Jezebel Shouting

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

at Annapse. And I will vote. So, we have yet another live show. We've done a few more of these recently than we tend to do. This one is back at a friendly location for me.

We're at my home institution, Wash You Law, and we are here for admitted student days. So, we have in the audience a number of prospective students and my job is to convince them to come here and not to a place like the University of Chicago. So, we'll see, at the end, maybe we should take a poll and see whether we've persuaded people of that by the end.

And I should also mention this podcast is in partnership with SkodaSplog.

“This is, I think, just our second episode since that partnership began.”

And so, hopefully we have some new listeners coming from the SkodaSplog side. For my part, I brought stickers and magnets that people should feel free to come up and grab at the end of the show, take them home, put them on your fridge. I will say bringing them was a little bit of a more of a trivial than I expected. I spent maybe 25 minutes getting through security over half of which was spent on the magnets.

The guy pulled my bag aside and was like, "What do you have in here, sir?" And when I told them they were magnets for a podcast, he just seemed even more suspicious. So, I mean, and I'm surprised because you actually usually do things to cause more trouble when you're flying around because you have a sweatshirt that says, "Get rid of qualified immunity." Yeah, last time I flew with my abolish cloth at a uni hoodie, a couple of months ago,

and I decided not to risk that now, especially while there's... There's legislation right now pending to reinstate bivins and maybe abolish cloth at a immunity related to the TSA funding thing, and I thought, "We'll see about that." And I imagine that the folks working at airports who have not been paid in a little while might be feeling a little saucier than normal.

Yeah. So, probably for the best. I'm glad that you made it here. I was a little nervous with everything going on at the airport. So, let's talk about what we're going to do today.

So, this podcast, typically, we make a real deep dive into some pretty nerdy technical areas of Supreme Court doctrine. We have an audience here full of pre-law students who may be of not taking classes like Fed Courts. And so, the responsible thing to do would be to kind of dumb everything down, make it real

simple, hold people's hand, and we're absolutely not going to do that. So, buckle up. No, I'm going to make one attempt to do that in a minute. So, but let me just tell you what we're going to do. So, we're going to catch up a little bit on a few things from the shadow docket.

We're going to spend a good amount of time talking about a case called a "Livier versus City of Brandon." And maybe I'll tell you a little bit about what that case is in a minute.

But why don't we dig into the shadow docket first?

“So, I think we have one summary reversal and then a couple descents from the denial of”

this or shall I. So, summary reversal, zorn versus lint. And I think we could at least tell this audience what a summary reversal is. Okay, fine. So, a summary reversal is when somebody asks the Supreme Court to hear their case. They file a sub-retition and say, you know, grant this case.

And the Supreme Court says, "Actually, this is so easy, we don't even need to hear any more argument. Just in the basis of what you've shown us so far, we can tell this is wrong. We'll just write the opinion now, skip any need for briefing and for the argument and just, you know, cut at the chase."

And so, you'd think that, you know, the lower courts get a fair amount of stuff wrong. And, you know, in ways that, you know, are bad and hurt people. And you'd think they would make sense for this Supreme Court to do this all the time. But they now do it maybe, you know, just a couple times at term. I didn't look up the most recent statistics, but it's very rare.

And they do so in a way that's kind of slanted. Yeah, so the, I mean, lower courts get things wrong all the time.

“And the question is, how does the court decide what mistakes it most cares about?”

And to first approximation, the answer is, if a lower court grants heaviest corpus to a prisoner

in state court, or allows somebody to sue a police officer, then the little red light in the Supreme Court goes off that warns the court that somewhere somebody might get a constitutional remedy and all the justice scramble to go make sure that that doesn't have. I think that's a little unfair, because it also extends to cases where someone tries to sue an FBI agent, things like that.

Yeah, so this has been something where the court has been criticized a lot. There really does seem ideologically slanted because the court has this complete discretionary power. It can just pick whichever cases it wants to step in, take some time out of all the cases

view on how it should use that rare power.

