this, like to recognize how important of an area of a docket it is, make sure the justices are giving it their full attention. It's obviously hard for us to know, but I think there's just evidence that they have been a little bit more, like some of these have been able to take longer, they do have more explanations

than they used to. So I think that's the most important thing, is just for them to realize this isn't like something you kind of just toss off. I feel like since 2015, we're getting a lot more opinions and dissents, especially in the orders list than we did when you first wrote this. I think that's my sense too,

is that more of the justices are aware that if they're not, you know, the people are picking up signals from these things. So if they don't want people to pick up signals from these things, they ought to say something. Now, I would like it if the court adopted a norm where if they do anything consequential, like anything that changes the status quo, so not like deny something where they actually change the status quo, that then everybody tell us what they voted and that the majority have at least some explanation,

you know, minimum three sentences for why they're changing the status quo. That would be my, those would be my two forms. Okay. But on the individual accountability thing, something you talk about quite a bit in your piece, there was sort of this tautology that accountability is good because accountability is good in my mind. Whereas I think you could make the argument that the court, in fact, us knowing all of these five, four decisions is what has allowed the court to become more of the political football that it is.

And why, for instance, at this congressional hearing that I want to get to a little bit, yes, both the partisan Democratic members and the partisan Republican members both want to know where the justices fall on things because they want to use it for partisan talking points, which is actually bad for the court. And so knowing that the court did something, that they had a majority to do it, in fact, that might be better for the long-term stability of the court, trust in the court as an

institution instead of people being able to pick apart where the justices fell and tons of headlines that I'm sure you find frustrating. I certainly find them very, very frustrating where the headline in the media wants that political argument. And so the headline, you know, I use the Justice Thomas dissent over the Pennsylvania case. You know, Justice Thomas buysent over the Pennsylvania case. You know, Justice Thomas buys voter fraud arguments from Trump. That's not at all what Justice Thomas's dissent said, but it fit into a nice political narrative.

Now, obviously, if Justice Thomas is going to write a dissent, we're always going to know Justice Thomas wrote a dissent. But that's not good for the court. So I don't know. So, I mean, they do it in the majority opinions. And here's the thing is that there are courts that proceed in a more kind of like anonymous fashion where things come down per curiam

or people are encouraged to suppress their dissents. And in addition to the fact that like the litigants then don't know what to do and the rest of us don't know what to do, I actually worry that's worse for the court's legitimacy and behavior. I think one of the few things that really keeps the justices honest is having to put their own name on something and have their inconsistencies judged. So they can't, if somebody complains the court is being inconsistent, I don't want them to say,

well, you know, yeah, we probably are, but I wasn't really okay with that. It wasn't my doing. Like somebody has to take responsibility for what the court is doing. And we want to be able to say, Justice Thomas, this is one of the things that's most admirable about him, is Justice Thomas is always willing to tell us how he is being consistent over time, even if when he's criticizing the court. And I think that's one of the things that makes Justice Thomas

such a powerful force. All right, that's a pretty good argument. Haters are going to hate. That's, like, can't do anything about that. I'm upset about the headlines, Bode. Fix the headlines. So we had this hearing in the house and they heard from witnesses, some law professors, some practitioners. Hank Johnson, the Democratic member said, knowing why the justices selected certain cases, how each of them voted and their reasoning is indispensable to the public's trust in the court's integrity. Sounds like something that you agree with at least most of the way.

But then there's the question of can Congress do anything about it? The constitutionality of legislation in this area. the constitutionality of legislation in this area. And Steve Vladek, who if you don't follow Steve Vladek on Twitter and you somehow listen to this podcast, that Venn diagram should be zero. Sorry, the lack of overlap. It should be just a perfect circle of following Steve Vladek on Twitter and listening to this podcast.

