How the 5th Circuit Won by Losing, with Steve Vladeck

Transcript

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

0:00:02 Clip: Well, when the president does it, that means that it is not illegal.

0:00:18 Clip: What's my crime? I got bold? And a little negligent? Nope!

0:00:26 Clip: Bailiffs are coming to take away my will to live. Well, one count of being a bear, and one count of being an accessory to being a bare. This is a free court!

0:00:45 Thomas: And welcome to Opening Arguments. This is episode 1071. I'm your host Thomas Smith and I'll be heading on over to co -host Matt Cameron and our special guest coming back to the show for a, I don't know, fourth time. It's been a lot, but never enough. Law Professor Steve Vladeck and when Steve Vladeck is here, you know, we're going to be talking Supreme Court, going to cover a few things with Steve, do a brief tour around some recent Neil Gorsuch lies, going to revisit SB4 some things, but most importantly we're gonna talk Fifth Circuit and how the Fifth Circuit has won by losing. The fact that the Supreme Court reversed all but three of the eleven cases it took up from the Fifth Circuit. Should that make us feel better? We feel great about that? Hey, they reversed all but three. Or maybe there's a more accurate way of looking at it. So wait to get to the breakdown with Matt and Steve. Not before we take a quick break, during you can avoid at patreon.com/law. you liked the show, if you like interviews like this. You learn something, which I definitely do every time, please consider supporting the show at patreon.com/law. You get to lose the ads and you get some other goodies. Right. Let's hop on with Matt and with Steve Vladeck after

0:01:55 Thomas: Welcome back to the show. Steve Vladeck, such an honor to have you again. How are you doing?

0:02:00 Steve: Good, guys. I keep thinking that I'm going to wear out my welcome, and you're nice enough to keep inviting me back, so thank you.

0:02:06 Thomas: Truly Truly never. Come third host of the show, Steve Vladeck. I think he just talked himself into it. No, I'm just kidding.

0:02:06 Matt: Not at all. I get to hear from you all the time because I'm a subscriber to one first, as everyone listening should be.

0:02:16 Steve: I'm really sorry. Sorry.

0:02:16 Thomas: Same.

0:02:18 Matt: I love it, it's one of my favorite things that I receive.

0:02:20 Steve: Neil Gorsuch is a subscriber, though.

0:02:22 Matt: I hope not. Well,

0:02:23 Thomas: Is he? I don't know. I

0:02:24 Matt: So, just this week you wrote about, I wanted to just, let's just get into it, because on this show one of our favorite things to talk about recently has been Neil Gorsuch's very complicated relationship with the truth. It's kind of a non -monogamous relationship, I think, with

0:02:34 Thomas: Don't find it complicated, man.

0:02:36 Matt: It's true. It's just he doesn't tell it that often, it seems like, anymore.

0:02:39 Thomas: Yeah, pretty simple.

0:02:40 Matt: So, you're responding, I just want to give you a chance to talk about this before we get into our main topic. You're responding to something his court is saying at the Tenth Circuit Conference last week, where he was talking about why the court doesn't have so many cases anymore. Just read so the listeners know what we're responding too. It had something to do with the pandemic, and some lower courts were closed for long periods of time, and perhaps there's a backlog. Maybe it has something to do with appellate waivers and criminal cases. I don't know. Maybe that has something do with the rise of technology, which makes it all so much easier for us to know if there's circuit split. But it does seem to me that if lawyers want our court to take more cases, perhaps they need to file more petitions. Where's the lie, Steve?

0:03:14 Steve: Well, First, I like the idea that before the internet, they couldn't tell if there were circuit splits. I I mean, if there was some way that lawyers could tell us that there was a division of authority in lower courts without emailing it to us.

0:03:21 Matt: Way to track it.

0:03:30 Steve: Really tricky here is that a lot of what he says first sounds plausible and second actually is superficially correct, right? Overall number of appeals that are being filed at the The Supreme Court is actually down fairly substantially just in the last couple of years. So if you just sort of looked at how many cases the justices are deciding after agreeing to hear them, after having oral argument, you know, after doing the full nine yards and map that on to the total number of cases the court's hearing, you'd see at least a pretty loose correlation. Tribulation, think Justice Gorsuch is a little over his skis is that decline in appeals is coming from. So, you know, you guys know this. I'm not sure the typical listener knows this, but the Supreme Court really divides its docket into two categories, one of which it calls paid and of it calls IFP or informa pauperis. Just to sort of really quickly shorthanded. IFP cases are cases that are exempt from the requirement that the appellant or the petitioner pay the court's substantial multi -hundred dollar filing fee. Also, this might sound really nerdy, but also exempts them from having to file their briefs in the super fancy, expensive format that the Supreme Court requires everybody else to use. The flip side is that

0:04:49 Steve: IFP cases.

0:04:49 Thomas: Hold on. You got to tell me something about that format. What are we doing? What kind of fonts are we talking like just that the the rest of us have never heard of the lowly proletariat has never heard of do

