Chapter 1: What are the recent Supreme Court rulings discussed in the episode?
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 Dan Epps. And I'm Will Bode.
Will, as your prerogative, why don't you tell our listeners where we are today? We are here on my home court at the University of Chicago. We've got a great group of students here ready to listen to us talk about some cases. Does home court imply some kind of adversarial relationship between us? Let's see when people share. Okay.
So you had a plan for what we were going to cover today that seemed to me a bit ambitious, but we're still going to try to see if we can do it. So let me jump into it. I'm going to be the kind of taskmaster trying to keep us on pace. We're doomed. We're doomed.
Okay, first thing, just to deal with a little bit of feedback from the last episode, we talked about the tariffs case, learning resources. We talked about a lot of different angles in that case. People were very interested about one thing we said, which is our attempt to find the origin of the phrase, no, no, a thousand times no. I'll just say that the investigation continues.
We've gotten more email about that than we have about anything else in the history of the show. And it's quite puzzling. There's a lot of threads that go back hundreds of years. So you're going to have to wait for that one. But for those who've written in, we appreciate it. Another little tidbit that I don't think there's a ton to say about, but I thought might have a slight SCOTUS angle.
Did you see how the Trump administration, you know, has brought these tried to try to enforce these orders against law firms that the president dislikes, imposing all sorts of restrictions on them? Those have been enjoined by district court within the D.C. Circuit. Appeals were pending by the government.
The government filed a motion for voluntary dismissal and then tried to unfile it the next day. Yeah, they filed a second thing, a motion to withdraw their motion to voluntarily dismiss, which I don't know if you can do. Well, we're going to find out whether you can do it.
The only kind of Scottish-related angle is, you know, typically the Solicitor General is involved and has to approve decisions to appeal lower court rulings. I don't know exactly what the Solicitor General's role would be in withdrawing from appeals.
It sounds like the White House Counsel's Office may have come in and sort of countermanded the decision to withdraw the, you know, try to dismiss the appeals. But, you know, I I'm very curious if we'll ever learn whether the SG's office was in those conversations, which I imagine it was. Yeah. And on which side? Okay. All right. So we're two items down already.
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Chapter 2: How does the Mirabelli v. Bonta case relate to California's school policies?
One, the court cites a lot called Parham about basically the state's attempts to institutionalize your children. And Troxell versus Granville, right? Which is, I don't think there was a majority opinion in that case. Right. And a Scalia dissent, I think, about the unconstitutionality of giving grandparents visitation rights over the parents' objection.
So there's some kind of parents' rights out there. So the court says, look, the same is true, the claims will succeed, for the subclass of parents who object to these policies on due process grants. Under long-established precedents, parents, not the state, have primary authority with respect to the upbringing and education of children. Right.
That includes the decision not to be shut out of decisions about your children's mental health. So... And is that fair? I mean, I thought you just told me that we were supposed to define substantive due process rights at a low level of generality. Yeah. That seems like a very high level of generality. Yeah, I will say, this is another one.
If you go read the cited cases about parents' rights, I mean, there are cases about parents' rights. So there is some sort of substantive due process limitation on the state's ability to interfere with parents. All those other rights are sort of negative liberty cases. Right. Where the parents are being stopped from doing something with their kids that they think is a good idea.
None of them are about compelling the state to do something that the parents want them to do. Now, that's a plausible extension, right? And these cases are positive rights cases. These cases, nobody's stopping parents from pulling their kids out of school or doing whatever they want to the kids at home.
The question is whether the parents now have a constitutional right to force the school to do what the parents want. Which I understand why the parents want it, but it is an extension. And part of the reason the court has said you have to do these things at a low-level distraction is that it couldn't overrule Roe.
If you do things at this kind of level of distraction, you could say, look, we already have precedence recognizing the right whether to bear or beget a child, as the court said in Eisenstadt.
The idea that in general, people have a right to bodily autonomy, can make decisions about, you know, their own body and their own medical care, you know, unless the state has a really good reason, is well grounded in hundreds of years of precedent practice. You could have said that. And so Dobbs said, no, no, no, we don't define things at that kind of level of generality.
So let me just look at this couple of sentences of reasoning, one very closely. Under long established precedent, parents, not the state, have primary authority with respect to the upbringing and education of their children. Next sentence, the right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health.
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Chapter 3: What are the implications of the Supreme Court's decision on parental rights?
But I think in both cases, it's about three months, right? Yeah. And the general election is still coming. Yeah. So it's evier now. Right. So I think Justice Sotomayor's dissent can be summarized in four words, you know, give me a break. And I thought this, especially this opening paragraph, was pretty effectively written, right?
So actually, I confess, when I printed this out, I read the first paragraph, which appears in the first page of the dissent, and I thought she'd gone for a one-page, one-paragraph dissent. And I was like, that was bold and effective. And then I learned that there areā There's 12 more pages, yeah. But really, the first paragraph, it was great. So there's a few things going on here.
There's a jurisdictional question. I am not sure we can clearly explain exactly why in the time allotted. Oh, that's where the bodies are buried. Can you do like a two-sentence version? Okay. The certiorari statute says that the Supreme Court has jurisdiction over state courts only when the lower court case is final. Okay.
this case wasn't final and that's a big problem for the court wanting to intervene. So what's the justification? Okay, good. I get more sentences. Justice Alito writes for this one, right? So he has two justifications. One is, well, we did it in the Skokie case, which is when the Supreme Court famously intervened to allow the Nazis to march through Skokie, Illinois. And
There are some similarities in that case and this one, although there are actually some crucial formal distinctions. Like there, the Illinois Supreme Court actually denied the stay, whereas here, the New York's highest court sent the stay back in order to bring it back to them. But like that's argument one.
Yeah, and there still was a possibility that the applicants could have gone back to the highest court of New York, right? Yeah, and if you read the Skokie opinion also, which talks about this issue, they say also the First Amendment is special.
Like the reason we have to intervene here, even though it kind of strains our jurisdiction principles, is because there's a special First Amendment right to get an adjudication of your right to speak before you go to the parade. So unless that principle somehow been expanded here, it wouldn't work.
Justice Alito's other argument, which might actually be correct, although is exceedingly technical and require us to make up a bunch of new law, is that the All Writs Act maybe allows us to evade the finality requirements of the certiorari statute. So the argument would be this case is not final yet, but it will be one day.
And the All Writs Act allows us to act to preserve the jurisdiction over our eventual certioraristician. So even though it's not final, we can act now because we won't be able to act later. Because the case would be moot? Well, okay. So just grant the idea first.
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