Steve Vladek is personally responsible for getting me to attend Yale Law School. Oh, is that right? Yeah yeah by chasing you away from texas uh i was i was uh i was an admitted student and i was not impressed with a lot of things i saw at a mid-student's weekend and basically prepared to walk out and just go to chicago for law school until there was a panel with steve laddock on it and i was sufficiently i was i was sufficiently impressed i was like well i gotta stay and like talk to this guy and then you know I was like, well, I got to stay and talk to this guy. And then I was hooked. Wow.

So he said, even if it might be within Congress's raw constitutional power, I'm not sure it would have the desired results that the court might respond by publicly issuing every shadow docket ruling unanimously, even if there was deep disagreement behind closed doors that basically would force them further into the shadows. I'm curious what you think about the constitutionality of it

and then the prudentiality of it. Yeah. So I think, first of all, I'll do a reverse. I think Steve's probably right about the prudentiality of it. You know, the court hangs together and the court protects its own prerogatives. So if you said you all have to tell us if you dissent, they might well just caucus,

sort of all express their views, and then afterwards say, okay, well, none of us are dissenting, you know, formally. So I don't think there's any point in trying to make them. I'm also not sure it's constitutional. So Congress has a lot of authority

over the lower courts because it creates the lower courts under the Constitution, but the Constitution creates the Supreme courts under the constitution um but the constitution creates the supreme court and if you go through the text of the constitution which i don't know if your listeners want to do that but i do it yes every day yes they do yes they love it so if you go through the text of the constitution congress doesn't have as much obvious regulation over power to regulate the Supreme Court's powers.

There is a reference in Article 3 to the court having appellate jurisdiction under such regulations as Congress may make, but it's not clear that lets them regulate the actual, like, the court's decisional processes, especially before the court's taken jurisdiction. And then there's something called the Necessary and Proper Clause, which lets Congress make all laws that are necessary and proper for the other branch's powers. But it's not clear that lets Congress tell another branch what to do.

That lets Congress do things like give the court a building and the marshals and a whole staff of people who obey the court. But if that power could be used for Congress to come in and tell the court how to rule on things or how to behave, it would kind of be a separation of powers problem.

So this is actually something I've been trying to write a large article on for longer than I've been working on the shadow docket. But so far, color me unconvinced. But in theory, so they certainly can affect their jurisdiction. So there was another suggestion that they simply raise the bar by which the court could stay and, sorry, could remove a stay for an execution from a lower court. So it would take six votes or something on the Supreme Court. If a lower court stayed in execution for the Supreme Court, then to remove the stay and let the execution move forward, which is super specific, it seems to me, but still just affecting their jurisdiction. But then it's about votes. Yeah. So also, yeah, not clear in general that the Supreme Court can, sorry, that Congress can tell the Supreme Court how many votes it takes to do

something. You know, people occasionally want to say, oh, the court shouldn't be allowed to strike down a law unless they have six votes or seven votes. Not clear they can do that. They could. They could just take the Supreme Court's death penalty jurisdiction away and say, look, at this point, let's just let the lower courts decide when to grant a stay of execution. But we don't need the Supreme Court swooping in in the middle of the night and messing with things. Interesting. They could make the bigger decision but not the smaller decision.

Right. I mean, that's the idea. Well, that's the idea of a court is you can, you set up the court, you decide what cases to give it. Once you give it to the court, you have to trust the court. So the decision to give jurisdiction to the court or just like a litigant decision to submit to the jurisdiction of the court is then, then it's out of your hands. You can't sort of like keep your hands on it.

Then you don't have a neutral arbiter. Can we switch gears for a minute? Please. And talk about, I want to talk about amicus briefs and this process that you're, you talked about earlier, normal case, you have an avalanche of contributions from interested organizations. And so I'm looking at two cases right now. And I just want to get your sense on how valuable is this process really. So you have Fulton v. City of Philadelphia, which is a very important religious liberty case.

