Steve Vladeck's Taxonomy of Court Reform

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: And welcome to Opening Arguments. This is episode 1032. I'm your host, Thomas Smith. That over there is real-life crimmigration attorney, Matt Cameron. How you doing, Matt?

0:00:54 Clip: Thomas I am FULLY transcripted! I've been reading way too many transcripts recently and I feel like I've become an expert on the Trump trial.

0:00:56 Thomas: Yeah. If Only there was a place where we could just do that Trump trial transcript stuff all the time, full time. There must be a better way.

0:01:07 Clip: Yeah, I was an audio guy myself. Would love to be able to listen to them. That possible?

0:01:07 Thomas: Yeah, That's A great reminder that Gavel Gavel is the hit new podcast that's not officially launched because it's all on the Patreon. I

0:01:17 Clip: It's a lot of fun having a good time. But

0:01:20 Thomas: It is. And because we're doing it on its own feed, that's allowed me to hire someone to help work out the transcript stuff and get that done ahead of time and manage the workload. It allows me, by the way, to cut back on other stuff to give more time. And that is only possible if we're making it its own kind of show, so why that's happening. And if you want, want to go on patreon.com/gavelpod and access those episodes.

One right now, but there should be more very soon. But I also want to make very clear, in case anyone missed this, that Gavel Gavel, the podcast, will be a free podcast eventually. Just have to, I want to repurpose the coverage we've already done. You know, I want to like obviously launch a proper Gavel Pod thing. I want like actually launch a podcast and have it be its own thing with its own identity.

And then that just takes a little little time, and I didn't want to have a huge delay in the coverage. So I wanted to launch it right away on Patreon. Rest assured, if you are someone who's like, "Ah, I just can't pledge one more thing," totally get it. It will be available for everyone eventually. Toward that, that was always a hundred percent the plan. It's not just something that's going going to live behind a paywall, I promise. Being said, definitely check out Gavel Gavel. We much good testimony coming. Oh, my gosh. Stormy. It's going to be amazing. Episode, Steve Vladek. Can you tell people about Steve Vleadek, Matt?

0:02:32 Clip: Of my favorite Twitter followers, excuse me, let me say that again. One of my favorite Twitter followers.

0:02:39 Thomas: I'm leaving that in. Matt often is like, you know, I go through my and Twitter I I pick my favorites, you know, and I, uh, from time to time, Steve is one of my favorites.

0:02:42 Clip: No, Steve is a very well -known law professor, commentator, and he's the author, of course, of The Shadow Docket, which came out last year, a fantastic book that everyone should read. And he runs a sub stack, One First, which is a great follow as well. And I'm very excited to talk to him this week.

0:03:03 Thomas: We, So funny story behind this, um, people might not have caught. I actually interviewed Steve when that book came out last year, over like a year ago, almost exactly, maybe a little more, Back um. Before I knew that I wasn't going to be able to use that for anything because of the, the legal situation. So I was, it was so depressing because it was this awesome interview that was just sitting there. Now, I released that on Serious Inquiries Only the other week.

So if you want to check out the companion to this, it's over there. Then we recorded with Steve actually a couple of weeks ago, but the gavel gavel stuff delayed it.

So it's kind of like not only did I get to put out that one from a year ago, which was super cool to see how, maybe you Steve's thoughts have evolved or not based on on what's happened in this awful past year of Supreme Court stuff, and now we get to hear the more updated version, all about what we can do to actually fix the Supreme Court, you know, what, it's his taxonomy of court reform, we get a full overview of all those, and you know we argue a little bit about what might be the best direction, and it's exciting, I can't wait to let you all hear it, so without further ado, I don't think we have any other other announcements other than we're back into the old OA format, meaning hang around after the interview for the answer to last episode's T3B bar question. Right, well, after this short break, we'll get to the interview.

0:04:19 Clip: Let's do it.

0:04:23 Thomas: It going, Steve?

0:04:24 Steve: It's going y'all. It's exam season. It is arresting people on campus season. So, you Supreme Court goes crazy season. I don't know. It all the seasons.

0:04:30 Thomas: Well, That's Every season. They made changed that, it's every season now. Steve, although I think they get some time off in, what, the summer, sometime winter.

0:04:37 Steve: Yeah, fair enough. You know, like anything important is going to happen this summer that might invoke the Supreme Court.

0:04:45 Thomas: Yeah.

0:04:47 Matt: Do you even explain the Supreme Court right now to students?

0:04:50 Steve: Shrug emoji? It's a fair question. I really do think that, mean you guys know this is I think a knock on me. I tend to be relatively sort you know, believing in good faith of people and institutions and trying to push my students to resist their more cynical impulses. Least in part so that when the court does things that I think are cynical, we don't just look like the The Boy Who Cried Wolf. So, you know, I try to push my students to figure out where there's just a spectrum of reasonable disagreement and where the court, I think, is truly acting outside the bounds of any reasonable defense. And not all cases that we disagree with, I can fall into that latter category.

0:04:52 Matt: Fair enough. Sure.

0:05:29 Matt: Totally agree with that. Yeah, been called on Realistically Optimistic myself, but are you feeling optimistic after the immunity argument? Just checking.

0:05:35 Steve: No. But for reasons than I think a lot of my fellow progressives, I mean, I think a lot of the media coverage has been a little over amped on the idea that the court is like bending over backwards to accommodate Trump. Think there's a deeper problem. I mean, I wrote about this in my newsletter that I really do think the problem with the argument is best encapsulated in Justice Gorsuch's line that they're writing a rule for the ages.

0:06:05 Matt: Yeah.

0:06:07 Thomas: Such a tool. I'm sorry. I don't know.

0:06:10 Steve: Provides such good material. And In this context, I think it's a revealing line because it really encapsulates, I mean, not just a debate with which you guys are very familiar about whether the court should be handing down broad pronouncements or narrow ones, but also in this case specifically, it really, I thinks, helps us to sort of sharpen the focus on the very real costs of any attempt at a broad rule that says this is okay and this is not okay versus Just deciding on this case as narrowly as possible.

0:06:11 Thomas: Yeah. Yeah, I

0:06:12 Matt: Yeah, it does.

0:06:36 Matt: Yes.

0:06:40 Thomas: Was trying to get a feel for it. And I wouldn't mind another answer. No offense, Matt, but I was I was struggling with this one personally with those oral arguments to understand what was going on. I wouldn't mind a chance to try to understand better. Steve, I could ask you, what would a not insane court have done in this situation? Like, take us through the whole, maybe through the chain of the events, too. I don't know.

0:06:44 Matt: No.

0:07:01 Steve: Going to say, I mean a not insane court might have never granted cert, right? Or at least a court, maybe not insane, a court of a different generation, a court that was less self-assured of its power and sort I think, you know, maybe would have stayed out. The other thing a different court might have done is they might have moved faster.

0:07:04 Matt: Yeah.

0:07:09 Thomas: Hmm. Yeah.

0:07:21 Steve: Know, I mean, we'll see what we ultimately get out of this case. But I mean just if we think historically about the cases where the court, you a political tightrope and we generally look back and think it walked it well, what those those cases tended to have in common was two things, unanimity and very narrow rules. Like Brown versus Board of Ed actually is a pretty modest holding, at least constitutionally, right? The court didn't do any of the hard work of explaining exactly what the problem was with separate primary schools. Know, the Watergate tapes case, right?

Says, oh, well, you know, there's this bizarre reason why these tapes are not all protected by executive privilege. And we'll save all the harder questions about future cases for later. You know, I don't think either of those opinions are models of like analytical brilliance. But I think historically, we view both Brown and Nixon as powerfully positive moments for the court as an institution. And I think, you Know, the court, to me, I mean, the real problem with the immunity argument to me guys, is that it really speaks to a court that's not thinking that way.

0:07:40 Thomas: Yeah. Yeah.

0:08:18 Matt: And

0:08:27 Steve: So, Even if it ends up in what we might think of as a decent place where all or most of the charges against former President Trump can go forward, it's getting there with a fair amount of hubris along the way.

0:08:39 Thomas: And a lot of delay, right?

0:08:39 Matt: A lot of time. Yeah. Jinx.

