A Subversive Mission

Welcome to the divided argument, an unscheduled, unbreakable Supreme Court podcast.

“I'm Oppode, and I'm Dan F's. Back in the studio, after what I believe to be a successful”

live show on your home turf in Chicago, I think it was great, episode of great, students were excited to see us, we got a big crowd, we should do it again, I would love to. Well, this is kind of a day with some news on the divided argument front, which is we are now a partner of ScotisBlog, which is exciting, which I don't think is going to change the show in any meaningful way, but does mean that we're going to be part of the ScotisBlog

ecosystem, the podcast will be on the ScotisBlog website and maybe in some other channels

and will be in conversations with the other folks in that universe, which include advisory

opinions and America's constitution, but the main thing we're hoping that will change is that it will expand our listenership, maybe double it, from a 2,000 people to 4. No, that's a great company, it's going to block us, the go-to place for serious empirical coverage, right?

“I think so, and I am generally pleased with what the dispatch has been doing since it”

acquired, let's go to this blog, it seems to be really committing to extending, improving the site, some people had expressed concerns that in recent years there had been less

commitment to the site and it was maybe kind of phasing out a little bit, and I think they've

really reinvigorated it and I am excited to see what they do, so here's hoping this is our most listen to you episode yet, if that's possible, should we do anything to introduce listeners to other argument? Well, yeah, well, we just said, well, I mean, but should we tell people about what the show is? Right, we just explained that we're swedish by partners, but we, we build ourselves as an

unscheduled unpredictable swim court podcast, we record episodes whenever we want, hence unscheduled, so sometimes there are episodes in short succession, sometimes the longer gaps, just depending on what the court is doing and what we are doing, and you described this on, there's a crossover that is going to be featured on advisory opinions where we kind of announced

“the partnership, you know, why don't you say how you described us?”

Yeah, so I would say our comparative advantage of all Supreme Court coverage is that we focus on questions of law and the legal analysis in the courts opinions, which sometimes is, you know, quite technical, and sometimes is not, and we try to unpack that and make it accessible and fear other mixed any sense, and the extent the podcast has a subversive mission, I think it's the mission of taking two people who have a lot of different normative priors across a range of

legal and, you know, political issues, and seeing if we can nonetheless talk about controversial cases in a legal register and make some progress rather than the talking head to debate model that's common on a lot of other formats. I agree with that, I'll do the thing you just said about, you know, strong divergence on normative priors, I'm not sure if that's like really that true. I mean, it's not like I'm a Marxist and you're a fascist or something,

I think we're both fairly moderate, you know, sort of on the right, I'm sort of on the left, but I think our views on a lot of things converge, you're not a kind of pitchfork wielding, social conservative, that's fair. No, I mean, and you could complain about the podcast that while the title promises a lot of division and then a lot of argument, sometimes we are insufficiently divided into argue and stuff, but I do think we just, we persistently come at

things in a different way, in the case of the court takes other close ones where those differences might, you know, might lead us to be on opposite sides of the court if we reduce the says, that's possibly true. Yeah, we often focus on cases that don't necessarily divide the court on those traditional partisan lines precisely because they're I think maybe more interesting to talk about and we can offer a little bit more that is unique to the show. Yes, I would say,

yes, we are also famous or infamous for our attention to pedantic jurisdiction questions and small questions of Supreme Court practice and typography and other pedantic things. So should that segue us into follow up from a recent episode? Yes. So two episodes ago, you know, we didn't,

the Chicago live show. In the tariff's decision, including resources, there is a line in the footnote

where Chief Justice Roberts says, you know, no, no a thousand times now. Right, yeah, quotation marks, quoting something, quoting nothing, as far as we can tell, no citation, and we, you know, this is not a, uh, it's not a legal point really at all. It's more like a, you know, pedantic question, but we were curious what that was intended to be quoting. And I came up with a initial hypothesis based on Googling, which is a reference to a 1930s Betty Boop cartoon.

We put it out there for the listeners. This is exactly the kind of thing that, you know, our listeners are useful in contributing to and they did not disappoint. I think we got a couple

dozen emails about this. I don't think we completely ran this to ground. I think we got a lot of

plausible answers, you know, different points in history, different versions of this, that you might

“point to. I don't know if you want to kind of summarize everything we've gotten and you know,”

there's just too many of these to give credit to everybody for which we apologize. Yeah, all right, so here's a, here's a brief summary of the estate of play. The OED puts the earliest usage at 1896, but one listener founded in the 1726 play Charles Johnson's the female fortune teller and another listener independently corroborated that date through newspaper databases. Other listeners pointed us to the OED entry, also sites Henry James and Agatha Christie

and notes that James used a thousand times. Yes, such as the construction was already so familiar with late 90th century, that writers were riffing on it. Several listeners raised a pride and prejudice connection with the line. Yes, a thousand times, yes appears, but that line is from the movie adaptation, not the novel, where it both will happen entirely off the page. One particularly interesting find, Noel Coward, reportedly declined the role of Dr. No in 1962

Bond film by Telegram. No, no, a thousand times no, which, you know, is a great way to turn down anything. And one listener reports that the phrase lives on in a novelty, no button, sold as a white elephant

“gift, or isn't the question of that somehow, how it ended up in the speaker footnote?”

