Shoe of Damocles

The judicial power of the United States shall be vested in one Supreme Court. This doesn't need to be any more question, be able to find an argument in this case. All persons having business before the honorable Supreme Court of the United States are advised to give their attention. Welcome to Divided Argument, an un-scheduled, unpredictable Supreme Court podcast by M.D. Naps. And I'm well-vote. I told a couple of colleagues this week that we're going to record on Friday. And they said, "Wait, then it's not a little unpredictable. We now have a lead." For them, not for most listeners, though. And it has been a bit of a break after a pretty steady run, so I feel like that was unpredictable. I do have an excuse for that. New run vacation. And you started class? semester short is here. I am swamped, teaching Fed courts for the first time using your book. And with your guidance, that's been a lot of fun. It's not really my book. You're the first time I'm on it. It's bowed at all. It's good for my citation counts. I'll do that. But you know, it's Heart and Wixler's book, and we're all just wholly in a trust. I mean, how many words remain from the first edition? That's an interesting question. Probably that many, right? Well, a lot of things are cases that have not changed, you know, as far as it is in the cases. Marbury. Okay. But of the notes, how much is left? The notes have changed a lot. Well, it's fun to teach out of. I'm actually founding it. It's slightly less challenging to teach out of than I was worried about. So we will see if I still say that. Three weeks, two weeks in, 11 weeks to go, learning a ton, having fun, students are great. So I'm busy, but I get nothing to complain about. Yeah. Good. It's teaching four days a week. I haven't done that. Maybe ever. It's good for you. Build your stamps. Yeah. Yeah. You know, law professors should have to work hard once in a while just to see what it's like. Excellent. While speaking of standing and federal courts, I think we got some stuff in your real house to talk about. Yeah. So I actually just finished teaching standing. So feel a little bit more knowledgeable about that area of law and a little bit more prepared to talk about the cases that we're going to talk about than I would have been otherwise. Any preliminary matters to get out of the way. One thing that was interesting was Jody Cantor's story about secrecy at the swimming court that had some interesting tidbits in it, one of which was that Justice Scalia didn't make any arrangements for what to do with his papers after his death, which is not the norm. I think most justices have come up with some plan. Obviously he died at someone unexpectedly, but I still think it's the kind of thing you might do a little earlier. I guess I wonder, you know, as of 2016 when Scalia died, do you think everybody else in the court already had plans for papers in place or do you think I don't know, because he was the first person to die kind of quite unexpectedly. I mean, you know, several of the people have died on the bench or, but, but, you know, I mean, just to Skinsburg, it, it sounds like did have plans. She, you know, she donated them to the Library of Congress with certain conditions. Right. I don't know when that plan was made. Yeah. And it seems like, are we, are we trending to a world where the default plan is something like my papers are being closed until everybody, until everybody sort of in the relevant period is dead. Either everybody, I remember when the court when I was dead, you used to do a whole period or maybe tranches, like, you know, the early part of my service. Yeah. I think that seems to be common. Now, there, there seems to have been some kind of discussion at the court after Justice Glea's death about trying to come up with some kind of more uniform plan, but it seems like it's not actually clear from the reporting that it is not clear what the plan is. Right. But it might be something like that, the, you know, it might be, everybody designates the custodian and then it designates a rough, I mean, because, I mean, to the extent that that's what Ginsburg did, that suggests, you know, I mean, she could have broken with what the court wanted or not. Right. That's true. And do you, you're more of a transparency guy than I am, I think, are you, are you bothered by any of this? Uh, we're dessert. I mean, so first of all, I don't love this notion that the papers are just, the Justice is personal papers, personal property to do where they want with, that doesn't strike me as obviously correct. I mean, the papers are printed on government-owned paper, using government-owned printers. And so they don't actually think they're a personal property. Okay. But if I take it, if one of the Justice is brought in there on a printer from home and they're on their own paper on Amazon, that wouldn't oppress you. You wouldn't say okay. Now you can see. I don't know. I don't know if that would be, that also strikes me as an appropriate, in the sense that, you know, we typically think that someone should be using official government channels. If they're in a government office, it's hard to get, you know, I don't know, here at least sometimes it's hard to get my, you know, office supplies, uh, family fashion. So I frequently just engage in self-help. It could be, but to the extent that there's, this is, this is in order to maintain secrecy. Yeah. I do think that, but assuming they were all, assuming they were government, I mean, and maybe this move towards having a centralized plan is actually moving towards that, assume the justice are treating them as something official. Yeah. Is keeping the secret for a long time, roughly this amount of time, that, you know, my preference might be a little sooner than waiting for everybody to die. I think maybe having a time limit relative to when the case is decided rather than relative to when each justice dies. I mean, I think that, you know, that seems more like tied towards the like vanity of the justices than towards, you know, where the public interest lies. Yeah. Although the vanity of the justices might be relevant with the public interest. And this is the, I think, I think we did talk about this in a previous episode, and I'm trying to better about remembering when we're repeating ourselves, um, but, uh, you know, if you know that justice blackmen is, keeps you very good records and intends to release everything like ASAP, then that may affect your will into putting writing. Maybe. I mean, you know, we might, sometimes that'll be good. You know, maybe sometimes we think that the threat of one day being read will cause the justice to behave better. Yeah. That may be bad, because that means that you, uh, you know, I think for many things, there's a norm that memos and cases such and circulate them online, but you can imagine a world where the norm is more like you circulate on your team, and then you only circulate things to the other team if you have to, and that's what we've had. But, but it's kind of that's contingent on how the justices feel. Yeah. Like you might, ideally, it might be that the justices feel totally happy, conducting everything in the open with a lot of transparency, but they don't feel that way. I at least want them to have what they need to feel comfortable. Yeah. I'm not sure that like if the time limit is 20 years versus after you die, it would necessarily make a big difference. But I mean, just my general, without getting into exactly what the number should be, and I'm not sure. My view is court exercises a ton of power and is not a very transparent institution. I do think that people should be able to get a little bit more information about the institution or, you know, evaluate whether it should have as much power as it has. That's my view. Yeah. So my one other despite everything we just said, I have, I'm now flirting with a new view. There's the opposite of one of my previous views, I like that. My new, this is, this is tentative and maybe tongue in cheek. My new institutionalist proposal would be a lot of transparency, like all the papers become public, you know, after 10 years or something. Okay. With the goal that the justices would feel more pressure to come into the office regularly and talk to another person. Like if you knew, okay, you could do it on the papers, but it'll be seen and anything, you know, sensitive. If you want to talk about, you have to talk to people because, you know, that actually, I mean, you know, they all work in same building, but my sense is some of them work their more often. The others, some of them talk better, they're more often others. And your view is interpersonal face-to-face interactions would lead to different former decision-making, less vitriol. Well, you know, yeah, this is one of the ways I, there are people in the world who I maybe get along with better on paper than I do in person. I'm not saying the justice or that category. Where am I on that? I wish we saw each other more. This is good. You know, we record the podcast face-to-face and that's good. Yeah, it's been a, been a while since we've done a live show. Yeah. We never was the last one. May. Mid May. That's right. We never succeeded in our plan to create a sort of like podcast studio and, you know, dance day in Hawaii in between where we could meet in person. A Peoria. Perhaps. Yeah, and I don't think we