“And this is another case that I think continues that narrative.”

So it's a case where the plaintiff was a woman who was protesting at the governor's inauguration in Vermont, so she was at the sit-in at the state capital, and the capital closed, and she and her number of other protesters refused to leave. They were told they were trespassing and would be removed, and she refused to move. And in the course of her removal, an officer, you know, took her arm, put it behind her back,

put her in sort of like a pain, wrist block, and dragged her out. And her allegation is that this violated her rights and caused her a lot of physical injury, which might sound like the kind of thing that someone is allowed to sue for.

And so the court, and the lower court, this is coming from the second circuit, which is

the Court of Appeals Federal Court of Appeals that governs Vermont, New York, Connecticut. That's it. Yeah. Okay. And the second circuit it said, you know, we're not going to say who wins yet, but this

is the kind of claim that can go forward. We can let a jury decide whether this violated the plaintiff's rights. And the court comes in and says, "That's a fast." Yeah. Right.

So the court says, "In general, you can only be held liable. You can only be held liable for violating a constitutional rights, not just if they acted on a constitutionally, but they acted out, readjustly, unreasonably in a way that everybody should have known was clearly illegal."

And yeah, the second circuit had some previous cases where police officers were held to

have used too much force, but in that case, the guy got his head slam into the floor. And in this case, it's merely, in this case, there was a brief warning. Yeah. That changes everything. Okay.

And so as you can imagine from the way this qualified immunity rule is being enforced by the court. It makes it very, very hard to sue. Even when someone's constitutional rights are violated, that's not enough.

“You have to show that they were violated and that there was a previous opinion that”

it said, like, something close to that exact thing happened and that it was a constitutional violation. Okay. So we have here a dissent from Justice Sotomayor, joined by Justice Kagan, Justice Jackson, that digs into the substance of the decision, and she takes issue with court's conclusion

that the violation here was not clearly established. And then she also returns to a theme, at the end, which is the theme that we were mentioning

a second ago, which is that the court chooses to intervene in a very lopsided asymmetrical

fashion. And I think that criticism lands. Yeah. So I think Justice Sotomayor drives at home, especially by also, at the same day, there was another case where, evolving qualified immunity, where people asked the Supreme Court to

intervene and correct the narrow by the lower courts in the other direction. A woman named Priscilla V. R.L. was a local reporter and trouble maker who was arrested for having the tomorrow to talk to public officials and report about it on Facebook. And so she sued, and the Fitzgerald said, you know, the police officer's good quality immunity on very dubious grounds, and Justice Sotomayor said, "Well, look, why don't we take

this case, too?" Right. If we're going to be in the business of second guessing, whether or not lower courts have gotten the education of qualified immunity cases, right, why don't we take some of those sides?

And we get no explanation, right? I mean, even though we have a short opinion by the Supreme Court granting relief in the case from Vermont, they explain why the lower court decision is wrong, but they don't say, and by the way, here's why we decided to step in. Dan, the Supreme Court is not a court of error correction, except when it is, right, when

they choose to be. Here, in the other case, in the VRReall case, there's no explanation from the court is all at all. The court just denies Cerschurari, the court gets, you know, seven or eight thousand petitions every year from people saying, please hear my case, most of them are denied

without an opinion. And so, you know, there's been a lot of criticism, you know, from you and others about the court's, you know, refusal to explain how it is using its discretionary authority.

“And when you first, you know, kind of wrote the original shadow-docket article, I think”

you were actually talking about cases like this, right? That was a prominent subject of that article about cases where the court was stepping in and these, you know, qualified immunity, very fact bound disputes. Because the court, you know, usually says, we don't, we don't mess around with, with fact bound disputes that affect just a single person.

