Chapter 1: What is the main topic discussed in this episode?
Oh, yay. Oh, yay. The judicial power of the United States shall be vested in one Supreme Court. Unless there is any more question, we have to find an argument in this case. All persons having business before the Honorable Supreme Court of the United States are advised to give their attention. Welcome to Divided Argument, an unscheduled, unfrictable Supreme Court podcast. I'm Will Bode.
And I'm Dan Epps. Back in the studio after what I believe to be a successful live show on your home turf in Chicago. I think it was great. Episode was great. Students were excited to see us. We got a big crowd. We should do it again. I would love to.
Well, this is kind of a day with some news on the divided argument front, which is we are now a partner of SCOTUSblog, which is exciting, which I don't think is going to change the show in any meaningful way, but does mean that, you know, we're going to be part of the SCOTUSblog ecosystem. The podcast will be on the SCOTUSblog website and maybe, you know, in some other channels.
And we'll be in conversations with the other folks in that universe, which include Advisory Opinions and Amarica's Constitution. But the main thing we're hoping that will change is that it will expand our listenership, maybe double it from, you know, two dozen people to four.
Chapter 2: What new partnership is announced in this episode?
No, that's great company. You know, Scotus Block is the go-to place for serious Supreme Court coverage, right? I think so. And I am generally pleased with what the dispatch has been doing since it acquired Scotus Block. It seems to be, you know, really committing to extending, improving the site.
You know, some people had expressed concerns that in recent years there had been less commitment to the site and it was maybe kind of phasing out a little bit and i think they've really reinvigorated it and i'm excited to see what they do so here's hoping this is our most listened to episode yet you know if that's possible should we do anything to introduce listeners to divided argument will um
Yeah, well, we just did. Well, I mean, but should we tell people about what the show is, right? We just explained that we're SCOTUSblog partners. But we bill ourselves as an unscheduled, unpredictable Supreme Court podcast. We record episodes whenever we want, hence unscheduled.
So sometimes they're episodes in short succession, sometimes longer gaps, just depending on what the court is doing and what we are doing. And, you know, you described this, you know, on there's a crossover that is going to be featured on advisory opinions where we kind of announce the partnership. You know, why don't you say how you described this? Yeah.
So I would say our comparative advantage of all Supreme Court coverage is that we focus on questions of law and the legal analysis in the court's opinions, which sometimes is, you know, quite technical and sometimes is not. And we try to unpack that and make it accessible and figure out if it makes any sense.
And to the extent the podcast has a subversive mission, I think it's the mission of taking two people who have a lot of different normative priors across a range of legal and political issues and seeing if we can nonetheless talk about controversial cases in a legal register and make some progress rather than the talking head debate model that's common on a lot of other formats. Yeah.
I agree with that, although the thing you just said about, you know, strong divergence on normative priors, I'm not sure if that's like really that true. I mean, it's not like I'm a Marxist and you're a fascist or something. I think we're both fairly moderate. You're, you know, sort of on the right. I'm sort of on the left. But I think our views on a lot of things converge.
You're not a kind of pitchfork wielding social conservative person. That's fair. No, I mean, and you could complain about the podcast that while the title promises a lot of division and a lot of argument, sometimes we are insufficiently divided and don't argue enough. But I do think we just we persistently come at things in a different way.
And the cases the court takes are the close ones where those differences might exist. you know, might lead us to be on opposite sides of the court if we were justices. That's that's possibly true. Yeah.
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Chapter 3: What are the mysterious origins of Chief Justice Roberts' quote?
And the article is called How the Supreme Court Secretly Made Itself Even More Secretive. I love that title. And what the article is about is apparently ā The court has now asked employees inside the building, I don't think it's totally clear exactly who, to sign real nondisclosure agreements in the form of contracts, which had not been the case before.
I think prior to this point, law clerks, I believe, signed some sort of just like code of ethics, but it had no legally enforceable provisions. Yeah. And now there's some kind of NDA. The Times did not actually get their hands on one.