have. we don't have any, we don't have any live shows on the calendar for this fall and pretty busy, this fall, I think we may be doing one or two in the spring, but that's TBD. Yeah, so again. Yeah, okay, it's an interesting story. I see, in the scheme of Jody Cantor Exposaves, the unseem pretty tame. Yeah, this wasn't super, super leaky, but a little bit of new stuff in there, which is good. So I liked it. By the way, in response to what I said, you don't buy any of the public interest in disclosure arguments, all of your new view is still more about like making the court better. I mean, I do think there's a public interest in disclosure, so I do think like as a background norm, we should want the papers to be public as soon as possible. And the question is, how soon as possible? As soon as possible. I mean, it's as soon as we can without that causing big problems. Okay, and then the question is what counts as a problem and how much do we know what that is and so on? But I do think the background norm of, you know, we want our records, especially for the historical record to be closed, and that's true. So this is just my question of strongness. Okay, feedback. We actually have a huge amount. We had the compiled it all, and there's a huge amount. And I think we're going to talk about practically none of it did get an interesting email from front of the show, Daniel Greco, who is a philosopher, professor at Yale, about formal logic that takes issue with the claim that we dealt with about the whether a conditional statement where the condition is false turns out to be false is always a true statement. Yeah. I'm going to butcher this, but he says, you know, basically people tend to see the system, you learn an introductory logic as an artificial language whose connectives are stipulated to obey the rules you learn rather than as an attempted theory of natural language. So basically it might be true in formal logic that if a, then b is true always as if not a is true, but that isn't necessarily true of, you know, how we understand those kind of statements in spoken English. Okay, and that seems formal. Formal logic is a programming language essentially. Yeah. And we could, you know, often render our English statements into that language, but maybe not always. So it's nice to occasionally hear from listeners who are experts in nonlaw things, you know, first of all, it's always rising to me that we have listeners who aren't lawyers. And it's pretty nice to hear from listeners who know a lot about other stuff. Yeah, somebody asked me recently was our podcast only, you know, only for lawyers. And I came to the view that, you know, I think it's for nerds and lawyers would be a natural set of people to be law nerds, but I do think we have, we have a solid block of people who are nerds about something else, but who, you know, then want to understand what they're getting with us. And that's great. Yeah. Okay. What else do we got? I learned that I have become old enough to repeat myself without remembering it. So the, you know, story I told that became the title of our last episode about law firms with thriving atrocities practices. Apparently, I've already told the last time we talked about an ATS case in the show back in season one, which I had forgotten, but some of our listeners are remembered. It's embarrassing. Yeah. Yeah. CJ libassy wrote in to say that. That was a long time ago, though. Season one episode seven. Yeah. And we, at this point, we probably have some listeners who weren't listening back in season one. So maybe, maybe every five years is good enough, but, but I take that as a sign that I can't be relied upon not to repeat myself. So there we go. So yeah, there's a lot of times when I tell anecdotes and things like that, or we, you know, and I know that I must have said this before at some point, but I couldn't tell you exactly when. So, um, I mean, with luck, at least a lot of the listeners have memories sort of like ours, where they aren't necessarily remember either. But, you know, for some people, you know, I'm sure that as as we go on, as we eventually hit the double digits of seasons, which I very much hope and expect that we will, there will be more of that because, you know, we, we only know so much, you know, it's possible that our collective learning is being outpaced by the pace of episodes. Yeah, I hope we can learn new things that are fast enough for you to still have something to talk about, but okay. Anything else, or should we just, you know, I think we have like many, many emails, but I think that, you know, rather than spend forever on them, I think we should just get to the substance such as it is. Yeah, let's talk about it. We have two per-curium decisions from the interim docket to talk about, right? Okay. Both involving standing. Yes. And I should say we're recording this on Friday, September 4th. It would not shock me if by the time this airs, there's been something else, a development or following these things, but, but in terms of catching up on the August interim docket, we've got, we've got two per-curium standing relings, 163154. Do you want to talk about the ballroom or the election? Maybe we should do the election one just because it was earlier in time. Okay. Okay, so there is this executive order that the president has issued that has a number of sections. What exactly the order requires and says seems to be a matter of contestation? Yes. In the, you know, case itself. Yes. So this is executive order one for three, nine, nine. Ensuring citizenship verification and integrity in federal elections. It should be the president under his authority to execute the Help America Vote Act, the National Voter registration act, and to guarantee a Republican form of government. Every state of capital, capital R, it's lowercase R in the executive order. Should we read that as capital R? You know, there's actually there's very funny wrinkles that the Supreme Court has held that claims under the Republican Guarantee Clause are non-justitiable, famously, and looking for support in Congress decided which of two warring governments in Rhode Island was the lawful government, and then Congress used this paradigm reconstruction to be able to decide without social review, you know, which of when the reconstructed governments really go when they weren't and so on. Was it the first political question, Dr. In case, basically? Basically. Yeah. There are cases about treaties and things that you could see that way, but basically. Yeah. If you take that really seriously, I don't think government has made this argument, you could say, well, then these executive orders should be non-justitiable because it's a Republican form of government clause. Yeah. So there always still has to be some judicial review, but whether a thing that invokes the Republican form of government clause, sort of properly invokes it, which then raises the puzzle about, you know, is it really able to question this doctor? Is it just a merits doctrine? Anyway, the general shape of the order is to order some kind of greater verification that the state should participate in in figuring out who is lawfully and held a vote in a more federal driven verification. Yes. And then also to get the post office involved in scrutinizing the male ballots. And there has been some debate, which will talk about a minute, but how do these things relate? One proposal that was discussed was maybe that the post office refused to deliver absentee ballots to anybody who wasn't on the approved list or maybe refused to deliver them in any state with a state not cooperated and maintainless. And so just to be clear, the idea is the federal government is going to make less available voters. Yes. I don't totally understand where those come from, but the order says to the extent feasible and consistent with applicable law, the Secretary of Homeland Security through the director of US citizenship and immigration services and coordination with the commissioner of the Social Security Administration. So I guess, you know, that's how they're doing it, shall take a, yeah. It sounds like appropriate action to compile and transmit to the chief election official of each state. A list of individuals confirmed to be US citizens who will be above the age of 18 at the time of an upcoming federal election and maintain a residence in this subject state. The list shall be derived from federal citizenship and naturalization records, SSA records, state of data and other relevant federal databases. Yeah. I mean, it's famously an odd thing about the United States is we don't have one national database registry that just has like everybody in the country in it has all the info about us. Like there's much data about us, but there's not one database. And this is one of the reasons we don't have national, a single national ID card. or a single thing like that. So apparently we're gonna create one on the fly right before the election and make everybody use it, even though they've made use of other things, or at least so the executive order suggests, requires. Contemplates, but doesn't quite, it's not like totally done yet. And I should say this is the kind of thing that the president has done several times before, where he issues a broad executive order on a topic where the president has expressed extreme views. Orders some more specific things that are not exactly the same