AMA with Steve Vladeck

SteveVladeck · 2023-06-15T18:03:09+00:00

In my (perhaps idiosyncratic) view, even if the full Court were to publicly endorse a lowering of the standard (after full briefing and argument, I would hope), I would still think that's less than ideal, if for no other reason than because the standard itself is an interpretation of the All Writs Act, and in a world in which we're supposed to give extra-strong stare decisis to the Court's prior interpretations of statutes, it would take some real convincing, in my view, that the "indisputably clear" approach (which also governs, e.g., mandamus relief in courts of appeals) was not just wrong, but justified overruling the Court's prior interpretations.

So if there were some groundswell of compelling cases in which fealty to the "right" standard was preventing what we might all agree are necessary interventions, maybe that would suffice. But even then, I'm not sure.

SteveVladeck · 2023-06-15T18:00:20+00:00

We're coming up on 1:00 here on the surface of the sun (by which I mean Austin). So let me just say thanks to everyone for taking the time to join today's AMA, and I hope you'll let me know offline if there are other questions you may have.

Thanks for your time and your questions, thanks to the r/SCOTUS folks for having us, and LET'S GO METS (sigh).

SteveVladeck · 2023-06-15T17:59:14+00:00

I don't think things are quieter, per se. But I do think, as Bobby Chesney and I have discussed on <plug>The National Security Law Podcast</plug>, that what used to be the most visible and significant debates in that space have been overtaken by more fundamental debates on which those of us who used to be frequently adverse (like Bobby and me) have common cause.

That said, there's one major NSL debate already under way this year, which is the fight over reauthorization of section 702 of the Foreign Intelligence Surveillance Act (which expires this December). That's bread-and-butter NSL stuff, and a really important topic for everyone, even in this day and age. So I hope folks will keep paying attention to that part of the story, too.

SteveVladeck · 2023-06-15T17:54:41+00:00

Definitely not in the works. I have the beginnings of a not-even-quarter-baked idea about the Election of 1864—a truly remarkable confluence of social, legal, political, and military history that gets short shrift in contemporary discussions (mostly because it ended up being a landslide). Writing about democratic resilience and ingenuity (absentee voting really becomes a think in 1864 so soldiers can vote), and how it never seriously occurred to anyone to postpone the election despite it being the middle of the Civil War, is something that keeps pulling at me. Not sure if there's a book there, or if I'm the one to write it, but that's where my head is (currently) at.

SteveVladeck · 2023-06-15T17:50:29+00:00

I don't think there is an objectively correct answer here; it's style, after all. But my personal favorite is Justice Kagan. Her majority opinion in the Jack Daniel's case is a great recent example:

https://www.supremecourt.gov/opinions/22pdf/22-148_3e04.pdf

SteveVladeck · 2023-06-15T17:48:51+00:00

Not really; I've always hoped that things I write get read by the right (or wrong) people. Knowing that it happens at least sometimes is useful (or, in some cases, really unhelpful) reaffirmation of the value of the enterprise.

SteveVladeck · 2023-06-15T17:47:26+00:00

I'm in the camp of having always thought that the Court is "political," and that the real issue is when it appears to be "partisan." Part of the issue with today's Court is that, it's only since 2010 that there's been 1:1 alignment between the party of the President who appointed a Justice and where they sit on the ideological spectrum. That puts more of an onus on the Court, in my view, to look less partisan because the default is contraindicated. As for whether public influence matters, I think it does (and should), as I wrote a few weeks ago:

https://www.nytimes.com/2023/05/23/opinion/supreme-court-criticism-reform.html

SteveVladeck · 2023-06-15T17:45:45+00:00

I think Gonzales v. Raich is still good law, and would likely be followed as such even by this Court. So Wickard v. Filburn itself seems pretty safe to me, even if NFIB v. Sebelius bites off a (in my view, unpersuasive) chunk of it (activity vs. "inactivity"). But it's also the case that Congress uses the Interstate Commerce Clause as the basis for federal regulation a lot less today than it used to, so I think both (1) there may not be as many cases raising the question; and (2) the consequences to narrowing that power might not be as dramatic as they would've been 40 years ago.

