Chapter 1: What is the main topic discussed in this episode?
Oh, yay. 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 admonished to give their attention.
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode.
And I'm Dan Epps. Will, we need to be quick. We have a hard stop in less than an hour. I am trying to squeeze in a recording session before office hours. We have, I think, three plus opinions to talk about.
Can we do it? I think you should invite all your students to join, but failing that, the opinions are short. I think we can do it.
At least the majority opinions are short. Let me try to lead us through as quickly as possible. Okay, shadow docket-y order. This is a cool one.
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Chapter 2: What is the significance of the Coney Island Auto Parts case?
This is a category of order, non-merits order, that we don't talk about much at all. Martinization. Okay. Martinization is when the Supreme Court tells a pauper, an informa pauperis or IFP petitioner who has filed a number of previous petitions that have been deemed frivolous by the court after a certain number of those. I think my memory is the number is four.
They will tell the petitioner no more. If you want to file another petition in the future, you've got to pay – the filing fee and print the fancy briefs in booklet format, which is not a trivial cost.
Well, as many of you have pointed out online, the booklet printing is really like swamps the filing fee, right?
Yeah. Yeah. I mean, booklets are more than $1,000. Typically. So, you know, it's a non-trivial cost. Okay. It's called Martinization because the court first did this in the certiorari context to a guy named Martin. And so now he has the indignity of having this procedure attached to his name.
Isn't Martinization also like a dry cleaning thing? They're like dry cleaners. They're like, we Martinize. Isn't that a...
That does sound vaguely familiar, but it's not something I've ever researched, and it's not something I recall ever having To have done, to have had done to my clothing? Do you have any sense of what it means?
No, but just as a brief, just as Jackson suggests in this opinion we're about to talk about, that actually Martin was not the first. He just submitted a name, McDonald, in like 89. For extraordinary risks. And then to syndrome. And then Martin doesn't do it to superstitions. So it's sort of a coincidence that this is Martinization rather than McDonaldization or syndromeization. But,
But I take the white.
Yeah, but I mean, I guess if it's cert-specific, though, as I understand it. So we had one of these. Pretty common. And, you know, my memory is when you're in the cert pool as a clerk, you write a lot of memos saying deny, and sometimes you would say deny IFP, or sometimes you would say, you know, describe it as frivolous in the memo.
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Chapter 3: How does the Erie doctrine apply in the Berk v. Choy case?
So I'm going to say it now. I think this is Justice Jackson's best opinion of all time, possibly going to be the best opinion of her career. Good for you, Justice Jackson.
Is that faint praise or is that just speaking to your enthusiasm? People complained that we were too mean to Justice Jackson before. So you're picking this. No comment about that. Yeah, I mean, you know, I will say I think the point is fair that the court has maybe arguably gotten too aggressive with these. Right. The petitioner here, Howell, has apparently filed only six petitions.
Whereas if you go back to Martin himself had apparently filed 54 petitions. And I just I kind of wonder, you know, whether, you know, for someone who's filed six, even if they're frivolous. I mean, how much of a burden is that really imposing on the court? You know, I mean, these are getting denied kind of. A clerk writes a, you know, three line memo and then it gets denied.
I mean, it's not obvious to me that it that it actually imposes that much more burden on the court. And so it kind of seems like the reason to do this is like you're mad at these prisoners for filing these frivolous things.
I mean, I will say, you know, we don't know the equilibrium in a world without Martinization. Maybe somebody would start filing, you know, like multiples a day or something. I'm not sure. And the burden is not just the law clerks, right?
The court has a whole staff that has to handle, I mean, even just the clerks, keeping track of them, putting the docket system, putting them on the carts, wheeling them around everybody.
Like, I mean, if you reach a point where there were hundreds and hundreds of frivolous positions filed every day, you know, even if the clerks could just had a macro that said like frivolous deny, there would be a burden.
Yeah.
Anyway.
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Chapter 4: What are the implications of the Ex Post Facto Clause in Ellingburg v. United States?
If it's a case involving any politically charged issue. Okay, yeah. Guns, speech, girls, whatever. Okay, that might be true. It's always interesting to see one justice kind of going out on their own, kind of staking out a different kind of unique position. Obviously, this isn't persuading the rest of the court. I'm not sure this is going to make any meaningful difference.
But, you know, I think it's good for people to be thinking about the court's procedures and be like, is this the right way to do it?