We're here for the, the really big legal issues, and yet sometimes they don't do that. Now, I will say, sometimes the court does provide an explanation, so I was making fun of the, all the cases earlier, where the court steps in because the lower court might grant somebody a rid of habeas corpus. And there the Supreme Court has said explicitly, the reason we do this, even though we don't

out there who don't believe in our restrictions on habeas corpus, and we don't trust them.

“And so, we've got to watch them like a hawk and second guess them, because they are subverting”

our authority. Now, they haven't ever said that about qualified immunity, they haven't ever said there are a bunch of lower court judges out there who don't believe in qualified immunity.

And we've got a second guess them, too.

There are. It would be a little embarrassing for them to say, because for habeas, there's like a statute, it makes it very hard to get habeas. And for qualified immunity, there's a statute that doesn't say anything about it. Yeah, it's as you're supposed to be able to sue and it have a state official violence

or constitutional rights. So, at some point, they would have to explain why they're as mad about people subverting sort of made up a textual illegal restrictions on remedies, as they are about people restricting real law. Yeah.

Let's talk about qualified immunity for a second. You're a prominent critic of qualified immunity. I'd imagine even some folks in the room who don't have legal training might have heard about it. It got a lot of attention in the press in recent years, as there's been more attention

paid to, you know, police misconduct and so forth. It's a doctrine that makes it really, really hard to sue government officials.

“And you were saying it's not in the statute, so where does it come from?”

History. Okay. Okay.

To go, when it first started taking seriously, all these constitutional claims quickly

worried that it couldn't take them too seriously. And so it created a sort of doctrine to make it harder to sue. And then it just each decision repeats that the previous decisions have long recognized it. So, and your claim has been that there's no basis in history for this rule.

Yeah. At least nothing like the modern rule. Like if you dig around in history and squint, you can find times in the 19th century and at the founding where courts sometimes came up with various excuses to let officials get away with violating the law.

If you kind of squint at those, you could sort of imagine how they morphed into quality immunity one day, but there's a lot of morphing. There's other doctrines like this, right? I love how judges have made up and maybe you think this one is more justified. Made up the rule of absolute judicial immunity.

That's real. That's real. That's real. Okay. Judges can't be sued.

That's a community, right? That's a warm-up. Yeah. Okay. So, this is a place where the court has kind of found rules that at least none of

these are textual. None of them are textual. Yeah. And again, in a responsible world, we would have something like called the common law, where there'd be a long history of unwritten decisions that establish certain precedents and

not others and courts would use that as a background interpreting the statute. In our world, it seems more like the court makes it up as it goes along based on what they're at like these claims. And the justices who are doing that are ones that criticize the court and criticize other justices for doing things that they perceive are made up in other contexts.

Yeah. Although, again, there are honorable exceptions. So, Justice Thomas, who loves to criticize the court for making things up and not following the statutes, has said, gosh, quality of immunity seems to be a place where we've made up something that's not following the statute.

We should probably do something about that. And yet he's joining, or at least not dissenting from these opinions, enforcing qualified immunity. Yes. So, what's going on there?

I don't know. What's that going on? Yeah. I mean, these cases, you know, I've said this before, but these cases frustrate me because of all the situations where it makes sense for the court to expend limited resources,

to come in and correct some injustice, these ones don't strike me as fitting in that category.

Because yes, these are cases where a police officer is being sued for money, but basically

100% of the time, the city, the county is going to pay the damages award. So, it's not, there's not really a little guy who's being smushed the way there is in a habeas case where there's someone who is wrongfully in prison and wants to get out. Yeah. And now I will say that does mean that it's ultimately the taxpayers of Vermont.

I'll have to pay for this. So, maybe the court is just thinking about your average farmer. There's lots of bad decisions that implicate taxpayers, I would say. That's true. Okay.