Employment Division v. Smith is at issue. You know, I don't think it'll actually be at issue, but anyway, we'll find out. And I'm looking at the list of briefs filed in this case, and it is immense. I mean, just immense. The number of briefs from various different organizations, both supporting the Catholic charities and opposing Catholic charities. And I mean, you can go through brief from American Bar Association,

the Annie E. Casey Foundation, Voice for Adoption, local governments, mayors, First Amendment scholars, individuals, amicus brief of Lee C. Bollinger, church state scholars. I mean, all kinds of amicus briefs.

Important case, totally understandable. Then you switch over to South Bay United Pentecostal Church v. Newsom. This is an important case. This is going to be relevant for basically every house of worship in the United States of America in a time of pandemic. So incredibly important. And I'm looking at, looks like on January 25th, 2021, the application for injunctive relief was submitted to Justice Kagan. She asked for a response on January 26th. On January 27th, Americans United for Separation of Church and State files a motion for leave to file an amicus brief.

And Beckett Fund for Religious Liberty files their own motion on January 29th. And that's it. That is it. So you have this enormously important case that's impacting potentially every house of worship in the United States of America during a pandemic. And there's two briefs, two friend of the court briefs. Is that something we should be worried about in the sense of, is the limited input from other interested organizations something to be concerned about as compared to another very, very important case like Fulton v. City of Philadelphia. So I have two minds about this.

So I think it is a problem, first of all, that there's not even like a regular procedure for Amiki to get involved in this. Like you have to be supposed to get enough to know that you should just file something and ask the court to hear it. But of course, you don't know, you know, it's hard to track these cases. You don't know when the court's going to decide it. So it's just a problem that people who do have useful information don't have a great way to come in and make it be known.

But the thing is, uh, David, that the vast majority of the amicus briefs in that pile are totally useless. And the court, you know, I'm sure the justices read them.

I'm sure they're required to read them, but, uh, the vast majority of them tell the court justices nothing they don't know already. I think the vast majority of them, the litigants don't even care whether the justices read them. They're filing it because they want to be able to say they filed one, and they want to say to their donors that we were

part of this Supreme Court case, or like which side we were on. And so, I'm not, it's not shocking that the Supreme Court doesn't think like, oh, you know what we really need is another like giant bin of amicus briefs to throw in the trash. Yeah, now, well that, you know, that's one of the key questions. Well, that's a whole different question is how much do these briefs to throw in the trash yeah now well that you know that's one of the key well that's a whole different question is how much do these briefs matter and i think everyone pretty much knew that as a general rule they don't but then every now and then you see something sneaking into an opinion that's coming from an amicus brief and that's sort of like that lighting the candle of hope if you're drafting an amicus brief. And that's sort of like that lighting the candle of hope.

If you're drafting an amicus brief that, wait a minute, wait a minute, one, you know, like a bolt of lightning every now and then. And I will also note for the record that you're of course not speaking about the amicus briefs.

I wrote in the masterpiece cake shop case or a NIFLA, the NIFLA California crisis Pregnancy Center case. Those were devoured by the justices. I believe they're framed in their offices. No, I'm speaking of my own amicus, Bruce. I think I have a perfect track record of always leading to loss. No, I think you're right.

The part of the problem is you don't know what you don't know. So that's a problem. And ironically, actually, in the Shatterdaka cases, there's probably more the court doesn't know what you don't know. So that's a problem. And ironically, actually, in the Shadardaka cases, there's probably more the court doesn't know. So yeah, on the margins, if they could get 10 of the amicus briefs from Fulton moved over to, you know,

have 10 of those people spend a little bit more time on South Bay, just like the court would love to get a couple more amicus briefs in like technical civil procedure cases or habeas corpus cases, and maybe fewer in the cases that everybody's talking about so one more question oh yeah go yeah one more question real

fast does this mean just sort of talking tactics like if you're somebody who is on top of this shadow this the shadow docket trend does this mean that one of the things that you might want to be doing is making a habit of lining up some of the heavy hitter, high reputation litigants to file these injunction motions on your behalf? Or if you are somebody who is, you have a real interest in the issue, like let's say your Beckett Fund or your Alliance Defending Freedom, that you should be absolutely prowling the docket for these injunction motions, ready to pounce with comprehensive amicus briefs to sort of have a disproportionate impact behind, you know, a disproportionate persuasive impact.

