Chapter 1: What is the significance of WashU Law's Admitted Students Day?
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 Dan Epps. And I'm Will Vode. So, Will, we have yet another live show. We've done a few more of these recently than we tend to do. This one is back at a friendly location for me. We're at my home institution, Wash U Law, and we are here for admitted student days. So we have in the...
audience, a number of prospective students, and my job is to convince them to come here and not to a place like the University of Chicago.
Chapter 2: What recent shadow docket activities are relevant to the Supreme Court?
So we'll see at the end. Maybe we should take a poll and see whether we've persuaded people of that by the end. And I should also mention this podcast is in partnership with SCOTUSblog. This is, I think, just our second episode since that partnership began. And so hopefully we have some new listeners coming from the SCOTUSblog side.
For my part, I brought stickers and magnets that people should feel free to come up and grab at the end of the show. Take them home, put them on your fridge. I will say bringing them was a little bit more of a travail than I expected. I spent maybe 25 minutes getting through security, over half of which was spent on the magnets. The guy pulled my bag aside and was like,
what do you have in here, sir? And when I told him they were magnets for a podcast, he just seemed even more suspicious. So, I don't know.
And I'm surprised because you actually usually do things to cause more trouble when you're flying around because you have a sweatshirt that says, get rid of qualified immunity.
Yeah, last time I flew with my Abolish Qualified Immunity hoodie a couple months ago, and I decided not to risk that now, especially while there's legislation right now pending to reinstate Bivens and maybe Abolish Qualified Immunity related to the TSA funding thing.
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Chapter 3: What is the case of Olivier v. City of Brandon about?
We'll see about that. And I imagine that the folks working at airports who have not been paid in a little while might be feeling a little saucier than normal. So probably for the best. I'm glad that you made it here. I was a little nervous with everything going on at the airport. So let's talk about what we're going to do today.
So this podcast, typically we make a real deep dive into some pretty nerdy technical areas of Supreme Court doctrine. We
have an audience here full of pre-law students who maybe have not you know taking classes like fed courts and so the responsible thing to do uh would be to kind of dumb everything down um make it real simple hold people's hand uh and we are absolutely not going to do that so um buckle up uh no i'm going to make one attempt to do that in a minute But let me just tell you what we're going to do.
So we're going to catch up a little bit on a few things from the shadow docket. We're going to spend a good amount of time talking about a case called Olivier versus City of Brandon. And maybe I'll... tell you a little bit about what that case is in a minute. But why don't we dig into the shadow docket first?
So I think we have one summary reversal and then a couple dissents from the denial of certiorari. So summary reversal, Zorn versus Linton. I think we could at least tell this audience what a summary reversal is.
Okay, fine. So a summary reversal is when somebody asks the Supreme Court to hear their case. They file a cert petition and say, you know, grant this case. And the Supreme Court says, actually, this is so easy. We don't even need to hear any more argument. Just on the basis of what you've shown us so far, we can tell this is wrong.
We'll just write the opinion now, skip any need for briefing and further argument, and just, you know, cut to the chase.
And so you'd think that, you know, the lower courts get a fair amount of stuff wrong and, you know, in ways that, you know, are bad and hurt people. And you'd think that would make sense for the Supreme Court to do this all the time. But they now do it maybe, you know, just a couple times a term. I didn't look up the most recent statistics, but it's very rare.
And they do so in a way that's kind of slanted.
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Chapter 4: How does the Heck v. Humphrey rule impact civil rights claims?
So the court says, in general, you can only be held liable, a police officer can only be held liable for violating your constitutional rights, not just if they acted unconstitutionally, but they acted outrageously, unreasonably in a way that everybody should have known was clearly illegal.
And, yeah, the Second Circuit had some previous cases where police officers were held to have used too much force. But, you know, in that case, the guy got his head slammed into the floor.
And in this case, it's merely— In this case, there was a brief warning, right? That changes everything. Okay. And so, as you can imagine from the way this qualified immunity rule— is being enforced by the court, it makes it very, very hard to sue. Even when someone's constitutional rights are violated, that's not enough.
You have to show that they were violated and that there was a previous opinion that had said like something close to that exact thing happened and that it was a constitutional violation. Okay. So we have here a dissent from Justice Sotomayor, joined by Justice Kagan and Justice Jackson, that digs into the substance of the decision.
And she takes issue, you know, with the court's conclusion that the, you know, violation here was not clearly established. And then she also returns to a theme at the end, which is the theme that we were mentioning a second ago, which is that the court— chooses to intervene in a very lopsided, asymmetrical fashion. And I think that criticism lands, right?
