Cruel and Unusual and Stupid

Welcome to divided argument, an unscheduled, unpredictable Supreme Court podcast, I'm Dan

Abs. Will, as your progative, I want to tell our listeners where we are today. We are here on my home court at the University of Chicago. We've got great group of students here, ready to listen to us talk about some cases.

“Does home court imply some kind of adversarial relationship between us?”

Let's see when people share. Okay. So you had a plan for what we were going to cover today that seemed to me a bit ambitious, but we're still going to try to see if we can do it. So let me jump into it, and I'm going to be the kind of task master trying to keep

us on pace. We're doomed. Okay.

First thing, just to deal with a little bit of feedback from the last episode, we talked

about the tariffs case learning resources. We talked about a lot of different angles in that case. People were very interested about one thing we said, which is our attempt to find the origin of the phrase, "no, no, a thousand times, no." I'll just say that the investigation continues.

We've gotten more email about that than we have about anything else in the history of the show. And it's quite puzzling. There's a lot of threads that go back hundreds of years. So you're going to have to wait for that one, but for those who've written in, we appreciate it.

Another little tidbit that I don't think there's a time to say about, but I thought might have a slight scotous angle. Did you see how the Trump administration has brought these tried to enforce these orders against law firms that the President dislikes, imposing all sorts of restrictions on them. Those have been enjoyed by just your court within the DC circuit.

Appeals were pending by the government. The government filed a motion for voluntary dismissal and then tried to unfile it the next day. Yeah. The second thing.

A motion to withdraw their motion to voluntarily dismiss, but I don't know if you can do. Well, we're going to find out whether you can do it. The only kind of scotous related angle is, typically, the solicitor general is involved and has to approve decisions to appeal, lower court rulings.

I don't know exactly what the solicitor general's role would be in withdrawing from appeals. It sounds like the White House Council's office may have come in and sort of countermanated the decision to withdraw the, you know, try to dismiss the appeals, but you know, I'm very curious if we'll ever learn whether the SG's office, you know, was in those conversations, which I imagine it was.

Yeah. I know what to say. Okay. All right. So we, two items down are ready.

“So next thing, we are going to talk about two orders that I think because this is, as you”

called it, your home court, something we're required to still call the shadow docket. Right? Great. Okay.

First one, Mirabelli versus Bonta, you said this is maybe the thing people were going

to be most interested in. So what happened here? Okay. So this opinion, along with the other order, we're going to talk about both came down on Tuesday evening.

It is an application to vacate an interlocutor, a state order out of the nine circuit. But what happened is a group of parents and teachers in California sued the challenge the California Public Schools policy to accommodate children who want to use different pronouns and transition genders in school and to not tell their parents about it. From the parents that teachers sued, saying this violates both the do process clause and

the fricks says clause, a district judge had enjoyed the policy and the nine circuit stayed the injunction. And so now the Supreme Court has stepped in to own the state of the injunction to stay the state and unlike sometimes issued a procurement opinion that appears on the Supreme Court opinions page, not on opinions relating to orders.

Yes. As with these kind of procurements, we don't know who wrote them, I was trying to puzzle that out. I mean, there's there's six justices who could have because the three liberal justices are in descent.

I don't think it could be justices Thomas or Alito because they say at the end, there's a note that says they would have granted the application in full. Yeah.

“I think that means the court only acted with respect to the parents, but not the teachers.”

And so, you know, those two would have granted relief with respect to the teachers as well. So it's not them. Then the other puzzling thing is we have a concurrence by Justice Barrett, joined by the Chief Justice and Justice Cavanaugh.

So that's three. Uh-huh. Do you think that the act of--so I assume Justice Barrett didn't write the procureum because

Do you think that the two justices who join also did not write?

“Well, so if we're assigned opinion, that would be the norm, right?”

You can't have an opinion by Chief Justice Roberts and then a concurring opinion joined by Chief Justice Roberts. Corrective appeals to that sometimes, but the Supreme Court doesn't do that. But it's an unsigned opinion, right? So the only justice who can't join a concurrence is the famous Justice Curium.

Uh-huh. So, I don't think that tells us who drafted the opinion on behalf of Justice Curium. And isn't--I mean, don't we think at this point the Chief just writes all these? I assume so, I mean, do you think it's weird that he would write the procureum and then join a concurrence?

Sure. Because the only person--the odd man out there is Justice Gorsuch, right? Justice Gorsuch?

Yeah, it didn't have a strong, uh, gorsuch style feel to it, but you never know.

He's for Stranding himself. Uh-huh. Apparently. Okay. And just so I understand the procedural posture, the Ninth Circuit was still possibly

“considering whether to uh, stay or not on bonk, is that correct?”

Yeah. So the Ninth Circuit--I think State Assistions already gone on bonk. The merits appeal is pending. As I understand it, there are several different sort of variations of this challenge as well, because there's a state law that says the public school teachers shouldn't communicate

to the parents, any facts about their children's transitions, but then there are also policies that can be go beyond or above the law, and this is a little lots of different variations of what exactly is being challenged. But right now, this could be going on bonk in the Ninth Circuit, and now maybe they don't have to.

Yeah.