Is there more you wanted to say about either of those, I guess the Zorn case does still

“dance around an issue that I think we still don't have a conclusive answer about, which”

is whether a lower court decision can count as clearly establishing the law? So, it does dance around that. It says, is it even possible for a lower court decision to clearly establish law? Or can that only come from the Supreme Court? This is a very odd thing because the Supreme Court has squarely held that a lower court

decision can establish a list of a law, in a case can read a versus green, I think maybe from when you clerked? No, a little bit after that. The court is said that it can happen. And then after that, the court is just said, "Well, we're not sure whether it can."

So, it's a funny way to undermine precedent as you just hold something. And then the next year you're like, "I don't know, do we have to hold that? I don't remember." I use that a hope that over time that will create enough fog with the decision goes away. Okay.

That's our nerdy Fed court's angle on that one. More on Varyall? No. We should get to the level. Okay.

Quickly. Oh. You don't want to talk about that one? Well. Sure.

“It's another justice to my award to sent from denial of social area.”

So, another case where the court could have heard the case, but she was not to. It is a follow-on from a case from a few years ago where the court sent this very case back down to the lower courts. It's gone back through the process and come back up and now the court is not interested.

Basically, without getting into the complicated procedural details, it's a case where there's

somebody on death row who wants to get access to DNA evidence that might establish his innocence, the local prosecutor in Texas is refusing to allow that the court previously said it's at least possible to bring a claim saying that this is a constitutional violation, but I guess now that's not actually going to go anywhere. Yeah.

This is a nice way to reinforce the principle that most of the time the Supreme Court is not a court of error correction. So, they had previously taken this case because there was a legal issue and disagreement about various rules for when you could get access to DNA testing. They resolved the legal issue.

They felt was important. They sent it back.

“They may well be that the case is still being miseducated and that in the end all the Supreme”

Court has resolved as an abstract issue of principle rather than justice for the particular litigant. But that's fine.

The Supreme Court is not a court of error correction.

And it may be that there's someone on death row who could die, who's actually innocent, and that we could just test this evidence and it would be super quick and easy, and yet nobody wants to do it. Yeah. I mean, so to be fair, in this case part of the issue is it's not clear how super quick

and easy testing the evidence will be, the objection of the lower court is that the evidence is possibly contaminated, and it's not clear how much it will tell us. His response is, well, I mean, it'll tell us something. Yeah. I mean, it could have the DNA of the supposed alternate perpetrator of the crime.

Yeah. But maybe that doesn't tell us anything because maybe it got there some other way. I don't know. Okay. I'm not buying that.

But I guess we should go on and actually talk about the one big opinion. I guess it's not a very big opinion, but it is an opinion that the court issued last week. There were a couple this week that maybe we'll circle back to in a future episode. But now we're just going to focus on this one, a Livia versus city of Brandon. It's going to be a 13 page unanimous decision by Justice K again.

And let me just explain the question presented in, I'll kind of using language that's going to be really simple for everybody. It's whether Humphrey versus Hacks, favorable termination bar extends to a non-custodial section, 1983 claimant, who lacks habeas access under 2254 and seeks exclusively perspective anti-enforcement and junctive relief against a facially challenged time-place manner restriction

where the claim necessarily imputes the predicate conviction, but contemplates no retrospective remediation cognizable under the Hacks framework. That's not actually the question presented. I asked Claude to like take the question presented and make it sound like more technical and harder to understand.

- A tech versus Humphrey Claude. - Yeah, so then I did something else, which is I went back to Claude and I said, you

“familiar with and I think you're going to be familiar with XKCD, the web comic, and the classic”

upgoer five comic, which is the idea is how can you explain things using the top thousand most common words in the English language? And actually thousand is not one of those words, so it's actually, how do you do this in the ten hundred most common words in the English language?