Like, you press it, it makes this says, yeah, among other things, I don't know. I don't have one myself, I don't know if we should have our respective universities by them for us. I kind of want one. So, nothing went to the bottom of it, but we've gotten a lot of interesting nominations. And I mean, the one thing we really didn't get to the bottom of was what the chief justice thought he was reference with the quote. I mean, it's without quote marks,

it's kind of like, this is such an obvious thing that everyone's familiar with. So, I'm just, I'd love to have an answer from him. Yeah, if he is listening, which he is not. Yes. Mr. Duchess, if you would like to write in and let us know, we would really appreciate it, but we're not going to hold our breath. Yep. All right. So, that was our

“main follow-up. I think there's other things that have popped up in the inbox that we don't”

have time to get to. We're continuing our ongoing attempts to offer breezy episodes. So, let's see if we can pull it off. I think you thought we should maybe briefly talk about an article by Jodie Cantor. There's actually now about a month old, but that we, you know,

you noted we had never mentioned. And this is an article, which I'm quoted a little bit in the articles

called How the Serbian Court secretly made itself even more secretive. I love that title. And what the article is about is apparently the court has now asked employees inside the building. I don't think it's totally clear exactly who to sign, you know, real non-disclosure agreements in the form of contracts, which had not been the case before. I think prior to this point, you know, law clerks, I believe signed some sort of just like code of ethics, but it wasn't

Ted No. Legal, Lee enforceable provisions. And now there's some kind of NDA. The times did not actually get their hands on one. It says, people familiar with them said they appear to be more forceful and understood them to threaten legal action if an employee revealed confidential information. Clerks and members of the court support staff signed them in 2024 and new arrivals have continued to do so. What it's funny, obviously, just that the court

is concerned about leaks. Obviously, and it's trying to take more measures about it. And so, of course, there's a leak about this. I find that headline kind of funny. And you know, will you stop kicking yourself kind of way? I don't know, it's like we are struggling to undermine the Supreme

So, I mean, I guess I don't have never totally understood how NDAs work. I mean, whether there's

“like liquidated damages or, you know, the contracts that specify, you know, you will give up exactly”

this amount of money if you talk or something similar. I mean, do we really think that the the Supreme Court is going to file some action and the district of Columbia Superior Court against an employee and like ask for $50,000 if the person spoke to the media? I don't know. I doubt it. Although, you know, if somebody who read a book like one of these tell-alls, like had Lazarus's closed chambers or something, is it inconceivable that the court

might go to the publisher and try to stop the book from being published? As a breach, yeah. I mean, but is that the right, is that the right, do you get to do that? Like, can you get to see with third party under an NDA? I mean, I guess so. Maybe, I don't know. I have no idea. Maybe not.

Or maybe they just, they would get the rights to all the proceeds or something. I don't know.

So, so several people across the ideological spectrum told me how I rage they were by this, you know, the government entities shouldn't be using NDAs. They're like government has whatever rules it has, but, you know, it is kind of unusual, right? I mean, typically I thought government information was protected by the classification system, which is backed up by criminal law. Right. Well, the executive branch can protect things by the classification system

because they control what's classified and they control what they're prosecuting before it. The Supreme Court, you know, as far as I know, is not a classification authority and we have anything to do about it if, say, executive branch, you know, was okay with the leaks. So is this, so that's one view would be like, this is just kind of self-help. I guess I don't know how Congress works. Uh, you know, this must come up in Congress. Yeah. Do members of Congress have, can you hold

people in contempt for leaking? I mean, Congress leaks all the time. Do members of Congress have their staff fine NDAs? Maybe. Yeah. I don't know. But I mean, I don't, I certainly don't remember seeing a lot of, you know, lawsuits by members of Congress against sports staff for preaches of NDAs. I don't know. So I guess I have three quick reactions. One is, as to law clerks, my guess is this doesn't add a lot to what was already the norm, other than to communicate

a sense of seriousness. And I do think, you know, which was already a quite

“clearly communicated to law clerks is in my opinion. Yeah. I think that I think that has been”

uneven over time. I think it has gotten more and more serious, but I think I felt that was communicated quite clearly to me as a clerk. Is that not the case for you? I felt it was communicated to me, but I felt like I knew people who did not see how to clearly communicate it to them. Now, whether that was something lost in translation, there might be people who had didn't hear the message. Right. But I mean, at least my ear, there was a, you know, an orientation kind of

meeting with the chief, give a little talk to all the clerks. And, you know, said something about those. And then I think, you know, around the same time as when we were asked to sign that for me. So I just, you know, this is yours. This could be useful. I suppose for non-law clerks staff, this could be more significant. You might think as to law clerks, the court can make sure

they never admitted to the Supreme Court bar, or the court can report them. But their bar authorities,

etc. Now, the days were all that won't stop everybody. But, but to the extent that you thought there were problems that leeks with staff who did not care, but they're standing at legal profession. You know, maybe this is a bigger deal. I'm not sure. And maybe the threat of a lawsuit might be a bigger threat if you're a non-law here with a more modest government salary and so on. Yeah. And then the third thing though is that I do think it's just,

this puts the Supreme Court more and more in the kind of the unfortunate equilibrium. Like, I feel like one way you maintain norms is just a sense of, like, there are norms. A lot of these things are not. We don't have a lot of rules. We don't have a lot of threats. Just we all kind of on the same team and there are strong norms. And you understand that if you breach the norm, there would be consequences. But it's not. It doesn't have to be laid out because everybody kind of gets it.