And so, I mean, normally wouldn't it be a, you know, typical practice to, you know, seek

release in terms of, you know, equitable relief at all levels, lower levels of the judiciary before you go to the court. Uh, I think that was traditional and we were in law school, but I think that's a lot a lot has changed. It's an emergency day.

Everything's an emergency now. Yeah. Okay. Well, we're walking, uh, keeping our breakneck pace, let's walk through the reasoning. Okay.

Which, you know, and again, you know, I think we should give Kudos to the court in that they actually give us seven pages of reasoning. Now, they're, they're going to get criticized for that. And this is something that I've noted before about the shadow docket is the court gets criticized for saying too little, but then it often gets criticized for saying too much, you

know, which I think in some instances is really what it means is that the criticism is about

the substance of the court's ruling and there's, you know, there's plenty you could criticize.

But I, my view is it's better to say a little bit more, it's better to say something rather than nothing. Uh, okay. Well, we'll get to that with the other one. But so I agree.

And I, somebody stopped me at, uh, coffee mass, we have a Wednesday mornings here. And the morning and said, you know, don't you think this opinion was reckless for the court to write so much, you know, before they got to the merits, or maybe the right's a little, I think, but I think the right's so much, and my reaction was no, they've been there maybe wrong, uh, but it doesn't mean it's reckless.

Like, conditional on them having these views, it's probably good that they told us what they were thinking. And, and, and reckless because as we'll get to the decision, you know, opines on the merits. Well, is that, is that, was that the claim? Well, I think it is related to what it says about the merits.

So that's, okay, so that, there are, why is it that it might be unconstitutional? Why is it the constitution might even speak to the question of what public school teachers are allowed to say to parents or require to say to parents about their children? Right. What part of the constitution governs community parent teacher conferences?

The parent teacher conference clause of the constitution? Um, they're in terms of there are two parent teacher conference clauses in the constitution. Uh, one is the free exercise clause, uh, which we talked about on the show, of course, before. The Supreme Court last term in Mach Mood versus Taylor said, sometimes requires schools to

give parents notice and an opportunity to opt out before something happens to their children of school. In that case, the sort of instruction using LGBT+ inclusive children's books.

“And the court said, at a minimum, you should have told the parents what was going on and”

given the chance to like pull their kid out that day, as they weren't exposed to this. So that's at least like free exercise and we would only apply to parents within the class, uh, who have religious objections or parents within a subclass with religious exceptions. Correct. Objections.

Correct. And now Mach Mood did say, look, people are complaining. This is going to totally overhaul everything about public education. But this is just a narrow decision about these facts. So we're not necessarily deciding that.

So the Ninth Circuit took that at face value and said, well, that was apparently a narrow decision about its facts. So it doesn't apply to this, which is not about children's books and not about, you know, preschoolers. And the Supreme Court in the precarium now says, uh, that was wrong, that the, uh, the Ninth Circuit had two, two narrow of an understanding of Mach Mood.

It does apply because it's a strong objection here. Indeed, the intrusion on parents' free exercise rights here is greater than the introduction of LGBTQ story books. We consider it sufficient to trigger scrutiny in my way. So that's like modest extension or maybe significant extension of the free exercise

right? That would only apply to parents who have a free exercise right? Yeah. Yeah.

which is, you know, the court sometimes saying, you know, very briefly, oh, our precedent

commands this result, and if you, if you drill down a little bit, uh, maybe it's a little bit more complicated, uh, well, they have a pin site then pitch, okay, well, that, that's, that's also, I mean, we should get some more view editors doing a site check on that to make sure that, uh, it, it's not a CF. Yeah.

Um, okay. But then they don't stop there. So one of the criticisms of Mach Mood and one of the criticisms of some of these cases, Thomas on the effect size clause is that this further exacerbates the sort of two tier system, which religious parents have a lot more rights, but their kids' public school instruction

and non-religious parents, maybe that's just a necessary consequence of having a fair exercise clause, but does bother some people. So the court solves that problem by doubling down on the much beloved doctrine of substance to do process, right? Okay.

And some, some people think and, uh, we're going to have a dissent, uh, that will get to, in a minute, by Justice Kagan, that makes the claim that, that the conservative majority has kind of gotten rid of substance of due process, but apparently that is not the case. Right.

So recall, there was a case called "Dobbs" for a couple years ago, where the court overruled a precedent that had recognized a substance due process, right, the right to an abortion, uh, overall, in casey, and said, substance due process is very dubious, uh, we've said, you can only recognize substance due process, right, so that they're well supported by

“history and tradition, you have to do that history and tradition analysis at a very low”

and specific level of originality, otherwise it becomes a license for judges to just decide what rights they want to protect and correct those and others. Now, they did say, we're not disturbing any of the substance due process rights we've recognized in the past, from Obergefell all the way on back to Pierce versus Society Sisters.

Justice Thomas was happily to say about Catholic school education. Yes. Justice Thomas was happily to say, no, I would disturb all of them or the, I would ask all of them, but they said, we're not disturbing them, people said, yeah, right, we don't believe it.