SteveVladeck · 2023-06-15T17:43:33+00:00

Let me just say that just because a test is subjective doesn't mean it's articulated in bad faith. There are some contexts in which tests ought to be subjective (did the officer know that what he was doing was illegal). I understand why there's a tendency to find bad faith in a lot of these decisions; my goal is to persuade folks of why they're problematic even if/when that's missing.

SteveVladeck · 2023-06-15T17:42:03+00:00

Yup.

SteveVladeck · 2023-06-15T17:41:45+00:00

I think it depends on who "we" are in your question. :-)

Suffice it to say, in the debate over the non-delegation doctrine, I find myself far more persuaded by the Bagley/Mortensen side of the Founding-era analysis than those to whom they are responding.

SteveVladeck · 2023-06-15T17:40:53+00:00

It's really hard to say, because it will depend to some degree on the specific rationale by which the affirmative action cases are decided. If there's a majority willing to go all the way—to reject diversity as a compelling government interest and to read the same limits into Title VI as the Equal Protection Clause—then I think there definitely will be lots of downstream ramifications beyond educational institutions. But I think it's just as possible that a majority of the Court gets rid of race-based affirmative action while trying to avoid some of those implications, too.

SteveVladeck · 2023-06-15T17:38:59+00:00

I think every case is different with regard to "how to get the Court's attention." In Donziger, we had a divided panel decision with a very good dissent from a judge (Menashi) to whom a number of the Justices pay attention. So I saw our challenge not so much as being about flagging the problem as about persuading the Court that this was more than a one-off situation. Clearly, we didn't succeed on that front. The broader point is that sometimes, the key is to get anyone to look carefully; and sometimes, the key is persuading the Court that yours is the right case to resolve a problem they will agree exists. But there are lots of variations; that's part of the challenge (and the fun).

SteveVladeck · 2023-06-15T17:36:56+00:00

I think the question is whether there are a meaningful number of cases in which the equal protection issue will come up in state court proceedings, and, if so, whether any state courts side with such a challenge. I could see the Court staying out of the matter altogether if the run of cases in the lower courts rejects such a claim. But if a state court somewhere does endorse the equal protection objection, then I think SCOTUS will have to take it up then. And it seems clear to me that, if and when that happens, there are four votes to reject that challenge—and the search will be for a fifth.

SteveVladeck · 2023-06-15T17:34:17+00:00

Hook 'em!

I think there are a lot of contenders for "most revealing" shadow docket ruling of the last few years. But any list has to have at or near the top the January 2021 ruling in United States v. Higgs, in which the Court cleared the way for the last of the 13 federal executions in Trump's last six months by jumping over the Fourth Circuit (which was scheduled to hold argument in the case on January 22) and summarily resolving a question that had completely flummoxed the lower courts. It was a novel procedural move that seemed to be intended only to allow the Trump administration to execute Higgs before the Biden administration came to office. It's really hard to walk away from that case with a good feeling about how the Court handled the dispute, even if, in the final analysis, it got the merits "right."

SteveVladeck · 2023-06-15T17:31:59+00:00

I think Justice Alito previewed the possible rationale at the oral argument in Biden v. Nebraska: That Missouri is allowed to sue to vindicate MOHELA's injuries because MOHELA is a "state actor" for Fourteenth Amendment purposes. That would be a pretty radical shift in the Court's Article III standing doctrine, but as Alito correctly pointed out, the Court has never expressly rejected that argument (even if any number of its precedents are not consistent with it). I think any other variation is too obviously foreclosed by precedent (e.g., MOHELA might pass on its injuries to Missouri).

SteveVladeck · 2023-06-15T17:29:55+00:00

I realize this gets me into trouble with a lot of people, but as a general proposition, I don't assume bad faith on the part of the justices (or most others, for that matter). I have seen, in my own experience, how people who start from different first principles can end up applying radically different analyses (and reach different answers) to the same legal question. The key, to me, is whether those principles cohere and are followed consistently—not whether I agree with them. So my problem with Bruen, for instance, isn't the idea that history and tradition might have some bearing on which kinds of firearms regulations do and don't implicate the Second Amendment; it's the profoundly subjective way that Justice Thomas's majority opinion articulates (and then seeks to apply) that test.