0:04:58 Steve: They're not picky about fonts. They're picky about booklets. If you are a paid litigant, the Supreme court makes you file not just electronically, because you know, it's the 21st century, but you have to file 40 hard copies of just about everything in these very, very tidy, neat little booklets that I'll just say the typical person at home with their printer lacks the ability to produce. The result is that actually, you know, to file a cert petition, even if you do it on the cheap, really costs probably at least $850 or $900 if you're going to engage, even you the most, I Costco -like printer. That is, I think, in some cases, a barrier to entry for some folks. That's why the IFP side of the docket exists, right? Which is there are people who have have a right to appeal but don't necessarily have the means to pay the filing fee or the fancy booklet preparation expenses. Problem is that the court almost never takes cases from the IFP docket. That's been especially true since Justice Kennedy retired in 2018. Just to take one data point, I the recent terms, it might have been 2020 or 2021, the paid Paid cases represented about 34, 35 percent of the total number of appeals, but 96 percent of the cases the court took. So, you know, if you actually break apart the paid docket from the IFP docket, the paid docket is the source of the overwhelming majority of the cases that justices hear. And the reason why that's important is because the part of the court's sort total number of appeals that has really fallen off of a cliff in the last five or six years is the IFP docket, where, know, you for various reasons, the court is receiving far fewer petitions from criminal defendants who are represented only by court -appointed counsel or by, you knows, state or federal prisoners who might not even be represented by anybody and are proceeding pro se, or the rare civil litigant who can't afford a lawyer or to pay for their petition. Justice Gorsuch says, hey, we're deciding fewer cases because we're getting fewer appeals, doesn't really seem to track if most of the fewer appeals are the cases they weren't taking in the first place. Instead, if you actually look, and this is what I did in my newsletter on Monday, ifyou look at the number of paid appeals that the court is receiving each year, that number has gone down a bit in the last couple of years, But the overall trend line since about 2002 is actually pretty flat.

0:07:23 Thomas: They track the ones that are delivered via private jet like the billionaire private jet paid formatting

0:07:26 Steve: The court has not yet created a category for, you while on a yacht.

0:07:34 Matt: SCOTUS Platinum.

0:07:35 Steve: Exactly. I mean, there's knowledge, there is no like special access code to the clerk's office. But I mean guys, the larger point here, right, is that like, Gorsuch you says something that is, at least in a superficial sense, entirely accurate, but completely misleading when you actually look much more closely at the data. And, you know, when you look at the paid docket, which is where almost all of the court's cases come from, and the fact that that docket has stayed mostly flat with like a little bit of a negative slope in the last few years, it's just not explaining why, you you know, the court all of a sudden is deciding only 55 to 60 cases per term, when, you know 10 or 15 years ago, that number was still in the mid 70s.

0:08:15 Matt: Just to make the point explicitly, this docket is some of the greatest war in court you know lefty decisions of course you know things like gideon and miranda right came from this kind of thing where people didn't have attorneys or uh had court -appointed counsel uh oh

0:08:26 Steve: There's a whole sort of separate conversation to have about the decline of the IFP docket and the disappearance of, you know, a meaningful number of cases. I mean, you partial defense of the court, it's also true that the IFP docket tends to have a higher percentage of frivolous appeals than the paid docket. And so there is, you know, there is a little more of a bit of a needle in the haystack problem on the IFP docket, you the IFB docket has fallen off the table and why the court has taken fewer IFP cases, I think is an interesting conversation in its own right. Just completely messes up efforts to claim that the overall docket is shrinking because the overall appellate load has shrunk?

0:08:42 Matt: No doubt no

0:09:06 Thomas: Why, why is, I'm curious, do you have any like guesses as to why that would be, because it makes sense to me that they would be taking none of them, like that fits, but I don't know why there wouldn't be as many even being filed. Like are people not, yeah, what would be the reason for that, I'm

0:09:18 Steve: It's at least to me, right, it's hard to say with any certainty. I think part of it might be that it's just gotten increasingly difficult for especially prisoners to even file those petitions and those appeals, know, you not just like logistically, but legally. I mean, Congress keeps tightening the screws. You know the Supreme Court keeps imposing new new constraints on those types of cases. Maybe that's part of it. Part of it might be like, know, looking you at the current court, you might also say, I have no chance. I think also, guys, and this is important. Part of it is I think that the total number of IFP cases the court was receiving in the late aughts and the early 2010s might itself have been a bit of an aberration um the court I mean you supreme court struck down the federal sentencing guidelines in 2005 um there was all kinds of stuff going on with the streamlining of immigration cases in the late 2000s both of those developments would have and I think did um a massive upsurge in you kinds of cases that tend to end up on the ifp docket.

0:10:17 Matt: So just to think about just because I and I've just said it's very very romantic idea of gideon right sitting in his cell writing to the court you know putting together his his petition from you know a prison stationery or whatever and and having that be accepted and having that be the foundational case for right to counsel. And nothing like that's ever going to happen again, from what you're telling us.

0:10:32 Steve: Not anytime soon. I mean, listen, the court is still taking a handful of IFP cases. I court's Fourth Amendment docket, which really has gone to zero, the IFP docket – I mean in the October term 2022, there were two IFP cases. In 2021, there are four. So it's not like a complete zero part of the court docket but I do think it is a telling reflection of broader trends, both in the the current Supreme Court is, what their jurisprudence is, and just how like court and other actors have made it that much harder for those types of litigants, not just to, you have access to the courts, but to have any chance of winning even when they get there.

0:11:08 Matt: Really want to make a comment about Grant's past and Gorsuch's view about certain kinds of people, but I think we should probably keep moving. Speaking of sort of bigger trends and what we're looking at from the Supreme Court right now, we really wanted to have you on to talk about your recent analysis how the Fifth Circuit has been winning by losing. You had a really great title there in the Atlantic a couple months ago about how they've won by losing. Seen a lot of headlines along the lines of the Fifth Circuit actually got slapped down by the Supreme Court this year. It turns out maybe they went too far, that the court has reversed them enough that we can show that this extremism isn't working.

0:11:36 Thomas: Comforting I'm completely comforted by that idea yeah yeah

0:11:39 Matt: Yeah, exactly. Obviously, as we're seeing going into the last couple of months, it's certainly not stopping them from continuing to do it. To break that down with you a little bit because last time we talked to you, was in may when we were still getting into the home stretch for supreme court season and now we're fully behind it so uh so we'll see what your take is on this question that's kind of the central thing we want to talk to you about today sure yes

0:12:01 Steve: With everything, I can, there's there's a little bit of nuance here. Really did enjoy when Carrie Severino published a piece in, you know, National Review called the left is lying about the Fifth Circuit.