0:08:40 Steve: Yes, yes. Wrote about And this in my newsletter, that the shorter the opinion, the faster it writes. And whether the court is consciously thinking about timing or is just sort of loosely aware of timing, you anything know, that is going to take longer is going to make the court look worse. Maybe not all of that is fair. I mean, it's not the court's fault that the indictment was brought in this case when it was brought. But the court can't be completely sort of absolved of responsibility for that either.

0:09:09 Thomas: Especially if you think they shouldn't have granted cert. Now, is that just because the the D.C. Circuit opinion you think was was good as it stood or is there some other like procedural thingy that reason

0:09:17 Steve: Mean the DC Circuit opinion has its own flaws. I think Chief Justice Roberts pointed this out during the oral argument that that one of the most important passages of the D.C. Circuit's opinion is actually entirely tautological, right? I don't love the D.C. Circuit's opinion, but, you don't know, like, at a different point in the court's history, the justices might have looked around and said, you kno, do we have to get in the middle of this?

0:09:37 Thomas: Hmm. They're like, we have to get in the middle of this.

0:09:39 Steve: Well, not only do we have to, but, like should, right why I think the Gorsuch line is so perfect because it really, it takes a position in what historically has been a really big debate about the court's role, one where the court has been wary of taking a position. And yet here's Gorsuch saying, yes, we're here to write rules for the ages, except for Roe. That was not a rule for the ages.

0:09:42 Thomas: Yeah. Yeah, we want to undo that for the ages. That's yeah, different reminds me of that. I don't know if it's apocryphal, but that like, you know, when Lincoln died, it was like now he's with the ages or something. Or now I don'T know. It's just so like pompous. But

0:10:02 Steve: Right. Ages. The is a different rule from the rule for the previous ages.

0:10:16 Matt: That's right. We really wanted to have you on to talk about your recent piece on One First, your newsletter, which of course everyone should check out, about sort of a taxonomy and a way of thinking about how we can talk about court reform, because I totally agree that it's gotten muddled and there's a lot of different things kind of flying around when we talk about court reform. And I wanted to start with the competing bills that were filed by Republicans and Democrats to address judge shopping that you started with, because taking a look at both of those bills, you're right, they are very different.

0:10:44 Steve: And I think, worth I stressing where this came from, right? I mean there's been this sort of this growing, at least public awareness of the problem of judge shopping, which is, you know, the ability of litigants basically to choose by by, where they file not just a sort of a friendlier forum where the overall tilt of the bench might be favorable, but actually to literally handpick the specific judge.

0:11:05 Matt: Yeah.

0:11:05 Steve: I think a lot of people became aware of this in the context of the Mifepristone case, which was filed in Amarillo in Texas entirely so it could be heard by, well, I mean, no, I mean it is in lots of, I means, Texas just filed another lawsuit in Amarrillo yesterday. I mean its becoming in some respects the litigation capital of the country.

0:11:23 Matt: Saw that.

0:11:12 Thomas: Well, that is the Mifepristone capital of the country, though. Sorry. Yeah. Yeah, and that's where they get that one guy, right? Right. They just get that. Or is it Kaczmarek? I can't remember. Yeah.

0:11:29 Steve: Yep, yep, It's Judge Kaczmarek. So, you know, I think that this had been brewing for a while, but the the remarkable development that I think really helped to move things along was early last month in early March when the Judicial Conference of the United States, which is the policymaking arm of the federal judiciary, came out with a very unusually strident statement against judge shopping and against the idea that litigants should be able to handpick judges, at least for cases seeking, you know, injunctive relief against state or federal policies.

I'll just say, like, I think that really went a long way toward putting on the wall the debate over judge shopping, which I think to that point had really been, you Know, happening in a very small, self -contained circle of academics. And, you Now, the Judicial Conference, it it did in March was not to change the rules. There's a way it can change the Rules. That wasn't it. And so the the rules haven't necessarily changed, but that really, I think, helped to stir Congress into action. And so we got this one bill from Senator Schumer that would really push for randomized assignment of a whole bunch of lawsuits, no matter where in a particular federal district court they're filed, so that you can draw basically any district judge in that district who's currently here in cases. And then we got this competing bill from Senator McConnell that is, I think, very much designed to be a competing bill.

0:12:28 Matt: Right.

0:13:00 Matt: It's not anything. It doesn't really, I mean, just looking at the way they address judge shopping and how he defines it.

0:13:04 Steve: Well, they don't. I is not meant to pass, right? The McConnell bill is meant to provide talking points so that folks can say the problem is not judge shopping. The problem is actually nationwide injunctions. That, you know, if you were really serious about this problem, Democrats, you would also be moving to curb nationwide injunciations. And because the Schumer bill doesn't, you must just be, you know, hypocrites.

0:13:09 Matt: Right.

0:13:30 Matt: And the real issue, you know, I'm sorry, just to stick on the judge shopping things. I do want to talk about injunctions, of course, but the way that the McConnell bill defines judge shopping is pointed directly at attorneys. It'S not pointed at anything else. And it's just saying if under some imaginary body that could be created by a federal court, they find that an attorney is doing too much judge shopping or is engaged in it, then you can have, I guess, some kind of discipline or you can be not at the federal bar anymore. It's a very strange way to go about it, I thought.

0:13:56 Steve: Well, So, taking that's one case from Alabama, some, you now, progressive civil rights lawyers tried to be a little manipulative in how they filed their cases to try to get it to the particular judges. And using that one example to try and create some nationwide precedent, nevermind the now 38 times that Texas has filed lawsuits against the Biden administration, none of which it has filed in Austin, where Texas state government actually is located. And so in sense, it's typical like, oh, well, look at this one bad thing progressives did that cancels out the hundreds of bad things my side has done. But it also just, it's not, I mean, what's remarkable is the Schumer fix is not ideological. Like the Schomer fix would apply no matter who the plaintiff is and no matter where they're filing their lawsuit. It actually, I think, says a lot about how one -sided the current behavior is that efforts to rein that in are perceived as ideological.

0:14:20 Matt: Sure. And

0:14:31 Thomas: Yeah, yeah. Hey,

0:14:56 Matt: You

0:14:56 Thomas: Can I for the non-lawyers, can we step back? Because I'm not sure we're all keeping up. One, can you dumb it down for us on is how this happening? Is it just that like they're able to file in a specific district that only has one judge. Like what's, what's the thing that they're gaming? I

0:15:10 Steve: Yeah. So let me do this sort of the, the one -on -one version of this. So U federal courts tend to have relatively permissive, what are called venue rules, meaning where is the right place to bring a lawsuit? Like if you have a lawsuit that could be brought in New York or Florida or DC, how do you pick which which one is the correct one. And the federal system's historical response is actually to give plaintiffs a fair amount of latitude. And especially true when plaintiffs are suing the federal government on the theory that, you know, unless it's literally like the local federal officer, if all you're doing is challenging some decision by the whole federal government, you can sue in lots of places to a degree.

0:15:48 Thomas: I guess federal government is everywhere. So yeah. Yeah.

0:15:52 Steve: There are 94 federal district courts. Every Every state has at least one. Some states have as many as four. And then bigger states are further subdivided into what are in some places called divisions and in other places just called courthouses. So Texas, for example, we have four district courts, but within those four district courts are 27 different divisions. And the way it works is the venue rules are only district based. So if the Western District of Texas, where I live, which goes from, guys, El Paso to Austin, it's I think after the District of Alaska, it is the second largest district in the country. If is appropriate in the Western district, then you can file anywhere in the western district. Can file in El Passo. You can pile in Austin. You can pile in, you know, Midland, Odessa. And because are so big, some courts, not all, have cases assigned based on who the local judge is.

0:16:48 Thomas: Okay.

0:16:49 Steve: Right. So if you file in like Waco, Texas, you get the Waco judge. If you file an Amarillo, you got the Amarilo judge. And so what that means is if venue is appropriate in, say, the northern district of Texas, which is, you know, Dallas and Fort Worth and everything north, all the way up to the Oklahoma border, even in the panhandle, then, yeah, you could file in Dallas, but you could also file in Amarillo.

0:17:13 Matt: Get Kaczmarek if you do that, right?