Yes, no, exactly. And I think they're doing that. I mean, I think if you at one of these organizations you have a top-flight Supreme Court litigator, that's one of the things they know how to do that mere mortals maybe don't. And I guess that gets to the issue is this then creates

a process that's so much more opaque to mere mortals. Indeed, indeed. Oh, come on, guys. This whole thing is opaque creates a process that's so much more opaque opaque to mere mortals indeed indeed yeah oh come on guys this whole thing is opaque long before you get to the shadow docket more opaque more opaque book speaking of which i do want to talk about things that are uh still unclear even after you buy the thousand dollar book so listeners already know that scott and i have a very romantic relationship where we spend entire nights. This is not a joke with a bottle of wine next to the fire and that book on Supreme court practice. As we try to decipher sort of will, will is like,

like turning red. He is so embarrassed for me and laughing. Jealous, jealous. Just so jealous of this marriage. So because there are some things that you simply cannot determine. So we talked about your footnote 66. I want to walk through the math because if you've made it this far, listeners, you are with us in the nerd cul-de-sac that I'm about to go down.

All right, so you know there are nine justices. In order to grant cert, so we're not going to deal with the eight justice courts when they happen. We're talking about a nine justice regular court. All right. It takes four justices to grant cert. Now, in this case on the shadow docket, where we're talking about summary reversals, what you would have is a situation, as you note in your footnote, if all nine justices voted to grant cert, you could have a situation where five justices cannot do the summary reversal if four justices want full argument, because then it makes it really unclear and messy. If four justices, the number it then it makes it really unclear and messy if four justices the number it takes to grant cert and have full argument want full argument you could have

gamesmanship or the other five then basically vote to grant cert but then vote to do the summary reversal in order to prevent those four justices from getting their way in hearing the case therefore we have to assume it takes six justices. Maybe. Right. This is good. All right. So there are two rules. They were pretty sure are rules. One is that it takes five justices to decide a case. It's a majority of nine. Right. And the other is the special thing we already talked about, the rule of four. It only takes four justices to grant cert. And this was actually one of the things that Chief Justice Taft promised Congress would be a hard and fast rule of the court

back when he got them to invent cert. He was like, you're worried we're not going to take enough cases, but I promise we'll take cases that aren't by a majority. We'll take cases with only four. So we have the rule of four, and we have the rule of five. And the problem is, what happens if, yeah, exactly, four people want to hear a case, and then the other five say, ugh,

this is a waste of time. Let's not bother to hear the case, let's just reverse it. So, for instance, I mean, many of these cases are about a lower court granted habeas corpus to somebody. Lower court granted habeas corpus to somebody, the majority of the court suspects that's wrong, because you're almost never supposed to grant habeas corpus

to somebody, and so they say, nah, dog. Then the other four say, well, if you want to do this, we want to hear argument. You know, maybe if we hear argument, one of them will persuade you. And the five say, no, we really don't want to hear argument. And I think there sometimes was even like, you could imagine five justices saying, look, we would like to reverse this case, but the last thing we want to do is spend hours of our lives thinking about this case. So honestly, if we had to sit through oral argument in every one of these cases,

I don't know if we'd even bother. The four say, exactly. We're going to make you sit through argument in every one of these cases. What we don't know, other than reading the Supreme Court practice book, is which controls, the rule of five or the rule of four. This comes up also, by the way, real quick,

to add to our confusion in the digs, the dismissed for being improvidently granted. So this is where a case is granted cert and they're set to hear it. And you have the exact same problem lineup where if the five are then like, I don't, this was stupid to begin with. I never wanted to hear this case. Well, you didn't vote to hear it in the first place. And so you could dig the case. And so we have to assume that to dig, it would always take six votes because you need to get at least one of the people who voted to grant cert in the first place. But the Supreme Court practice book does not answer that question.