as the supreme views, but orders a bunch of stuff that might or may not be legal. And then also says at the end, this should be implemented consistent applicable law. In a way, the executive order is saying, I have abolishing the power of education is kind of like this. The president said we're abolishing the power of education, but then this is an executive order that's kind of like that. And says to do a bunch of stuff, it's kind of extreme, but then also says consistent with law. And then the court has to decide, do we, what do you know? Do you just say, well, this is obviously unlawful 'cause the whole thing is kind of crazy, or do you say, well, look, it says only do the lawful parts. So almost by definition, the order's not unlawful 'cause you know, do this stuff, if it's lawful, it might turn out to be not very much. So, but the other thing is that this section two that has the thing about lists also has in section two B. Some things sort of saying that the AG shall prioritize the investigation and as appropriate, the prosecution of state and local officials or any others involved the administration of federal elections, who issue federal ballots, to individuals not eligible to vote in federal election. Yes. Creating the impression amongst some readers that there is a connection between those two things, the lists in the prosecutions in that same, yes, section of the order. Yes. Right, the natural narrative flow, right, is we're gonna create a new list of who can vote and we're gonna prosecute anybody that's not a list and anybody who, in the state who, less people are always not a list. And depending on who's intended to make these lists and how good they are and you know, whether the mistakes are trend in a partisan direction or not, either that could essentially weaponize the federal government to affect who in some internal elections. Yes. If that happened, but apparently it's not gonna happen, seems quite realistic to me. Well, you know, the intent strikes me as quite plausible. And in fact, I don't understand what the intent would be otherwise. Well, I mean, look, one other thing that could sometimes happen is you could have a president who says he wants that to happen and you could have a person who drafts an order that is not designed to make that happen, but is designed like a scheme to seem like it could. So the intent of the order drafter, depending on whether that was the president or not, might be different from the intent of the president. Yeah, that's possible. Or maybe he drafted this himself, I don't know. Okay, so this order was challenged as a lawful by a group of states who point out that the basic principle for congressional elections, one of which is coming up in two months, is that the states are in charge of them in less Congress intervenes to put self in charge of them. And as to who votes, the states are in charge of that, really kind of period. The constitution says that you can vote in a congressional election, if you can vote in the relevant state legislative election and creates its own sort of rule of voter eligibility. And so, you know, where does the president get off telling the states who should be in the lists and what these things should be? And, you know, where's the authority for all this? Yeah. So that's a demast, district of Massachusetts, federal district court. The new tax enjoined. But I mean, specific provisions here are enjoined. Yes. And then for circuit declines to stay. Yes. And then we get to Supreme Court. Yes. And the Supreme Court rules six, three that the injunctions should be stayed. Because the government is likely to prevail on its argument to the district for a lecture restriction to enter this induction. Okay. And that is for reasons of standing. Yes. And ripeness. Yes. Which is maybe the same as standing, but maybe not. Is ripeness jurisdictional though? Well, if it's not the same as standing, isn't it sort of like equitable? I mean, maybe. So the asstanding is because standing used to be equitable. An understanding became constitutionalized. And so then as it became constitutionalized, the court had to make it less equitable, because it didn't think the constitution could be equitable. And ripeness, the court has both said ripeness and standing are based the same, which would imply that it's also constitutionalized. And then it's also said, "Oh, but ripeness has the equitable factors too." And we're not sure. Those might have to go or might not. So. Why would it be the same? Is it because your injury hasn't materialized yet? Is that the, that would make it stand, or make ripeness standing? Like ripeness is, you know, for those, you know, non-lawyers and the audience, you know, this idea that, you know, your claim isn't ripe yet. It's not time to go to court yet. - Right. Either your injury hasn't materialized yet, or it isn't yet established, that your injury will be caused by the thing you're challenging. Like that, you know, there's a hypothetical injury. The hypothetical injury is that the states are not going to be allowed to implement their election laws and run elections in a fair and lawful way. - Yeah. - And that is a real injury. It hasn't happened yet. You could sometimes get an injunction against the thing that will cause a future injury, but then you need to show that the thing you're trying to stop is, you know, like let a cause or is traceable to the injury you say you're going to get. - Yeah. - And so, and indeed, this is part of what the court says is anything that happens to the states will be because of how the executive order is implemented. You know, it'll be because the executive order's security does, like, makes bad lists, or forced to take the lists, or because of the attorney general threatens to prosecute people, they shouldn't be prosecuting. And we don't know exactly, or even really, approximately, how that's going to go down. - Okay. So, and just to understand the different components, though. So, 2A is just, says government's going to make the lists. - Yes. - Right? Okay, so I think, I guess it's fair enough to say that there's no real injury from the government just making its own lists, right? - Just making the lists. - Just making lists and not requiring them? - Requiring them of whom. - That the states use the lists? - No, certainly, of the states use them, but I'm just saying, literally, just making the lists. - I think just making the lists, probably-- - It created, so here's the 2A, the opinion says, section 2A of the order, directs the secretary to take appropriate action to create and distribute states that isn't shipless. - Yes. - Just create and distribute a list, right? - That's not obviously an injury. I think it's maybe when you combine it with everything else, it becomes an injury. - Yes. - I mean, so making a list is by itself not an injury, and then there's some, the court then says, now, any injury you might have is about what they're gonna do with the list, and we don't know what they're gonna do with the list. - Yeah. - And so, now, if we knew what they're gonna do with the list, I'd take it then maybe the number should be okay. Like if the, if we're clear that the list is part of a plan, to stop people who are not on the list from voting somehow, which presumably is, right? I don't know why else you make the list personally, but I'm just curious then. - Okay. All right, okay, but the court says no. Okay, and then we go into section 2B of the order. - Yes. - Which is the thing about prioritizing prosecutions and prosecutions and prosecutions. And here, I think there's a couple different flavors. I mean, one is, this is an intrusion on the president's article to power to, you know, set. Enforcement priorities and prosecutorial discretion and so forth, and the other is, this isn't, also isn't doing anything to the states. This is just telling the federal government, people in the federal government, how to, you know, exercise discretion. - Right. - Now, the states say you gotta look at this whole section two, right? I mean, not just two A, not just two B, standing alone. Right? There is a very natural implication that there is a threat that people in any given state will be investigated and perhaps prosecuted if they don't, you know, if they approve people to vote who aren't on the Trump list. - Right. Although, so this is where the court says something that's reasonable, although partly reasonable, because the court says it, which is the court says, well, that's not what the order says. The order says you'll be prosecuted if you'll be able to vote who are not allowed by existing statute to vote and not for not being on the list. And therefore, there's no well-funded fear that you'll be prosecuted for not using the lists. Now, I know might have been. kind of well-funded fear of that beforehand, 'cause again, but now that the Supreme Court has said, there's no well-funded fear of that, I actually feel less afraid of that. Like now, if you were prosecuted for that, you would go to the Supreme Court and say, "Look, the Supreme Court said, you can't prosecute it just for. " That's not what it's saying. It's not saying you can't be prosecuted, it's just saying you shouldn't be afraid. I mean, it is saying that you don't have to use the list at all. And so. right? And that the prosecutions will only be for existing statutes, and if there's no reference here to citizenship lists. Yeah, although