Well, now we have a case where the court says, look, here's a precedent, uh, a press, we have precedents two cases that recognize the right, essentially the right to send your kids to private school. They're seen to establish some kind of parental rights, plus a few follow-on cases,

uh, one of the court says it's a lot called parham about basically the states, attempts to

institutionalize your children and in, in trucks, or versus Grandville, right, which is, I don't think there was a majority opinion in that case. Right.

“And I'm, uh, Scalia to send, I think about the unconstitutionality of giving grandparents”

dissertation rights over the parents' ejection. So some kind of parents' rights out there, so the court says, look, the same is true. The claims will succeed for the subclass of parents who object these policies on due process grounds under long-established precedents, parents, not the state have primary authority for respect to the upbringing and education of children.

That includes a decision not to be shut out of decisions by your children's mental health. So, and is that fair, I mean, I thought you just told me that we were supposed to define substantive due process rights at a low level of generality. Yeah. Right.

That seems like a very high level of generality. Yeah. I will say this is another one. If you go read the cited cases about parents' rights, I mean, they are cases about parents' rights.

So there is some sort of substance due process limitation on the state's ability to interfere with parents' up, you know. They're all, all those other rights are sort of negative liberty cases where the parents are being stopped from doing something with their kids that they think is a good idea. None of them are about compelling the state to do something that the parents want them to

do. Now, that's a plausible extension, right, in these cases are positive rights cases. These cases, nobody's stopping parents from pulling their kids out of school or doing whatever they want to kids at home. The question is whether the parents now have a constitutional right to force the school

to do what the parents want, which I understand why the parents want it.

“But it is an extension, and part of the reason, the court has said you have to do these”

things at a low level of distraction, is then it could no rural row. If you do things that this kind of level of distraction, you could say, look, we already have precedents recognizing the right, whether to bear or to get a child as the court said an isn't stat, the idea that in general, people have a right to bodily autonomy, can make decisions about, you know, their own body and their own medical care, you know, unless

the state has a really good reason as well-grounded in hundreds of years of precedent practice. So you could have said that. No, no, no, no, we don't define things that that kind of little charality. So, let me just look at this, a couple of sentences of reasoning, one very closely, under

long established precedent, parents not the state have primary authority with respect to the upbringing and education of their children. Next sentence, the right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health. Okay, that at a high level of distraction, that is accurate.

I mean, and at a high level of abstraction, that first sentence couldn't apply a lot of

things, right? I think divided argument, blogger Richard Ray made the point that, you know, does this

school? Does that seem right? I'm sure it doesn't. I'm not sure why, but I'm sure it doesn't. So the other one floating around there, what's talking about is in Skirmetti, Schumerical,

right where the court upheld state of Tennessee's regulations about medical care for trans children. The court decided on equal protection grounds, but the plaintiffs brought to the court and had litigated in the six circuit, substance and due process claims as well, parents write claims, saying what's happening here is the state is interfering with the parents' rights

to direct the upbringing of their children to make decisions about their children's medical care, like a lot of the same claims, which the six circuit shut down and the Supreme Court did not review. Now, the rule did not review them.

So maybe they secretly had doubts about that and never mentioned it, maybe now somebody

can bring a claim against Tennessee's law of relying on Merrebelly. But it seems like that there's a right not to be shut out of participation in decisions regarding children's mental health, but maybe also not a right to make decisions. It could be. And so there's a primary authority with respect to the upbringing of children that doesn't

mean it's unregulated. There's a lot of questions that's the thing, when you do it at a high level of generality. There's a lot of questions about why this violence at where the right comes from. So now look, it's just a precarium shattered octeticision, so I don't know what it means.

Yeah. And this is, you know, really just a paragraph of reasoning on the substance of substantive due process. Yeah. Okay.

And a reprobable harm, you know, we've got the other factors for equitable relief, reprobable harm, even shorter analysis there. The denial of plaintiff's constitutional rights during the potentially protracted appellate process constitutes a reprobable harm. That's the analysis.

Yeah.

“So I think, so just to put everything together, we've landed in a world where if the government”

can't, you know, follow one of its own policies, that's always a reprobable harm.

Yeah. I'm pretty established over the last few years. And so now, if a person is denied constitutional rights, that is also reprobable harm. Yes. Does that mean there's always reprobable harm in common cases?

Basically, yeah. Okay. That is why everything is an emergency day. Okay. All right.

Everything is reprobable. Because every minute that one side or the other wins or loses, is an emergency. But it only is true with respect to the party actually, you know, enjoying or bringing the constitutional claim, right? I mean, like, in the sense that, you know, this came up, we talked about this in some of

the immigration cases where I was sort of making the point, well, if the administration is allowed to continue this policy, there is some pretty irreparable harm to the people being deported. But I think your response to that was, well, you know, we look at the irreparable harm to the person seeking equitable relief, right?

But that flips at each stage. So if the state went to the 9th Circuit to challenge the reduction against them, I didn't mean their papers. But I'm sure they said, we are irreparably harmed by the injunction. Because every day that we are not allowed to enforce the California law is a day that we

are fully harmed, and the 9th Circuit agreed. And then the plaintiff's go to the Supreme Court and say, "Every day that you don't enforce

“the injunction, we are irreparably harmed," that's what we've got to agreed.”