And so I asked it to do it for both Olivier and Hack, and maybe I'll do Olivier first and

then we're going to have to circle back and explain what this earlier case heck versus Humphrey is. So here's the top ten hundred words version of Olivier. A man named Gabriel Olivier felt it was his job to go out and talk to people about what he believed, the city made a rule saying speakers near shows had to stand in a special area

far from the group. Olivier found it too far away to be heard, went back to the street, and police took him away for breaking the rule. He paid a fine and did not want to fight the case at the time, but he still wanted to speak there, so he went to court to say that the rule was wrong under the part of the

law that protects Fris speech. The city said you already lost a case under this rule, so heck blocks you from bringing this one too. That raised a hard question, does Hack block your case anytime a court has already decided against you under the same law, or only when you were asking the court to say that

past decision was wrong? That's pretty good. Yeah, I was surprised that court is in the top thousand words. Yeah, I actually have a project I have halfway through of trying to transit the constitution into the top hundred words, which it has to teach that, how's that working.

Constitution is not one of the words that has to be called the plan for deciding things. Okay, I like to feel like that. It seems good. Yeah, I was that I started this pre-large language model, so presumably Claude could just

Yeah, and so this is going to be a case about this earlier decision, Hack versus Humphrey.

“And I got Claude to give me an even shorter version of the rule there, which is that if”

your fight for money would show the past decision against you was wrong, you cannot bring that fight until the decision has been taken away. You can't explain that in kind of midwards, like not too dumb, not too smart. So the basic idea is if you've been convicted of something and you want to bring a new suit, you can't bring that for money, at least in these original damages.

Under the same statute that people have been using in the qualified immunity cases, we were just talking about. Under the general civil rights statute, you can't do that if bringing that suit would necessarily impune your prior conviction. So it may be an example, you were convicted, you argue that something in that criminal

process was unconstitutional and then you want to go sue the government actors involved

and say, hey, you violated my constitutional rights, give me money.

Right. So the original, I mean, the original core idea is you were in jail for crime. You did not commit or a trial that was unfair on some way, getting out of jail requires

“you to bring over a previous corpus, which is very hard to do because you have to exhaust”

remedies, there are other things, there's now a statute, ad putt mix of hard that didn't even exist, time of heck. And so you think, aha, I've got a clever way to get around those things. I will instead just sue the prosecutor or the judge or the police officer for arresting me for a crime item, commit or forgive me an unfair trial.

I'll win a lot of damages after all, like if you were wrongfully imprisoned for years, presumably the appropriate damages would be very high and then they'll just let me out or then once I win, I can use some nickel dress for Dakota, to make it easier or maybe a suit, etc. So this is a room court said, and a pinnip by Justice Scalia and heck for some free, it can't do that.

And I was reading back through this one, hadn't looked at it a long time, and it also has a feel of something kind of made up, right? It just says, you know, this several civil rights statute, which is called section 1983, just doesn't allow these kinds of claims. But how the court gets there is a little fuzzy, it's like, well, there's these, there

used to be these old, you know, actions for malicious prosecution and this is kind of like that, so we think that this is in here somewhere. So the correct way, the correct form of way to handle this would be through the doctrines of what are called the rest of Dakota, which would say, we already litigated this question once, were you guilty?

And the answer was yes, and we litigated the question was your trial fair, and the answer was yes, otherwise we wouldn't be here, and the judgment in that case frequently, but not

always, stops us from asking that question again.

The court says in a footnote, well, that's kind of complicated, because you were convicted in a very state law, and so it would be state rest of Dakota law that we control, it would vary from state to state, and we don't know what the answers would be, and that's once boring and hard, it's just like when I was still a procedure, I promise it's not that hard, but it's not a while, since the Justice took one else a little procedure, so

they prefer it to just have a rule that says no regardless of the answer. Yeah, and this is an opinion by the late Justice Glee, our arch formalist, and it has a feel of one of the less successfully formalist opinions of his tenure. So what's better is there's a concurring opinion by Justice Thomas that just openly says we're making this up.