0:17:14 Steve: If you pile in Amorillo, you get Kaczmarek. If you file on Dallas, you'd get any one of 14 different judges, some of whom are, perish the thought, Democrats, right? So, you know, the reality is that the, you know, it's not ideological, but it's also not symmetrical. California doesn't do this, right? Vermont doesn't doing this. And a handful of so -called single judge divisions where the single judge is a Democratic appointee, but it's just not as ideologically aligned where You have, you know, sort of the farthest to the left district judges in single judge divisions in blue states, the way that we have some very, very far to the right district judges in single -judge divisions in red states. And so what that means is you have lawsuits being filed in Amarillo. The Lake Charles division of the Western District of Louisiana is another example where, you know, I don't think it's a surprise that the reason why those cases are being filed there, there has nothing to do with Amarillo or Lake Charles and everything to do with the that you get a 100% chance of drawing a particular judge.

0:17:22 Thomas: Yeah, yeah.

0:17:58 Thomas: And That seems contrary to what fairness or something. There's, it seems like there's some prints that shouldn't be how, how it works, I guess, right? Like, is a design flaw not something anyone would have ever, right?

0:18:30 Steve: That's right. I mean, so if we back up a second, like guys back in the old days, like single forget judge divisions, there used to be single judge districts, right? When The federal courts were smaller and wasn't shocking and that wasn't a huge problem, was an era where you didn't, where two things that are true today weren't true then. One, you didn't have such ideological polarization of the federal bench where, you was likely that a judge in a single judge district would be an ideological outlier. But two, you also didn't have the same effort to have like nationwide litigation concentrated in random parts of the country. You know, part of this is that what started as a bunch of sort of practical accommodations in the name of litigation efficiency and convenience have become exploited as the courts have become more polarized, right?

0:18:30 Thomas: Um. Right. Yeah.

0:19:16 Steve: Right. And so it's sort of it's a combination of polarized courts and nationwide relief that have brought us to this place where now, you know, the Biden administration can't lift a finger without being sued in Amarillo. And where, I mean, to be fair, like the Trump administration got sued all the time in, you or California. Now, guys, I'll say those cases were different. Right.

0:19:32 Thomas: Hawaii. And. Yeah. Yeah.

0:19:37 Steve: The state of Hawaii sues the federal government in Honolulu, I'm not sure what else it was supposed to do. Those cases were randomly assigned, right, among all of the judges who sit in Honolulu. But that's forum shopping. This is sort of forum shopping on crack.

0:19:42 Thomas: Yeah. True on.

0:19:51 Thomas: Steroids. Yeah. So.

0:19:52 Matt: It's actual judge shopping because you know who you're going to get every time.

0:19:56 Thomas: How do the two bills, uh, or not really, tackle this, uh, problem?

0:20:02 Steve: Schumer so the bill tackles it head on. I mean, the Schomer bill basically says we're going to have random assignment of a particular class of cases when you're seeking like nationwide relief against, you policies, when you seek relief against state policies. You know, case has to be randomly assigned among all of the judges currently hearing the new cases in that district.

0:20:21 Thomas: Yeah.

0:20:21 Steve: So in the northern district of Texas, that's like 12 or 13 judges. Actually, it might be 18. It's a lot.

0:20:28 Thomas: Or.

0:20:29 Steve: In New York, it would be like 30 judges. I the Schumer bill is focused on random assignment. The bill is focused not on who the judges are, but on the relief they're granting and is really targeted at limiting the circumstances in which federal courts can issue, whether you want to call it nationwide relief or universal relief, context in which federal courts can issues a rule that bars the federal government from acting, period, right, as opposed to just against those plaintiffs. And, you know, that's a separate conversation. I think nationwide injunctions are a problem, but they're not the problem. And so in that sense, I think the McConnell bill is really trying to shift the focus away from this problem and toward, you issues in the federal courts.

0:21:13 Matt: It does on paper. I mean, he has a section called Preventing Judge Shopping, but it's absolute nonsense when you read it. From what I understand, it would prevent attorneys from being admitted to practice, but doesn't actually discipline them or do anything else. And again, it's just focused on attorneys that bring these and not talking about the practice of judge shopping. So I don't really understand.

0:21:18 Steve: Right.

0:21:31 Steve: Might have seen Judge Jim Ho on the Fifth Circuit has been going around giving a speech where he is defending this behavior. And his speech sounds an awful lot like McConnell's bill in sense that, you know, he says, if you were really worried about this, why aren't you dealing with bankruptcy and patent cases? Aren't we dealing with what happened in Alabama where the lawyers arguably engaged in misconduct? And so the McConnell bill deals with bankruptcy and patent cases and what happened in Alabama and not what's happening in Amarillo or, you Galveston or Lake Charles. So there's an interesting alignment behind this. I mean, you'll have to ask them which is the chicken and which is The Egg. They certainly seem to be swimming in the same direction on this.

0:22:11 Thomas: Is it a a gambit of like, if Trump wins another term and we've limited the ability to do these national injunctions, then that like pays off or something. I just know McConnell, like, there's going to be some evil plan behind it. I don't know.

0:22:20 Steve: Yeah. I think part of it, right? That in a future Republican administration, having Congress limiting nationwide injunctions would be a good thing for the administration. I also think that sometimes takes a theory to beat a theory. Like, you know, once Schumer introduced a bill, I think the pressure was on Republicans to have a counter bill. And, you if they're going to have counter bill that doesn't actually limit judge shopping, it's got to do something.

0:22:45 Matt: I to note too that McConnell, if I'm reading this correctly, the judicial conference thing came out on the 15th of March, and McConnell on the 14th of March, wrote a letter saying explicitly, don't follow this to federal judges.

0:22:58 Steve: So that I conference then came out in a couple steps, there was a news release first, I mean, it was a very strange rollout. I think I was strange only because the judicial confidence doesn't usually make headlines. And so it's normal way for rolling out these kinds of things doesn't usually cause any trouble. Um, so the first thing it did is it had a press conference where it announced that this policy was coming, and then all that folks had to work on, right, for a few days, um, the sort of the press release and what Chief Judge Sutton, who's currently the, I think, the presiding officer, right, what he had to say about it. Um, and so people reacted to the press reliefs and the press conference, conference, policy came out. And it turned out that the policy was a little more modest.

0:22:58 Thomas: Huh?

0:23:03 Matt: This

0:23:39 Thomas: Press conference. That's very weird. Okay.

0:23:42 Matt: Is so indignant, the McConnell letter, and just saying, yeah,

0:23:43 Steve: The indignation of it is, I think, guys, really telling because it suggests that the judicial conference struck a nerve. Probably been one of the more vocal critics of judge shopping for the last couple of years. And the most common response I get from folks is that, you it. Like, this isn't a big deal. You know, you yelling at Democrats to do this? And yet the response since the Judicial Conference has acted has really, I think, underscored that no, not everyone does that. Republicans are doing it.

0:23:51 Matt: Yeah,

0:24:13 Steve: And, when people say, let's have a neutral bipartisan fix, the response is, is, well, that would hurt Republicans. And it's like, well if that's true, what does that tell us about where we are right now?

0:24:20 Thomas: Yeah. I seem to remember something about a baby being split. That kind of reminds me of this. Like, oh, okay. Let's maybe limit this. And Republicans go, no. I think maybe it's benefiting them more it's also the consequences too it's like they're trying to ban you medication that's completely safe for every single person in the country based on nothing whereas I don't know what this alabama thing was man were they trying to stop someone from being discriminated like what I don'T KNOW WHAT HOW BAD COULD THAT BE WHAT'S THAT HORRIBLE EXAMPLE that they use

0:24:26 Steve: Yeah. Right.

0:24:52 Steve: I mean that's, that's so, yes. I guess, I guess back to the broader point though, which is reaction from McConnell and from Judge Ho and from, you -wing commentators who play law professors, really, I think, has underscored just how much this has become a partisan weapon the last five years, certainly in the three years of the Biden administration, and how taking this weapon away would actually harm, in the short term, Republicans a lot more than Democrats. And that might be an accurate statement of the political reality, but if if anything, that only underscores why this is such a problem.

0:24:53 Thomas: Does any of these bills have a chance of passing okay

0:25:31 Steve: No. But, I mean, I think this is probably a good, you of this dovetails with a broader conversation about court reform. Never the first bill that passes. And, you writing about this for a while, I really do think that there's a broader problem of congressional disengagement from oversight of the federal courts in general and the Supreme Court in particular, that even having these bills out there, let alone, say, having hearings on these bills, let alone debating these bills, is a very, very positive and necessary first step toward meaningful reform conversations if and when the political circumstances are slightly more aligned for them.