So I think we've irreparable everything is irreparable. Okay. And a little bit of analysis on the balance of equities, I don't think that moves the ball forward that much. So they could host to the court for even mentioning these factors and giving them paragraphs

that look a little italicized phrase that reminds everybody they're part of the test. That's at least like more doctrinal hygiene than the court often has in these cases. It's good, you know, legal writing practice to just like say something about every element of the law, even if it's kind of what's that's fine. Okay.

And then I think this is also something Richard Ray flagged. There's this standing paragraph. And I think this is maybe a bigger deal. Yeah. Okay.

This is part three of the opinion, the Ninth Circuit Circuit's procedural objections to the injunction are unlikely to prevail.

First, the parents protected by the injunction very likely have standing because they

are objects of the challenged exclusion policies. What does it mean to be an object of a policy? Okay. So this, we talked about this last term in this case, Diamond Ultimate of Energy. This is a new standing theory just as Cavanaugh came up with to sort of thread the needle

“between the court's traditional view that if you are regulated by a statute, you should”

have a lot of standing the challenge it. Like the core people who can challenge things, people who are regulated. And if you were just a bystander who wants other people to regulate it, be regulated, you shouldn't have standing. And then just as Cavanaugh didn't entirely like that distinction because they were some

non-regulated parties who he thought should have standing. So he created a new category of people who are objects of the regulation. They're not regulated by the law, but the laws purpose, although it's not supposed to be purpose test, the laws feel the laws vibe. That would sort of think someone's an object of a regulation if they're regulated by it.

Well, it's designed to elide that.

“So this is the example of, you know, if you sell hotdog buns and then they ban hotdogs”

at the baseball stadium, you're, you're not regulated, you're allowed to sell hotdog buns. But now nobody will buy your hotdog buns because they're no hotdogs. But objects sort of implies some kind of intentionality to me. Well, that is aimed at you. Yeah.

So the test doesn't turn on the intentionality. It's objective. Object. It's objective. Okay.

Okay. But so this theory was floated and not actually fully endorsed in Diamondville, some of the energy at the pages cited by the majority. But now apparently the kind of floating of the test is precedent. Okay.

Yeah. We've got a C site there and that resolves the question. This should be a CF, or maybe maybe needs a, you know, law review favorite explanatory parenthetical. Never.

Okay. All right.

Second class certification was likely proper.

This is the other procedural objection, the court is dismissing. This record addressed the requirements for certification under Rule 23 and explained what concluded that they were met. And, you know, not a tend to say about this other than, you know, something that came up in Casa, you know, which is about the possibility of these kinds of, you know, universal

injunctions that apply to, you know, more people than just the plaintiff, you know, one way to get broader relief was through class action certification. Yeah. And that did happen here. Yep.

We don't know why. That's okay. Okay. You know, quickly trying to keep us on pace, we're already a little bit beyond my, my schedule. But we have a concurrence from Justice Barrett, who is sort of responding to the descent

about the ongoing role of substantive due process. Yeah.

“And I think so she's trying as hard as possible, I think, to signal, like, we are saying”

more here because people keep complaining that we don't say more.

But we're trying to say only as much more as we should say, right? So she says, look, we only said it's likely, these are likely to succeed. It's not clear. And I think the best, I mean, as I read here, what she's saying is, look, these cases are pending in a bunch of lower courts.

We've all looked at them and six of us think they're wrong. The thing of it is just approaching them in the wrong way. They've narrowed the precedence and not even really, like, considering the main precedence we think are binding. And it's probably better for everybody if we just tell you that now.

So you can start trying these cases back on track. There's a lot still to be decided about what exactly that means and what parts of the curriculum can and can't be regulated and all the different permutations. And the courts try not to say anything about that. We just got to tell you, like, you're over here and you guys should be over here close

at us. Okay. And then, you know, descent by Justice Kagan, raising, you know, a set of arguments that we see over and over these days about, you know, the courts choices to intervene using the emergency docket, one thing that I thought was interesting was, you know, she sort of says, well,

maybe on the merits this is right. Yeah. It was, that was kind of striking because a lot of times in these dissents, the dissenters are objecting both to the actual substance of the decision and the procedural way that the decision, you know, was reached.

Yeah. And she doesn't do that. So just a subtle mayor does not join this dissent and just says she would deny relief. Think it's possibly because she doesn't think that there may be correct in the merits or like, wouldn't even, that seems, that seems quite plausible to me.

“It's also, I mean, this is interesting more generally and then I think of all the things”

that some of you have done on the emergency docket lately. This one may not make people as mad as some. I think the result here, I mean, it's very controversial, but there are a lot of people like Justice Kagan who might think like, even Justice Kagan, despite being a relatively liberal justice, might think there are some problems these policies.

I do think just as a matter of policy or at least political optics, a policy that says the government is allowed to keep secrets from parents about their minor children is, you know, likely to be unpopular and I think, you know, likely to be, you know, at least at a national level hard to politically defend. Right.

Now that said, the fact that this involves, you know, enforcing the non-existent parent teacher clause, the constitution, this is the thing that troubles me, but they not be what gets the news coverage. Okay. One minor thing, did you notice this?

So Justice Kagan points us out. The majority doesn't call this doctrine, substance do process, they just call it do process. Okay, substance do process is bad, this is just do process, the good kind. And then she's like, by the way, that is substance do process, but it's a bad word, it's not to say it.