“And the other kind of equilibrium is one where sort of you have to have much more explicit rules,”

much more explicit schedules, a punishment. Well, do misbehave sometimes and you actually really come down on them. And it's the way like most of the real world works, obviously. And it takes a kind of small special institution to survive without that kind of stuff. Yeah. It seems that the court used to be that kind of institution. And maybe it's just sliding into the unfortunate equilibrium, the regular kind. I think so. And I think, you know, generally, you know, I think this is certainly true on the

kind of criminal law side that that norms in respect for law are the main thing that, you know, prevent non-compliance with legal rules and not actually threat of sanctions. I think in a world where people think the rules are stupid and they're only worried about sanctions. You do see a lot of non-compliance, particularly where people think they can get away with it. So, you know, I don't know if this is truly self-defeating, but it has a sort of a self-defeating

start chiding people and looking for ways to punish them and they kind of the more ridiculous, they seem to the people subject to these provisions. I don't know. I don't know if it's going to

“accomplish what they want to accomplish. And how do you think about the journalistic role here?”

So, one thought would just be like, this is exactly what adults are supposed to do. These are

powerful institutions and they are not entitled to have secrecy or any kind of special norms,

like they're supposed to be accountable to us. But, you know, and maybe this is just my affection for the Supreme Court. It does seem like if you take an institution that does have its own norms that help it function better and you come in as a reporter and kind of destroy those for a couple of stories. Am I wrong to misgivings about that? I mean, you can have misgivings, but I mean, I think that this is the prerogative of the press and, you know, I think people want to talk to them.

I think that they should report it. I mean, I think one thing that's interesting is that this article is the product of elite itself. So, the fact that this article was published kind of reinforces the very problem that these NDAs were meant to solve. Yeah, I guess it's the prerogative. But, like the press has to use judgment to decide what to uncover. Right? Like the press could do just like expose A's on a wheelboat and all the bad things he's done in his life. And like a series of

but you're not, you're not sufficiently new to that. True. Thank goodness. Although they've done expose A's on people who were no less newsworthy than me. No more than me. Your sins are or small. Maybe. But it's also there's some sense that that will be a bad thing to do to somebody. And so they should do it to some, if it's the person's really newsworthy, there's a

justification for it. But just like the fact in the park areas, wouldn't be a good never reason.

Or when they do that, they often let people. There was some famous graffiti artists today, they've chosen not to out because Banksy, because his name's not sufficiently trustworthy. Although I mean, he would be quite newsworthy. I think they, I think this is true. There are times that knows his name and just does our work. Interesting. No, that's interesting. Yeah, I don't know. I mean, I think that there's a strong public interest in understanding the way government

functions. And, you know, I think that, you know, I understand why those institutions themselves prefer to have secrecy. But as the court's public standing has diminished, you know, the willingness of people inside the building to talk more. And I think that includes the willingness

to some justices to talk more has, you know, led to more inside the building reporting.

And not sure, you know, what there is to do about it. I mean, I think I guess I don't, I don't feel any need to criticize the press for doing its job. You know, and I do think how,

“you know, the court works as an institution is important, right? I think that, you know, that,”

and this is, you know, something I've said in writing previously and something I said to the times, that's, you know, there is an interest in the, in people knowing exactly how they're being governed. And the opinions themselves, you know, don't tell us everything. They don't tell us, you know, how the justices are actually deciding cases. They don't tell us whether the reasons that they're giving are the real reasons and so on. Yeah. I mean, this is a classic point, just though,

there are trade-offs sometimes in terms of the, how well the institution functions and how transparently functions. So if you talk to people who are, you know, professors at a state university and one of the states that are literally strong transparency laws, it's harder for them to email but anything and sometimes that lowers the quality of faculty meetings and a whole range of things. And maybe the trade-offs just categorically worth it because, you know, better, better to know

that our institutions are behaving badly than to not know that they're behaving well. But I don't know. Yeah. I'm not sure where else there is to say better than, you know, this is something that is inevitable to some degree. I mean, your brethren is written at this point,