The Justice says, look, this case is about the kind of collision course between the habeas corpus statute and civil rights statute, but it's our fault that they're on a collision course, because we misinterpreted the habeas statute a long time ago, and granted too much habeas. I mean, to which is this provision where after you've been convicted, after you're done

with your peels, you can still go back to court and say, hey, let me out of prison, and people who are in state, state, prison can still go to federal court sometimes to do that. And we misinterpreted the civil rights statute a long time ago and said there are too many civil rights, and so we get to fix that having, having made this problem of sort of interpreting the statutes too broadly, we get to fix the problem of having decide how to, how to, how to,

how to unbrug them. Okay, so this rule is out there, and maybe there is a defense of some version of this rule. But I think what happens is this rule kind of expands in the lower courts, in the kind of three decades, sense, Humphrey, sense act versus Humphrey.

“I mean, the case, I think, originally is about when you can get money, yes, right?”

And then it seems to expand to extend to other kinds of suits. Yeah, although, in a way, the doctrine already existed also for other kinds of suits. So there's an even earlier case called "Prisor vs. Rodrigues" that was like, so I'm in prison, I want to get out. It's hard to get out of habeas corpus.

I've got an idea, why don't I get a rid of injunction instead, and just ask for an injunction saying, let me out. That's just like an order, an order in the court. And of course, the courts of what you can't do that, like you can't just like call it something else and get around the rules.

So the intuition that sometimes, you know, you shouldn't be able to just do an end run

But it's true that then courts just casually repeat various phrases from these cases without limitations that they contain, and they've come much broader rules than they were. Yeah. Okay, so let's walk through what actually happened here. This case is about a street preacher named Gabriel Olivier in Brandon Missouri, the city

opened an amphitheater, and this guy went to set up with a group. He's a part of some religious organization, and he got a loudspeaker. And as people were going into the amphitheater, he would, you know, shout stuff like horrors, jessibles, really not, you know, ideal conduct and a little bit distracting to people who were just trying to go see concerts.

And so the city said, you know, we don't like this, and they passed an ordinance saying, here's the protest year. We can have some people protesting, but you got to be a couple hundred feet away. And he goes back to a Lee Bryce concert, and does this thing again, does the, you know, Jezebel shouting, and received a fine of $34, got a suspended sentence of 10 days imprisonment

and a year of probation. He pays the fine, he doesn't appeal. Then later he goes and sues the city and the chief of police under the Civil Rights statute and says, I want an order that this law is unconstitutional that it can't be applied in the future.

It violates my first amendment rights.

And lower courts both said, no, this is barred by the heck versus Humphrey rule. We were just talking about, including the fifth circuit, the fifth circuit is, you know, one of the most conservative, maybe the most conservative federal circuit court, federal public court, but that court denied re-hearing. So that's when the full court considers whether to re-hear the initial decision by very close

nine to eight vote. And we had dissents by two Supreme Court short listters, maybe the two, the top two Supreme Court short listters, at least as of a year or so ago, maybe the, the, the, the standings have changed a little bit, but judges, ho and oldum, okay, both saying that we're, you know, interpreting this rule a little bit too broadly, even if you were previously convicted,

“you should be allowed to go to court and say, look, you can't keep enforcing this statute”

against me. Right. Although again, to be fair, he's aren't even convicted once. The normal rule of rest of Dakota for lots of litigation is if you had a beef with somebody once, and lost, and you decided it wasn't worth your time to appeal, then the next time

it comes up, like you don't get to re-litigate it just because you care more now. And this is under your alternate, alternate theory, uh, I'm just saying that the earlier rule was different. No, but I mean, if you were putting the heck versus hungry rule under that rest Dakota headache, okay, and so, uh, this actually implicated two unresolved questions, um, one

is that when we just, we've just been talking about is does this rule bar suits by someone who is just coming in and saying, hey, look, I know it's convicted before that's not the problem. Please don't do this to me again.