the, I mean, isn't the theory that sure, the prosecutions have to be based on existing statutes, but the premise of a prosecution under an existing statute could be the failure to rely on the list, right? Obviously, they're not making up a new statute. Right. But I just, I feel more reassured by this opinion that the list, you know, if I think that I'm following the statute and I disagree with whatever's in the list, I feel more reassured by this opinion that I'm allowed to disagree with the list, that nobody's going to say, "Well, you were supposed to take things like this word for it or follow the list." I mean, I don't think any court would come in and say, you know, "You can't investigate these people, even if so that, say, you know, ex-post the federal government starts investigating every state that didn't use the list." I don't think you can use this opinion to say they can't do that. Sure. I agree. But I'm just saying, you can use this opinion to make, maybe this was obvious, to say, "Look, we didn't use the list and we didn't have to." I mean, so you can investigate us from either the list, we agree we didn't use the list and we didn't have to, now tell us whether you think we violated Hava or whatever. Yeah. Okay. Okay. And these two parts, the sort of list thing has faded from, there's been a lot of fallout since really, I'm just talking about it in a minute, but the fallout relates more to we're going to talk about next, or just section three, which is the Postal Service. Okay. So, yeah, this is the part of the order that directs the Postal Service to issue a notice that proposed rulemaking. So we don't have a rule yet. What we do? Sorry, yeah, we do as of when? The Postal Office, in fact, issued the final rule discussed here before the Spinion came out, like the weekend before. The Spinion was particularly drafted before that had happened. And then contains a couple of things like, well, at the time this, it was filed, which was technically when you were just standing, there was no final rule. And the pinion doesn't discuss the existence of the final rule. Yeah, yeah. Right. But so, as of the time the suit is filed, there was no final rule, just telling the Post Office, you know, overhaul your procedures for dealing with, with, uh, election mail. And in various dubious ways. Yeah. Okay. Okay, but so on the, uh, uh, resting on the assumption or the premise that there isn't a rule, uh, and there wasn't when, you know, obviously there clearly wasn't when the intractory list was granted, um, the court says, you know, this, again, doesn't, this part of the order, imposes no legal requirements on the states or for that matter on anyone outside the executive branch. Right. Okay. And then, um, the court is going to, so the states have, you know, theories for why it does impose harm on them, including they have to do various things to kind of get ready and to, you know, possibly change their practices and the court says that's too speculative. And it's relying on this case, uh, clapper, um, which was a case that said, uh, journalists and nonprofits, um, who were challenging, uh, government's, uh, authority to intercept foreign communications, it was too speculative, uh, for them to say, you know, uh, they might have their communications intercepted and they, you know, rejected their argument that they have to take steps that they were incurring costs by taking steps to avoid that. Right. So this kind of makes sense in that, uh, we don't know what the final rule is going to be. And indeed, the final rule that did issue did not contain every provision that the executive order discusses. I think one of the, I think one of the proposals in the executive order that the final rule doesn't do is to say we won't deliver absentee ballots if you're not a list, for instance. That's what the list is to the post office, like if you're not a list, we're not interested in mailing your ballot and you, but it does do other things. So it sort of makes sense to say, well, let's see what the rule says. But, uh, Danny, the election is pretty soon. Yes. Some would say, uh, that we were on the eve of the election. So it's a little scary to say, well, let's just wait and see what they're going to tell you to do and see whether it's okay. And I mean, you know, it is true now. We've gotten used to getting these things to the Supreme Court very quickly. And indeed, the, the final rule has already been a join, but lower courts again. And the government has now got a stay, a news day application out of the court asking for that injunction to be lifted so that it can enforce the rule. So I guess we're going to find out pretty soon, but if the rule is going to go into effect and states are going to have to comply with it, uh, it is just logistically very hard. Like the rule does require things like you have to mark the, the mail that carries ballots in a special way, analogous to the rules for mailing, uh, cremated humans and replica explosives. Uh, I'm not quite sure if I'll have the analogy, but analogous, you know, analogous that. And right now, like the ballots don't have the markings on them and there are millions and millions of states and different people who need to send these ballots. So it's a little weird to, you know, lack certainty of her whether that's going to happen at how? Yeah, that would, it would be nice to know, but I, as you said, I think, do you, do you think we will be able to get, we will now be able to get a merits ruling on these things? Yes. I'm going to put the court, I think the court will rule on, I mean, so again, the rule has been enjoined, uh, already with a lot of courts and the court will rule on whether to stay at the injunction against that rule soon. And boy, I guess I'm going to make a prediction. This opinion would be insane. If the court were planning to let that rule go into effect, this opinion would make some sense if the point is, uh, don't worry. The executive order says a lot of stuff, someone would be unlawful, but we're not sure it's really going to happen. Like, but some of it's just kind of moving papers around an internal prioritization and anything in it that's really illegal could be stopped. But that makes sense, if we're confident that that's sort of the really disruptive stuff is going to be stopped. It's going to be kind of insane if also what that means is like next week, these states are going to learn for the first time that they have to, you know, mail all the ballots and green envelopes and nobody knows where to get enough green ink or whatever to make it happen. I am going to predict that at least one justice who was in the majority here, um, will also say that the whatever the president is doing is okay. Okay. I'm going to predict that my mind can be compatible, compatible with what you're saying. Yeah. I don't disagree with that, uh, but I think at least five justice will say the states should not have to comply with the rule right now before this election one way right now. Yeah. It might be, it might be that the rule can go into effect later like, yeah, it might be you could say the government's motion for a stay is denied because of the balance and the equities and, you know, without even getting into the merits, we just don't want to, uh, change the rules for the election. Um, it might be, I mean, it might be losing the merits that the, the, the, the government's argument for a stay is a little complicated because it has to say, this is sufficiently important that we need to intervene on a emergency basis and, you know, like stop the injection against us because we really need this really go forward. But also, this rule is not so important that it triggers the major questions doctrine and makes you wonder like where do we get the authority to do this? And that's so important that it triggers the grid, the grigory or Sashcroff federal some doctrine that makes you wonder why can we, why can the photo from take over the elections? And yeah, that can happen like that's not logically inconsistent to be like, it's, you know, it's minor enough that we should be allowed to do it, even though the statute doesn't know the same thing about it, but major enough that you have to intervene on a emergency basis to let us do it, but, uh, but it's a tough line to walk. Yeah. You know, it's funny, the, the Priscilla principle, which we've talked about before and which is also going to look in the background of any, uh, litigation against the post office rule started this is how to apply it here is weird, right? Uh, it is. Right. So, so imagine, I mean, again, imagine over the new litigation, now we have the federal rule, the federal post office rule, and we've been a junction against the federal post office rule, a defender of the federal rule might say, well, you can't even if the federal rule is invalid, you can't then join it now because it's the eve of the election. And well, then a reasonable person might say, hey, you're the one changing the rules in the eve election. They would say, oh, but in, uh, Kalei and Alan and Abbott, the court said when the political branch is metal on the, the election, that's their business and courts aren't supposed to stop the meddling on the eve of the election because that is itself a form of meddling. - Yeah. Now those cases say it about legislative action and it's easier to, but legislative action over bodies that