0:25:33 Thomas: Hmm

0:26:10 Matt: For sure. I'm looking at the Schumer bill. It's so simple, just one easy paragraph. Is there anything you would do to improve it or add? Makes

0:26:14 Steve: Yep, I say, I mean, I think my only concern about the Schumer bill is that it doesn't deal with the problem of very small district courts. In courts like the Northern District of Texas, right, you've got a whole bunch of judges. And so randomized assignment is a good common sense solution. Has two, right? You know, South Dakota, I think has two.

0:26:37 Thomas: But then you'd have to go to Idaho and I think that's a barrier to entry that will probably solve sorry I

0:26:43 Steve: I mean, one might have said the same thing about Amarillo. And yet, no, no. No, the Schumer bill is like 98% of the way there. I just think, you know, I could understand a world in which you wanted to carve out especially small district courts, where there actually might be, you Know, really important reasons why the court wants to not randomize assignment in those cases. It's just that those should be the exception, not the rule.

0:26:46 Thomas: Know yeah so you think this will just kind of shift the places that it is instead of the same you know

0:27:10 Matt: Of course, this has to do a lot with Supreme Court reform in itself, because this is how these cases get there, and this is how the shadow docket becomes what it is, and everything else you've been talking about for years now. It seems like a really important conversation to have, as you said, in Congress. You know, we were very interested in this piece you wrote about the taxonomy of these different court reform proposals. Where does this fit into that taxonomy?

0:27:16 Steve: Yep.

0:27:31 Steve: You think this fits into the sort of the other category because it's really not directed at the Supreme Court. I do think it is. I mean, as you say, it Gorsuch himself has brought this up at oral argument a couple of times in the last couple of months in know in the Idaho transgender medical care emergency application opinion. He talks about the problem of how easy it is now to walk into a preferred forum and get a nationwide injunction. The justices aren't oblivious to this. But I think, to me, like court reform discussions really do fall into a couple different categories. And, this is sort of in the nerdier category. I think a lot of folks start with what, for lack of a better term, we might call the sort of the composition altering, composition changing reforms, like changing who the judges literally are, who are here in these cases. I thought you might.

0:27:36 Matt: Sure.

0:28:14 Thomas: Yeah, I like that. Yes,

0:28:18 Steve: Right. You know, that's obviously where, like, court expansion comes into the conversation. The The folks who seriously think that Congress is going to impeach Justice Thomas. Right. This goes there, too.

0:28:23 Thomas: Absolutely. Okay. I don't think they're going to impeach Justice Thomas. I would like to be on the record.

0:28:32 Steve: Those have in common is those reforms would actually produce a whole lot of immediate effects. But they also have incredibly high political barriers to entry where with the Democratic trifecta, you Know, I'm not sure how achievable they are. This middle category that you might call power limiting, court limiting reforms. So jurisdiction stripping, you know, ratcheting up standards of review so that the court has to find something especially problematic before it strikes down a law. Supermajority requirement, right, for striking down a statute. Statute.

0:29:01 Thomas: Would that last one work? Can Who tell them that they need to change kind of their standard there?

0:29:07 Steve: Yeah. I mean, so, so the big problem, you guys don't miss much, right? The, the, big problem with this category is that these reforms have a walk, this sort of tight rope of efficacy balanced against constitutionality where, so take jurisdiction stripping. Congress has very broad power over the court's jurisdiction, but it's only when it gets to like taking it all the way that we start getting into constitutional questions. So, you know, a statute that says, hey, Supreme Court, you can't take any more cases about the Second Amendment. Don't know. I think that might be unconstitutional. And so in this category, you have reforms that sound good coming off the tongue, but that to be effective would actually probably provoke some pretty serious constitutional questions.

0:29:19 Thomas: Yeah.

0:29:47 Thomas: Yeah. And then who solves those? Is it just the Supreme Court deciding about itself, oof. I do not have much faith in that.

0:29:49 Steve: Right? Yes. Yes, totally. And that's a bit circular. Well, so this is why I you mean, know, spoiler alert, my real sort of focus is on the third category, which, you I think is probably best summarized as accountability enhancing reforms. Are less like immediate in the sense that like we're not changing who's on the court. They're less disruptive in the sense that we're not telling the court, hey, you can't strike down statutes.

What these reforms are sort of more geared toward is building back the relationship that I think, defined the court for much of its first, really, 150 or 200 years, which is that the justices were regularly looking over their shoulder. They handed down decisions, they Were actually thinking about the consequences they would face from Congress. Justice Fortas resigned in 1969, you know, the very last day there was ever a, you know democratic majority on the Supreme Court.

Did it because Earl Warren went to him and said, you've got to do this for the good of the court or else Congress is going to come after us. And, you of those little pushes and pulls, all of Those little levers that Congress used to use to nudge the court, they've stopped pulling. And, You know, guys, my own view is that the biggest single problem with the Supreme Court today is how unaccountable it has become.

And I'm therefore invested in reforms that, that maybe wouldn't be quite as satisfying politically in the short term, but that would go toward making the court a more accountable institution in both the short -term and the long-term.

0:31:19 Matt: I think that's fantastic. I mean, it just, obviously, when we found out very recently that one of our Supreme Court justices is owned by a billionaire, there was not even really any serious talk about impeaching him. Feel I like we really hit a low point there.

0:31:30 Steve: Yeah. And when John Roberts was invited to testify before Congress a year ago and said, obviously, it would raise separation of powers concerns for the chief justice to testify before Congress, well, what all the previous times historically when chief justices testified? Testified. Know, Justice Alito gave a quote to the Wall Street Journal over the summer where he said, you know, no provision in the Constitution gives Congress the power to regulate the Supreme Court, period.

0:31:30 Thomas: Yeah.

0:31:55 Steve: Just not true.

0:31:55 Thomas: It Doesn't sound right. Wow.

0:31:56 Matt: That's not right at all. That's

0:31:57 Steve: I Article 3, Section 2 literally gives Congress the power to make regulations of the Supreme Court's appellate jurisdiction. You know, the Alito quote aside, I mean, I just, I think everywhere you look there are symptoms of a court that doesn't think it has to answer to Congress. Whether it's the justice's personal behavior, whether it's the Major Questions Doctrine, which could not exist in a world in which Congress was regularly pushing back against the court. The budget, I mean, folks think that Congress can't touch the Supreme Court's budget. That's not true at all. The thing the Constitution protects are the justice is salaries. Out that's just 2% of the court's budget, the FY 2024 budget request to Congress was $151 million. Dollars Um,

0:32:35 Thomas: Jeez. Well, they got marketing. What are they, what are they doing?

0:32:43 Steve: It's quite An operation. Um, know, cover leak investigations, um, but the, the

0:32:44 Thomas: Yeah. Not private jets, we're saving the taxpayer money on private jets by

0:32:51 Matt: True. And

0:32:51 Thomas: Yeah.

0:32:51 Steve: Harlan Crow pays for this.

0:32:52 Thomas: Exactly. Yeah, so that's, that, I know it's not that, I'm just saying, hmm.

0:32:52 Steve: Um. But all of these guys, I mean, I think there's just, there's... there's a lot of places where historically the Congress was much, much, much more active in lots of different sort of pushes and pulls to keep the court in line. And Congress has just stopped. And so, you of this that I think folks might not fully appreciate is how small the docket has become.

0:33:15 Thomas: Wow.

0:33:15 Steve: Know, this term, even with all of the crazy, insane cases the court is going to decide before the end of June, it's probably still not going to hit 60 total merits decisions. Going to be the fifth term in a row the court didn't get to 60. Before 2019, the last time the court was deciding so few cases was 1864, right? Stopped taking direct appeals in most criminal cases. It stopped doing criminal procedure, the Fourth Amendment. I mean, talk to circuit judges from across the ideological spectrum, they can all point to circuit splits that they wish the court would take up and resolve. So there are lots of ways in which this court is doing whatever it wants. And Congress could do some pretty basic things to the court not to.