And then also, there's this other question about whether someone who was never in custody,

so never in jail, never in prison, uh, can, uh, bring a civil rights suit or whether those are also barred by the heck rule. So this is one of my favorite circuits, but it's like, of the, uh, there are like 10 circuits that are disagreed on this, maybe five to five, uh, you would think that's the kind of to speak the Supreme Court resolved, but no, the Supreme Court is a principle that if, if

it has not gotten around to resolving a circuit split for a long time, it figures, it's probably fine.

“It's so called stale, uh, you just know it for a while, but it is a weird question, right?”

So if the premise of hack is, you shouldn't engage in an end run or unhabious, the proper way for challenging custody. Well, then what do you do if you say, well, look, what would have happened to Mr. Olivia, if he tried to bring a Habius claim, we'll get to foot out two in a second, but if he was

never in custody, what he tried to bring a Habius claim, it's a, well, actually, you're

already out, Mr. What do you want? Like, Habius isn't a way to get a refund on a fine. It's a way to get a prison. If you're never in prison, you can't use it. And so there was a list of good argument that if you're in that category, if you're never even, we're in custody, this bar shouldn't apply. Yeah. Now, the court is actually just, it does not kind of resolve that question. It could

have used this case to resolve that question, but just does not. But in footnote two, which you just mentioned, there's this interesting wrinkle, which the court says, actually, he probably, you know, everyone said he wasn't in custody, but actually formally, we think he wasn't custody, so maybe he could have filed a Habius action of some kind. Wait, he was on probation, which counts as a form of custody. And so, yeah, during that

“year, he could have filed a Habius action. I think.”

Yeah, everybody lit a gate. Everybody seems to have ignored that of the Justice Kagan. I was like, smart as person to get to this case, I guess. And so, we'll just pretend it's

Okay, so the court seems to find this pretty easy. 13 page opinion saying, yes, you can still

bring these suits. It does that in part by looking back to a case that's even before heck, called Willy versus Manard, which has also got some fun facts. The New Jersey license plates either still do or at least after New Hampshire. Yes, New Hampshire license plates either still do or did for a long time have live free or die on them. Does anybody know if they still have those, I see some thumbs up. And some guy really didn't like that,

so he kept covering it up with tape. I don't totally know what the objection is. It's like, no, I'd rather live unfree. But it seems like I don't really live free. Yeah, against that. Yeah. And so he kept getting fine for covering it up and then he wanted to sue and say, like, I should be allowed to not have that on my license plate. And the court had allowed that suit to continue, even though he had previously been

fined. And so the court looks back to that and says, this is basically like that.

“And these things are okay. I think one of the things that's particularly interesting is”

the court very kind of openly and honestly looks back at the language in hack and in just a Scalia's language. And Justice Scalia has been, you know, by the conservative majority has been totally deified. You know, everything he says is perfect unless it was not conservative enough. And she says, well, with the benefit of hindsight, the sentence relied on in hack swept a bit too broad. That was, you know, basically, just as Justice Scalia slipped a little bit

there, even home or nods. And it's going to dial that back and say, that that broad way you're reading that part of decision can't be right because if you're taking it as that

seriously, it would even mean some other person could never go sue to get this statute

struck down because it might impune the conviction of this guy. I don't understand back live at all. Like, we just learned in Casa on the court struck the universal junctions that decisions are party specific. And the fact that like, person A wins against somebody doesn't necessarily