So I think Justice Sotomayor drives it home especially by also at the same day, there was another case involving qualified immunity where people asked the Supreme Court to intervene and correct an error by the lower courts in the other direction.
a woman named Priscilla Villareal, who's a local reporter and troublemaker, who was arrested for having the temerity to, you know, talk to public officials and report about it on Facebook. And so she sued and the Fifth Circuit said, you know, the police officers get qualified immunity on very dubious grounds. And Justice Sotomayor said, well, look, why don't we take this case too, right?
If we're going to be in the business of second guessing whether or not lower courts have gotten the adjudication of qualified immunity cases right, like, why don't we take some on both sides?
And we get no explanation, right? I mean, even though we have a short opinion by the Supreme Court granting relief in the case from Vermont, they explain why the lower court decision is wrong, but they don't say, and by the way, here's why we decided to step in. Dan, the Supreme Court is not a court of error correction. Except when it is. Yes. Right? When they choose to be.
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Chapter 5: What arguments did the Fifth Circuit make in this case?
The court gets, you know, 7,000 or 8,000 petitions every year from people saying, please hear my case. Most of them are denied without an opinion. And so, you know, there's been a lot of criticism, you know, from you and others about the court's refusal to explain how it is using its discretionary authority.
And when you first kind of wrote the original Shadow Docket article, I think you were actually talking about cases like this, right? That was a prominent subject of that article about cases where the court was stepping in and these qualified immunity cases
very fact-bound disputes, because the court, you know, usually says, we don't mess around with fact-bound disputes that affect just a single person. We're here for the really big legal issues, and yet sometimes they don't do that.
Now, I will say, sometimes the court does provide an explanation. So I was making fun of all the cases earlier where the court steps in because a lower court might grant somebody a writ of habeas corpus.
And there the Supreme Court has said explicitly, the reason we do this, even though we don't normally engage in error correction, is because there are a bunch of lower court judges out there who don't believe in our restrictions on habeas corpus. And we don't trust them. And so we've got to watch them like a hawk and second guess them because they are sort of subverting our authority.
Now, they haven't ever said that about qualified immunity. They haven't ever said, there are a bunch of lower court judges out there who don't believe in qualified immunity, and we've got to second-guess them, too. There are. It would be a little embarrassing for them to say, because for habeas, there's like a statute that makes it very hard to get habeas.
And for qualified immunity, there's a statute that doesn't say anything about it. Yeah, that says you're supposed to be able to sue any time a state official violates your constitutional rights. So at some point, they would have to explain why they are as mad about people subverting sort of made-up, atextual, illegal restrictions on remedies as they are about people restricting real law.
Yeah. Let's talk about qualified immunity for a second. You're a prominent critic of qualified immunity. I'd imagine even some folks in the room who don't have legal training might have heard about it. It got a lot of attention in the press in recent years as there's been more attention paid to, you know, police misconduct and so forth.
It's a doctrine that makes it really, really hard to sue government officials. And you were saying it's not in the statute. So where does it come from? History, maybe.
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Chapter 6: What are the implications of the Supreme Court's decision in Olivier?
Yeah, I mean, these cases, you know, I've said this before, but these cases frustrate me because of all the situations where it makes sense for the court to expend limited resources to come in and correct some injustice. These ones don't strike me as fitting in that category because, yes, these are cases where a police officer is being sued for money.
But basically 100% of the time, the city, the county is going to pay the damages award. So there's not really a little guy who's being smushed the way there is in a habeas case where there's someone who is wrongfully in prison and wants to get out.
Yeah, no, I will say that does mean that it's ultimately the taxpayers of Vermont who have to pay for this. So maybe the court is just thinking about your average farmer.
There's lots of bad decisions that implicate taxpayers, I would say. That's true. Okay. Was there more you wanted to say about either of those? I guess the... Zorn case does still dance around an issue that I think we still don't have a conclusive answer about, which is whether a lower court decision can count as clearly establishing the law.
So it does dance around that. It says, you know, is it even possible for a lower court decision to clearly establish law or can that only come from the Supreme Court? This is a very odd thing because the Supreme Court has squarely held that a lower court decision can establish clearly established law in a case Camerata versus Green, I think maybe from when you clerked. A little bit after.
The court has said that it can happen. And then after that, the court has just said, well, we're not sure whether it can. So it's a funny way to undermine precedent is you just hold something. And then the next year you're like, I don't know. Do we ever hold that? I don't remember. And you sort of hope that over time that will create enough fog that the decision goes away.
Okay, so that's our nerdy Fed court's angle on that one. More on Villarreal? No, we should get to Olivier. Okay, what about Reed v. Gertz, quickly? Oh. You don't want to talk about that one? Well, sure. It's another Justice Sotomayor dissent from denial of certiorari, so another case where the court could have heard the case but chose not to.
It is a follow-on from a case from a few years ago where the court— sent this very case back down to the lower courts. It's gone back through the process and come back up, and now the court is not interested.