“you know, half a century ago, you know, and I think when the basis of some justices talking,”

yeah. And wanting to complain about, you know, Chief Justice Berger. Yeah. Fair enough. All right. Okay. So, do you have one thing you wanted to mention from the orst list? Yes, today, we have an orst list that has one interesting descent from the analysis for all right, but it's this course itch, which is an apprendy question. Just wanted to flag, which is whether a Prendy applies and how it applies to violations of the press release. In particular,

the petitioner here, Jason Burnett, is somebody who pled guilty to a federal crime with a maximum sentence of 120 months, got and 105 months, then later on suppress release got sent back for another 13 months, one of five plus one 13 is one 18. And now has been sent back for another suppress release term that's going to tick the number up over the original statutory max. And so he

statutory max. So, we found by a jury, so I should have a jury on the question whether I've added

a mis-appearance release that consensus in most circumstances. No, so arrest release is different. Which is, of course, such as says odds is wrong. We should get into this. In the court, sort of touched on, but didn't, didn't have a majority of resolve this issue in Hayman, a few years back. Right. Yes. And that was a case that involved supervised release, but in my memory is, you know, I'm forgetting the details is that the provision there allowed the government to actually

extend the sentence beyond what this supervised release was. Yes. It was more extreme than the place. There are a lot of different permutations, Hikes. In this case, where the total number of months and suppress release is greater than the original stat max. That's the clearest problem.

Yeah. But even ones where it's not, there's a way in which, like, once you've been sentenced

to one sentence, to then have the sentence reopened and expanded and the basis of non-judged

“unfacts, I think still raises some. Yeah. Like the judge concluded that it wouldn't have been appropriate”

to sentence you to more than 105 months without additional facts. But it, I mean, isn't the whole, the whole idea of supervised release is that you're free, conditional on you, continuing to engage in good behavior. Right. But that would make more sense a few sort of got the original. If I said, look, I'm giving you a heightened, yeah. I think we used to have more of a metaphor of the suspended sentence. You know, I'm giving you 120. And you know, the 20 are going to loom over your head for a while.

It's different from I'm giving you 105. And you do not deserve more than 105. But if you're

reoffending, you might deserve more. Maybe that's just formalistic. But I do think the court

should get into some point, although I fear that have some sort of a brandy allergy that may just, yeah, so no other justice noted, you know, concurring with justice courses just to send or noted that they would have granted. So, you know, if the liberal justice is wanted to hear this, they could have, so, yeah, not sure what's going on here. We know that justice Jackson, because apparently he's wrong, right? Yes. That's true. So, she may be a vote. That's true. So,

“maybe there were two other votes, justice Jackson. You know, I think we never got a conclusive answer”

on whether she was the lockler who worked on Justice Bryers, a brandy dissent. Yeah. But I like that. I like that hypothesis of mine. Yeah. And so I'm going to go with it until proven wrong. Okay. Okay. Now, one merits case, a case that is, I think, one of particular interests to you. And it's a case in which you and Steve Sachs also filed your own amicus brief. And this case is called Gillette versus New Jersey Transit Corporation.

Why don't you tell our listeners? Hopefully, our many new listeners from Skoda's blog, what this case is about. So, this case is about whether or not the New Jersey Transit Corporation, which runs buses and trains throughout the Tri-State area of New Jersey, New York, Philadelphia, is New Jersey. Or is the doctrinal terms an arm of the state of New Jersey? The consequences of which are that it gets the state of New Jersey's sovereignty from lawsuit. The setup,

“this is kind of like both tragic, but kind of funny, is that in the span of a couple of years,”

the courts of the state courts of Pennsylvania and New York managed to have a one-one circuit split, or state circuit split, on the specific question of whether the New Jersey Transit Corporation is an arm of the state of New Jersey. Like the two guys that split you have, right? Where there's a general question about how to interpret this statute and a bunch of courts of way to end, and at some point it's clear that this agreement is so stark right away in. And here it's a concrete

question about a specific litigant, right, that because they operate transit in two other states, those two other states can disagree about the status of New Jersey Transit. Why did this not come up earlier because they're hadn't been split on it? No, so this is a case that only comes up after franchise tax per versus high at. So until franchise taxes versus a versus high at a couple of years ago, the rule was that you don't, that once it doesn't have sovereignty immunity in the

courts of another state, that was not about a versus hall rule. And after franchise versus tax sports says there is interstate sovereignty immunity, and I don't know, I don't know the people were in fact bringing these suits, but after it says there is sovereignty immunity, then the question is, well, who gets that sovereignty immunity is that it is a transitional corporation entitled the franchise tax opportunity. I should also say New Jersey does make the New Jersey transit authority

available for suits in New Jersey courts for various torts. All there's some disagreement about the scope of those and how they work. And so it might be that a lot of the time you might be willing to bring suit in New Jersey. If you can, although it's not clear that you can bring suit in New Jersey for torts come into the city of New Jersey. But in that sense, it's a follow-up. And I should confess Steve, Saxon, I wrote an Amicus brief. I think our last joint to make a brief in franchise

and why the Constitution does not speak to whether one's take itself immunity in other courts and so the court should not directly overruling about a versus hall, and we were completely Nord and the court overruled, so anyway. So we were back and this time the court did something