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0:36:50 Matt: Just on the other side of that, uh, the thing you're particularly a particular expertise in, uh, the shadow docket has been growing even as the merits docket is shrinking. What is the size of shadow dockets these days? How, how many decisions are they, we're looking at, sure

0:36:55 Steve: Yep. I volume, it's hard to say because so many of those are just sort of either patently meritless or frivolous applications that get dismissed. But we're still seeing, I mean over the last couple of years, more grants of emergency relief than we had seen historically. We're still seeing more cases where the court, whatever it does with regard to an emergency application, is provoking public dissents than ever before. I mean, we're quite as much as we saw in 2021 and 2022, that was really the high watermark, but still relative to 10 years ago, it's a lot more. And so guys, all this is to say, I don't pretend to have the answers for what the Pareto optimal docket is for the Supreme Court, But it certainly ought to be one that Congress has some role in shaping.

0:37:08 Matt: Sure yeah You've talked about expanding the court's mandatory docket, which seems to fit into this. I was wondering how that would work. Yeah,

0:37:45 Steve: Yeah, I mean, so, I you think a lot of folks don't appreciate, until 1891, the court's entire docket was mandatory.

0:37:54 Thomas: Remember they they used to go and do like murder cases instead of just like criminal trials, didn't they? Or is that a different thing?

0:37:59 Steve: Yep. No, I mean, it was a different thing, but it was related. It was circuit riding. Right.

0:38:02 Thomas: Ah, let's bring that back.

0:38:04 Steve: There's a bill that would, but until 1891, every case the Supreme Court heard, it had to hear. Had no discretion. There was no such thing as certiorari. And, you over the course of the, you know, between 1891 and 1988, Congress gradually tilts the pendulum away from mandatory appeals and toward discretionary appeals. Appeals. So much so that, you this term, know, all but one of the cases the court is hearing is that the justices chose to hear. Last term, it was all but 1. And, you know, one of proposals is, hey, what if the court actually had to hear at least some cases that the Justices didn't want to?

0:38:38 Thomas: So, sorry, what does that mean? How did they have to hear him? And then like, how did Congress, did Congress intentionally do that, change it? Or was it a, well, how? So what is that?

0:38:44 Steve: Yes. Yeah, you know, from 1789 to 1891, the understanding was that the court had literally no discretion over its docket. And so if it had jurisdiction over an appeal and a party filed an appeal, the court had to hear the appeal. Marshall will even write in 1821, to not hear an appeal over which we have jurisdiction would be treason to the constitution. And that great. The problem is that by the 1880s, with the explosion in federal regulation and federal litigation after the Civil War, the court's docket is just a mess.

0:39:16 Thomas: Yeah.

0:39:16 Steve: There's one point, I think, in the mid-1880s where the court has over 1,800 pending cases and is like three and a half years behind on its work. You know, certiorari was envisioned as a way of taking some of the pressure off of the court's docket. And there's a lot to defend it in that respect.

Problem is that I think the pendulum has swung too far in the other direction, where, you know, now that we have basically an entirely discretionary docket, the court has stopped doing basic things that it ought to be be doing. And that includes criminal procedure. That includes cases in which the courts of appeals are clearly and publicly divided and the justices just aren't interested.

And so one of the proposals here would be for Congress to just revise the same statutes that used to require the court to hear certain appeals to require it to hear some more. Category would be cases in which a majority of the active judges of a court of appeals votes to have the Supreme Court hear the appeal.

Let the courts of appeals force some number of cases onto the court's docket, the Supreme Court to hear method of execution challenges that they don't just come up through 11th hour emergency applications. I

0:39:17 Thomas: God. Yeah.

0:40:29 Steve: Know, there are other categories here And guys, the point is not to overwhelm the court. I mean, sorry.

0:40:33 Thomas: Oh, I thought that was the point. I was going to ask what's the most tedious, annoying cases and then load them up on those, yeah.

0:40:39 Steve: Well, want to say there's value in tedious and annoying cases because they force the justices to be judges. They force The Justices to do what judges do, which is slog through complicated law and facts in cases where you're not necessarily goring some social policy ox, right? Just think that the the away from that right in the last 30 years, 1988 is really when Congress gave the court just about complete control over its docket. And I think we've seen since 1988 how the court's docket has skewed ever more and more toward, you divisive national social policy issues and away from judicial workmanship that might, one, paint the court in a better light, but two, also force the court to think a little bit more about its relationship with other branches, including the branch that controls its docket. It.

0:40:45 Thomas: Well, I love that idea. Oh,

0:41:30 Matt: That's something I've been thinking about a long time. Also proposed sort of an inspector general for the courts.

0:41:36 Steve: So this is this is not just me. I mean, people there's have been talking about an article three inspector general for a long time. A couple different reasons. I mean, the lower courts could desperately use one, especially in response to all of the me too stuff we've seen over the last 10 years, where, you know, it's become painfully apparent that there aren't nearly enough protections in place for workplace misconduct and sexual harassment in the federal courts. At the Supreme Court level, common response from the court's defenders is, you can't give anyone power over the justices. Would be unconstitutional. So for example, you cannot have some other body review non -recusal decisions, for example. And I think that's true, but also not the end of the story. Because in my world, an Article 3 inspector general couldn't punish justices, but they could shame them.

Have an Article 3 instructor general whose job it is to monitor the justices' compliance with whatever the applicable procedural, financial, ethical rules are. Then if the justice doesn't comply, maybe you can't punish them, but you can file a public report that says, hey, look over here, right? Justice X, you failed to comply with requirement Y. And I think that would have two really salutary benefits. The first is just the specter of that would presumably push the justices to be much more careful about complying with these rules in advance.

0:42:00 Thomas: Yikes. Only If the inspector general is allowed to drag them on Twitter, I think I think that should be part of the shaming process, yeah, that's

0:43:07 Steve: That's fine. I mean, the inspector general has to have a Twitter account. Guys, second, right, if you really had a justice who was regularly and willfully violating the rules, then the inspector general is basically just building the case for impeachment for the House of Representatives. And, you given know, the inspector general sort of the power to oversee without punishing, I think is a sort of an elegant compromise between the Article three constraints that I think the folks on the right are correct about, and the need for some, you know, transparency and accountability that the folks on the left are completely right about. Like that's how I would split the difference.

0:43:11 Thomas: Right, well, It doesn't sound amazing, but it also doesn't seem like it would hurt. Maybe

0:43:48 Steve: And doesn't that seem like a good place to start in a conversation about what's politically possible?

0:43:53 Thomas: I don't know, it seems you just completely anti-court expansion, yeah.

0:43:58 Steve: I am, although for two very different reasons. I mean, the reasons why I'm anti -expansion, the first is I think it's just a race to the bottom, where if the Democrats do it, say, I mean say somehow the Democrats end up with a trifecta next January. And so they push through a bill to put four more justices on the the court. Well, you know, the Republicans, the next time they're in charge, will repay that in kind. And then the Democrats will do it again.

0:44:22 Thomas: But I don't think that's easy. Easy for one, one, there's so many things that, I mean, I don't know how much we want to do this, because this debate, I think, has been carried out a lot. But I guess I was just curious for your personal opinion on it. But there are so many ways that the Supreme Court has eroded our democracy, that honestly, for one, Ithink it has just illegitimized itself. Not only that, with Roe and with whatever they're about to do on the immunity case, and you know, we'll see. But also there's the idea of it matching the districts, I think, right, or the um circuits yeah, that's what I meant, sorry, yeah.

0:44:32 Steve: Yeah.

0:44:53 Steve: Circus. Yeah, true but I for like 60 years in the 19th century. I mean—so listen, if are of the view that the court is already lost, then I totally understand the argument that we shouldn't care about the long term—that if anything, that's a feature, not a bug, right? That would only reveal the court to be a purely, font of partisan political power, right? That that's only a good thing. I guess I haven't given up yet, which is why I still think, you know, the court's legitimacy is something worth fighting for. Guys, there's a second reason why I'm anti -expansion. And this, I think, dovetails more with our conversation, which ist, you even if expanding the court were politically viable and would not have those destructive long-term effects, all that does is it changes who's on the court. It doesn't make the court more accountable. I

0:45:00 Thomas: True. All right.

0:45:36 Steve: Mean, you can have unaccountable Democratic appointees just as much as you can unaccoutable Republican appointees.

