Chapter 1: What is the main topic of the Learning Resources, Inc. v. Trump case?
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, unpredictable Supreme Court podcast. I'm Will Bode. And I'm Dan Epps.
So, Will, this is, you know, what passes on our show for an emergency episode. I don't think we do true emergency episodes because we're not ever trying to be super, super timely, but we did get the tariff's decision, learning resources versus Trump. And we are recording same day. And hopefully we'll have this episode to you fairly promptly. Does it feel like an emergency to you?
Uh, well, I guess that's part of the question of the case, right? I guess. Okay, so we'll get to that. All 170 pages of the opinion, which we've both read to the extent possible in the brief hours between its release and this recording session.
Chapter 2: How do the new amendments to the Supreme Court's rules affect litigation?
Before that, something maybe a little bit less consequential, which is the amendments to the court's rules. Not the most exciting thing, but, you know, for those who practice in Supreme Court litigation, kind of interesting. So two things. One, the court has changed the rules in ways that I think are designed differently. to make it easier for the court to catch recusal issues? Yes.
So in petitions, the parties now have to list the stock ticker symbols for any parties to the proceeding. And that rule is going to extend to briefs in opposition. And interestingly, in the past, if you did not want to file a brief in opposition, you could just do nothing.
And then it would just be treated as if you had waived your right to file a brief in opposition and the court would consider the petition on its own. Now, if it's a... Non-governmental corporation that is the respondent in a case, they can't do that anymore.
They have to either, you know, file a brief or file a little statement waiving and that statement waiving would have to include the stock ticker symbols. This is great.
I mean, this is, I think, several of the circuits already use and have for a long time, you know, various automated ways to try to catch recusals rather than, I think, the court's prior technology of hoping that their clerks and other clerks, you know, successfully flagged every...
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Chapter 3: What are the implications of the Supreme Court's decision on tariffs?
subsidiary of every corporation that might implicate the justices and then you get these cases where the justices didn't recuse in the consideration of a cert petition that obviously didn't even make it to the discuss list so it's sort of dumb to care about it but since it's the rule it looks bad if they don't get it right so this is great i mean i wouldn't go so far as to say it's great because i think it's dumb that this is needed
Well, I think the justices could solve this problem on their end by divesting themselves of stocks that create recusal issues. And I just don't see any reason for them not to do that. As I understand it, there's statutory authority that lets the justice do that and avoid realization of capital gains taxes. So, you know, people should just own index funds anyways. I mean, it's just this...
I think I said this to you before off the air, but one of the few Supreme Court ethics reform statutes I would support is a statute just saying by operation of law, when you become a justice, you have to sell all of you and your family have to all sell all individually on stocks and reinvest the person's index funds. I would be open to making it retroactive.
So saying something like no person shall be eligible to the Supreme Court if in the past 10 years they've owned a stock because really people shouldn't own individual stocks if they're smart lawyers. And so we could just, make all smart ambitious lawyers that seems too excessive just good incentives it would be good for the world
I mean, look, if some, you know, really savvy, you know, future justice, you know, wants to build a portfolio, you know, I'm okay with that. They just can't do it once they're in the court. I mean, this has been a big problem for Justice Alito. You know, he, I think via his wife, has all these conflicts from, you know, various stocks.
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Chapter 4: How does the major questions doctrine play a role in this case?
And it just seems to me that if you're going to be on the court, it's your job to be eligible to hear all the cases the court might hear. Yeah. Have you heard the rumors that on the DC circuit, some judges intentionally buy stock in like energy companies that don't care the FERC cases or whatever? I don't know if that's actually true or just apocryphal. That's, that's extremely disturbing.
If true, it strikes me as like deeply unethical. There you go. Ethics reform, we can agree on. Okay. And the other thing is, this is deeper in the weeds, probably only of interest to those of you who, like us, occasionally file briefs or help people file briefs, which is, it used to be the case that, so the court created an electronic filing system, you know, in the last few years. But
Formally, a document was not filed for purposes of actual filing until the paper copy was received. And so you would still have to do this process of uploading the PDF, but the actual thing that counted as filing was the delivery of the 40 printed and bound little booklets of a petition, at least if it's a paid petition. And so now the thing that counts as filing is the actual upload.
And this is the way it works in, I think, all other federal courts in the country.
Chapter 5: What are the dissenting opinions in the Supreme Court ruling?
And so then the filing party can make sure as long as they get the paper copies in within a couple of days, yeah, then it's it's fine. Yeah.
And this is, I mean, this is a, I think a non-trivial change in that, as you know, if I'm going to do this, if you, there are great companies you can work with who print and file these briefs, but the, but the Supreme Court's kind of printing standards are relatively boutique. Like the booklets have a weird size. They're basically special.
You need to go to one of the sort of set of specialists to do this. And they usually want your draft by like 10 a.m. that morning or something with a limited ability to check for typos and stuff after that. So you, this really gives you a whole business day, a whole extra business day to write and file your brief. Yeah, because I guess the brief could be filed electronically late at night.