“very close to what we said close. I think maybe not exactly, but I looked at your Amicus brief,”

which I found quite interesting and there's a few interesting wrinkles, but as I understand your position, which is just that if there is an entity that has a separate corporate form, separate legal form, it's a separate legal person, that's it, no separate immunity. So you just look, is this the state or did they create a separate legal entity? Is that a fair summary? Yes, so our view is, you ask whether you created a separate legal entity. Now exactly

how to tell whether or not there's been a separate legal entity, might be a little more complicated, but that's the ultimate question, sovereignty immunity is for sovereigns, and it was a doctrine of personal jurisdiction. So if you are a different person, a different legal person who's not the sovereign, you don't get sovereignty. That's our theory. Okay, and the court, I think largely likes that approach, you're not cited at all, but it seems like maybe the court is open to

there being some other considerations that go into it. I mean, the court here notes that there had been sort of like lower courts have been applying, a balancing test based on how those

“little reports had read the Supreme Court's decisions in the kind of 70s. 80s, and I think the”

court is sort of getting rid of that approach, but it is going to say in this unanimous opinion by just the Sotomayor joined by everybody and in no separate writings, I think it's going to

do something slightly different. And not sure, so yeah, just to back up for a second,

what we say was the historical rule, and I think the court agrees less about this, and I think it's true, is that, classically, the question was just, are you a separate person as a per corporation that could soon be sued? And really, being a corporation and having, it's say that you could sue and be sued pretty much was the beginning and end of the inquiry. And that was what like the Bank of the United States and all the state banks were. It's also what cities were, cities

used to call them municipal corporations. And so in 1890s, the Supreme Court reaffirm that cities don't have sovereignty, and this is why. And so then sometime during the 20th century, things started to get more confused. Yeah, can I just detour for one second about the sue and be sued thing? We got an email from Notre Dame, a two L Cody Wilson, who was asking about that about why doesn't state law saying the New Jersey Transit Corporation could sue and be sued, you know, why

doesn't that answer the question? And you know, I looked at that briefly, and it does seem like the

Supreme Court's cases in the past, say that that is not a clear, at least not always a clear

waiver of sovereignty, that you can't always interpret that as the sovereign saying, yes, you know,

“we're not immune from suit, go ahead and sue us wherever you want. Right. I think so it's funny in”

that this is a great example where originalism maybe helps us see through an acronym a little bit, like when I read this to soon be sued, I was like, oh, that's just the state waving sovereignty and they should be held with terms. But at the founding, or classically, it wasn't really that it was a waiver, which is that you had created a separate person that never had immunity, right? It's just a separate person. So the state has autonomy in a sense of whether to create persons, but once

it creates persons, they just are not the state. Then during the 20th century when court got more into thinking about waiver, it started sort of collapsing that into the waiver doctrine. And then as the court became more pro-Sauvering immunity again, it started to turn the waiver doctrine kind of more strictly. So waivers are strictly construed and waivers are presumptively on in your own courts, not federal courts. Then the suit and be sued clauses sort of morphed from the creation

of independent legal persons to limited waivers of state sovereignty immunity that are presumptively not carried over everywhere. And thus forced a new, a new inquiry into, well, who has sovereignty because we sort of lost track of the thing that was the original source of it. This culminates in a case called Mount Healthy, which is like peak burger court, where it's a suit against a school

district, the Mount Healthy School District. And I think, you know, famous left first amendment

sort of mixed motives case, but it has a sovereignty section where like, well, can you sue a school district? And they're like, well, that's interesting. The question is, is it more like the state or more like a city? Because those are the two fixed points. And then it just cites some facts about the Mount Healthy School District, like nine facts. And so, all right, it seems more like a city thus. It doesn't even say it's a new test. It doesn't even say the nine facts are now a multi-factor

balancing test. But the burger court was the era of constitutional law, multi-factor balancing tests.

This would be an also sort of led to the same place, and that was one of the factors. And so then now we have a sort of circuit split, lots of disagreement about the Mount Healthy Factor, or exactly what are the Mount Healthy Factor and how do they work? Okay, that's the context. So now the court gets this case. And it says, actually, the main question is whether you're

“a separate legal person, right? Yeah, so this is I think maybe page 10, part B is maybe a critical part of”

this says, although the court's arm of the state cases have accounted for various considerations over time. Those precedents have consistently and predominantly examined with the state structure, the entity is a legally separate, separate entity liable for its own judgments. So this is now, I think clarified that this is the predominant question, right? Not the exclusive test. I think that's right. We'll see what predominant means. And then the clearest evidence that a state is created

a legally separate entity is that it is created a corporation. With the traditional corporate powers to sue and be sued, hold property and make contracts and incur debt. So that's taken, what I thought was the, you know, the main evidence is a legally separate corporation of the power to sue and be sued. And now we have the power to sue and be sued. Hold property, make contracts and incur debt. Does it did all sort of go together generally? But those are the,