0:12:10 Matt: Steve Vladeck is lying, she's

0:12:12 Steve: Well, that wasn't, at least that wasn't a headline. But Mark Joseph Stern and Ellie Mistal. That was a good time. A good time was had by all. But, let's start with the numbers. And I think it would help to pull those numbers as a part of it. So, you for the second term in a row, the Fifth Circuit was reversed more than any other lower court. So depending on whether you count the Mifepristone case as one case or two, since it was two different petitions, the fifth circuit was reversed by the Supreme Court either seven times or eight, right of either 10 or 11, depending again again upon how you cut Mifepristone. That's the biggest numerator. Not the biggest reversal rate because a couple of courts were like 0 for 2 or 0 for 3. This is why Carrie Severino yelled at me for saying something I never said. It just that there were a lot of them guys. It was that they all had the same pattern of like Fifth Circuit does something crazy and Supreme Court says that's too crazy for us. So the standing decision in the Mifipristone own case, or the reversal on the unconstitutionality of the funding of the CFPB, or the standing decision in Murthy versus Missouri, the jawbone in case, right, or, you the know, net choice social media case, you know, you name it, and you had, in many cases, cross ideological majorities of the Supreme Court, slapping the Fifth Circuit down. And so, you know, that, I think, is the sort of the genesis of the claim that the Fifth Circuit had another terrible term at the court.

0:12:17 Matt: Responding to you though right sure

0:13:38 Thomas: Ask for um those of us non -lawyer experts who can't keep in our heads all these cases is there a distinction between when they don't take cert versus slapping them down because I'm from the coverage you know on here with with With Matt, my impression is that a lot of these cases are things that the Supreme Court had no business even looking at. And so is that, how do you, how does, is that accounted for sort of in these numbers, I guess?

0:13:59 Steve: Yeah, I mean, it's hard. I mean so it's a great point. It's a point that we should make every single time we talk about data and the Supreme Court, which is that any statistician would tell you the fact that the court picks and chooses all of their cases builds a healthy dose of selection bias into any of these accounts. The Mifepristone case and the social media jawbone in case and And the CFPB case, I think, are all eerily similar in that they're all cases the Supreme Court would never have touched with a 10 -foot pole if the Fifth Circuit hadn't ruled the other way, right? The Supreme Court didn't want to deal with Mifepristone, and the Supreme Court doesn't want a deal with, like, wackadoodle arguments about the appropriations power. And it didn't wanna deal with the, you now, RFK Jr. -vax conspiracy theorists. But when you have a federal court of appeals ruling against the federal government in each of those cases, and the federal government comes running with his hair on fire to you and says, hey, like, you got to fix this. I think the court feels, frankly, to me, quite correctly, an obligation to take those cases and fix them.

0:15:01 Thomas: I guess, sorry. I was also asking another part, which is the they had ruled such an insane way, they do have to at least take a look at it. Otherwise that horrible ruling stands. Fans so I I guess there is there a distinction between when they actually you know they have the oral arguments and we hear a big to do about it versus some decision where I don't know if that would be shadow doc or whatever it is where they're just like no this is dumb or is there no way to do that without all the the rigmarole

0:15:24 Steve: Depends on the case. I mean, so all, we're talking about, like almost all of those came to the Supreme Court on the shadow docket first, right? So in the Mifepristone case, the court put Judge Kaczmarek's ruling on hold last April, And, right? Of, you I think was hoping that the Fifth Circuit would get the message. The Fifth Circuit did not get the message, which is why the case came back to the court on the merits. In the social media jawbone in case, the court put the, you know, crazy injunction the district court issued, like barring the Biden administration from talking to social media companies about anything, put that on hold, I think, in the hopes that the Fifth Circuit would come to its senses. Did not, right? So, you talked before, and I've elsewhere about how one of the weird features of emergency applications is that sometimes it's the the only time the court sees a case because its ruling on the emergency application is understood by everybody as a sign of which way the wind is blowing. The irony here is that the Fifth Circuit isn't getting those messages.

0:15:30 Thomas: Hey work on their cell reception down there something uh something wrong yeah

0:16:25 Steve: A scenario where even after the Supreme Court in the Mifepristone case, in the social media jawboning case, In the net choice, you social media First Amendment case, even after the Supreme Court has ruled against the Fifth Circuit on an emergency application, the Fifth circuit sort of comes out the same way and forces the court's hand. And this know, this is really where my Atlantic piece comes from, because, you know, there comes a point where at least some of this behavior by the Fifth Circuit appears at least knowingly, if not intentionally, to be trying to, you produce exactly this result that maybe the Supreme Court won't affirm us. But at the very least, we can make them, you we can force them to take cases they otherwise might not have wanted to take by ruling in the way that we want to rule. That's problematic to me in two respects. One, ends up making the Supreme Court look a lot more centrist than it is when the court says, actually, you crazy people, you're too crazy for us. But two, some of those get through. And, you we mentioned the seven or eight times the Fifth Circuit lost this term, but it won three pretty big cases where, you five, six, seven years ago and almost any time before that, the Supreme Court would have reversed.