And that is after about two hours with a bottle of wine. And I'm pretty sure you can find some cases, uh, where the court digs after oral argument over four to cents. Um, we tried to find that and it was a little confusing. I will say, what about Robertson versus United States ex-replicant Watson?

Oh, my goodness. Oh, my God. Is he doing this off the top of his head? This is why my husband has a crush on him. Here it is. Dig from 2010 over the descent of Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Sotomayor. But isn't that weird? I mean, that's the rule of four and rule in five. Although, so, oh wait, we did find that one. Here's what we decided. We decided that

it would turn out, we couldn't know this, but that one of the four who granted cert must have flipped into the five so that you could have five four because you could not have a world in which the four who voted to grant cert were just overruled after argument. Well, I'm not so sure. So here's my case. I think the power of the rule of four, what the rule of four have the right to do is force everybody to sit through oral argument. They have the right to demand briefing in oral argument. Now, at the end of the day, four people can't make the five do anything with the case, including make them decide it. The five don't want to decide it. But the power of the day, four people can't make the five do anything with the case, including make them decide it.

The five don't want to decide it. But the power of four is the procedural power. It's like a filibuster. Ooh, interesting. You can hold debate. Yeah. And if that's right, that would mean that the rule of four has to trump a summary reversal. What the rule of four is, is the right to make everybody, is to put the case on the docket and make everybody sit through all argument but you can't stop them from digging it

later and that's why five can't dispatch the case first that's my that's my theory okay so it takes six to summary reverse but it only takes five to dig well it only takes six to summary reverse if the four want to grant cert because you sometimes have a justice who says look i don't want to similarly reverse because i don't want to grant cert at all or something right right right sorry to be clear yes in the situation where the four exist yeah but isn't i mean i'll just say isn't this crazy that to figure out these like basic rules of how the court functions like how many votes you need to win what like It takes you, your husband, a top flight Supreme Court litigator, a thousand dollar book, a bottle of wine, and you're still

unsure if you're right. And what's so funny about this, by the way, is Scott clerked at the court. So for anyone who thinks that Will's being cute here and just not telling us something he already knows, I mean, in theory, I should know this because my husband should know it and doesn't. Yeah. So can I just say that I think we have achieved in this exact conversation, the Supreme Court nerd singularity. You cannot in a publicly available podcast, In a publicly available podcast. Like this is the kind of conversation that occurs in like a conference room in Skadden Arps. And we've just like let tens of thousands of people hear it. And I can think of, is this an argument for law school, Sarah? I don't know.

To go back to our perennial. Sarah and I have this just perennial yes law school, no law school, Sarah? I don't know, to go back to our perennial. Sarah and I have this just perennial yes law school, no law school argument. And I just can't decide how this cuts because it was so delightfully conducted that it's sort of for the yes law school, but then it's so obscure and difficult to follow that it's almost, there's the no law school.

I don't know, I don't know. But I do know. This is the litmus test, right? So people come to law school thinking that being a litigator is going to be about like, I don't know, giving the second coming of Martin Luther King's I Have a Dream speech and like everybody will fall at their feet and agree with justice. I know. What litigators do is this kind of thing. They're like, how many votes does it take?

And what happened in the United States versus Robertson? How do we understand that? If you don't want to sit around with a bottle of wine and a thousand dollar book for two hours, if you don't find that to be foreplay, like maybe the last question for you. You know, but you raise a great point because you think of it and television contributes to this, that you're going to have those moments where you're going to be, you know, and look, I mean, you do have, when you're litigating, you do have some moments. Like when you've got the closing argument before a jury, that's a moment.