“those are the main facts. Now that they say, look, the corporate forms not the only structure,”

the creates a legally separate entity. The ultimate question remains whether the state structure, the entity as part of itself, or is legally independent. Yes. The main factor that the court emphasizes a little more heavily than our brief detail, our brief talks, but there's a lot is whether the entity is liable for its own judgment, or whether the state is formal liable, which is

and they do stress. This is not just a question of who will ultimately pay, like so individual

officers, right, who are sued for for constitutional lawsuits, they're liable for their own judgments. Now we know that it practice the state and when they are sued in their individual capacity, we know the state will indemnify them a huge amount of the time, but that still means formally, they are not sovereigns. And so they don't get sovereignty, they only get qualified immunity. And so the court is saying the question is, are you liable for your judgments? And indeed,

a big part of why a state might create an independent legal person is that they can go off and get dog kinds of trouble that isn't necessarily automatically on the state's balance sheet. Yeah, but so what if you had an entity exactly like this, but then you had a provision that said, and all liabilities will come out of the state's fund? Yeah. And I'll just, I should note that the court also says, the courts cases also suggest that courts may consider the degree of control

the state exerts over the entity, but courts should do so with caution, because that is not the

key question. So that was also important and good, because a part of the problem is states don't

have to have an, in fact, none do have like a unitary executive system. So we this intuition of the federal system that a good proxy for like whether you're part of the government is how much a government control you. But you know, in most states, the attorney general, the secretary general, the secretary general, the attorney general, but that doesn't mean that neither of them are, you know, it doesn't tell us that much about the office, the attorney general,

“and it's a official capacity, is or isn't it on the state? I think the, so the judgements”

make sense to focus on that. I do think so when they we talked about that the court doesn't get into is there, there are a lot of cases where it might not just be like, who do you collect the judgment from, but for instance, if the state, if the, if the, if the transit corporation takes a position in litigation and loses does they should preclusion run against the state of an injury or not, or they're all these cases about like offsets and counter claims and all the different ways

that an entity litigating can get in the trouble, has something held against it and the question is, is that held against the state, or does the state, or does the state, or does the right to say, oh no, no, that's just the news is trans corporation doing its thing. The other thing that's interesting context is that, you know, the city of Jersey created the New Jersey Transyl Corporation as an independent entity for reasons, one of which I think is that it probably would have

violated the New Jersey Constitution to make it part of the Department of Transportation because New Jersey has balanced budget restrictions that would add that the New Jersey Transit Corporation doesn't comply with or with sort of, you know, create balance sheet problems with, which again is part of the idea of like you might intentionally want to get a bunch of bad bonds or, you know, deaths off the state balance sheet and for that reason, create a separate person and that choice

has consequences. So basically, you know, you kind of have to take the bear with the sweet. Yes.

Now that's again, it's tricky because there are times when the state doesn't have to take the

and to wave it in sweet ways and not bitter ways or something, what it's all just a question away

“for. But what it's a question of actually structure in the government, you have to actually make some”

sentences. I mean, it is just to just to back up all the way, I mean, it is kind of interesting that we have this doctrine of sovereignty and yet we also, it's very, very firmly settled that cities and counties don't have any sovereignty, even though, I mean, the state could abolish cities and counties tomorrow, right? And just put them directly under the control of, you know, some person, you know, who would report to the governor? Yes. That's, I mean, it is kind of weird,

right? I mean, it's like, if I were to, I mean, for other purposes, we say a city is the state for, for double jeopardy purposes, for example, if you get tried and convicted, or tried and acquitted in my city court by a city, you can't be subsequently prosecuted at the state level. Yes. Well, and for 14th Amendment purposes, right? If a city unacts creates a racially segregated public schools, and you see them at the 14th Amendment,

so that's the complexion clause. They can't say, oh, that just applies to the state, not us,

right? They're a state actor. Yeah. So, so yes, that this is always a little tricky,

is that the question of who is the state per se is not quite the same. It's quite different, even from who is. And is that basically the same question, right? The reason that cities and counties don't have sovereignty, is that even though they're ultimately, you know, could be, you know, totally eradicated by the state, they are separately, equal entities. Yes. They're separately entities. And, I mean, I get in one, one way to think about it is they're more like officials who you

can see when they're individual capacity. They're their own person who have some state power, and then consequence of that, you know, can violate the constitution, but are not the same person as the state. And that's always been important to sovereignty, you know, even back in England, when the king could do no wrong. Part of that was that, you know, the king could do no wrong, but all of those other people, they're doing wrong stuff. They weren't the king. And that's been

“an important piece of the, the doctrine. I think that there is also just the reality that again,”

a city is, if the state of Illinois, instead of creating cities and municipalities, just had everything run by the government of Illinois, I mean, who would buy their bonds? I mean, already, instead of Chicago, I was trying to be able to buy its bonds, but so who would buy municipal bonds? Well, but if, like, there's some municipal bonds that are easier, easier cells than if they were only state-level bonds. Right. Is that the idea? If the state has, like the Hansers is the

Louisiana, and the early 20th century state, sovereignty cases are about states repeating their bonds. Right. They issue a bunch of bonds that they now don't want to pay. Now again, you might buy the bonds anyway, because you figure they're going to repeat it. Some people buy federal bonds, even though the federal, my country repeating it, but the state might have an interest in creating on the entity with its own, couldn't, I mean, couldn't the state just waves out of the community with

respect to those bonds? Doesn't that, maybe? Yeah. It depends a little bit on what you think