I think it's good even if it doesn't persuade anybody. I think it was good that Justice Stevens was there, just even as the Martinization process went forward, flagging like, I'm not sure I'm okay with this or I'm not okay with this. Yeah. That was good. I think this is good. No shade. Kudos to Justice Jackson.
Great. Okay, one down. We've got, in theory, we've got three majority opinions to talk about. Can we do it? Should we start with Coney Island because we've talked about that one before? Yes, we've been. And it is the shortest.
We've been to Coney Island before. This is the case we talked about at the Wilkinson-Stechloff live show about what the time limit is under Rule 60C1 to get relief under 60B for something, a judgment you think was under that jurisdiction. What is a reasonable time?
Well, no, no, no. Whether it has to be done within a reasonable time. Whether it has to be done within a reasonable time. Which is seemingly what the rule says.
Like, if you read it, it seems to say that. It is what the rule says. It is what the lower court said it says. It's not what any other court of appeals had said it says. But it is what the lower court, in a great opinion by Joan Larson, said it says. It is what Lisa Blatt said it says to the Supreme Court. It is what the Supreme Court unanimously agrees that it says.
It is not what the not-very-good first-time advocate, who maybe deserved his client by keeping the case, argued.
Yeah.
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Chapter 5: What does Justice Jackson's dissent reveal about the court's practices?
Ish. And they say that Justice Sotomayor writes separately to say, I don't even think we need to resolve the constitutional question. The majority says, well, look, we've got to resolve something. The only possible basis for this argument is a constitutional argument. Yeah. So even though the petitioner didn't really raise it, we got to say something.
And doesn't resolve what is a reasonable time or are there other ways to attack or disregard avoid judgment outside of this process? What I think is actually the most important question. And in footnote five, the court reserves that and just says, rule 60D preserves parties' ability to obtain relief from a judgment in limited ways other than through a rule 60B motion.
We express no view regarding the limits applicable to obtaining relief through one of those methods, nor does the court actually state what they are. So that, I think, is the You know, that's the biggest area where, you know, there'll be left to litigate later. And that if you were counsel for Coney Island Auto Parts, I think you might have tried to put more emphasis.
You might have said, look, even if I can't, you know, get relief under 60C, I should, or under, you know, even if I can't get relief under the rules, I can in some way, you know, not comply with it or collaterally attack it or do that, whatever.
All of which is sort of left for another case. Yeah. Now, I mean, you said, you know, you're right. Justice Sotomayor says let's not resolve the due process issue.
I mean, I felt like reading this is on page four, reading the majority opinion, the court was like basically deciding it, but like not 100 percent said giving a party a reasonable time to seek relief from an allegedly void judgment may well be all the due process demands. Right. Doesn't that suggest it's at least possible that due process demands more? Well.
It is hard to accept the proposition that due process requires such a regime. And it says that after pointing to some other examples, you know, sort of saying, look, if you if this were right, you know, there could be no time limits for appealing a void judgment and no time limits for seeking cert. It is hard to accept the proposition that due process requires such a regime. So I don't know.
We cannot divine any principle requiring courts to keep their doors perpetually open. I mean, I guess you're technically right. Although, can you imagine trying to write the opinion that says, in 2026, we said we couldn't divine any principle and it was hard to accept this proposition. We now accept it. We now divine and accept it.
Well, maybe that argument wasn't sufficiently argued.
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Chapter 6: How do the opinions in Coney Island Auto Parts and Berk v. Choy compare?
Maybe that's the only avenue. Maybe. But the court... I mean, that's where we're back to the... Then it'd be the same issue as the appeal, I think. Yeah. It might be that the appeal is the only option for your... Yeah.
Yeah. But I mean, normally, I guess the normal understanding is, you know... Appeals happen shortly after a judgment, whereas there is this opportunity later to come back and kind of challenge the judgment. And that's normally what we would, I guess that's if you would ask me, like, when's the time to go kind of get a judgment, you know, that was entered improperly?
fixed be like you know some kind of you know later emotion but it's not even clear it's a motion under rule 60b for instance it could be a motion with the new enforcing court where you say yeah so i think the point that unites us for the majority is it might well be true that there has to be some way to challenge avoid judgment it does not follow that the procedure that has sitting in front of you has to be the way with no time limits and that's true of the appeal example and it's true of the 60 example
Yeah. So. But so we don't know what's reasonable. Reasonable could be a very long time in this context, you know, and reasonable could, for example, incorporate like concerns about notice, right? Maybe it's a really long delay is reasonable if the defendant of the judgment does not have notice of the judgment, does not have notice of the action.