0:45:40 Thomas: Awesome, this is great, this keeps getting better and better. No, I'm kidding, I, yeah. I mean, that's, I think that's a separate problem, well, not separate, but like, I think we're going down two different roads. There's one thing to be like, are you accountable for you jet reasons, or are you accountable for just ruining the state of our law by repealing decades -old precedent and that kind of thing. And know, like, I think that be a separate issue, and I would still, I feel like you could still do expansion plus many of the other reforms you're talking about that are more toward the ethics accountability.

0:45:42 Steve: Well, right. But you see the point.

0:46:09 Steve: Maybe I'll just say that I think, you mean I wouldn't do expansion without the others. Right. Because if you if you really believe as I do, that the central problem with the Supreme Court today is not that it has six Republican appointee's, but rather that the court in general has become completely unaccounterable as an institution, then all we get from expansion is maybe a period in which there are justices who are more likely to police themselves, right? I would prefer in the long term, a solution that actually makes the court as an institution more accountable to the other institutions. And you don't do that by changing who the justices are. You do that by having Congress reassert the role it played historically in lots of different ways, in overseeing the work of the court, in regulating the work of the court in pushing back against the work of the Court. And those reforms, whatever their political feasibility, I think are much more likely to produce a stable long-term fix for what I really think is ailing the court today.

0:47:04 Matt: That makes a lot of sense, certainly. You've got to do the holistic approach. I did want to Ask just because it was in the news so much in 2020, as I'm sure you were as excited as I was, that we were talking about Supreme Court reform at all in the election. Think it was Pete Buttigieg that backed this idea from Professors Ganesh Siddharaman and Daniel Epps to have a total of 15 justices.

0:47:22 Steve: Yep.

0:47:22 Matt: Where were you on that?

0:47:23 Steve: Have been consistently anti -expansion of kinds for the two reasons we've talked about. You know, I it's why folks want to do it. I understand the logistical arguments you can make in favor of it. Think just it be so fraught to me politically, and I think it would be solving the wrong problem.

0:47:26 Matt: Of all kinds. Okay. Sure. And it's constitutionally impossible, I believe, that what he was proposing. Opposing. And it was also very strange.

0:47:45 Thomas: Really? What's the difference between that and the court expansion?

0:47:48 Matt: Oh, this one would it would have been five Republicans and five Democrats, which first of all, I'm not sure how that's going to work. And then those 10 people pick five more judges, right?

0:47:51 Steve: Yep. Yep. We'd pick five more. Yep. Yep.

0:47:52 Thomas: Yeah. Yeah.

0:47:56 Matt: Which just isn't constitutional.

0:47:57 Steve: Which the appointments clause.

0:48:00 Matt: Right. Just can't do it. I mean, it's an interesting thought experiment.

0:48:01 Thomas: That sounds dumb. Them.

0:48:02 Matt: Yeah. I'm going to, it was interesting to see people talk about it. But I didn't really support it, but I was just excited that somebody, and I didn't support Pete Buttigieg, but he put it pretty much in the middle of his campaign. Vein. It's fun to see somebody talking about it.

0:48:11 Steve: No, thing that's clear is that all this talk about how to reform the Supreme Court is a good thing. We basically all fell asleep for 30 years when it came to talking about Supreme Court reform. And there a brief moment after Bush versus Gore where it flared back up and then it went back away. And we had been lucky for a long period of time to have a run of centrist Republican justices with, we may not agree on much, but who at least kept the court relatively in line.

0:48:17 Matt: Yeah.

0:48:38 Thomas: Okay, there you go. I want to make this point. Said in it would change who's on the court, not the, know, you accountability kind of thing. And I'm wondering if that's just the same thing. Like, is it just the people who are on the court that made it unaccountable? Like, is the reason, and it's kind of to the point you just made. I mean, maybe that would change it, because we started the discussion with how there are two things that have changed since the district shopping thing, you know, like it didn't used to be a problem but then these two things changed and it was a problem and I think that it's not exactly the same thing because we're not talking about the Supreme Court, but it's another example of the rules didn't necessarily change, the did and they, they exploited the rules. So do you think there's any sense in which fixing who's on the court actually does fix the court?

0:49:24 Steve: No.

0:49:24 Thomas: What

0:49:25 Steve: I a Band think -Aid. I one, presupposes that whoever you add to the court will be justices who care about accountability, as opposed to justices as far to the left as the current majority is to the right. Might overlap, but they may not, right? Second, I mean again, I don't think the court was accountable accountable in the, you Stewart, Lewis, Powell, Sondra Day, O 'Connor, Anthony Kennedy era. I think we just didn't notice that it wasn't because those justices' behavior had a sufficient internal moderating effect on their colleagues. Didn't make the court more accountable. It just made the symptoms of its unaccountability less visible.

0:50:05 Thomas: Does it mean to be accountable then? What, what does that actually mean? Cause Cause like for a lot of these examples, you've talked about like the inspector general, for example, that, inspector general doesn't have the power to actually do anything.

0:50:12 Steve: Yeah. Yeah. So me. Right. And this is not some universally accepted definition to me, a court that's accountable is a court that is it's handing down decisions, when it's acting, when it's thinking about acting, thinking about how it is structuring its relationship with the other branches of government. And, you for 30 or 40 years, the court handed down decisions not necessarily thinking about how it was structured with relationships with government, but how to structure its relationships with the media and justices. And those are not the same thing, And so whether this is good enough for Sondra Day O 'Connor is not the same thing as whether this was good enough for the separation of powers between the court and Congress. And, you I think the problem is that we, and I mean law professors, those who write about the the court, you sort of failed to draw that distinction so that it took, you retirement. It took, a where the median justice is some combination of Brett Kavanaugh, John Roberts, or Amy Coney Barrett to actually finally see all of this. But now that we see it, we shouldn't deny that that's what it is.

0:50:45 Thomas: I- The underlying point I'm trying to make is that short of impeachment, there isn't really anything that's like a mandatory, we are making the court be better, and

0:51:25 Steve: Just, I, I disagree because

0:51:26 Thomas: So yeah, why am I, why am I wrong about that? Well,

0:51:28 Steve: Historically, right, the, so only one justice has been impeached and he wasn't removed, right? Yet the court was held accountable through threats to its docket, through threats to its budget, through circuit riding, through Congress dangling the justices' pensions over their heads, something it did regularly until 1937. Right, was that Congress used all kinds of carrots and sticks as a way of keeping the court from getting too far out of kilter with what the democratically elected branches wanted. And, you know, it wasn't always perfect, everyone mistakes along the way, but at least compared to where we are today, that was, I think, much healthier than a world in which the justices are acting on a daily basis as if they couldn't care less what Congress thinks and they couldn't care less what the American people think. And that's where I think we run off the rails, no matter who the justices are who care less.

0:52:20 Thomas: Okay, I guess, so to try to make the point, I think you could still make the same argument that those that were band-aids, I, let's say you get this inspector general thing, the minute the, the culture changes and the people on the court go, "Hey, look at this joke, inspector general, no one cares about that," well, all of a sudden now that's nothing, like, like these things that seem like they might be more permanent.

I'm just wondering, I guess the challenge trying to make, I don't know if right, this, but I'm putting it to you, is how much of that is really true, and how much, if it is, it's all band-aids in a way.

And I don't know that the court expansion, I guess my opinion would be that things have gotten so immediately bad that court expansion is not like the one and all solution to it, but it may be just a necessary, almost like, I don't know, to use a horrible example, like sometimes you have to amputate, you, that doesn't mean like, oh, that fixed every problem in this body, you know, but but it feels like it has gotten that bad to where I'm not just looking at accountability and ethics, which is definitely a concern.

And I'm looking at the fact that they've like ruined the state of our law in many ways and they've ruined our democracy in many ways. They've taken away choice. Like there's so many things that I think need immediately to be undone.

0:53:24 Steve: I am all for amputation when the only way to save the life. Am very much against unnecessary amputations, as we all should be.

0:53:33 Thomas: I'm for it. All right.

0:53:34 Steve: No. And so I think, guys, the debate is and has to be, have that point or not? And I guess yes, I'll just say it would be a lot easier to persuade you centrist Democrats who care about the court as an institution that we've reached the point of extreme measures. If you try the less extreme stuff first, if you, you to restore some of the historical levers that they were bandaged or not had the effect of keeping the court in, you know, much better check and if those fail, then you go for the jugular versus going right for the juggler. Like, it seems to me that, like, we, you to be able to agree that we should try first to see if the institution can be salvaged before we fundamentally alter what it is.