When you have the killer cross-examination, that's a moment. But it is just a moment. The day-to-day is a phenomenal attention to detail, a ferocious amount of just mind-numbing, tedious work, but where you have to be intensely, intensely focused on it at the same time. You can't just coast through it. And yeah, it really, I mean, that's if those who are listening

who are thinking about litigating, yeah, you get some moments. You do. They're there. They're out there. But they're few and far between. Like, I like manicuring footnotes. I like manicuring Excel sheets.

Yeah. That's relaxing to me. So, Will, we've... I should just say, my wife is a criminal defense lawyer, so we have a lot of these litigation conversations in my house, too. This is pretty much, like, from dawn till dusk uh what we talk about maybe this is less a podcast about whether you should go to law school and more a podcast over whether you should marry a lawyer if you're gonna go in go all the way so we have some questions from

listeners about what it's like to clerk at the court. Do you mind doing some lightning round-ish? No. Clerking at the court questions? Okay. What's the application process like? Do you have to have clerked at a circuit court first? Yes, pretty much yes. There was a time, I don't know if that's a formal rule, but the justices pretty much only hire people who clerked for a lower court.

Maybe once in 20 years somebody clerked for a lower court. Maybe once in 20 years, somebody who clicked for a state Supreme court or something, but pretty much you clerk for a lower court circuit court judge, and then you send your application off to court. Do politics matter? For instance, would an RBG have hired a young David French to clerk for her? Maybe there have been,

there have been conservatives, especially who've clicked for RBG. I think few of the justices care about partisan politics themselves. I don't even know if they know how their clerks voted. Some of them do care about where you are on jurisprudential questions. So Justice Thomas does not hire a lot of people who are not originalists. And Justice Sotomayor does not hire a lot of people who are originalists um some of the justice have more methodological diversity in their chambers but justice scalia used to hire opposition an opposition clerk through several terms at least yeah he was he called him the counter clerk although his his description of the ideal counter clerk was somebody who was still pretty textualist but politically liberal so they could check his bias and see help him tell whether he was being still pretty textualist, but politically liberal so that they could check his bias and see, help him tell whether he was being an honest textualist or not by saying, cause they would have a different sort of desired outcome.

I like that. I didn't even know that Sarah, that's, that's some real value add to this podcast. You just enlighten your cohost. That's fantastic. I think you have to have a certain personality on both sides to find that fun,

but Justice Scalia did and his folks did too. Yeah. I know a counterclerk and he very much went into it with the pitch that like, I'm going to be the counterclerk and never told the justice that he was a vegetarian, which is impressive i think uh do you clerk for a specific justice or is there a general pool and each just it picks their favorite from that pool for a year i know you clerk for a specific justice you work in you work in their chambers um i think you know you're paid by the court but like for all intensive purposes your justice is your boss. There is a pool. There is something called the cert pool. So when the court is deciding whether to grant various cases, most of the clerks do that collaboratively.

There's a whole court-managed process because there are thousands and thousands of these things, and it doesn't make sense to duplicate the work in every chambers. But mostly, yeah. But there's been a big question when new justices join the court, whether they will join the cert pool. And some have opted out, which puts a lot of work on their clerks because now there are four clerks have to go through all of those in theory or at least come up with some methodology to not have to go through all of them. I have heard allegations of freeloading. So one option is if you're not in the pool, you don't spend your time writing the memos, but you can still read everybody else's memos. Not in the pool. You don't have to spend your time writing the memos, but you can still read everybody else's memos.

So there was a time when Justice Stevens and Justice Alito were the two justices not in the pool, which had a virtue of having sort of an ideological check on the pool from the left and the right. So you had somebody kind of like if it ended, you're supposed to write things neutrally as a pool clerk. But if you don't, you knew that Alito or Stevens is checking your work. I don't think that's true anymore, unfortunately. And then, of course, there's also an issue that people will see sometimes where someone clerked for two justices in the same term, which I think can cause some confusion because retired justices can also sort of get some clerks that way. Yeah. So retired justices, I believe, are allocated one clerk.