Okay. So times more, we could say about that, we could have an whole episode, but we're not going to next thing, in order in Maliotakis versus Williams, this is your an election law person now, right? Yeah.

So you have to get into this. Okay. Okay. In this case, it was decided by the Supreme Court at the same time as Merbello, also granting a stay of something happening in the lower courts.

constitutionality of the New York equivalent of the voting rights act. And this time, the court, again, grants a stay, was no procurement opinion, was no court up in at all, just a standard one paragraph, the application for a stay is granted, while

you wait to decide whether to grant it, Justice Alito, right second currents, and just

instead of my or joined by Justice Kagan, Justice Jackson, right at a set. Okay. So this one, you know, does not appear on opinions of the court. Yeah. So we don't have the full scope of the court's reasoning.

Does it make sense to talk about the dissent and then the Alito response of the dissent or go in the other order? Right. So Justice, Sotomayor's dissent begins with a great summary, so she says, the courts 101 were an unexplained order could be summarized in just seven rules for the, but not for

me. Right. And then she's like, look, time and again, you've been telling me that federal courts are of limited jurisdiction, you shouldn't interfere with state court litigation, that federal court shouldn't medal a state election law, like, you know, just a couple of months ago,

we learned that it was the eve of the 2026 election and the Texas courts, the federal courts should not step in and stop Texas's mid-after year redistricting. I think by some mathematical principle, it must still be the eve of the election, or it says, no, it's no earlier than the eve of the election. Well, it's different timing with respect to the primary, right, true in Texas versus New

York, right?

“But I think in both cases, it's about three months, right?”

Yeah. So it's still, in the general election, it's still coming. So, yeah. So it's, it's, it's, it's, it's Evier now. Right.

So I think Justice Sotomayor's dissent could be summarized in four words, you know, give me a break. And I thought this, especially this opening paragraph, was pretty effectively written.

I saw actually, I confess when I printed this out, I read the first paragraph, which appears

in the first page of this sentence, and I thought she'd gone for a one-page, one paragraph dissent. And I was like, that was bold and effective. And then I learned, there's the 12 more pages, yeah. But really the first paragraph, it was great.

So there's a few things going on here. There's a jurisdictional question. Yeah. I am not sure we can clearly explain exactly why in the time, a lot, that's where the bodies are buried.

Can you do like a two-sentence version? Okay. Uh, the social rights statute says that the Supreme Court has jurisdiction of a state court. It's only when the lower court case is final.

This case wasn't final, and that's a big problem for the court wanting to intervene. So what's the justification? Okay. Good. Just as little rights for this one, right?

So he has two justification. One is, well, we did it in the Skoki case, which is one of the Supreme Court famously intervened to allow the Nazis to march through a Skoki Illinois. And there are some similarities in that case.

“And this one, although there are actually some crucial formal distinctions, like there,”

the Illinois Supreme Court actually denied the stay, whereas here, the New York's highest court sent the stay back, which is what we're going to bring it back to them. But like that's argument with. Yeah, and there still was a possibility that the applicants could have gone back to the highest court of New York, right?

Yeah. And if you read the Skoki opinion also, which talks about this issue, they say, also the

First Amendment is special.

The reason we have to intervene here, even though it kind of straights our jurisdiction, principles, is because there's a special First Amendment right to get an education of your right to speak before you go to the parade. So unless that principle somehow been expanded to here, it wouldn't work. Just as little as other argument, which might actually be correct, although is exceedingly

technical, and it requires to make up a bunch of new law, is that the All Ritz Act maybe allows us to evade the finality requirements of the Sushvory Statute. So argument would be, this case is not final yet, but it will be one day. And the All Ritz Act allows us to act to preserve the jurisdiction over our eventual search jurisdiction.

So even though it's not final, we can act now because we won't be able to act later. Because the case would be moot, well, okay. So just the grant the idea first, like if a state has an execution pending, they're about to execute the condemned person, and they haven't, the state court is still sitting on the case.

But we can keep him alive to make sure that we can still hear the case later because it would then be moot. It wouldn't exactly be moot. It's just that eventually the presel principle will kick in. Eventually it really will be the evil election, and so the Supreme Court won't be able

to act because of its own equitable principle that it shouldn't act to lay. Yeah.

“And this is a rule that I think that federal courts are not supposed to meddle too close”

to an election. So because that rule does not apply to state court, right? But it's not the US Supreme Court from intervening and whatever is going on in the state courts, if we wait too long. So because we have created a rule that we can't intervene to late, we now have an extra

power to intervene early to ensure that because we wouldn't have allowed ourselves to intervene late, even though it's technically late under the court's reasoning from an earlier interim order decision, I bet. Manipid that way. Okay.

It's not as late as that. It's not as EV. Okay. So that will be still confused. The thing that's actually most like, which Justice Lido can't talk about because he descended

lower court decision in the middle of the night to stop deportations of group of accused enemy aliens out of the country.

“And part of the reason they felt like they had the intervene then is that even though”

the lower court hadn't acted yet, the lower court was clearly not going to do anything before it was too late. And the court was worried it would be too late. And it was going to be too late. And I kind of similar fashion.

