Dan Epps

And it's going to dial that back and say—

That broad way you're reading that prior decision can't be right.

Because if you're taking it that seriously, it would even mean some other person could never go sue to get this statute struck down because it might impugn the conviction of this guy.

But 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 unconstitutional 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.

It came up at oral argument and it just seemed like it stumped everybody.

So they worked.

You know, it's...

Constitutional common law.

One interesting wrinkle, the advocate who won at the Supreme Court was a lawyer from Gibson Dunn named Alison Ho, who is married to Judge Ho in the Fifth Circuit, who dissented.

So she kind of went to the Supreme Court and vindicated his dissent.

Are you allowed to do that?

I can't, I don't think she represented this plaintiff in, before the Fifth Circuit, because I think that then her husband would have to recuse.

I think so.

Yeah.

That's a rare privilege, I guess.

So maybe that's an advantage that Judge Ho has in the horse race for the next Supreme Court vacancy.

Well, we will find out if there's a vacancy this summer that a lot of people are predicting, but the court does like to surprise us and the justices don't always retire on the schedule that people want them to retire on.