Chapter 1: What recent Supreme Court cases are discussed in this 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. So, Dan, my colleagues asked me yesterday, when are we going to get the tariffs decision?
And I said, tomorrow. Were you just doing that just to be kind of contrarian and everyone else? I mean, I know everybody wants that, but, you know, my view is always they're going to disappoint you and it's going to take longer than you want it to.
Yeah, but then you have to control for that. So I think I think somebody said, when do you think we're in a terror position? So I said tomorrow, because that was my best guess. Really?
Do you really think that? Well, I don't think it anymore. Well, I mean, like, why did you think that? I mean, just because you think it's incredibly urgent and you trust their ability to get it out relatively quickly. I mean, the thing is, it's going to be an opinion where, like, More than half of them are going to write, don't you think?
Well, the longer it takes, the more I think that. I thought when they granted it, scheduled it for relatively rapid argument, and from the nature of the arguments, that they were going to want to get it decided quickly. And I understand. I was with the people who thought it might well have been the decision last Friday when we got the one argument.
5-4 second successive venture thing that we should do at some point. So then I thought, okay, maybe they were going to get it ready then, but now, you know, Justice Kagan is tweaking her occurrence or whatever. But I was wrong. And I do think, of course, the speed at which they get it out depends a little bit on what it's going to say and how many people are going to write.
And so, of course, I might have had a guess ex ante about what it was going to say and who was going to write, but as it takes longer, then I have to also update my guesses of what it's going to say and how many people are going to write.
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Chapter 2: How does the Supreme Court's decision in Bost v. Illinois Board of Elections impact election law?
It's not all obvious that the decision is going to cause the market to go up rather than down, right? Yeah, I mean, it depends a lot on what the market is currently pricing in.
Right. And what they say about the refund process and the, you know, if you thought that a ruling against the administration will cause the Supreme Court to declare war on the Supreme Court building and arrest Justice Roberts, you might.
That's true. That's true. I was not betting my retirement on this, but I thought it would be. I would either be able to thank you for making me some money or be enraged with you for losing me money. But neither of those things is true. I don't even know if I've, I think I've maybe lost $5 or something.
So speaking of thank yous, I want to say a thank you to an alum of the law school, Deborah Cafaro. who yesterday announced a million-dollar gift to the Constitutional Law Institute, which, as listeners may know, supports this podcast and all of our endeavors. U.S. dollars? U.S. dollars. That's a lot of money. It is. It's a big gift.
Now, it's not going to mean that you or I are getting rich off of doing this, but it may hopefully let us.
Can we build like a divided argument headquarters, like a kind of third location? We could put it in between St. Louis and Chicago.
And then we would have to go there to record?
Yeah.
Well, when we needed to, like once in a while.
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Chapter 3: What is the significance of standing in election law cases?
Like, I don't know.
Is that like a thing you want to buy? I don't know. Is there Lake Shrimp? I'm not sure. Can that be the, is that the title, by the way? Maybe. Lake Shrimp. We do have at least a couple good bakeries here. Union Loafers, excellent bread. We bring that to friends in other cities. Perhaps I will remember to bring you some next time we go to Chicago and we can debate whether St.
Louis bread.
Take me there when I come to the live show. Yeah, although you're only coming for like two hours. But it is also a great lunch venue. All right. Okay, so can I do other aimless, pointless chit-chat?
We don't have long, but yes.
Okay, all right. The other thing I was going to note is that on X, formerly Twitter, the thing that has been popular recently is
is using a grok which is elon musk's ai to do image generation okay and you know this has been used for some somewhat nefarious purposes you know lots of like you know putting people in revealing clothing and stuff like that but another thing people are doing is kind of like testing groks um you know like intuitions and like
you know, personal views by, like, putting a photo of, like, Biden and Trump and saying, like, remove the bad president or, you know, and seeing who, who Grok removes. Yeah. And so I tried this with a picture of the current Supreme Court. And I said, you know, remove the justice who is most often wrong, put a crown on the justice who is most often wrong.
What I got in return was a message that I don't pay for that feature, so I can't do it. But I did, a couple folks did it for me who do pay for it. Results a little mixed. So one version of it I got. It removed Justice Kagan and then replaced Justice Kagan with a different justice, a black woman who looks sort of like Justice Jackson, but not really.
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Chapter 4: What are the implications of the Case v. Montana decision on Fourth Amendment rights?
And this is one that's very much in the bowed wheelhouse, right? Standing case. Standing election law in the state of Illinois, right? Right. Oh, yeah. I keep forgetting you were an election law scholar now. And teacher? Are you teaching? At least teacher. Whether I'm a scholar, we can debate. But I've taught the course. Okay.