“labor is irrevocable. Like, can you have an irrevocable labor or not? Which I think could one”

state buy another to an era of labor, maybe? I'm not sure. But more generally, people might just be willing to do business with an entity that doesn't have authority in a way they're not as willing to do business, that does. Interesting. I even apart from the bonds, I guess, what about the torts and so on? Yeah. One related point, which nobody wanted to raise, the student New York and the state of Pennsylvania do not have to let New Jersey transit buses in to the state. Right. I think

they would clearly be entitled to say nobody can operate a bus in the state unless we know how to sue you when you hit our piece of the sense. Yeah. And now we're going to maybe raise in that specter who just caused the court to invent some new don't covers closed doctrine that allows us to introduce either send buses wherever it wants to. But there's a way in which the, it might be in the state of New Jersey's interest to have the buses operated by somebody who's a real person.

Yeah. I mean, I was kind of surprised that the transit corporation was like taking the position

that like if we've run you over, you can't sue us. That does seem, that does seem like ultimately

unwise. But I already made the joke before about sort of like, this case, United's original sentiment, the literal, you know, little guy, goodbye, boss. Okay. One thing that didn't end up mattering, but I really enjoyed from your brief was that you figured out this like disastrous jurisdictional issue, which is if if this case comes out the other way or it like I think then the court can't even decide the case at all, the real love of the court. Can you explain this? That

basically like if the transit corporation is New Jersey, I think not only would it have sovereign immunity and lower courts, but actually, you know, under your view of the law, which is, as I understand it, not the, not the court's view. I mean, precedent, the Supreme Court would have no jurisdiction over that. No, a pallet jurisdiction over the entire case. And then you say, well, and then

lower courts. Therefore, the court would just have to like dismiss the case and like not decide the

issue, I think, or though I guess in the course of dismissing it, you would decide the issue.

“Well, maybe, wouldn't you have to say, we lack jurisdiction because this is the state? Yes.”

So under the 11th Amendment of Constitution, the digital power of the United States shall not be construed to extend any suit in law, equity, commenced or prosecutor against one of the United States by citizens of the other state. That only applies to federal jurisdiction, not state jurisdiction, and we're only talking about 11th Amendment, not Hans versus Louisiana, and the other cases that talk about a broader immunity. So under just pure 11th Amendment, textualism,

if the newsy transfer corporation is the state, then the Supreme Court lawsuit itself

violates the little 11th Amendment because it's the digital power of the United States, the Supreme

Court, extending to a suit and law equity that was commenced or prosecuted, originally in the lower court, brought against one of the state's biases in the United States. Therefore, the Supreme Court's own appellet restriction explodes, and New Jersey's argued itself, of course. Now in New Jersey, they may be fine with that because they won below, but in New York, they lost below. And so the Supreme Court would evaporate and the fluids persist. Now, one problem with this argument

is that it was also true of franchise tax reverses high at. We also pointed out an army 'cause brief and arthritis tax reverses high at, and nobody cared, just click it's funny thing, then in pennies to high-pline company versus New Jersey, just a scoursage observed

to this problem existed, quoting an article we wrote about our mixed brief and said, you know,

we should be careful at this. So at least some justices are unrecord caring about it, and so at least creates a problem. If the court wants to want a global front of New Jersey, some of them would have to say what they're going to do about this or at least one. At least one. Now the other problem with our argument is that the Supreme Court has unanimously rejected it. So in fairness of tax reverses high at, they ignored it. In two other cases, in the 90s,

a casting corporation in South Central about telephone, they rejected it. But I promise, if you are just a scoursage or just a spirit or just a Thomas and you read those opinions, you can't possibly believe in them. Like their arguments are not good. And South Central Bell is interesting because like there are a lot of heavy hitters, like, you know, scooters heavy hitters from the day back and they're trying to get the question reconsidered.

So we said in our mixed brief, look, you know, yes, they're these precedents, but they're wrong. They meet the course of standard and the Thomas standard and just a spirit who applies more standard in her academic writing. And so you've got to, you've got to reckon with this problem. Maybe, you know, maybe they can all just say, start a sizes or something, but they don't have to say it. Or, for not that French attack versus high, they just ignore it. I love this. This is such a

boat and sacks issue. Rule for us, or we threaten you with jurisdiction, look, diffusion.