clearly have jurisdiction over the thing in question. And I have to think that court doesn't mean to say that about executive branch agencies that have no authority over the family of the election. Like if, I mean, you know, this was once a specter, if, on the literally of the election, on the night before the midterms, the president would announce that he was deploying all of the armed forces to confine to their homes, all Democrats, and not let them vote. And then there was an election and he said, this is totally unlawful, I agree, but the principal means you can't stop me. I take it, nobody would buy that. Yeah. That seems like, I mean, it's usually, it's not government versus government. It's plain deferences government. Right. And I do think, I mean, the easiest way to do that, I wrote a short post about this on the divided argument blog is the statement of the principle, the court is often described as about not adjoining election rules. And so, I don't know, of course, never really thought what that category is, but I think they would say, well, implicitly, we meant when the body, you know, legally entitled to regulate elections, regular elections, we are very wary about adjoining those. But when a body that is not particularly empowered to regulate elections, just like jumps into metal and elections, they don't get to, you know, make the same kind of claim, especially when it's government versus government. And that's but I was just going to say, it's, it's funny that we started with a sort of like general principle, of like, it's important that the rules be stable before the election. And then that's one reason course should stay out of it to, I mean, as, as we know, I was talked about, more like, it is important that we stand back and allow instability to prevail, rather than intervening ourselves, or possibly even intervene to allow instability to prevail, because previous attempts to stability with themselves to close the election. Yeah. I worry that we've lost a lot. Okay. So you had said, you know, when we were talking about a lot of the ongoing fallout from Kalei, and I think it was in the context of, was it the Alan versus Milligan thing, or was it the Kalei speeding up the mandate, or both? One of the other you said, basically, in these contexts, where, you know, you're talking about interim docket type things, it is, the court should be more concerned with appearances, because of the risk of, you know, seeming like the court is engaged in partisan meddling than it should in other contexts. Is that fair? I did say that. Yes. Okay. How does that apply in this case? I mean, if, let me put it this way, a very smart and good friend who is normally a standing hawk, and quite conservative, wrote to me to say, I'm a standing hawk and conservative, but it's August, and right for the midterms, shouldn't the Supreme Court just be saying, stop meddling election, President Trump, or something like that? So I think that would be a version of that view. Now, I don't, I'm more okay with this one by itself. So I guess I, I am still, I'm not sure how strongly I take that principle. Is it because you think it, it'll get back up there quickly? Yeah. I think assuming that chapter two of this story is the Supreme Court saying, no, we're not going to suddenly upend the mailing of ballots across 50 states, whether for the ballot inequities, whether major questions, or the federal, some canon, or some mixed, the three, or whatever, like assuming that's true, then I'm more okay with this one. And that's why I said, that's why I said it would be insane if that's what's going to happen. Now, if that is what's going to happen, that's going to be insane, which is not good. Okay. Well, we will find out, I like the prediction. We do have our own going prediction analyzer for which we did have some updates this episode, by the way. I'm not doing very well, am I? No, you, you had, there was one good one and then a couple that were flagged as judgment calls, but your good one, I think, was your prediction about what's going to happen in the next case we're talking about with borrow where I said they're going to get it wrong because everybody says they're going to get it wrong. Well, I think you said that the DC circuit will be reversed on standing grounds. I thought it does not seem obvious to me, but if that's what everyone thinks, I assume they're right. Yes. I thought you were saying it isn't obvious that the court is going to do that. Yeah, I guess that were you saying it's not obvious that that is the correct answer? Well, both. Okay. This is always the problem with predictions is if you naively believe the most of the time the courts follow the law, then most of the time you look at the materials, you think, well, this is the right answer. So I assume the court will see that. And now sometimes you can then say, okay, this is the right answer, but I understand the court's not going to agree with me. And, you know, I got there on part because that's what everybody else is predicting. Okay, we have two distants here, one by justices, so tomorrow or in Kagan, you know, by Justice Sotomayor, joined by Justice Kagan, and then another solo by Justice Jackson, the Justice Jackson dissent is significantly longer, hers is 23 pages, and the Justice Sotomayor one is only four pages. What do you think is going on here? What's the divergence among the liberal justices? I mean, that Jackson one is coming in a lot hotter. Yeah. The Sotomayor one is certainly the most, as a bit of a don't panic flavor to it. I mean, the Sotomayor one is saying, I mean, it opens with, to be clear, they're not saying this is okay, we're just not deciding yet. And that's bad. We should decide now this is not okay, but, you know, we're not saying it yet. And I hope that's true. The Jackson one, obviously, is taking much bigger aim at the merits of it. It's also, I guess, this has become a Jackson theme in the Interim Doctor things that maybe started in Trump versus Kasa, I can't remember if it started before that, which is her view, which is, I think a good argument, I'm not sure I agree with it, but it's a good argument that it's a mistake in any of these cases to analyze only the merits of the sort of threshold issue that the government has cherry-picked to task you to view. Like, so the, you know, it happens in this case that the government is enjoying it from one executive order and then they come to the court and say, you got to stop this because there was no standing. And what just Jackson would like to, I mean, sort of for a current theme is, well, okay, we are now being asked to intervene equitably and issue a stay. Shouldn't we figure out, like, who's right in a broader sense here? Yeah. Because, and then you could, you could put that doctrineally in multiple places by asking, like, what is the merits? Is the merits just the threshold issue or is the merits the merits merits? But also it goes in the other factors. You could say, like, you know, do we really have an irreplaceable injury if we've been enjoying from doing something illegal? Maybe not. And certainly we get to equity and balance in the public interest with balancing stage because we can say, like, is it in the interest of equity to green light illegal conduct? You know, even if it's true that the injunction was maybe, you know, issued on a footfall or something like, is that really where, you know, is that really the right side? And so, going all the way back to Kasa, she's wanted to say, like, why are you closing your eyes to how illegal this is? Yeah. And so that sort of, like, necessarily pushes her much deeper into the merits. And also, probably why she asked to sort of, like, frame the whole thing differently because she's complaining all these cases have been misframed. Yeah. I think it's not a crazy argument that, you know, you should think about the big picture, especially if this is like a discretionary equity call. The one worry I have is, I think we all know that asking the court to dig into these, like, novel hard merits questions that are politically charged on the interim docket is, like, not think they're best at. So she is asking for more of that. Yeah. And in the risk being that they're more likely to get it wrong or more likely to be partisan in that context. Right. I mean, the hope would be, from our point of view, even the majority recognizes that this is mostly illegal. So she forced them to ask that question, even they would say, no, you can't do this. Or recognizes that saying sign of this is legal is like so hard and so weighty that you've said the only way you can grant a stay is to do that. They would say, I don't want to grant a stay. Yeah. The risk would be just as Kevin, I would say, no, totally fine. I am willing to stay up all night reviewing the merits of any important legal question at all times because, like, you know, we're open, we're open for business. And that doing so in the middle of the night on a fast lock is more likely to be the justice is to be sympathetic to a side that is not the one that says Jackson wants them to favor. Yeah. So I'm not sure she would like it if she got what she wished for. It also lets another shoe drop in the Kafka-esque nightmare that our presidents have been steadily creating for certain plaintiffs who seek to bring election-related challenges. Is that a mixed metaphor? I think so. - Shoe Drop and Kafka-esque