It's not obvious the court can't still do something about people who've been already been deported except that the court is concerned that it can't through the kind of like, we have our own equitable principles that are going to keep us from intervening later. So we've got to act now. Okay.

A lot to say about that one, is there anything else we should say or should we try to get

to the third thing we were going to talk about?

We could try to get to the fifth one. Okay. We should do it now. All right. Okay.

The third thing we were going to talk about is a merit opinion that came out last week. And I should note there were some merit opinions this morning that we are not going to talk about today. We may get to eventually. This is a case called Varyall versus Texas in it is about the scope of the sixth amendment

right to counsel. And the power of trial courts to restrict the ability of a lawyer to consult with their client in the middle of the client's testimony at the trial. And there's this general principle that, you know, when someone is testifying their not supposed to, kind of, consult with the lawyer to have the lawyer kind of craft the testimony.

Right. We think that's meddling. Right. Although it's testimony. In depositions, we do this all the time.

Right. Yeah. That's true. The lawyers right there and saying, you know, don't answer. Right.

Yeah. Or so one kind of crafting is the well-known, an impermanible tactic of subordinate poetry. Right. We are like, don't forget.

You're supposed to say whatever. Right. That's really impermanible. But a lot of the kind of crafting might be going on is more like, look, when they ask you a question stop rambling, right?

Like, one of the first rules of teaching is if it has to fire, just like, answer the question

and stop. It will be tempting to just keep talking, but don't keep talking. So you're going to imagine a lawyer who just wants to go to their clients and say, like, "Shut up." And so this is, you know, one of these cases where a circuit split evolves because there's

two serving court precedents with kind of polar different results. And then there's a fact pattern that emerges that is exactly in between those precedents. Yeah. Right. One was the court said, you cannot, trial court cannot tell a lawyer that they just

can't consult with a client overnight because of the risk of, of meddling in testimony. And that's a situation where client is testifying, there's a break in the trial and the client is going to continue to testifying the next day. You cannot just say, lawyer, you cannot talk to the client at all. Right.

This is the last other stuff you want to talk about. Right. Yes.

A court could say, lawyer, if there's a sort of middle of the day break in the testimony,

the court could say, lawyer, don't talk to the client right now because, you know, we think there's a significant enough chance that the thing the lawyer would want to talk to the client about is the substance of the testimony. We don't like that meddling. Right.

Like, even the middle of your client testifying, you're like, can I go talk to my client

“about, you know, what witness who should call after this?”

The truck will be like, you can wait until after the testimony is done to that. Yeah. Right. It's in the middle of those two because this isn't an overnight break, but it was not what we would call a total denial of the right to counsel.

The trial court just says, you know, look, you can talk to the lawyer. You can talk to your client. You can't, you just can't, I'm going to limit what you can say. You can't manage the testimony. You know, I, not totally clear how this is enforced, right, because the trial court is not

there listening to the privilege conversations between lawyer and client. Right. Right. But, you know, it's enforced, I guess, by the lawyer's ethical obligations to follow the court's order.

Plus, I think the risk of the client might later say, you know, the lawyer told me to do act. Yeah. Okay. Okay.

I think that's, that's the issue. Answer, in an opinion by Justice Jackson, what the trial court there did was fine. Yeah. An overnight limitation is fine, as long as it's limited to don't talk with the testimony and they could have talked about herself.

Yeah. But this was, you know, a pretty clearly written, effective opinion.

“It's got, you know, I think seven justices.”

So everybody, but Thomas and Gorsuch, who are going to concur in the judgment, a little bit, maybe a little bit of disagreement between the majority and Justice Lito, who does join, but I think concur's in order to, to shade a little bit, yeah, because the majority sort of suggests, well, there are lots of things that a lawyer might want to talk to the client about that might be sort of like incidentally related to the testimony, right?

And Justice Lito sort of seems to think that it's more restricted.

Right.

Right, because I, and Justice Lito is one of the things that the type of like, so, you know,

what if I, what I want to talk to you about is like, you just said a bunch of stupid stuff on the stand and unless you fix it in the next two hours of testimony, you're going to have to plead guilty. Yeah. And then, but if you go back to the majority, it says, for example, a court cannot prohibit

it defendant from obtaining his attorney's advice and whether and why he should consider a guilty plea, even if the why includes the impact of his ongoing testimony on the trial's prospects. Yeah.

“Two things, contradictory, or is there some daylight?”

I mean, Justice Lito then, right, this is, I can't, they seem to be, you know, walking the various hypos, Justice Lito thinks it would cross the line to say, we will really need to secure a detail in less. You clean up mistakes, A, B, and C that you made today on the stand. So, maybe what they agree is if you've just committed an irreparable stake on the stand,

then you could talk about the consequences, but if it's a reference, if it's backwards looking. Yeah. It's okay. But if it's forwards looking, it's, it's bad.

Now, if you're client, it's smart enough to infer from your backward looking commentary, what they could do forward looking, I'm not sure which way that cuts. Um, okay, um, what else to say about that? Can I ask a broader question about this? Sure.