And usually they second that clerk to an active, so retired justices, I believe, are allocated one clerk, and usually they second that clerk to an active justice, because retired justices don't hear any Supreme Court cases. So you, depending on what your retired justice is up to, you might help them with special cases they hear on the lower courts, or Justice Stevens had his clerks help him with his various books he was

writing, but you basically get integrated into the chambers of another justice as well. Yeah. I mean, fun fact, we now have a situation where several justices have either died on the court or been very quite old when they left the court. But back in the day, justices would go occasionally hear cases on a circuit court. When I was clerking, we had a Supreme Court justice join such a panel. How long is a clerkship and when does it run from and to? Summer to summer. So you come in in the summer when the court's finished with all of its

work from the last term, the court sort of gears up, grants cases over the course of the school year, so to speak, and then lets out in the summer. And so you come in for kind of one round of the court's work. Is it a paid job? Yes. But is it a livable salary? Yeah, it's paid on the government salary scale. I mean, it doesn't pay like working at a big firm, but... But you get a bonus if you go to a big firm afterwards that is now, depending on the firm,

but if you go to a firm that pays the Supreme Court bonus, the firms sort of have a set that they all match each other. And it's roughly $400,000 right now. Holy crap. So you get paid after your clerkship for that clerkship in a lot of ways if you choose to go to one of those firms. But a lot of firms, because it's now $400,000, basically have to opt out of paying the going rate. Do Supreme Court justices act as mentors to their clerks? Is it more of a distant relationship after you leave?

Is it common to stay in touch? You know, I think it depends on the justice, but certainly the chief justice did. And he has, in the pre-COVID times, he has reunions every year and he's in touch with all his clerks. All right, last one. The justices who disagree with each other, say Thomas and Ginsburg or any other pair you want to think of, do they typically get along personally behind the scenes? I know Ginsburg and Scalia were famously close, but is that the exception? I don't think it's the exception. I mean, you got to remember these are like nine people who work together for so many years and really don't have any other peers they can talk to about their work so they they all get along much better than anybody

realizes sitting on the outside all right will bode thank you so much for joining us about the shadow docket and for adopting our na dog doctrine it means the world to us we expect to see that in future uh legal law review articles. This is the nerdiest hour I've spent in a very long time. And we appreciate it. We appreciate it very much. That's coming from a Chicago law professor, folks. So that's pretty much as nerdy as it can get. Thank you so much. We'll see you soon. Thank you.

Sarah, we need to, I think, do a short debrief on the conversation. Short debrief. Okay. Your one main takeaway from our conversation with Professor Bode. He makes a convincing argument about the individual accountability issue, but I'm still deeply concerned about the institutional trust issue and that that's being undermined by, for instance, the headlines we were just talking about with the Justice Thomas dissent and that a way to avoid that

on some of these very quick hot button cases that come up in these emergency stay postures is, yeah, like don't force the justices to take sides on everything and to show that it was the liberal justices versus the conservative justices. Just sometimes let it be the court speaking. Yeah, I agree with that. I agree with that. And the other takeaway is, I know we had this conversation about amicus briefs, and I know that only one out of a hundred might make a difference

but i do think they make a difference in this sense that they give the public a sense of participation or at least the interested parties and the constituencies that are related to the interested parties they give you a sense of participation in what is of course the least democratic branch the least participatory branch of the U.S. government. And that build up to a decision, it educates the public, it provides us with a heads up of what's happening. We understand what the arguments are. And if we could, in some of these shadow docket cases, I know it's not always possible because a lot of these things are running up against deadlines. If you could even say the court sends up a signal flare, we're going to be issuing an opinion on this injunction decision. We have 10, I want 10 days

for amicus pris. You would have people piling in on that. I mean, there would be all kinds of people piling in on that. And it would give us an opportunity to know what's about to happen and to have the public conversation about what's about to happen. And I know whether or not it affects the outcome. Sometimes it might. It might, actually. But it affects the sense of participation. I hear you.