0:17:40 Matt: You know offhand how many of those three were from single judge districts yes

0:17:44 Steve: The three where they won, I only one of them involves some real judge shopping. But, you know, a bunch of the losses were, I mean, the Mifepristone case was a single judge district. District the social media jawbone in case um was a single judge district um the cfpb case I think it wasn't a single judgments district but it was like rito connor or one of those right so you there's a little bit of history repeating here and you know guys as you know because you read the piece one of my concerns is that you know the justices are well aware that this is happening the justICES are aware that judge shopping is is happening. Aware that the Fifth Circuit is doing nothing to rein that in. They are aware that that the circuit is not getting the messages that justices are sending to them. The problem is that even when they're reversing the Fifth circuit, they're not really yelling at it. They're really doing anything to disabuse the Fifth circuit from continuing to do the same thing going forward. I mean, are there examples from not that long ago of the Supreme Court going out of its way to chastise a lower court, for not just getting a particular case wrong, right, but for a pattern of erroneous rulings that are forcing the justices to correct them.

0:18:50 Matt: Arguments alone that they keep bringing over and over again that just I it's particularly upsetting to me it's

0:18:55 Steve: Example. The other stuff. Like if you just talked about Article III standing doctrine, like who's a proper plaintiff, by that's responsible for five reversals of the Fifth Fifth Circuit by the Supreme Court in the last two terms, right?

0:19:01 Matt: So bad as

0:19:10 Steve: Five reversals and no affirmances. And, is getting a little bit further into the doctrinal weeds, but like one of the errors of reasoning that the Fifth Circuit made in the social media jawbone in case is the exact error on which it got reversed in one of The Affordable Care Act cases a couple of years ago. So, you if you were just going to pick one body of law, the Supreme Court could say, hey, Fifth Circuit, maybe you need a refresher on standing because this ain't it.

0:19:09 Matt: It should be yeah

0:19:36 Thomas: The supreme court assign homework you know like like, hey, a professional development course, you know, that kind of thing.

0:19:41 Matt: Classes yeah totally that's

0:19:43 Steve: CLE for the Fifth Circuit. I mean, you know could. But I mean the reason like it may seem silly, right, person listening, like who cares if the reversal comes with a slap on the wrist or not. Know, you I tend to think that there are like two kinds of judges or there There are two kinds of reactions to being reversed by the Supreme Court, right? Judge reacts by saying, shoot, I guess I just miscalculated what the Supreme Court was going to do. One judge reactsby saying, well, they can't reverse me all the time, right.

0:20:09 Thomas: It's like the cat callers who are like, oh, well, maybe it'll work next time if I shout at a woman on the street randomly.

0:20:13 Matt: It's going to

0:20:16 Steve: I mean, hey, that's what Steve Reinhardt said, right, right, I guess my, is that like you're never going to reach that second cohort of judges, but maybe you can reach the first cohort, right Right. And maybe you can actually shame some of the judges who actually really are acting in good faith or at least think they're acting in good faith to, you sort of take a beat the next time they're on a panel with some of the judges, who want to move the law so quickly to the right.

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0:23:41 Matt: Bring out your response to carrie severino about this point and when she was disingenuously comparing the dc circuit which was reversed for this year to the fifth circuit which of course as you point point out you know people are judge shopping I think we want to say this very clearly this is what we were talking about pretty much the last time you were on for the entire episode but the reason the fifth circuit is the way it is is because people are purposely going in and finding the judges they want to do the nutty things that they're trying to get out of them and that's why we keep seeing these things and I feel like that can't be said enough exactly

0:24:07 Steve: And not only that, but just to to sort of put little more sort of behind that. I mean, so Carrie Severino in her National Review piece says, you know, the criticism of the D.C. Circuit for going over four. Right. Right. And, you of the four cases in which the D.C. Circuit was reversed were cases that by law had to be brought in D.C. and at least one of the panels in those cases was an ideologically diverse Right. In the Trump immunity case. I Judge Karen Henderson was in the majority. I mean not only was she in the minority, she wrote the majority opinion that the Supreme Court reversed. So,

0:24:36 Thomas: They're counting the immunity decision as like reversing the DC. Isn't that the case? Sorry, again, not the lawyer. Isn't there the case where the decision was like, yeah, that's completely fine. This makes perfect sense. And the Supreme Court was like we're doing a whole new thing scrap the constitution we got a new thing I feel like that shouldn't count against you

0:24:53 Steve: Not only that, but the judge who wrote the opinion saying, yeah, this is fine, was a George H.W. Bush appointee who was a dyed-in-the-wool conservative Republican, right? I know that facts are really hard for the folks on the right who are trying their best to defend the court. And I feel bad about that. Like part of what makes the Fifth Circuit story, forget the D.C. Circuit. Like I am constantly responding to folks who are like, well, it's just like the old Ninth Circuit. You Know, I'm a little defensive of the Ninth circuit. I clerked there. My judge is still on the Ninth Circuit. The Ninth Circuit was a court, first of all, that was more ideologically diverse then than the Fifth Circuit is today. But second, that Was at odds with the Supreme Court, right, that had a Democratic majority when you had a Supreme Court with a Republican majority. No one should be surprised that the Ninth Circuit had a high reversal rate during that era, right? Shocking about the Fifth Circuit's numbers is that ostensibly, these guys are on the same team. And yet, right Right. And yet the Fifth Circuit is still the most reversed appeals court in the country in disputes with partisan and or ideological valences by the most conservative Supreme Court of our lifetime. Like that's

0:26:04 Steve: What's remarkable here. And why I think the fact that the Supreme Court is just sort of reversing them without like tisking at them is problematic because it just means that there will be more of this. Right. It'll get worse before it gets better.