“You're like, if we've found this secret jurisdictional weapon, I loved it. Okay, is it notable that”

this is a unanimous opinion by liberal justice that my or nobody writes separately. Everyone is just on on server immunity, which is a constitutional question that sometimes is quite controversial on the court. Yeah, look, it's great. It's great. I'm just a scavener when he was judged scavener was a very, very hawkish on server immunity. And so if I, I really did not predict, he would join an opinion going this way. And who knows, maybe he was a, you know,

sometimes they're just as who who sort of at the loan dissenter, but they don't care enough to actually want to be a dissenter. But I'm grateful to have his, uh, have his join. Now, I didn't pull it up, but I did note in footnote three on page four. The court is, you know, saying that, you know, the court's appeals have looked at this using a very, uh, an array of multifactor multi-step tests. And then it cites an opinion from the DC circuit and it notes an

apparent the, that I call that it was an opinion by Justice Kavanaugh when he was a DC circuit judge. I did, did you pull that one, did you, and see what see what that says? I know this case very well. I will say in that case, there is a concurring opinion by Joe Steven Williams, which lays out very much the core of the argument we discussed here. And it's heavily cited by both us and all their response briefs. But sort of it, this used to be easy. And I guess now the balancing test

was kind of unfortunate. So in that opinion is, of course, just applying existing precedent. So I mean, that case, by just Judge, then Judge Kavanaugh comes down in favor of sovereign immunity. Yes, under existing precedent. Yeah. So this, the, we's president, president is now

“more anti-server immunity after this decision. I think so. And there's also, in that same”

footnote, this is a decision to a fifth circuit case, springboard's dedication in versus McAllen

separate opinion. Also laying out a strong original case for the Steven Williams,

who has asked you. So the good news, I mean, not that anybody cares what we think is actually, but the good news was that it wasn't just, you know, Steve's asking about both saying it, but, but, Steve Williams and Andy, all them saying it, maybe that makes it a little more serious.

“Okay. Well, I enjoyed this one. So I think the one big question going forward will be how,”

sort of, how much the local doctrine is now shaken up, like how much does, how much is this, yeah, the same conclusions can now be reached in a more clean and out of the way. And how much, maybe, like Puerto Rico parts of the already, my change. I think, I could fast, I've only turned cloth under this product so far. I've not yet turned my real sober and sensible research assistance

onto it, but public hospitals and public universities, I think potentially, now many, many are not

separate corporations. I assume most of them aren't really. I mean, most universities have their separate, have separate boards. Well, you've separate board. That doesn't necessarily mean you have a separate corporation with your own property and judgments and so on. Like there's some cases where you can raise your property is state property. And that's somewhere the university is part of the state, but there's a foundation that has a 501c3 that might already not be part of the state.

But I would say there are a lot of cases holding universities and hospitals to be arms the state

“that do not apply this analysis. I think a lot of them come out the same way from my initial cut,”

but I, well, my list of things to do is to do a deeper dive of whether they really do and how many, you know, how many emitters all. Okay. Well, that's a big question. I have a small, extremely pedantic question, you know, so the kind of thing we're known for. Would you flip to

page 16 of the opinion 16? Okay. The second sentence of the first full paragraph is that

sentence like missing a word or incorrect in some way. Can I just read this sentence and see if I'm misunderstanding it? The term instrumentality, however, lacks the historical way the corporate form does and says little about whether an entity is an arm in the state. The word does is like seems misplaced there. Yeah, it should be like half. How should it be has the historical way to the corporate form does? Yes. That's wrong. Right. That can't be that the corporate form doesn't lack.

“Yes. That doesn't. I think that doesn't, that's, I think that doesn't, that's, I think that's”

gotta be, it has not it does. Okay. Good catch. All right. We'll see whether they fix that. You know, I do like how in the wake of Professor Richard Lazarus's article about, you know, the way in which the court has secretly, you know, without noting it, changed the text of a bunch of their opinions over the years. Now, they, they, they, they've known on the PDF when they change it. So I think that one deserves a little bit of a revision because that, I, I stopped, that one stopped me

did it in my tracks. I was like, when, let me try to read this like six or seven times and make sure I'm not misreading it. I read the spin in six seven times and didn't notice it. Well, okay. Well, see, it's, it's just because you, you have such a rosy view of the court all the time. You, you think that the court can do no wrong. I just lack your strict scrutiny and attention to detail. All right. More to say about this one. This one is obviously one you're a bit more invested in than I am,

but I think it was interesting, enjoyed it, short, mercifully short, mercifully devoid of dual-lane. Oh, separate opinions. How about a ton? No, that's, we're like eight out of ten. You know, yeah, not, not, not ten. I mean, it's not a hundred percent your position, right? Well, it's fair. I, I, nine out of ten. Okay. All right. That's pretty good. Have you ever rated a just a sit in my opinion that highly? I'm sure I have. All right. Well, listeners, track that

one down for us. Okay. I think that's it. Thanks very much for listening. Please rate and review anywhere you get your podcasts, especially if you're a new listener who is just joining us because it's go to this blog, please share the show with anybody who might enjoy it. You can visit our website, divided argument.com where we put up transcripts, fairly soon, after the episodes, blog.deviderdarkimate.com where you can find commentary

from us in the extended divided argument universe, stored.deviderdarkimate.com for merchandise. You can send us an email at potteddividedargimate.com or at leave us a voice mail. 314-649-3790. Thanks to the constitutional laws to response from all of our endeavors. Thanks to the University of Chicago Women's Board and Deborah Kofaro for your sport. And if there's a long delay between this in our next episode, it will be because

one of both of us have been seriously injured by a New Jersey transit bus. But now you can see.