0:54:18 Matt: I think I agree with that, but I'd also add that in 1937, it made quite a difference when FDR was threatening to do it. I mean, they did actually change their minds just by putting the thought out there.

0:54:24 Steve: Yep. But that's the point, right? Which is, they didn't have to do anything. It was, you know, the Court was looking over its shoulder. It was worried about Congress. And so, you a world in which the court is worried about Congress is a world in which a lot of good things might happen without Congress ever doing anything.

0:54:30 Matt: Right.

0:54:41 Thomas: Well, thank you for being so generous with your time. Seriously, it's a pleasure, Steve. I appreciate the back and forth. This was very educational. And thanks so much for coming on the show. Show. Oh, one more time. Do you want to plug the stuff that people should go check out the newsletter, all that?

0:54:49 Matt: Yeah, great talk, Adam.

0:54:53 Steve: Sure. Yeah, so I mean, I write a twice a week newsletter called One First, a very unclever play on the Supreme Court's physical address, which you can find on Substack at stevevladeck.substack.com. And my publisher would kill me if I did not note that the brand new paperback version of The Shadow Docket is coming out on May 21st with a brand new preface about all the stuff the Supreme Court has gotten wrong lately.

0:55:16 Matt: That is mandatory reading for anybody listening to this show. That's such a good book.

0:55:19 Steve: Thanks. Well, it's great to be with you guys. I really appreciate it.

0:55:22 Thomas: Thank you so much.

0:55:22 Matt: Thank you.

0:55:23 Steve: Thanks, guys.

0:55:24 Clip: I just know, that you are gonna kick that bar's butt, out of here, you know, No.

0:55:30 Thomas: Right, Matt, it is time for the Answer to Last Episode's Bar Question. This is question 23. we need to hear the answer to 23. Remind us, what were we trying to answer? What happened? What bizarre set of facts happened in the last week that we need to answer.

0:55:45 Clip: This time we're looking at a question involving a famous violinist who signed a contract with a symphony, and she finds herself unable to perform, and she delegates her performance duties to a protege named Lisa, who is someone of equal skill and reputation, but the symphony is refusing to accept Lisa's performance. So if Lisa sues, is she likely to succeed for breach of contract? Options were A, legitimately unable to to perform. B, yes, because Lisa has equal skill and reputation. No, because a contract for personal services cannot be delegated. D, no, because Rebecca did not fulfill her contractual obligation. And I did announce last week that we're playing under Charlie Daniel's Devil Went Down to Georgia rules, which means that I have here a fiddle made of gold. And on the other side of this equation is your eternal soul. You picked C, no, because they contract for personal services cannot be delegated.

0:55:48 Thomas: Wow.

0:56:33 Thomas: Don't know if I want to bet my soul on a bar question. I think I would do something.

0:56:36 Clip: Late. Sorry.

0:56:37 Thomas: No. Okay. Yeah. I guess binding contract. That's how it works. Don't remember signing it, but yeah, sure.

0:56:40 Clip: Yeah, no, I think consideration's been put down and everybody heard it. It was on record. Your soul is on the line. But yeah, so let's get into it.

0:56:45 Thomas: Wow, geez. Good thing I don'T believe in souls. Otherwise, I'd be really nervous right now.

0:56:53 Clip: Yeah, well, we'll see how you did. Question comes down to, is it okay to substitute someone for a musical performance, to substitute in another performer of equal skill and reputation? And

0:57:03 Thomas: Yeah, of interesting stuff going on here because it took me through three quarters of the question to realize, oh, wait, Lisa's the one suing. So So Rebecca is the famous violinist. We'll say Rebecca is Taylor And then Taylor Swift is sick and is like, ah, I'll get my friend, name one other current musician. Shit.

0:57:22 Clip: I guess I don't know.

0:57:23 Thomas: Yeah, Beyonce. I'll give my friend Beyonce to fill in. And then for some reason, I mean, that kind of works. It is different music, but also skill and reputation, sure. Sure. And so whoever this I guess the equivalent like venue is or whatever, maybe it's the MTV Music Awards. I don't know. They're like, no, I'm not doing it. We wanted T -Swift and we're not going to accept Beyonce. Now, that's crazy in my view. I would go the other way around, but that's just me. Then the weird part is then Beyonce sues and is like, hey, wait a minute. I think you should like I do believe I'm in this contract and you should pay. That was a weird thing that maybe wasn't weird to you as a lawyer. I don't know. But to me, that was weird. It's like, I think of Rebecca as the one. So I think if the Taylor Swift in that example is like, yeah, you need to accept that I'm changing this to be Beyonce. You know, it's weird that Beyonce is the one suing.

0:57:23 Clip: Sure. Huge. Sure. Yeah.

0:58:16 Clip: It is a little, but there are some contracts where you can delegate. Uh, the question is, is playing the violin with a symphony something you can delegate? That's really what this comes down to. And

0:58:24 Thomas: Well, tell us about what, okay, here's is a surprise to me. If And not to me because, you know, I'm a seasoned T3B professional, a lot of people might be like, what? What? You can just delegate someone to finish. So what's a normal delegation? Just what is that concept and how does it work normally?

0:58:38 Clip: It's not the same as assignment, which is when you're transferring contractual rights. It's just when you transfer the responsibility and authority for performing a duty from one party to another, if that makes sense. So there are times when you can do that, but they're not times that involve this kind of particular skill. If I, for example, in my office, I have in my contracts, you're contracting with my office. There are three partners in my Office. And if I'm unable to show up to court for you one day because I'm sick or on vacation or whatever, you might end up with getting Nicole Mischeroni, who is an excellent attorney and at least as good as I am and better in many respects. So it's not a bad deal. But you're not necessarily making a contract with me. I can delegate to Nicole under the terms of that contract, and I'm not reassigning it. It's just you're making a contract with all of us, potentially. That's a little different because lawyers are a little more interchangeable. We don't want to admit it necessarily, but we're

0:58:53 Thomas: Yeah. Okay.

0:59:22 Thomas: Look, we all rip off people for vast sums of money. We all are generally equal at doing that. Some might rip you off a little more. Some might rip off a lot less. Now, is that because that's specifically written into your contract? That's the trick with this bar stuff. It's always like the common law, multi -state, whatever. So it the default that you could do that or the default that you couldn't do that?

0:59:27 Clip: That's right. Can... Sure, sure.

0:59:44 Clip: Think the default for most kinds of work is that you could do that. You think about subcontractors and all the different ways that you can delegate responsibilities within a contract.

0:59:47 Thomas: Okay. And, but here's the key. I guess when I say can or can't do that, can the other party complain? Like, that's the part I'm not of. So, if I have just a basic contract, you deliver me some, you know, 50 eggs. Eggs. It's like if you somehow sub in or if it's whatever the work is, you're going to build a something for me. And it's like, ah, I hurt my arm. So this person's doing it. Can the other person, I think that's the key to this question. When does the other party get to say no? Or if the the default is that you can do it, does that mean the default ist they have to just accept that there's nothing they can do?

1:00:25 Clip: For things that are not personal services, that's really what it comes down to for this question. So personal services of course being something specific to the actual person, and in this case they wanted Rebecca, this famous violinist, they didn't want her sidekick. That's what this is. I contract with you to build a wall and you get somebody else to do it and take my money and subcontract with them, I can't really complain as long as the wall gets built.

1:00:47 Thomas: Okay. Mean, that is important to know. You would think that it would be like, "Oh no, I get to say like, 'Hey, this wasn't what I agreed to,'" but no, I guess not. We had the two yes answers and the two no answers, um, I think you've tipped us off to what it's going to be, but let's just see, you never know with these questions, there's sometimes, sometimes dastardly technicality. A was yes, because Rebecca was legitimately unable to perform. Now, that's question doesn't really turn on that, it sounds like, let because me ask you at this. If this, this were something you could delegate, does it really matter whether or not Rebecca could have performed the contract? Like, let's pretend it's, you know, not this, but like something else. Does that part matter? Or is it like you can do it for any reason you want?

1:01:24 Clip: No, I think you can delegate as long as you get the job done.

1:01:26 Thomas: Interesting. So, even in a delegatable contract, A wouldn't really be a good answer because it's like, yeah, it doesn't really turn on whether or Not she was legitimately able to to perform.