0:26:16 Matt: And even by taking them seriously oh sorry good

0:26:18 Thomas: Well that exactly it's the same thing with the like okay we'll put the climate change expert and the idiot who thinks it's fake on the state it's like I remember for one of these cases where it really felt like that that um just just the setup just whenever one of these things is going to be decided we're awaiting the decision on I don't know pick your insane case of the of the term it's hard hard to pick the

0:26:39 Matt: It's my first time for me yeah

0:26:40 Thomas: You know like the prep there's there's already we're preparing ourselves no matter what no matter how much it seems like well this should be reversed we're already preparing ourselves for like well or they'll say this I guess and that is like legitimizing it it seems to me in a way that wouldn't happen otherwise yes

0:26:55 Matt: Them consider that our argument was absurd it's just absurd to make them even think about the fact fact that the fda had somehow wrongfully done this decades ago and it's a perfectly safe I mean I'm sorry I get angry I'm

0:26:58 Thomas: That's the one I'm thinking of yeah that one is so bad

0:27:06 Steve: Argument in the social media jawbone case where Justice Alito says, well, what if nobody has standing as if that's not where his standing of jurisprudence has gone for 30 years? So this to me is a problem, right, which is when you have a court of appeals that is, at you least knowingly, if not intentionally pushing the Supreme Court so far to the right, the court is necessarily enabling that unless it is pushing back much more aggressively. And, you know, the two sort of pieces of evidence that the Supreme Court is not pushing back and is really enabling this behavior is one, the three cases where the Fifth Circuit won, but two, just the real like modesty of the criticisms. I mean, there were a couple, right? So in the social media jawboning case, Justice Barrett takes a couple of shots at the Fifth Circuit. And in the net choice, you know, First Amendment content moderation case, justice Kagan takes a few more shots at The Fifth Circuit, but those shots were in the context of the specific analyses in those cases. Cases you in the past when the court has gone out of its way to write a whole paragraph about like the Sixth Circuit's flawed approach to post -conviction habeas cases or the Texas Court of Criminal Appeals is, you Know, repeated ignorance of the court's instructions or the Ninth Circuit, you to take a particular case seriously. Like that's the kind of chastisement that I think has been missing. And I think, you KNOW, until we see more of that, we're going to get more Fifth Circuit in.

0:27:20 Matt: Fifth Circuiting — it took me a minute there, that's good, that's great — uh, and actually while we're talking about it, the ridiculous standing, because I, we, I can safely say they have not learned anything because they are now about to be considering uh keeping families together challenge which I'd like to talk to you about for a second you've been following this one too um and it's I think the weakest standing argument even of the very weak standing arguments that I've seen out this is I mean how what there any chance it's actually going to get through this down in the standing argument yeah

0:28:57 Steve: Just to be clear, I mean like Texas have all these lawsuits. I think it's now we're up to like 50 lawsuits by Texas against the Biden administration. And in almost all of the immigration cases, the standing argument is very similar, which is that when federal immigration law is flouted, Texas suffers offers pecuniary consequences, right? Like, Texas has to provide more services, or Texas has to provide, you like, fire services, policing, driver's licenses.

0:29:22 Matt: Driver's licenses and a docker case right

0:29:24 Steve: I mean, just, right, that's to spend money. What that might actually be true. I've been, you Texas tries very hard to provide none of those services to any of those people. But, but, you Texas is no differently situated in that respect from, you you know, Vermont or Montana or Mexico or New Mexico or Arizona. And, you know the Supreme Court's data jurisprudence says, Hey, your injury is not particularized, then then your remedy is in the political process, not in the courts.

0:29:51 Matt: The argument here is that people have been here for more than 10 years and are entrenched in their communities are costing them money and that it's better if they leave. I mean, that's such a terrible standing argument to me. Maybe I'm too deep into this, but I just can't see that ever working, even for the Fifth Circuit.

0:30:05 Steve: I don't know, man. I mean, I, you know, the fifth, I mean I, I

0:30:06 Matt: I know, I know. Even as I said, even for The Fifth Circuit, I heard myself saying that.

0:30:10 Steve: Got, you, I'm teaching federal courts at Georgetown this semester and, And, you know, versus teaching a federal course at University of Texas. I mean, when I teach federal course, the University of Texas, the, sort of the lesson is, you know, is there standing in the Fifth Circuit? It depends on the merits. You find a Fifth Circuit panel that will say this is a bridge too far? Absolutely. You And would I put any money on it? No. again, I mean I think it's worth saying like part of that is because, you it really is like a panel that's Judge like Ho and Judge Judge Oldham and Judge Wilson, then yeah, nothing, edict from the Supreme Court, even one carved into stone tablets, is going to actually do the work. But, you there are judges on that court who I disagree with all the time, who I think really would take it seriously if the Supreme court went out of its way to say, Hey, fifth circuit, your standing jurisprudence is a mess.

0:30:23 Matt: I mean... Yeah.

0:30:54 Steve: Exactly. And, you over the summer, right, Justice Kagan and Justice Barrett and Justice Kavanaugh have all given comments in public settings at law schools or judicial conferences about how busy they are and about how they're overwhelmed with like emergency applications. There's a small part of me that wants to say, like, do you ever sit back and wonder why? Like, you know, I mean, I that, like, you control, like who chooses to file applications. But in a world in which the Fifth Circuit's standing jurisprudence were more like line with the Supreme Court standing juris prudence, I think it's just an objective fact that there'd be fewer of these, because more of these cases would not make it past a motion to dismiss and would never even get to a preliminary injunction. And comes a point like this is just to tie this back to where we started with the Gorsuch comments about the court's docket. Like justices are often publicly invested in trying to put responsibility for what's wrong with the court onto somebody else. And, you of what I find exasperating about the Fifth Circuit's track record here is that the justices are, I think, very much responsible for it, both on the substance and on the procedure, because, you even as they're reversing, even if they're granting emergency relief, right, one's ever saying, and hey, Fifth Circuit, cut it out.