But while that may work in a case like South Bend, the case where I... The cases, the type of cases where I think it would be most impactful are the death penalty cases, because just to back up for a second in those merit cases where you have, you know, 150, uh, amicus briefs, they're already briefed by some of the best lawyers in the country. There's very few issues that have not been sort of brought out into fuller discussion. And so the amicus briefs often don't offer a lot. Sometimes they can offer math, you know,

data that someone went through, stuff like that. But rarely do they offer legal arguments that are particularly novel or relevant. In the death penalty cases where it does not necessarily attract the top-flight Supreme Court litigators or cases like those, then maybe the amicus briefs would actually be offering interesting legal arguments. But David, here's the problem with your idea. The Supreme Court cases often come in that day and have to be decided by midnight. And so you have the death penalty clerk, whether you're at the circuit level or at the Supreme Court, of course, you're the final clerk. You stay there until midnight waiting for petitions. That petition can come in at 9 o'clock, 10 o'clock at night, 11 o'clock at night. And you've got to make sure that your justices

know about it and can vote on it. If we're talking about two hours, David, no, we're not going to get any amicus briefs in by that point. No, my idea doesn't work for those kinds of death penalty cases. No question about it. It does work for South Bay. Yeah. It does work for South Bay. I mean, when I was looking at that calendar, because I was getting ready for the podcast, I thought, I want to just look at the calendar, the docket on South Bay and see how fast all

this happened. And I was surprised at how fast it happened. I mean, you had the injunction request. And from injunction request to decision was about a week. Yeah. Which is super fast. And it's going to take at least one day to write a not very good

amicus brief. And then you still got to go through and like make sure there aren't typos. I mean, it's going to take two days, basically,

even if you were moving at the speed of light. I just, I think there's some practical issues with it, even if I think that you're right

that it might, the process might benefit. Yeah. I mean, some practical issues with it, even if I think that you're right, that it might, the process might benefit. Yeah. I mean, but you know, from my, when I'm looking at South Bay,

what was the harm in, and so it was almost two weeks. So it was application 25th, response the 26th, response requested by the 26th. And that can be your signal flare when the response is requested that is this that is what you're talking about david what you want is them to say response requested so that way everyone knows that they're looking at this and you can put an amicus so if anything like okay so that's your example of where they did exactly what you wanted yeah they did what i, but they didn't say,

what I would want is say response requested, merits brief deadline by, amicus deadline by, and make it two weeks. Make it two weeks. No. Yes. No, I'm for speed on this. I don't know.

I mean, when you're talking about this pandemic issue that's been dragging on for almost a year. Yeah, but it can't just be on pandemic issues. It has to be for these nationwide injunctions that affect, you know, millions of people's lives potentially on some of these cases

where a lower court, a trial court, issues a nationwide injunction and the government looks for a stay of the nationwide injunction. No, I don't want that to take two weeks. Okay. Agree to disagree. But I want greater public participation where you're not actually someone who's sitting there running a $50 million legal organization who is, you know, hovering like a vulture over these few petitions that you know are of interest and are pouncing on it.

And you're the only ones who pounce. That's my issue. But we can resolve that another day. I wonder if that's going to be on. We have a we have a listener who says that you're correct in our dispute 61 percent of the time. Low-balling it. Low-balling it.

You're correct. 61% of the time. Yeah. Well, I wonder how this dispute will... He'll have to email us. Email us and tell us who's right on this dispute and how to adjust the percentages. But until next time, we will be back on Monday. We've already got some good stuff to talk about on Monday.

Had a fascinating oral argument yesterday in a case that we talked about at some length that is truly important when it comes to police violence issues and individual rights. So this is a really interesting case to talk about and the draft and employer and racial or sexual harassment in the workplace so lots of stuff to talk about on monday and before then please go subscribe to this podcast go rate us on Apple Podcasts and check out thedispatch.com. 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?

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