nightmare? - I think so, unless, I mean, it could be a unified metaphor. So I'm not, it cannot be that the shoe is in the nightmare or you're like having a nightmare about shoes dropping. - Yeah, so if you have a nightmare where you're being like stalked by a authoritarian presence and authoritarian dictator trying to steal democracy and he's like creeping up behind you and you hear a clop, clop, clop. And the next shoe drops clop, the nightmare is getting closer. That could be what she's going for. - Is that really what shoe drop means? - I don't know. - Okay, yeah, sir, I don't mean to sometimes things with the writing and very subpoenas just kind of annoying me. - I have a bad habit. I often write in mixed metaphors. Like I've written a lot of metaphors, but I do try pretty hard to, I don't take them out, probably as much as some people wish I would, but I do try to un-mix them. So like if I started with a metaphor that I might well, like return to the metaphor, sometimes again, maybe more than I should, but I do try to un-mix them. That's, you don't mix them, you're saying. Or you're saying you use too many metaphors, but don't mix them. - Right, so if I were me writing one argument, you should be right at the sentence, just by taking out the shoe in the Kafka nightmare and just say, you know, whatever. It also lets, you know, continue as the bad trend of our, you know, accumulating a precedent or something rather than having any, but if you were to keep it, then I'd really want to lean into it. Like I'd want to figure out what is the nightmare or figure out like where the shoes go and then try to make it work. - So I did some real-time research and I'm told that the metaphor comes from an American joke of the late 1800s or early 1900s, not from any literary source. The larger comes home late, sits on the bed, drops one shoe loudly on the floor, then remembers the sleeping neighbor below and sets the second shoe down quietly. Just as he drifts off, a shout comes from downstairs. Well, drop the other one. I can't sleep waiting for you to drop the other shoe. - Ah, which is just that you shouldn't say another shoe drop, like there's like a string of shoes. There's really just two shoes. There's the other shoe and the first shoe. - Yes, yes. - At the other shoe that you're kind of waiting for. - Yeah, rather than the court keeps dropping the shoes. So I don't know, I don't like this writing. I don't like that sentence. The story also implies that you should look at a shoe drop. In the story, the fear is the impending shoe. Like to mix your metaphors, we've got our sword of the shoe of Damocles. - Yeah. - Is waiting to drop. - Yeah, although the shoe, I mean, in the joke, the shoe has already dropped. It's just dropped in a non-autable, in an inaudible way. - Right. That could be true here, right? That's, if part of the point is, the court is actually kind of knows that this postal regulation is going to be enjoined, because they're just not telling anybody, and they're all waiting around, waiting for them to drop their shoe when they've actually quietly put it down. And the fact that we don't know what they know and are now like waiting up at night, worrying about it, you could get somewhere with them out of four, but sometimes you either need to commit to the metaphor or not do it. - Yeah. - Okay, so what else to say about the descent by Justice Jackson? There's a lot in there, a lot of footnotes. - Yeah. - A lot going on. - I have nothing else to say about the descent. I think some of this will also be, if indeed the other shoe drops, and we get more rolling, then we'll be returning to a lot of these bigger issues, so the issue's in the descent. One, just comment on the opinion, which is also relevant to the next opinion. I just have in my desk the latest issue of the Supreme Court review, the faculty at a journal that Justin Driver and David Strauss and I, and until recently, just don't all co-ed it. And it has an amazing article in it by Richard Ray called the Standing Realignment, about how back in the old days, when we went to law school, the Standing Alignment was always that conservatives were against standing and liberals were for it, but we need to see that that doesn't happen anymore. And it says, it's been five, 10 years since that's happened, and pretty much all the cases now are more like the student loans cases or Boston, the cases where it's conservatives who are for broad standing and the liberals who are complaining about it. It appears that rumors of the Standing Realignment may have been slightly exaggerated, 'cause this is just like an old school lineup. Six, three, no standing, conservatives say no standing, liberal say standing, it's like straight out of the 2010s. - Is that, you know, is maybe the Standing Realignment, a function of the Biden administration, and then as the administration flips, we go back to conservative harkishness? - Maybe. I mean, so right, obviously these theories of realignment are partly based on the political stakes of standing. And yes, it's especially likely when the president was Biden that there would be that kind of alignment. But it's always a little confusing why standing is so political, because if the justice is a really political, they could just be political with the merits. Like you could, like a political political justice could just say they were standing and you, they didn't know the good guys went and then we're relative to the good guys are. - Judge, defame your favorite Trump too short-lister, but Judge So-and-So might say, look, a bunch of Democrats-- - It's not a defamation if it's true. - Yeah, a bunch of Democrats and aliens are trying to steal the election and the president's stopping them and he's vindicating a Republican form of government and good for him. Now, if you were a justice who both is sympathetic to some of the policy priorities, but isn't actually the totally lawful, then you might be too ashamed to lie and say it's lawful, but not be too ashamed to say there's no standing. But it's, yeah, it's a little weird. And so I'm not, I'm not in any way criticizing the article, which is, I also should say, is also co-authored by Yoav Paz along with Richard Ray. They're great, it's a great article. But it is funny, the timing of seeing that and then seeing this like classic unrelined case on the same time as is funny. - Yep. Okay, on to the next one. - Okay. - This one, maybe he's gotten more news than the other one despite being less important. - Yeah, I think that's right. So this is about the ballroom, the construction of the White House ballroom, the president demolished the swing of the White House, which seems like a shame 'cause it was a historic building and is in the process of building a great, big, beautiful ballroom on top of its location. Seems like there's a pretty good argument that was illegal, that basically building new buildings or things like that have to be authorized by Congress. - Okay, so yeah, so on the merits, one argument would be building new buildings has to be authorized by Congress, 'cause 40 USC 80106 says you can't build any building or structure on any reservation park or public grounds of the federal government in the District Columbia without express authority of Congress. Now, you might say this is not a new building or structure. This is just a renovation to existing building or structure. It's really not a new building. - Yeah. - It is kind of a structure, although it's gonna be a structure. - Well, just 'cause it's connected. I mean, when does a renovation become a new structure is a kind of line drawing problem? And there are these various examples in this to the White House. I think is a president Nixon built a tennis court which had nets or the nets structure, probably not. There's also a funding problem that whatever the statutes is also, Congress has not appropriated the money to do this. Now, the president has gotten some private donations and there's a complicated set of funding streams that can be reallocated. And so the merits are tricky. I think I'm with you that's probably not authorized, but it's tricky. But yeah, and I think I just said there's a stronger agreement, right? - Okay. - Yeah, I think I agree with you that there's a stronger agreement. - Okay. - I think you have to agree with me that there's a stronger agreement because the Chief Justice says that, right? - I have been known to disagree with the Chief Justice before. - Including in cases involving President Trump. - Have you ever said, well, maybe you have said, but like something that he thinks is right or at least is a stronger agreement is like not close. Maybe you felt that way about Trump versus Anderson or Trump versus United States. - Yeah, you felt the same way. I know you didn't agree with that one, but you thought that was equally unclose. - I don't, I mean, neither of them was like, well, I think there were in Trump versus Anderson arguments, maybe even, I don't know, strong, but like not laughable arguments in favor of the President. I don't think the argument that the Court came up with was one of them. The argument that the Court came up with managed to be worse than all of the arguments that the President came up with. - Uh-huh. - The Court? - Uh, yeah. But anyway, okay. So, but the Court doesn't get into the merits. The court says, Again, no standing, OK. And it does so in a way that