0:32:03 Matt: I want to actually bring up one point where they kind of did, and it's something that I know you and I were both closely following when it happened, which we didn't talk about last time for some reason, but the sb4 litigation uh which, for about four minutes maybe, uh, SB4 was legal because Alito was late on his homework, uh you

0:32:18 Thomas: Oh I kind of remember can you remind us uh just just oh

0:32:19 Matt: Remember that yeah yeah a very long convoluted it becomes like an algebra problem at some point we're trying to figure out you know which was reversed and how would the stay

0:32:25 Thomas: That okay yeah peek behind the curtain everyone it took matt like four tries sorry matt but several tries to get the administrative administrative like procedure of that. Like I kept asking, you're like, oh, okay, hold on. I got to do some algebra.

0:32:29 Matt: It's history yeah it is it's math you make it's it's pretty it activates my math brain.

0:32:42 Steve: Even be calculus. Calculus.

0:32:43 Matt: Yes, pretty much.

0:32:44 Thomas: You're like I got to take the derivative of this administrative stay and then apply. Can

0:32:48 Matt: I just wanted to zoom in on that one because first of all, it was just a nutty series of events that shouldn't be happening. I just wanted to see if you can comment on the use of administrative stays and what Barrett and Kavanaugh said back to the court, because they were clearly very annoyed about the way the court has been using these administrative stays. And they took the time to write it. And I'm just wondering what you think about that.

0:33:04 Thomas: You remind us what the case was. That I don't, I don't remember.

0:33:08 Steve: So is a law the Texas legislature passed last year that basically purported to create a state -level deportation system in Texas. A lot to say about it. The short version is it was set up to be a test case to see if there were five votes on the Supreme Court to overrule the court's 2012 ruling in a case called Arizona versus the United States. Irony is that SB4 actually goes much further than the Arizona laws did. Never actually created a state -level deportation system. So the district court had issued a preliminary injunction right before SB4 was supposed to go into effect in late February of this year. And the Fifth Circuit had issued a, quote, administrative stay. Administrative stays are supposed to be basically a very, very short -lived temporary pause in a lower court ruling for no other reason than to give the appeals court time to decide whether to issue a stay for the duration of the appeal. So, you know, I hate this phrasing, but it's a stay pending a stay. The whole idea is like, hey, like, the three judges need, like at least, I don't know, 24 to 36 hours to read the briefs and to figure out, like, what should the status quo be for the rest of this appeal? The Fifth Circuit had this practice, which we first saw in the SB -8 case, the Texas six -week abortion ban case, of issuing administrative stays of district court injunctions, so in English, right, of issuing rulings that would allow these laws to go into effect, that were open -ended, that we're not 24 to 36 -hour rulings, they were like weeks or months long rulings that allowed laws that were, at you least in the eyes of very, very many people, blatantly like unconstitutional to go into effect because of like procedural quirks. In the SB4 case, that's exactly what the Fifth Circuit did. Biden administration went like screaming, as I think it should have, to the Supreme Court. And the Supreme Court denied the Biden administration's request to vacate the administrative state, basically to put the injunction back into effect with this incredibly is too strong, but I think sort of idealistic concurrence by Justice Barrett, joined by Justice Kavanaugh, where she basically said, listen, the reason why I'm not giving the government relief here is because we, in general, I don't think we, the Supreme Supreme Court should be in the business of reviewing administrative stays because they're so short lived. Wrote a long piece about this for my newsletter, like that argument in the abstract makes actually a fair amount of sense. The problem is that by the time she wrote it, that administrative stay had been in effect for two and a half weeks. And there's a paragraph toward the end of the opinion where she says, you course, you comes a point where administrative stays are no longer administrative stays, And maybe this is one of them. Then then she sort of waved her hands at why maybe this is not one of Them. Then sort she said, so, you hey, government will be here if this keeps going, but we're not going to review it for now, because it's only an administrative stay. And, denouement was like eight hours after this ruling, the Fifth Circuit actually came back and vacated its own administrative stay and basically put the law back on hold where it has been ever since. I mean, right, because it was a different panel, because the panel in the Fifth Circuit that did that was the merits panel, the panel that was hearing the Texas as opposed to the original panel, which was much more pro -Texas. I don't know, guys, and what I would pay a lot of money to find out is whether Justice Justice Barrett knew when she wrote her opinion who the panel was, right? She know that, like, that Circuit was going to do her work for her? Or, like. Was there a realistic chance that even though she was not granted relief, neither with the Fifth Circuit, right, to me is the great unanswered question here.

0:36:41 Matt: There's a lot of writing on that, That is something Justice Jackson pointed out in their dissent, which, of course, I agree with, that you're allowing this obviously unconstitutional law, which is going to hurt people, to go into effect. I certainly understood Kavanaugh and Barrett's point, you about the administrative status. I completely agree, because the way they're jerking around with these is really unacceptable. But the at end of the day, youknow, the merits are pretty bad.

0:36:58 Thomas: Yeah. It's like it's fine to create a state, you deportation force as long as it's only for like a few weeks. Cool.

0:36:58 Steve: Well, Exactly right. Right. And and that's especially ironic coming from the crowd that thinks that if you're, you know, religious exercise rights are violated for a second and a half, you've suffered irreparable harm. Right.

0:37:13 Thomas: During a pandemic. Yeah yeah

0:37:15 Steve: Maybe you you have, but what's the argument that it's irreparable harmful for that violation, but not the other ones. Right. Were a couple of opinions this term, guys, where both Barrett and Kavanaugh, I think, really tried to explain their behavior on emergency applications. And Matt, back to where you started, in ways that I do think were sort of somewhat directed toward the Fifth Circuit, problem the is that each the opinions, Barrett's in the SB4 case, Kavanaugh's in The Idaho Gender Affirming Medical Care for Transgender Adolescents case, more questions than they answer about exactly what the justices think they're doing on an emergency application. To take the Barrett example one step further, like who cares what the Fifth Circuit called the order? The real question is what the order is actually doing on the ground. You really saying like going forward, every circuit can get like three free days of unconstitutional orders as long as they call them administrative? Administrative. My suspicion is, you know, should that come up in a religious liberty context? Actually, the we'll, we'll remarkably have a majority that says, no, that's not what we meant.