Basically, without getting into the complicated procedural details, it's a case where there's somebody on death row who wants to get access to DNA evidence that might establish his innocence. The local prosecutor in Texas is
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Chapter 7: How does Justice Sotomayor's dissent reflect on the ruling?
They sent it back. It may well be that the case is still being misadjudicated and that in the end, you know, all the Supreme Court has resolved as an abstract issue of principle rather than, you know, justice for the particular litigant. But that's fine because the Supreme Court is not a court of error correction.
And it may be that there's someone on death row who could die who is actually innocent. And that we could just test this evidence and it would be super quick and easy and yet nobody wants to do it.
Yeah, I mean, so to be fair, in this case, part of the issue is it's not clear how super quick and easy testing the evidence will be. The objection of the lower court is that the evidence is possibly contaminated. It's not clear how much it will tell us. His response is, well, I mean, it will tell us something.
I mean, it could have the DNA of the supposed alternate perpetrator of the crime. Yeah, but maybe that doesn't tell us anything because maybe it got there some other way. I don't know. Okay, I'm not buying that. But I guess we should go on and actually talk about the one big opinion. I guess it's not a very big opinion, but it is an opinion that the court issued last week.
There were a couple this week that maybe we'll circle back to in a future episode. But now we're just going to focus on this one, Olivier versus City of Brandon. It's going to be a 13-page unanimous decision by Justice Kagan. And let me just explain the question presented in our kind of using language that's going to be – Really simple for everybody.
It's whether Humphrey v. Heck's favorable termination bar extends to a non-custodial Section 1983 claimant who lacks habeas access under 2254 and seeks exclusively prospective anti-enforcement injunctive relief against a facially challenged time-place manner restriction where the claim necessarily impugns the predicate conviction but contemplates no retrospective remediation cognizable under the Heck framework.
Actually, that's not actually the question presented. I asked Claude to, like, take the question presented and make it sound, like, more technical and harder to understand. It's Heck versus Humphrey, Claude.
Yeah, so then I did something else, which is I went back to Claude and I said, you know, Claude, are you familiar with, and I think you're going to be familiar with, XKCD, the webcomic, and the classic Upgoer 5 comic? Yes. which is, the idea is, how can you explain things using the top thousand most common words in the English language? And actually, thousand is not one of those words.
So it's actually, how do you do this in the ten hundred most common words in the English language? And so I asked it to do it for both... Olivier and Heck, and maybe I'll do Olivier first, and then we're going to have to circle back and explain what this earlier case, Heck v. Humphrey, is. So here's the top 100 words version of Olivier.
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Chapter 8: What future cases could be influenced by this decision?
Yeah. Yeah, so the correct way, the correct formal way to handle this would be through the doctrines of what are called the res judicata, which would say, we already litigated this question once. Were you guilty? And the answer was yes. And we litigated the question, was your trial fair? And the answer was yes, otherwise we wouldn't be here.
And the judgment in that case frequently, but not always, stops us from asking that question again. The court says on a footnote, well, it's kind of complicated because you were convicted under state law, and so it would be state-restricted COTA law that would control. That would vary from state to state. We don't know what the answers would be, and that sounds boring and hard.
It's just like Winnell's civil procedure. I promise it's not that hard. But it's been a while since the justice took Winnell's civil procedure. So they prefer to just have a rule that says no regardless of the answer.
Yeah, and this is an opinion by the late Justice Scalia, arch-formalist, and it has a feel of kind of one of the less successfully formalist opinions of his tenure.
Well, so what's better is there's a concurring opinion by Justice Thomas that just openly says we're making this up. That just says, look, this case is about the kind of collision course between the habeas corpus statute and civil rights statute. But it's our fault that they're on a collision course because we misinterpreted the habeas stash a long time ago and granted too much habeas.
Which is this provision where after you've been convicted, after you're done with your appeals, you can still go back to court and say, hey, let me out of prison. And people who are in state prison can still go to federal court sometimes to do that.
And we misinterpreted the civil rights statute a long time ago and said there are too many civil rights. And so we get to fix that. Having made this problem of sort of interpreting the statutes too broadly, we get to fix the problem of having to decide how to unbroaden them.
Okay, so this rule is out there, and maybe there is a defense of some version of this rule, but I think what happens is this rule kind of expands in the lower courts in the kind of three decades since Humphrey, since Hack versus Humphrey. I mean, the case, I think, originally is about when you can get money. Yes. Right? And then it seems to expand to extend to other kinds of suits, right?
Yeah, although in a way the doctrine already existed also for other kinds of suits. There was an even earlier case called Prizer versus Rodriguez that was like, so I'm in prison. I want to get out. It's hard to get out of habeas corpus. I've got an idea. Why don't I get rid of injunction instead and just ask for an injunction saying let me out? That's just like an order in the court.
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