at least arguably changes existing law. I mean, it doesn't-- doesn't purport to be, right? Right. So the majority says, as the dissent below says, as many-- smart commenters said, this is a novel theory of-- this is a novel theory of standing broader than any theory of standing. We recognize in our precedence. Here is the theory of standing. So the plaintiff is the National Trust for the Historic Preservation of the United States, which is an association. It has standing, if one of its members has standing. Its member is a woman named Allison Hogueland, who lives in DC, who regularly goes to the White House to the president's park right out of the White House, and looks around and enjoys looking at it, who is an architectural professional and who likes looking at it the way it is, or the way it was. And she doesn't like this. Because now it's going to look different and bad. And so it's going to diminish her enjoyment of the White House and the surrounding park. Although isn't her enjoyment already diminished? Yeah, so why? Is there anything left to not diminish? Good, OK, so one place you could slice and dice this, such as not quite how the court does, but is closer to how the government tried to argue this, is, look. She liked looking at the old at the East Wing, which is beautiful, but it's gone. It's nothing to do about that. So her aesthetic injury as to the destruction of the East Wing is moot. Now, she also says, also, I don't want to see the big ugly ballroom, like a hierarchy of looking at things. The old White House is top. The new ugly ballroom is worst. And the status quo is like, not as good as it could be. The hole in the ground, yeah, it's better than nothing. Especially because the hole in the ground, you can't see very well from outside, but the big ballroom you will be able to do. That is her theory. Now, so she is drawing on a long line of cases where the court, including just like Justice Scalia in Luhan, has said, of course, they're a standing for aesthetic injuries to people who enjoy things like National Parks. Yeah, we're seeing the Nile Carcadille. Cases are people say either I like seeing this animal and it's going to die and I won't put those to the Carcadille or people who say I want to picnic by the river and you're polluting it or who say I want to go visit you know, you're semity or mineral can or some mountain and I don't want you to build a ski lift on it, things like that. Now, you might have thought that for arbitrary reasons, those cases would be limited to National Parks, but it turns out the White House is a National Park. So I listen to the entire DC Circuit oral argument in this case because there's another podcast called AudioArguendo where somebody just uploads cool courts of appeals arguments about like contested cases with like no explanation that just like pops up in your feet and so like I just started listening to it. Anyway, that's her theory. So yeah, you could say, what could you say? You could say aesthetic injuries don't count. We were wrong, just say you're led to the Carcadille. You could say-- And the court does not want to say that. I don't know if they want to. Well, sorry, they want to avoid saying that here. Right, they certainly don't say that here. They acknowledge there these cases about the river and about the Carcadille and they say those are different because in those cases, the plaintiff's injuries are more than just being offended. Whereas here, the injury is just a fence disagreement or distaste. Yeah, I mean, basically they seem to want to try-- the move seems to be to reframe this as she's just using this because she's like mad about this lawless thing. Yeah, right? I guess, although-- she might be mad about it. They don't seem to deny that she finds it ugly and offensive. I mean, if you thought that she would not be offended by the ballroom, if we're built by Biden, if we're the Biden ballroom, she would think it was cool and ballsy. That would be a theory. I don't quite know how our standing theory would like make that work, exactly. The court says adopting the trust unprecedented and limitless view that a fence alone suffices to establish a concrete and particularized injury would seemingly usher in a world where virtually every citizen had standing to challenge virtually every government action that they do not like. But which is not correct, I think, if you take the plaintiffs theory seriously. She's objects to its scale, height, and massing. Right, she finds it aesthetically unpleasant. And if that's an offensive objection, which doesn't count, then similarly, if the president were to build a ballroom in your semity on top of El Capitan or in the middle of the Grand Canyon or other places where it disrupts some well-established American view, would the court say, oh, that's fine? Or a ski left or a road? Or a lot of these environmental cases are about building a novel kind of ugly structure next to a thing of natural beauty. Now, can you put arbitrary and limited cases to natural beauty? So if you're looking at mountains, that's one thing. But if you're looking at buildings, that's different. They don't quite do that. In their defense, though, I mean, they are writers who can go too far. So in alliance for Hippocratic Medicine, the case where the conservative doctors were trying to stop the issuance of Mifra Pristone, one of the arguments for standing made explicitly below by JoJo was, this is just aesthetic standing. They're like babies. They want to see babies. And the babies are going to die. And that's just like crocodiles. If you're standing to say, I want to see a crocodile, and the crocodile's going to die, why can't you stand to say, I want to see a baby? And the baby's going to die. And the court unanimously rejected standing there. He didn't really explain, except in a footnote, it was wrong with the aesthetic entry. So they are kind of right that they have to draw some line that is like, I want to see X, because you could turn almost anything into a desire to see things case. But if you had to draw a line between wanting to see national parks in the one hand and wanting to see babies whose mother's otherwise wouldn't have brought them to term, the bar room seems close to their national parks into a baby. Yeah. I agree with that. Can I give you one more? Sure. I'm sure. All right. So I wrote a blog post also on the divided argument blog, complaining about this. See when you don't let me record down, I have to have to event elsewhere. And one argument I got from several quarters was the key differences between seeing things and not seeing things. They're standing to say, I want to see something. But they're not standing to say, I don't want to see something. And so if this argument would be, if she said, I wanted to see the East Wing, you took it away from me, she would have standing to say that. And that's not limitless. That's like how-- What if she just were able to say, had said this like, I don't exactly know the layout in a federal income since I've seen the lighthouse grounds. But like construction of the ballroom will make it harder to see the West Wing or the center of the building. Does that suddenly work? I think that might work, but it's not true. Just given the layout. But it also wouldn't work, right? Right, when I get even just ho, he phrased his theory as an I want to see things. He said, I want to see the babies. And that didn't impress the court. And similarly, again, if you build a ballroom on top of a Capitan, like you could say, I don't want to see this ugly ballroom on top of my mountain face, or you could say, I want to see the mountain face illustrated by the ballroom. So I suspect almost any, I want to see X. And I don't want to see why claims. Could you be refrained by refining X as being X for that Y? You know. But-- OK. Are you surprised that the Chief Justice is in descent here? It's a fine floor. It's a chief in descent. I guess I was a little surprised. I mean, I'm pleased. Do you think he's in descent? Because he has a lot of respect for historic buildings. He seems like kind of annoyed about the demolition of the East Wing. He's never pointed about it. But one theory is he's in descent because he is the head of the Smithsonian Institution. And so I spent a lot more time thinking about the buildings and public trust in these various issues. And so it just takes those rules seriously. And that's priors about them and so on. And you know, might be thinking about the Kennedy Center, Kennedy Trump Center, and those are these good things. There are several references to Teddy Roosevelt and seeing the White House's public trust, et cetera. So there's kind of like, if you're an institutionalist, which some people believe he is, you might think, this kind of like elevating your own personal vanity over the like, one of my students' tuition is just especially offensive. I-- my theory is the Chief Justice is a really good lawyer who takes standing doctrine really seriously. And even though he's not, I don't know that he liked these aesthetic standing cases or would have necessarily gone on this road 50 years ago if somebody asked him, like, when you're a really good lawyer and takes a doctrine really seriously, and then somebody comes up with just like a totally BS, barely even explained waving away the doctrine, like some of the-- level of professional craft. You know, you just can't