0:38:06 Thomas: Sounds like it yeah

0:38:16 Steve: This is sort of my larger, you bugaboo about the shadow docket, which is that the court is so not consistent.

0:38:22 Matt: So everyone knows, is called 30 Hours of SB4 Whiplash. It really helped me understand things, and I'm willing to. Since you mentioned the shadow docket, how are we doing these days? Because I know that's your jam.

0:38:33 Steve: It's still there. Know Sarah is Riesger, who's one of the co -hosts of the Advisory Opinions podcast, like Court podcast, she went on a whole thing in one of her recent episodes about how the court has cleaned up the shadow docket. And I just want to know what court she's watching. You go back to the original, or at least my original critiques, which is that the court is issuing too many rulings that are intervening in high profile national disputes with insufficient explanations. Explanations. Guys, we're still there. Just to put some math behind this for a second, had more full court rulings on emergency applications this term. We're up to 103 than we've Had in any term since I've been tracking, which is about the last 15 or 20 years. Court has granted 16 or 17, which Is relatively normal for recent years, but actually sort of suggests that the previous term, October term 2022, when there were only eight grants actually was an outlier. If you just talk about like what these cases are, right, I mean, you have the court, you the Arizona voting case, right, back into place certain parts of Arizona's voter registration law that requires proof of citizenship in ways ways that are really legally problematic. You have the court, putting you back into effect Idaho's ban on gender affirming medical care for transgender adolescents without a majority opinion. That's kind of a big deal. We talked about the SB4

0:39:55 Steve: Case. Right? But my favorite example, guys, is the EMTALA case, where, you know, the court got the sort of the question was, you when an abortion is necessary to save the life of a pregnant woman? What if she's in serious medical, serious but not life -threatening medical distress? Enough under Idaho law, federal you law, EMTALA says she's entitled to emergency medical care. So, you know what you guys know, in January, the court put Idaho's ban back into effect after a district court had said this violates EMTala and then decided to take up the case on an expedited basis, leapfrogging over the Ninth Circuit, only at the end of the term to say, oh, whoops, maybe

0:40:35 Matt: What

0:40:35 Thomas: That was a weird one

0:40:36 Steve: And telling, that right, weird it in that we don't see that a lot. It was telling in that, like, court had prematurely jumped into a dispute before it fully understood what was going on. And, know, this is why Justice Jackson was so angry and actually read her dissent from the bench in that case. And even though the court sort of restored the status quo in June that it had disrupted in January, sort the way again for EMTALA -based abortions in Idaho, you had five months in the interim in which if you were a pregnant woman in Idaho with a medical emergency, you probably had to leave the state to get the kind of medical care that the might have thought was necessary. That by sort dozens of emergency applications on everything from Title IX to elections to immigration policy. And the shadow docket is, I think, continuing to be a major part and a majorly controversial part of what the Supreme Court is doing.

0:41:25 Thomas: Was the one where they basically the ruling was like guy in a hot dog suit saying we're all trying to find the old guy who did this like they're like yeah maybe this shouldn't have even been here we're not gonna name point fingers but I don't we don't think this should they've even been here actually

0:41:38 Steve: I Barrett wrote this concurring opinion that was joined by the Chief Justice and Justice Kavanaugh. And it is a remarkable read in deflection. So it's like, you know, after we granted, The parties changed their arguments. Narrator, no, they didn't, right? The briefs revealed, narrator, they've revealed that in the lower courts, right, what

0:41:58 Thomas: Can we get your narrator voice on all these decisions that'd be a good like mystery science theater kind of companion to them sure

0:42:08 Steve: Would That not be a G or a PG -rated podcast, I'm afraid. With this Fifth Circuit problem, right, which is instead of actually taking some ownership and some responsibility, instead of saying, hey, we goofed and we bore responsibility for prematurely taking this case and now we're going to get out of it, court tried to affix blame elsewhere. Elsewhere. And, you is really what this court does is it's not denying that some of these things are problematic. It's not denying that it's rules are controversial. It'S not denying that maybe in some cases it's taken cases it shouldn't have, but it's always blaming somebody else. You there comes a point where, you the patient know, goes to the doctor and says it hurts when I touch here and it hurts when I touched here and hurts my touch here. And the doctor

0:42:11 Thomas: That's fine that's sorry

0:42:49 Steve: Says you have a broken finger or

0:42:54 Matt: Actually what I was thinking about we're talking about the standing argument is these are hypochondriacs that just walk keep walking into the emergency room with things that really aren't problems uh

0:43:00 Steve: They're problems, they're not emergencies. I mean, that's that's exactly the the metaphor, right? I mean, everything to this court is an emergency. And part of what makes the shadow docket such a bigger deal today than it was 20 years ago is it's not like in the Bush administration or the early Obama administration, we didn't have highly charged, pitched legal disputes over federal and state policies. Those like the halcyon days in which everything the other side did was perfectly legal. We had regular order in the courts. That's what's falling apart with the Supreme Court's, in some cases, affirmative blessing and certainly at least acquiescence.

0:43:02 Matt: For sure for sure yeah yeah so I totally agree obviously that they should be issuing stronger decisions stronger language condemning these kinds of things but is there anything else that can pull us back from the brink here and the way the fifth circuit is is doing things and being treated

0:43:45 Steve: There's this weird entity that I know we don't talk about a lot called Congress. I know, right?