Okay. So, Justice Jackson, I think it's a great Justice Jackson opinion, by the way. We sometimes get accused of not praising her enough, so this is a great opinion. And it starts at this really nice framework about how like the criminal defendant has all these rights.

If and when a criminal defendant takes the witness stand in his own defense, his status shifts. Right. He doesn't shed his rights as a criminal defendant, but he assumes some of the burdens of a test find witness. And this is like an important interesting to me back in trials, like the defendant who

doesn't testify has like ironclad rights that any who does testify, suddenly there's evidence that can come in, wouldn't go, come in otherwise it's probably going to take this money up really high stakes decision.

Is it possible there's a third way here?

So there's a recent article coming out in our law review, actually, uh, by Lawrence Aquaroff called the accused speaks that describes the common law right defendants had to talk at trial without testifying. Oh, interesting. Because it was a rule that you couldn't testify under oath.

At the fighting, you couldn't testify. It's fun and idea was that it would be cruel and unusual and stupid to let the defendant take an oath because he would damn himself. Right. Obviously, the defendant will deny that he did it, whether he did or not.

And that will damn his soul before God. And so rather than, I mean, that was the rule that's actually the rational. Yeah. That was the theory. And so we're just like, be stupid and cruel.

It's a little less the defendant swear. But obviously, it would be kind of solidest, not less the defendant talk. So you just kind of like let the defendant talk. There was like, then there was some of that was representing yourself. Some of that was like there was a special space.

You just like comment, like you were on trial so you can say whatever you want. Like we used like providing commentary in real time, like shouting, like, well, other witnesses

“were testifying or I think you were getting up on the stand and sort of the thing, I'm”

going to say stuff. It's not under oath. I think you would like, I did some of the examples there, about to stay cases. But some of the examples are like the defendant, you know, the witness would talk. And then the accused would comment on why it was false.

Not at the same time. And like a bunch of states have this right in their state constitution, some of them erased it. I don't know what the status that right is under the privilege of community laws or whatever, but it actually seems like it might be an important piece of the puzzle here is that

the current framework assumes you have only two options. The formal role of witness for all the law applies to you or the role of defendant. We got all these like special rights. And if you have both, then we got to kind of, but if we just had the old system, where you don't take the stand, you're on defense, you're not a real witness.

But you get to talk, then I assume you could talk to your lawyer, what to say. Interesting, is there an argument that that should be constitutionally required? I think there might be. I may have a run it to ground, but I would think the privileges of community laws, if it protects other kinds of, I mean, it's at least as deeply rooted and as the right

of parents to parent each or conferences. OK, and then, you know, anything to say about the concurrence and the judgment by just

“this Thomas joined by Justice Gorsuch, it's not all together that different, right?”

It's not a radically different approach. I think it, you know, there's interestingly, you know, it has a whole facts section. Yeah. I don't, just as Thomas does this sometimes, you know, sometimes that's a clue. When other justices do it, that maybe there is a stolen majority.

I don't think that's the case here. I think he's just being thorough, but he seems to think that the majority opinion kind of opinions on too much, but, you know, not a radically different approach. Yeah. OK.

That was our substance. I and you said we should leave about 10 minutes for questions and we've left eight. So we kept on track. OK.

Should we make people come up and use the mic? I think, unfortunately, one of our mics is not working. So people are going to have to come up and speak. If they want to be in the show, speak into one of our microphones. You can stay your name or you can be anonymous to just look at what guests who are.

But first, thank you both for coming.

I am a big fan. So this is a great, great time. I guess I'm hesitant to say this, as you both seem to think, Vio Rial was a good opinion. I did not necessarily think that.

I would have thought that if anyone on the court was going to sort of champion the Douglas

Brennan Marshall type views, it might have been just a Jackson.

“So what are your thoughts on the fact that she wrote the majority?”

I think that's a great question. I confessed to being a little surprised at how much unanimity there was on the court. I wonder whether the court saw it as an easier case, because the instruction that the trial court gave was I think pretty narrow. Yeah.

Just don't manage the testimony. Right. I also wonder if this is part of the opinion might have read very differently, if Justice Leedon had the majority opinion. I think it might have been five votes for something more like Justice Leedon's.

That says, "Look, think up ahead about a lot more than this." And we don't really trust lawyers to obey these instructions. And so of course, this is fine, because anything didn't go far enough. Versus Justice Jackson, this seems to say, "Look, this is fine, you know, there's a sort

of limitation, but after all, we're trusting the attorney to side of the draw the line."

So sometimes you might want to read it up in like that so that you can characterize what happened in a less bad way. And I would say, I think, you know, we both thought it was a reasonably effective and well-written opinion.

“You know, I think the merits are a little bit more complicated.”

And I think there's a decent argument that maybe trial courts should just not be allowed to tell lawyers what they are allowed to speak about. That is too much of an intrusion into the attorney-client relationship. That once the attorney and the client are speaking, that's really beyond the bounds of what the trial court can supervise.

With that beer view, even for like lawyers of the defendant's lawyer, like if I'm testifying somebody else's trial, I have a lawyer. Can he like come up to me on this, you know, excuse me on the stand and like talk to me as I'm testifying. I don't think you have a, do you have a six-limit right to have a lawyer with you at a trial?