Maybe that would entitle you to have a long delay and then file as soon as you become aware. That could be valid. Yeah.
I mean, the court even suggests at one point that it's maybe by analogous analysis latches, uh, you know, maybe 11 years is fine. If there's a reason you waited so long to challenge it. Yeah. Yeah. Okay. When down brings Lisa Blatt's record to what, like 99 to one or something. She's lost, I think, three or four.
Nine to nine to four. Pretty good. Pretty good record. Okay. That one's out. You get to pick which of the next two we talk about. Ellenberg or Burke versus Troy.
Okay.
I keep wanting to call that one Brock Troy.
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Chapter 7: What are the arguments surrounding the Martinization process?
Well, yeah, it's not part of the complaint. Like, I think they have to be filed physically separately.
And the standard way this is often conceptualized is what I just said of like, is this procedure or is this substance? And that's famously impossible to answer because obviously it's both. It's a procedural rule whose purpose is to make the claim substantively harder to bring. And you can think of all sorts of rules a little bit like this.
And the court last confronted this general problem in the Shady Grove case you mentioned where it was unable to muster five justices behind one plurality opinion.
And now in a very short opinion – Which was about whether a state law that said this kind of claim cannot be brought as a class action, whether that was a procedural rule that – or a substantive rule that would override the federal rules of civil procedure, Rule 23, allowing class action.
I think it was no statutory damages in class actions.
Right.
And so class actions are a procedure question, but what are the damages is a substantive question. And so no substance, none of this kind of substance in this kind of procedure is both substance and procedure. In a pretty short opinion by Justice Barrett, the court says this law doesn't apply in federal court.
The court says, I think sort of implicitly adopts the plurality opinion, the Scalia opinion in Shady Grove as good law.
And also kind of glosses it in a pretty simple and pro-federal rules of civil procedure way, or basically says, look, if there's a rule of federal civil procedure on point, that's pretty much the end of the inquiry because the Rules of Decision Act authorizes the rules of civil procedure.
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Chapter 8: What are the challenges of applying the Mandatory Victims Restitution Act?
And I think several people find this too. A lot of states have these kinds of laws for what are called anti-slap laws. SLAP stands for Strategic Lawsuit Against Public Participation.
There are various kinds of like libel and other liability claims against people exercising their First Amendment rights that try to not put the speaker through the burden of litigation and give you a way to dismiss the claim very quickly at the outset.
Sometimes give you attorney's fees, you know, so you can like leave nasty up reviews and not have to worry that the kebab store will file a frivolous claim against you. And a lot of them may fail this test too, which is... Yeah, we don't have a Supreme Court case on that. No, there's famously a split on this.
And I think the standard assumption is that this case may resolve the split against the anti-SLAPP laws. Although, you know, again, each law is written a little bit differently. Some do have a little bit more of a sidecar aspect where you try to say, like... You try to have a substantive rule and a procedural rule so that the substantive rule can still be enforced in federal court.
So I assume that there are smart tort reform people at like the ALEC or whatever think tank it is that helps get these things passed. They're thinking about how to draft a model malpractice reform law and model anti-slap law that still complies with the, you know, Hanna versus Plummer and Burke versus Choi. But it's just like a trickier problem than it might seem.
And so there is unanimity on the court that this is a procedural rule. There is a difference of opinion between the majority and Justice Jackson. So we have another one where eight justices appear to be on one side and Justice Jackson is on the other side. About which rule of federal procedure this state rule would conflict with.
which seems like, you know, maybe not the most consequential question. For the majority, it seems to largely turn on Rule 8, which contains the basic pleading requirements for federal claims. And for Justice Jackson, she says it's actually not Because these things, these affidavits are not pleadings. Rule eight is regulating the content of pleadings.
It's in fact a federal rule of civil procedure three, which says a civil action is commenced by filing a complaint with the court. Okay. Whereas in Delaware, you can't commence the action. You can't even get it docketed unless you file this extra thing.
So if a state says you have to file both a complaint and a shumplaint, and the shumplaint has to contain some extra stuff, should we read that as violating Rule 8's requirement but has to be in the complaint because they're basically requiring extra stuff to be in the complaint? Or should we read it as violating the Rule 3 requirement that all you need is a complaint?
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