sign on to it without being embarrassed. Did you have a guess as to who we're at the procurium here? Oh, I'm curious what you think. One theory I've seen is that it's just a scavenger. That was sort of where I was going to land. I think it's just a corsage for two reasons. Okay. I'm not at all sure about this. So now every time I say something like this, I'm like, okay, is this prediction ever going to be falsified? I'm not sure we're going to find out. Not, not, I mean, based on the stuff we were talking about earlier in the episode, I think not until just this corsage and all his colleagues are dead. Hey, well, you know, Claude is pretty good at figuring out the authorship of things. I don't know if he's sort of trying to have it, figure out the authorship of progress. Yeah, I did at one point to try to and it wouldn't do it for me. That was quite some time ago. I bet it would do it for me now. Yeah. We should do a project somewhere where you, you know, just completely traded on the majority of opinions and then give it the procurium. So I think just this cabinet has a slightly breezier approach to these precedents. It's like this case, like recognizes the precedents, describes their holding and then says they're different because they're about offense. Yeah. And I think the standard cabinet play would be not even to do that. Yeah, just just have a, you know, a sentence. Yeah, you just say no. Also, there's a different paragraph when you get to, we haven't talked about this yet, when you get to the like other factors of the test, like the irreparable injury. So what is the irreparable injury? And the, this is in two page six, the government has established a irreparable injury. Start with this. And there's a paragraph that just like has a very corsagey ring to it. Yeah. Okay. And it's also the, the start with this is kind of funny, substantively. So what is the government's irreparable injury in not being able to build the ballroom right now? Start with this. The district court likely exceeded its article three authority to enjoy the activities of a coordinate branch of government. Under the paragraphs, just about how the district or valid article three. Yeah. Now, why is a district or violation of article three a irreparable injury to the president? This is never explained. Yeah. Isn't that kind of double counting too? Well, it's also not even clear whether the paragraph actually asserts that it is an irreparable injury. It's just like start with this. I'll start with it. That one, that paragraph, that paragraph felt like corsagey. Yeah. Okay. All right. Yeah. I think you're, you're moving me in the other one. Those are my two reasons. No, no, sorry. The other, the other opinion, Trump versus California. Oh, who wrote that one? Oh, I don't know if you're, chief, without chief. I guess. Sure. Yeah. Isn't the assumption that the chief writes all the precarious unless he's too busy or deciding for them? I mean, that's a reasonably, I mean, as a default assumption, that's probably pretty safe. I don't think it's, I'm sure it's not 100%. Yeah. Maybe if you're written by committee or something. Yeah. Interestingly, these opinions, both also with the feature that they were, the justice they were referred to was in dissent in them. So that, you know, the Trump, the election case, went to Justice Jackson, and then she dissented this case, went to the chief who entered by himself on administrative stay. And when that was ended, people thought, okay, that, you know, that's just the courts can reverse or they were. But interestingly, he was then dissenting from that. Presumably, what happens is he gets the application, circulates something to the court saying, I propose we deny, and then here's enough back to reckon that that's not what's going to happen. Yeah. That's the issues that, you know, but I'm not sure. It's possible. So Dan, while we've been sitting here, the court has issued another precarious law of the case. Oh, no, I didn't, I didn't even get this. Okay. That's terrible. About an issue, I have not been following. So I'm gonna pose. We don't talk about it. Okay. The case is National Republican Committee versus Sherrod Brown. And it deals with the FCC's lowest unit charge requirements. Okay. Yeah. We're gonna have to do this later. Okay. Some other time. Okay. It appears to be eight to one with Justice Jackson alone dissenting. It's only five pages. So if you really wanted to do a test start time reaction, we could do like a live read and breakdown. But I suppose we don't. I'm just gonna say it's out there. Okay. Well, maybe we'll catch up on that. Might be a little wild for the next episode. As I said, I'm a little swamped with all this teaching stuff. But, you know, I do like that we are continuing to extend our record breaking season. Yeah, we have until the first Monday, October. So everything this month, yeah, goes on. Still counts. Yeah. We don't want to set it too high because then it's hard to hard for us to break out again. Well, that's a that's a route to mediocrity then. Don't you want to just keep keep breaking your own records? You don't want to stagnate. Sure. You know what? We don't want to peak too early. Yeah, but you know what? You know what? It's season six. No, but okay. But if we release more ups, that's now. We'll just have to release more ups. That's the next season. No, that's true. I think the beginning of season seven will be a little little slow as well. Often the beginning of the term is a little slow, but it'll be a little slow for me until I get through my big teaching semester. But once we get to Thanksgiving or so, I'm going to be able to pick up the pace. I don't know. Do you have a big teaching semester coming up? Quarter quarter quarter quarter quarter quarter quarter quarter quarter quarter quarter quarter quarter. I have, I mean, I have a conlaw big class in the fall. Okay. But so you're busy when I'm busy. Yeah, well, I can always make time for the podcast. Well, yeah, you you don't even prepare. You just walk in there and it all flows naturally. Doesn't work for some of us. Yeah, let's don't tell people down. I read them. I read the opinions. Yeah. One time I asked you for notes. And your notes were just like three questions or something. So actually, so claw is good for this. The way I teach is I have a new word document for every class that like contains usually one to three pages. The contains like the big points I want to hit that day. And like quotes and things I want to, you know, but like the point is there's short enough that I can actually have it in class and like where we are, which I can't do if I have a long thing. And I have, you know, every time I teach it, I have a different version of that. And some people occasionally ask for teaching notes. And, you know, that gives them that. And they're like, yeah, thanks. Well, this is a cocktail napkin with my face in the back. But actually, clot has gone through and taken all of my teaching notes and like integrated them. And then, you know, like smooth that repetition and turn them into one document that actually is much more. It's much more usable. I mean, it's still it still maintains that cocktail napkin vibe. But, you know, I'm a bit more a bit more scripted. I need a little bit more of a lifeline in class. And then do you read your script? I like to do what he did with the document read it. I sort of like I write out basically a script of what I'll say for the, you know, lecture part of the beginning. I do not read it word for word at all. It mostly just is a kind of structure, but haven't gone through the process of once writing it out found helpful. Yeah. And then, you know, for talking through the cases with the student called calling, I at least have, you know, kind of a list of beats. I want to hit. I don't always do them in that order. I skip some of them. But, right, for me, it's like, it's like these are the five, you know, important things with this case. We have to hit four down with it. Yeah, because I don't always track that or, you know, this is the order. I'm going to go or something. Sometimes I've, you know, developed, particularly good like hypos or something. I want to write those out. So I remember them and, you know, but I just, I try to be, I try to be in it. Yeah. In life. That's my, that's my life philosophy. I try to be in the moment. Okay, that's good. I don't know if I'm always a little nervous in the moment. So I need a little bit more help. Okay. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors and thanks to Deborah Kufaro for your support of the show. And thanks to the Supreme Court for dumping this order on us while we were recording. I got a text about it. Only as a recording is the only reason I, even though I don't have, I don't have good enough friends to text me these things while I'm recording. Please rate and review wherever you get your podcast website, dividerargument.com for transcripts, blogged at dividerargument.com for commentary from the extended universe of commentators, including some posts about the ballroom case that we talked about. Store.dividerargument.com for merchandise, send us an email, [email protected], leave us a voice mail 314-649-3790 or a voice message on our website. And if there's a long delay, it's going to be because I am struggling so hard to understand Fed courts because I'm using Will's book. The case was submitted.