1:01:35 Clip: Yeah, right. It just makes it more sympathetic in this case.

1:01:37 Thomas: Sure, sure. Then B, yes, because Lisa equal skill and reputation. Now we already know you can't delegate do, a personal services contract. What are the requirements when you can delegate? It's just that it has to be done to, I assume that's that kind of standard. Like it's got to be basically done to the same quality that you would have had done otherwise.

1:01:54 Clip: To the terms of the contract, yeah, as long you made it.

1:01:56 Thomas: It does make sense that like, okay, the The contract says you need to perform this measure with gusto. It's like it would be hard to like evaluate. It makes sense that you can't delegate for personal services because that would be a hard thing to evaluate. Like, do even hold someone to that? You know, it's so subjective. I chose C, which was the no nonsense. You can't personal services in a contract. And then the last one was, let's see, D, no, because Rebecca did not fulfill her contractual obligation.

Now, I I guess the final complicating factor that I'd be worried about would be the fact that Lisa is suing, so is that normally how it works? Because, OK, you talked about your law firm, but that's kind of a little bit different because you're forming a contract or someone, a client is forming contract with like your whole firm.

This is like if someone just had a contract with you personally and you were sick, like let's say you're just you and your firm and you have some friend who has a firm and your client is like, hey, you do this. Um, that person is like, hey, I'm ready to do the law work for you, and your client is like, no, that person be the one to sue. Okay.

1:02:03 Clip: Right.

1:03:00 Clip: A little more questionable about law, but I think potentially they could, because that is actually something that could be delegated. If it's just a court appearance, if it's something simple, if it is like a full trial, maybe not. But if it just like a routine thing that I just can't do that day, a little more unquestionable. But I think that if we're talking of something simpler, like actually building something, as a lot of contracts are, I think at that point, the other person might have a claim there.

1:03:06 Thomas: Okay.

1:03:17 Thomas: That's Matt, you have have already teased us, and I get it because it's kind of hard to answer without without revealing the fact that personal services can't be delegated, granted, but I'm looking at the two no answers and I'm thinking there's a chance that if Lisa is suing instead of Rebecca, the bar could be really trying to trick us with like, if D, for example, let's say take D, no, because Rebecca did not fulfill her contractual obligation, is there anything there where it's like, ah, actually, the the problem is Lisa is suing and not Rebecca, like Rebecca should be the one suing, or anything around that? Or is it just plain old, no, because my answer C, no, because a contract for personal services cannot be delegated?

1:04:02 Clip: I think it is really more about it's between Rebecca and the symphony, and at this point Rebecca has an impossibility defense if the symophony tried to come after her and say that she'd breach her contract. But Lisa's not really part of that, about whether or not Rebecca fulfilled her obligation. The fact is that Rebecca tried to do something to fulfill her obligation that was just not legally possible. That's what it comes down to.

1:04:21 Thomas: And I guess if the question is just asking, will Lisa succeed? Guess that doesn't even really answer what's going to happen to Rebecca. But if Lisa is just trying to say, hey, give me this work, I should be able to do this work because I've been delegated. Then yeah, I guess if the symphony says no, then I guess that's the reason. And that, that trumps everything else. All right. Well then Matt, I'm, it sounds like maybe I got this one.

1:04:36 Clip: That said, I think your eternal soul is safe this week.

1:04:43 Thomas: Wow. All Right. Well, in addition to anger lessons, I got to book Matt some excitement lessons. Uh, but it's, I get it. A random idiot on the internet, getting the bar question right is not super exciting, but that's where those lessons will really come in. Fake it it until you make it. Okay.

1:05:01 Clip: Just sorry that I have to part with this fiddle made of gold, but that's why I wasn't too excited. That side, I'll FedEx it.

1:05:03 Thomas: Yeah. Yeah, oh, wait, as in I get it? Okay, cool.

1:05:07 Clip: Yeah, that works.

1:05:08 Thomas: Nice. I don't play it. I guess I'll just keep it, keep the, melt it down.

1:05:12 Clip: Looks good on the the wall yeah it's

1:05:14 Thomas: Yeah I puts me me at 12 out of 19 and 63%. So, you know, going strong. I think if I can hold above 60, I'm feeling pretty good. We'll see how long that lasts. All right. Well, now we've got to pick our big winner for this week's T3BE. So, we've got a lot of places to choose from. We got Reddit. We got Patreon.

1:05:21 Clip: I have faith I Professional musicians answer on Facebook and coming from their own professional experience. Winner was John Whitener, says, "Not a liar, but I am a full-time contracted orchestra musician. It has to be a no answer. And I'm going with C," from the fact that musicians picking their own replacements would not only be completely unfair to all of the other qualified musicians that could do the same job, but just happen not to know the person, as well as to be unfair to the other musicians in the orchestra who had no say in who they get to play with. A musician under contract from an orchestra cannot also be a subcontractor in control of their own position. So there you go, straight from a professional.

1:05:49 Thomas: Wow.

1:06:03 Thomas: That's really interesting.

1:06:04 Clip: An answer from Facebook, from the Opening Arguments Community Facebook group.

1:06:08 Thomas: Excellent. Yeah, play there. And then we used to have, you question that only patrons could answer. But since we're back to the old format, I want to make sure we always pick a patron answer as well, assuming we have, someone who got it right. The way you can play that, I should have been more explicit. Patrons, if you want to play, just pop that answer on this, episode has the question. So that did have a couple answers and I'm going to pick David Back's Spino Breaker T3BEC. Same reasoning, but I feel like I can see that whole scenario being fixed with a phone call in advance. Yeah.

1:06:36 Clip: It's true.

1:06:37 Thomas: The part where you try to like sub in someone really quick rather than just being like, like, Hey, is it okay if we do this?

1:06:43 Clip: Would you like a new contract?

1:06:44 Thomas: Yeah. Yeah. So congratulations patron David back spinal breaker. And again, patrons we'll, we'll pick a patron winner each week as well. Now that we only have one question. So make sure to play along in the enclosure for it'll be Thursday night's episode.

1:06:45 Clip: Yeah. Yeah.

1:06:58 Clip: And thank you, Let's go!

1:06:59 Thomas: Now it's new patron Tuesday. So I'm now that I'm free and clear on OA, I'm going to try to catch up on new patrons. I know it sounds ridiculous, but I'm going to do it, But we're just going to tackle, you know, some at a time until we catch up. And starting from when I took back over the show. Here's one I got to thank Lydia Smith. Wow. Thanks.

1:07:18 Clip: She sounds cool.

1:07:19 Thomas: Yeah, she does sound cool. Hey, you single or Lydia Smith? Call me. Me. Austin Flake, Cameron Jackson, Steven Jasisek, Anna Hartman, Dan Dryer, Shad Riley, Dominic Palastro, Noah Calloway, Brooke Dell, Nicholas Alcoff, Neil Fowler, Matt Cameron. Oh, is he single?

1:07:39 Clip: The drummer from Pearl Jam?

1:07:39 Thomas: Yeah. Awesome.

1:07:40 Clip: What?

1:07:42 Thomas: Thanks, Matt, Jessica, Hannah, William McCray, Isaac, Alex Brown, Kevin Branch, Branch, Marsha Vaden, Michael Singer, Will Ellie, Aegis Rend. I am a philosophical hole. And Ray. Thanks so much, new patrons. Like I said, I'm going to go. I'm just going to goes back from there. I'll keep carrying it on each week because we skipped new patron Tuesday for a while because of the weirdness of the status of the show, but I'm going to catch up. I'm doing it. So patreon.com/law. think returning patrons, by the way, it might not say they were new. So sorry, I, you got your new thanks whenever you originally patronized us. I that's the show, Matt. I love this new format. I'm looking forward to rapid response Friday. I know we have a lot to talk about. Holy moly.

1:08:26 Clip: So much law is happening. Much lot.

1:08:28 Thomas: A Of law, and in the meantime, if you want to find more law, get on that Gavel Gavel, patreon.com/gavelpod, and hopefully we'll have new episodes, uh, we'll have episodes in that feed for everybody soon, but so much for listening, thanks Matt, we'll see you next time.

1:08:41 Clip: Okay. This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

1:08:59 Steve: Don't miss much, right?