0:43:48 Matt: If

0:43:49 Thomas: What yeah you're gonna have to you're going to define that for the again there's know some people aren't lawyers you're to talk about what that is what they do

0:43:56 Steve: Not sure myself. So this probably a longer discussion than we have time for. But the short version is that part of what used to really keep the court at least somewhat in its lane was the specter of congressional intervention and congressional congressional pushback if the court overstepped its bounds. There are tons of examples of this from the earliest part of American history into the mid -20th century, even the 1960s and 70s. Congress today, for better or for worse, is completely feckless and do anything on the institutional side. And the result is a court that is completely unbounded. Congress to actually assert even a modicum of institutional responsibility, responsibility? Well, are things that could do to curb judge shopping, you know, as we talked about last time. Are things it could do to curb, you know, universal injunctions, not necessarily take them away, but make them harder. Know, Congress has the power to prescribe standards of review in at least most contexts. Congress could, you the thumb on the scale in some of these cases toward, for example, the EPA or other federal agencies in ways that it has the constitutional authority to do so. I mean, like Congress has like so many, you arrows in its quiver. It just has forgotten one that it does and two that it, you fire them.

0:45:05 Thomas: The quiver's like still in the packaging from amazon it's like ah we don't want to open in it though you know like what if we want to return this quiver so we're just gonna just gonna keep it all sealed up in plastic here

0:45:13 Matt: They really wanted to, they could also break up the fifth circuit because it's pretty big. I don't know, you've lived there. I haven't really been to the fifth circuit myself. Yeah, you no longer live in the fifth circuit, are you, Steve?

0:45:21 Steve: I, I got out before they could administratively stay in my departure. Um, I that to me is more sort of um than substance I mean I think I like as democratic litigants during the trump administration took advantage of generous venue and forum shopping abilities to steer nationwide challenges to trump administration policies to you know california or hawaii or maryland um single judge divisions because you there aren't ones in those districts, but still similar types of strategic behavior. I maybe we could all agree that there ought not to be that kind of geographical favoritism if you're really seeking nationwide relief.

0:45:25 Matt: Good work.

0:46:01 Steve: So you could pass a three -sentence statute that just gave the federal government the right, but not the requirement, to transfer any lawsuit seeking nationwide relief to DC. And in one fell swoop, you would take most of the Fifth Circuit's docket away, um at least most of the like most controversial parts of the fifth circle stock it away right

0:46:16 Thomas: Like that oh

0:46:21 Matt: Have to beef up the DC circuit, but that's doable.

0:46:23 Steve: I you mean know maybe you add some judgeships you know in a staggered way so that you're not just doing it for the current president maybe you have all of these reforms go into effect on the first day of the next administration um point is like there are ways to do this that are not just democrats screwing over republicans um

0:46:39 Thomas: Can I have the ones that are just democrats screwing over republicans though do you mind yeah

0:46:43 Steve: Mean, we can do that too. I just, I, you know, I until we blow up the filibuster, I'm not sure how any of those are going anywhere.

0:46:49 Matt: Yeah. I mean, obviously, if we break up the fifth, they'll break up the ninth circuit, which is too big, honestly. It's massive. But, you take know, the point.

0:46:54 Steve: I will say again, again, because, you Know, here I am defending the Ninth Circuit. Than the en banc process, which is a conversation unto itself, the NinTh Circuit, because of its size actually runs far more efficiently than almost all the other federal courts. Courts had to like ninth circuit was I think the most technologically sophisticated of the federal courts because it was how it dealt with its size um

0:47:01 Matt: Massive, yeah.

0:47:17 Thomas: The fifth circuit's like can you print this pdf for me I don't get how that works

0:47:21 Steve: You kid but like when I you know I spent like four months um for judge barquette in the 11th circuit guys they were using faxes faxes, right? When the Ninth Circuit was emailing, like, hello. So wait, can you print it and then fax it and dann scan the fax? Meanwhile, there are people listening to us who are like, what's a fax. You could break up the Fifth and Ninth Circuits. I me, the real scourge is, you of Amarillo. And, you know, I think Republicans would say in the Supreme Court of San Francisco. And so long as that's true, like, ought to be able to find common cause on how you fix that.

0:47:53 Thomas: All right well thanks so much for giving us so much of your time as always steve you're invited back anytime in fact every time so I hope we expect to see you next recording uh since you volunteered no

0:48:03 Steve: I mean, shoot, I, I I Have a podcast that I'm like, not recording, so I probably need to attend to that first. Nerve.

0:48:08 Matt: And listening absolutely should subscribe to one first if you're not already I hope you are and congrats on the new gig at georgetown loved

0:48:13 Steve: Guys. I appreciate it. And thank you again for having me.

0:48:15 Thomas: There sure wait am is I is did this recently started a podcast or is this huge news or did I not know you had

0:48:19 Steve: No, this is, this Is my old, this Bobby Chesney and I have a national security law podcast that used to be it used to be like weekly or at least every other week and now it's like quarterly

0:48:24 Thomas: I was like if you're announcing a new one first podcast version I'm gonna lose it but okay well I'm from another day perhaps and

0:48:33 Steve: I email from someone who was like you should also do a podcast about the Supreme Court and I was like uh have some of those already I

0:48:42 Thomas: We are one of them so thanks so much for coming on our podcast well

0:48:45 Steve: Was gonna say like you know you between you guys and strict scrutiny and 5 -4 and advisory opinions I don't think we need like a fifth but

0:48:52 Thomas: To be in that grouping thanks so much Steve and make sure one first everybody let's thanks as always really appreciate it all

0:48:58 Matt: It thank you

0:48:59 Steve: Guys

0:48:59 Clip: 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.