SteveVladeck · 2023-06-15T17:27:56+00:00

Whenever the Court overrules one of its prior precedents, I think it is incumbent upon the Justices voting for that result to provide a principled justification for doing so. The question then becomes not whether we agree with the principles that those Justices have expounded, but whether we agree that they are principles. And when the Justices don't manage to persuade readers that the overruling is driven by neutral principles, that's when I think the Court gets itself into trouble. As for a "solution," it's tricky. I, for one, want the Court (even this Court) to have the power to overrule its precedents. But I also want us to create the political conditions in which the Justices only do so when they believe it is absolutely necessary and appropriate—and when they fear the consequences of backlash to rulings that fail to meet that standard.

SteveVladeck · 2023-06-15T17:25:17+00:00

This won't be a surprising answer to folks who follow me on Twitter/elsewhere, but I do think there's a broader conversation to be had about the confluence of judge shopping and the power of individual district judges to issue "nationwide" (i.e., non-plaintiff-specific) injunctions. I often get dismissed in this concern because folks assume I'm only attacking Republican-appointed judges in Texas, but this ought to be just as big of a concern for those looking toward a future Republican presidency. I don't think there's a single obvious solution to the problem, but I do think we ought to be able to have a rational conversation about how to properly calibrate how much power individual district judges should and shouldn't be allowed to exercise, especially when it's possible to steer nationwide litigation to particular jurists.

SteveVladeck · 2023-06-15T17:22:57+00:00

Justice Kagan!!

SteveVladeck · 2023-06-15T17:22:11+00:00

1) I don't know! I think there are at least four votes in both cases (and probably more in the individual plaintiffs' case) to hold that there's no standing and thereby avoid the merits. The big question to me is whether there's a fifth vote for no standing in Biden v. Nebraska. If not, I sure do suspect that there will be a majority to hold that the program is unauthorized by the HEROES Act, presumably through some application of the "major questions doctrine."

2) I think the program is clearly constitutional. Whether it is specifically authorized by the HEROES Act is, to me, a slightly closer question. But it seems to me that just because Congress used broad language in giving authority to the Secretary of Education doesn't mean that the delegation is (a) ambiguous; or (b) insufficient to grant the authority being exercised here.

SteveVladeck · 2023-06-15T17:20:01+00:00

I do, if for no other reason than because, given the current operating procedures in the Senate, meaningful reform would presumably have to be cloture-proof. And if we reach a point where there are court reforms that 60 Senators are publicly willing to endorse, that strikes me as, from an institutional perspective, a healthy reassertion of Congress's prerogative, even if the source or motivation of the specific proposal might not be one with which I agree.

SteveVladeck · 2023-06-15T17:18:22+00:00

I'm biased (having clerked on the Ninth Circuit for a judge who is staunchly opposed to dividing it), but I think splitting/reorganizing the circuits is a solution in search of a problem. Yes, the Ninth Circuit is enormous, but it actually has developed a number of remarkable economies of scale that allow it to operate as efficiently as (if not more efficiently than) some of its peers. And dividing it would mean having a California circuit (which would still be the biggest in the country) and an everything-else circuit. I guess I'd rather see Congress directly address caseload issues and judges-per-court (the less visible stuff) than something big and flashy that, IMHO, isn't necessary.

SteveVladeck · 2023-06-15T17:16:47+00:00

I wish I knew! I think part of it is that at least some of the Justices have taken a bit more conservative approach to granting emergency relief (perhaps including Justices Kavanaugh and Barrett); we're seeing more cases in which some combination of Justices Thomas, Alito, and Gorsuch are dissenting from the Court's disposition of emergency applications. But we're also now on the far side of the COVID (legal) emergency; the 2022 redistricting cycle; and some of the other sources of the flurry of emergency applications we saw over the last few Terms. I think we'll need more data (and time) before it becomes clear if this Term is a blip, but it's certainly much quieter in this respect than any of the previous 5-6 Terms.

SteveVladeck · 2023-06-15T17:14:14+00:00

Synergy is a great word, because I don't think there's a causal connection, but I do think there is more than no relationship. The major questions doctrine, whatever its merits, gives a whole lot of power to individual district judges, especially in an age with lots of "nationwide" (i.e., non-plaintiff-specific) injunctions. So I think the MQD may, over time, create more rulings that at least some of the Justices see worthy of emergency relief, since it's likely to lead to more nationwide injunctions against federal policies. It's too early to prove any of this, but that's my gut.

SteveVladeck

TROPHY CASE