Late at night and then the next morning the printers get to work on it. Yeah. Now, of course, there's no reason that, you know, there's no reason we can't all just start everything 12 or 24 hours earlier knowing the way the deadlines work, but. it sometimes happens that you're down to the wire and now the wire has moved. Yeah, I'm generally opposed to late night filings.
Chapter 6: How does Justice Gorsuch critique the views of other justices?
I just, you know, think professionals should be able to get it done earlier in the day. But I suppose this will bail a few people out. Look, I mean, you can still file it earlier if you want. Yeah, still. But, you know, maybe they should set, I mean, I think it would be, there's no reason the deadline has to be midnight, right? That's true.
And there's a thing recently, the Third Circuit for a long time had a 5 p.m. deadline, I think. And there was some question whether to move it, or maybe they had a midnight deadline, there was a question whether to move it to 5 p.m. It is awkward because the 5 p.m. East Coast deadline is in like 2 p.m. if you're filing from California, which I mean, you could do, but it's sort of awkward.
Yeah, it's just, it's like one of those things where you're setting paper deadlines for your students. You know that some of them will go right up to the deadline. And so, like, if you set it at 7 a.m., some of them might stay up all night.
Chapter 7: What historical context does the discussion of tariffs involve?
And so maybe that's out of kindness. You shouldn't do that. Yeah, but I think I am entitled to be more paternalistic towards my students than the Supreme Court needs to be to members of the Supreme Court Bar. I don't think it's really paternalistic to just say, let's be nice to people. Well, I don't know if that's nice or not.
It's saying, we worry you're going to do something with this freedom that is not good for you. So we're going to instead take away your freedom. But don't, haven't you, you know, in our side conversation, you took the decision that everybody always files like at the deadline. That's just the way it works in law. Yes, but you told me I was wrong because you were actually more responsible.
So, that's great. I don't think I would always go to midnight. Well, I guess, and I do think there is this, this is, this ends me a little bit. There's of course this plurality problem.
So, you know, my experience in practice was that sometimes you, the lawyer, were ready to file something a day earlier, but then the client or some other stakeholder wanted to look at something again and like they had changes.
Chapter 8: What is the origin of the phrase 'no, no, a thousand times no'?
And if you could say, sorry, too late, we got to get it in. I'd be like, okay, fine. Yeah. But if it was not too late, you know, then suddenly it's a bunch of extra stuff. Yeah. So there's, The deadlines do operate to resolve conflicts between multiple stakeholders on a brief in a way that nothing else can. That's true.
I mean, certainly it's true that like in my time in practice, I never saw a brief filed like a day early. It was always like on the day that it was due. Yeah. One interesting thing about both these changes, by the way, they're small, is that they're both, you know, sort of common sense things that bring the Supreme Court a little bit more into what Justice Kennedy would call the cyber age.
You know, only a couple decades later than you might have thought was natural. Here's a question I have. You know, one thing that has come up occasionally over the years is the practice of ghostwriting briefs in opposition. Yeah. Right? Which is, you know... We've talked about this. Yeah. You know, where the party, you know, trying to oppose cert. Maybe there's multiple law firms working on it.
There's the kind of local council, you know, not famous lawyer. And then there's behind the scenes, there's the super famous Supreme Court practitioner. And, you know, the incentive is to not put the name...
Of the fancy Supreme Court practitioner on the brief in opposition, because then you're like signaling that fancy Supreme Court practitioner thinks this is like important case worthy of his attention. Yeah. Or his client thinks it's worth. Yeah. I mean, and I mean, and, you know, maybe not client if it's a pro bono case or something. But then that does create.
A problem, right, which is that it means that there's no opportunity for the court to check for conflicts in terms of counsel, right? That's true. Although this must come up, I mean, this must come up all the time if you already have lawyers who haven't entered an appearance yet. Just in regular court. Yeah. I guess. I mean, I'm talking out of my ear here.
I guess the idea is we just don't care that much. If the judge doesn't know that this person's involved, then there's no potential bias and no appearance of bias because the judge doesn't know. Yeah, although that lawyer might suddenly make an appearance later in the case, like, you know, at the merit stage or something. At which point the recusal kicks in. Yeah. Yeah.
Maybe there just aren't that many situations like that. I mean, the justices' children, I think, just don't file petitions. Right. And probably don't secretly consult on that many petitions. Yeah. Although you could imagine, I mean, sometimes the... Yeah. It's an interesting point. I mean, I think this must come up in federal court all the time because there are people who...
you know, are under investigation and consult with various lawyers. And then somebody might enter an appearance, but you might have your, your big gun way, you know, you don't decide to know you're actually ready to go to trial. And so you have your trial boutique. Yeah. On retainer or whatever, but yeah, that's interesting. Okay. That's our only, that's our only non-tariff news. I think so.
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