No, but I probably have a due process right or something. Maybe.

I wouldn't extend it that way.

I would say, you know, as part of the six-limit right, clients have the ability to, you know, the right to consult with their attorneys. And then, beyond that, we can't kind of look inside the black box. I think that's one argument you could make. Yeah.

Maybe. So you totally buy the majority. I just had a skeptical about all these cases. I mean, I, you know, I think I'm going to go full, full acute speaks of this one. Okay.

But so with respect to this, I don't know, I don't understand your skepticism. You're saying that your skeptical that the, you know, client should even be allowed to testifying. Well, maybe. Yeah, under oath. Okay.

But I guess we have to do that. I've just got to believe in about the case that says you could stop the lawyer from talking to them overnight. Like what I understand is the precedent. But, uh, not sure where that comes from. But then I'm also saying you can't stop the lawyer from.

Right. You think they should be allowed to stop the lawyer from consulting overnight. Yeah. I mean, the six-limit does say you have the right to the systems of counsel. It doesn't, don't you think that, you know, implies that you can't stop the client from consulting with counsel over at least some period.

Sure. Or what if there's a rule that says you can have an attorney, you just can't speak to the attorney during the trial. That doesn't work. I agree. That doesn't work.

I agree. But also does the right half be 24/7. Like if there was a, you know, business hours before trial. Right. Before trial, if the lawyer says I want to go, you know, visit the jail and talk to my client or talk,

you know, they say, well, okay, but not in the middle of the night. I mean, now maybe there'd be some case where it really does enter the middle of the night.

“I'm not saying it would never, but it wouldn't be crazy to think like sometimes you have to wait because the other things to do.”

I'm not sure. Okay. I think we have time for one more. Remember, we did one of these live shows here, you know, a few years ago and we'd similar, similar issues. People, people a little nervous to ask questions.

I guess, you're intimidating. Okay. There you go. You provoke them. Shame to them.

Thank you both for coming. I was a little surprised in the Bonta case, not to see any concurrence, probably by just as Thomas about privileges or amenities. I was wondering what you guys thought about that and what you would think of privileges or amenities analysis might look like. One of the complaints I think that it's that makes this right is that in dogs, just Thomas was the one who said, I'm not okay with all of these ups to do process rights.

Like we should reconsider all of them and only recognize the ones that are grounded under the privileges or communities laws, right, just as Thomas thinks all these rights belong. And so then I had to go back and check like what did Justice Thomas say in his dogs concurrence. What did you say in Toronto versus Grandville? I do think it's a puzzle.

Now again, maybe this is where the fiction, this is not a real opinion and only a precarious opinion kicks in. And Justice Thomas will feel the need. Maybe he's already drafting his concurring opinion for the merits case. They'll get into years, which he'll lay out his sort of comprehensive theory of the original understanding of parents. And he may not have joined the precarious.

Yeah, I mean, you know, must have five justices who were willing to sign it, right? Well, does it? Can it be the narrowest opinion? Because if there were two justices who would have done more like a Marx rule?

Yeah, I don't know.

“I mean, I think I think a precarious him has if it's actually the opinion of the court.”

It has to be the opinion of the court.

Okay, but Alito and Thomas would have granted it. Yes, beyond that doesn't mean they, they, one of them could have said, one of them could have said, Okay, I'll agree to the precarious him and the other said, Okay, because within this one posture, this is situation where it's okay for just not to.

Join, you know, not to tell us whether or not they joined.

Yeah, okay. But the other thing I would just as Thomas is that he has a longstanding skepticism of the rights of children in public schools. Right, so then he's the one person who thinks that children have absolutely no free speech rights or fourth amendment rights when they're in public schools. So when he does write this great.

“Converging opinion about the privileges of communities clause and parents rights, it's going to be interesting. Now, I think he could all be consistent.”

I think he thinks that children have no rights because schools stand in local parentheses and because children have no right against their parents.

They have no right against their school masters. Now that he could say, therefore, follows from that that the schools really have to stand in local parentheses and can. It's going to be a complicated story. I had a certain a couple years ago, right, a research paper trying to dig in to sort of do an originalist privilege as a community clause sort of analysis of parents rights. There's a lot there that hasn't been, you know, fully, fully canvas and laid out.

“I mean, now is the time for me to get started.”

Yeah, and as just as cake and noted, there are a bunch of these cases, you know, already pending at the court or working their way up. You know, presumably we will see a fuller opinion on this eventually unless unless this procurium just is seen to resolve everything and that's it. Right. Well, it does happen. Right. So I've heard from some people who are working these cases, like you see this opinion, you think well, maybe we just shouldn't bother. Maybe at this point, just abandon all the cases because it's clear which way things are going.

So it does sometimes happen as people like to say that the Supreme Court's interim orders turn out not to be very interim because once the court is told us what they think about it, like everybody just goes home. Okay. Do you want to lead us out? Yeah. Thanks to all of you for coming. Thanks to those of you listening. Thanks to the University of Chicago Women's Board, the University of Chicago Federal Society and the Constitutional Law Institute for sponsoring all of our endeavors. And if there is a long delay between this and our next episode, it will be because we've been barred from conferring with each other.

Thank you. [ Applause ] The case is submitted.