It says people familiar with them said they appeared to be more forceful and understood them to threaten legal action if an employee revealed confidential information. Clerks and members of the court support staff signed them in 2024 and new arrivals have continued to do so. Mm-hmm.
Well, it's funny, obviously, just that the court is concerned about leaks, obviously, and it's trying to take more measures about it. And so, of course, there is a leak about this. I find that headline kind of funny in a, you know, will you stop kicking yourself kind of way? I don't know. It's like... we are struggling to undermine the Supreme Court's norms of confidentiality. We are winning.
Yeah. And I wonder how this would actually work. So, I mean, I guess I don't, I've never totally understood how NDAs work. I mean, whether there's like liquid data damages or, you know, the contracts that specify, you know, you will give up exactly this amount of money if you talk or something similar. I mean, do we really think that the
The Supreme Court is going to file some action in the District of Columbia Superior Court against an employee and ask for $50,000 if the person spoke to the media? I don't know. I doubt it. Although, you know, if somebody who wrote a book like one of these tell-alls, like at Lazarus's Closed Chambers or something...
Is it inconceivable that the court might go to the publisher and try to stop the book from being published? As a breach. Yeah. I mean, but is that the right? Is that the right? Do you get to do that? Like when you get to sue a third party under an NDA? I mean, I guess so. Maybe. I don't know. I have no idea. Maybe not. Or maybe they just they would get the rights to all the proceeds or something.
I don't know. So several people across the ideological spectrum. told me how outraged they were by this. You know, the government entities shouldn't be using NDAs. They're like, government has whatever rules it has, but, you know. It is kind of unusual, right? I mean, typically I thought government information was protected by the classification system, which is backed up by criminal law.
Well, the executive branch can protect things by the classified information system. Because they control what's classified and they control whether to prosecute people for it. The Supreme Court, as far as I know, is not a classification authority and wouldn't have anything to do about it if, say, the executive branch was okay with the leaks.
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Chapter 4: What is the Supreme Court's new policy on secrecy?
Maybe. I'm not sure. But more generally, like people might just be willing to do business with an entity that doesn't have sovereign immunity in a way they're not as willing to do business with an entity that does. Interesting. Even apart from the bonds, I guess, what about the torts and so on? Yeah.
One related point, which nobody wanted to raise, the state of New York and the state of Pennsylvania do not have to let New Jersey transit buses in to the state. Right. I think they would clearly be entitled to say nobody can operate a bus in this state unless we know how to sue you when you hit RP Citizens.
And now again, maybe raising that specter would just cause the court to invent some new Dormant Commerce Clause doctrine that allows the state of New Jersey to send buses wherever it wants to. But there's a way in which it might be in the state of New Jersey's interest to have the buses operated by somebody who's a real person or a real fake person.
I mean, I was kind of surprised that the transit corporation was like taking the position that like, if we run you over, you can't sue us. Yeah. That does seem that does seem like ultimately unwise. I already made the joke before about sort of like this case unites originalism and the literal, you know, little guy hit by a bus. Okay.
One, one thing that didn't end up mattering, but I really enjoyed from your brief was you figured out this like disastrous jurisdictional issue, which is if, if this case comes out the other way, or like, I think then the court can't even decide the case at all. The real level of the matter. Can you explain this? That basically like, if... The transit corporation is New Jersey.
I think not only would it have sovereign immunity in lower courts, but actually, you know, under your view of the law, which is, as I understand it, not the court's view in precedent, the Supreme Court would have no jurisdiction over that. no appellate jurisdiction over the entire case.
And then you say, well, and then Supreme Court is always has to consider its own jurisdiction before it gets into the jurisdiction of the lower courts. Therefore, the court would just have to like dismiss the case and like not decide the issue, I think. Yes. Or though I guess in the course of dismissing it, you would decide the issue? Well, maybe.
Wouldn't you have to say we lack jurisdiction because this is the state? Yes. So under the 11th Amendment of the Constitution, the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state. That only applies to federal jurisdiction, not state jurisdiction.
And we're only talking about the 11th Amendment, not Hans versus Louisiana and the other cases that talk about a broader immunity.
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