“mean the person B wins against somebody. But I think that's, I think that's a reasonable”

objection. I mean, I think that the court seems to be saying any decision that somehow by implication would suggest that an earlier conviction was on constitutional would fall under the broad way these courts have read the rule. I do think you can draw a distinction there, but apparently everyone found that a totally persuasive argument came up at oral argument and it just seemed like it stumped everybody. So they worked. I mean, yeah, I guess you could say

now look, Professor God, if you wanted the party specific principle, that was the principle of rest of Dakota. The hack thought was not good enough. Well, a point of hack was to invent some new broad principle of preclusion that wasn't the party's principle of rest of Dakota. So whatever that made up principle, but now we're just like making up limitations on a made up principle. I don't even know what kind of law that is. You know, it's common, common constitutional

common law. When it's your sting wrinkle, the advocate who won at this room court was a lawyer from Gibson Dunn named Allison Ho, who was married to Judge Ho and the fifth circuit who dissented. So she kind of went to this room court and vindicated his dissent. Do you allowed to do that? I can't, I don't think she represented this plaintiff in for the fifth circuit, as I think that then person would have to refuse. If she had represented the plaintiff before,

then he would have had to refuse. Because that he would have a conflict of interest. Yeah. But if you do it in the opposite order, so he rolls in the case first and then she represents the plaintiff after, then it's okay. Obviously a conflict. I mean, what if it went the other way, though? Well, so I think it might be a wave of, well, there might be a sort of wave of a conflict with the plaintiff, because you can imagine that even though, just how

to send it in their favor, that then when Allison Ho comes and says, you know, I want to represent you, and this is going to become some questionable positions to take in this ring court. And you can imagine that she would feel less comfortable in some advocates saying, oh, no, no, we don't agree with Judge Ho's reasoning. We were somebody else's. Now, I know, also how a little bit, actually, I think she'd be totally comfortable disagreeing with anything

Judge Ho had said if it was incorrect. But you can imagine like you always can relate to that.

“Put that on the table for your, uh, for your client saying that you should know, I did represent”

one of the judges below, but don't worry. It was the good judge. Now, but if you can do that, like, why do that all the time? Actually, Judge Ho descents all the time. Why doesn't Allison Ho that could be called call or practice? Yeah, called call everybody who got a Judge Ho descental and say, you want, yeah, and then also be good for his, uh, shortless prospects presumably, like the more of his descents to get vindicated by the Supreme Court, the better he looks.

I feel like there's a real, uh, industry kick going here. Yeah. And then every judge needs somebody like this. Like every judge needs us, spouse who believes in their descents as much as

Judge Ho has in the, uh, course race for the next Supreme Court vacancy. His other advantage is that

“he's the University of Chicago alum. And so he's obviously the best judge for the, uh, vacancy.”

Well, we will, we will find out if there's a vacancy this summer that a lot of people are

predicting, but the, the court does, uh, like to surprise us, and the justices don't always

retire on the schedule that people want them to retire on. We don't have a lot of time. I have one of their brief history, I guess. One of the, one of the things. So the, the position that the credit of taking ignore the big split on hack and instead was all over the grounds is the, the view that

“the solicitor General's office argued. So the United States came into the case and said, you should”

rule for the plan on some discount, but don't go to the other ground, then if you did disagree with

the plaintiffs, and interestingly, the lawyer for the solicitor General's office is a woman in Ashley Robertson. So relatively junior lawyer in this use office has had three arguments, and it was about to become the new defender general person. Mm-hmm. Uh, yeah, that's a whole

thing we should talk about. I don't think we have time on this episode, but the, you know,

judiciary just did create this new office that is going to, you know, help represent criminal defendants before this report where they're seen as an asymmetry and in, in, in kind of litigation expertise has a lot of resemblances to a proposal, I and Will Orman put forward a few years ago, although there was a news article about it where they were insisting was not the same thing, which was a little, little strange, but we will, we'll do a whole half episode on that. Okay.

“All right. Well, we have a tight schedule, so I think you're going to need to lead us out.”

Well, all right. Thanks for listening. Thanks to Wash U for sponsoring this podcast, and thanks to you all for coming here us. And please, if you have your podcast apps, please subscribe, rate and review. If there's a long delay between this in our next episode, it'll be because Will got in trouble with his dean at U Chicago for helping persuade all of you to come to Wash U. Take a magnet there. A lot of trouble to get here.

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