And you're a standing... Would you describe yourself as a standing hawk?
Hawk or dove? So... You're not a dove. You're not a standing dove. Well, I think TransUnion is wrong with this, I think.
Okay, yeah, me too. So maybe you're a standing... What's the... I'm an eagle. I'm an owl.
I'm in the middle. I'm correct.
I like owl. Yeah, but those are both birds of prey, so they seem more hawk-like. Maybe like a cardinal?
The owl is a bird of prey, but it's smart and wise and discerning. So I think I'm a smart hawk.
I do like owls. Owls are cool. Okay. Okay, so tell us what this case is about, and then we can get the Bodian wisdom.
Okay, so Mike Bost is a congressman in Illinois, a Republican, which makes him an endangered species, even more than the eagle. And he thinks that it is illegal that the state of Illinois counts ballots received after Election Day. This is, recall, something that the Fifth Circuit, in an opinion by Andy Oldham, has said is illegal, I think.
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Chapter 5: How does the emergency aid doctrine apply in the context of police searches?
We have a special... Because he would clearly have no standing to challenge, or at least maybe not clear. Actually, no, maybe I take that back.
You might have an intuition that the 2022 election and the 2024 election are over. The number of votes don't matter. Yeah.
In any case, in election law, in federal courts doctrine generally, in election law specifically, we have an exception to mootness doctrine for cases that are capable of repetition with respect to that plaintiff yet evading review, for which the two classic examples are pregnancies and election cycles.
Where basically the time it takes to litigate a case well from the district court to the Supreme Court is sufficiently long that you couldn't necessarily get an answer. And so we just kind of looked it over. Now, by the way, in the new interim docket world, it's not going to make sense anymore.
Like now, obviously, you can litigate a case from the district court to the Supreme Court in like a month and a half if you try. And get a very, very lengthy opinion from the court. Go ask the National Guard. So, but anyway.
Yeah.
And even here, we're like still a long ways away from getting an answer on the lawsuit, right? Because we've now worked our way all the way up to judiciary just to get the answer on the standing question.
But in stylized fact, the basic problem is he's an incumbent. He's one of the small number of Republicans who have been gerrymandered into a relatively safe Republican district in Illinois. So he wins every time by like 60 to 70 percent of the vote. And nobody thinks, including him, that these late counted ballots are going to make him loose.
I mean, you never know, but nobody's going to make him lose. So you can see how at one level the Seventh Circuit said, well, look, what's it to you? Just as the Seventh Circuit might say, you don't have standing to go ask us to figure out the correct vote total in the 2022 election, which is like way over.
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Chapter 6: What are the different standards of evidence discussed in the context of emergency situations?
He is a candidate for office and a candidate has a personal stake in the rules that govern the counting of votes in his election. So it sounds like a categorical rule, at least that a candidate has a personal stake in the rules that govern the counting of votes in his election. Now, of course, there's a lot of election law that's not just about the counting of votes.
So already the election law listserv and such are asking, you know, what about gerrymandering? What about six years ago, seven years ago in Gill versus Whitford? When the court held that some voters didn't have standing to challenge a political gerrymander, why didn't they have a personal stake in the rules that govern the counting of votes in their election?
Maybe it's because candidates now have more rights than voters, or maybe because gerrymandering is not exactly about counting the votes, but about putting them in buckets? I'm not sure. But it's a fairly broad rule, and it's a pretty sensible intuition, right? That, like, if it were otherwise, if you said only the candidate who might lose has standing, then there are two awkward things, right?
One is the courts now have to kind of take judicial notice of the fact that a lot of our elections are not competitive. Like, yeah, I know there's an election in a year and a half, but nobody thinks that this guy's going to get thrown out. Right. Which is awkward. And then worse, of course, things could change.
But the only way it would become close is if a month before the election, you know, the Republican Party takes an unprecedented reputational hit or the candidate is, you know, caught on a hot mic saying that Biden was once the president or something scandalous. And, you know, then it's sort of awkward to say, oh, now the election is closed. I guess we do have to litigate this.
So there's some attraction to a kind of general rule that you just try to get the rules right. Or even litigate it. Exposed, right? Well, right. So then, of course, we talked a couple episodes ago about the Purcell principle, the special election law rule that federal courts shouldn't enjoin state rules too close to the election. On the eve. On the eve.
The eve, also known as sometime in the 12-month period preceding. And so if you waited too long, then you'd get Purcelled out.
And then you have the question. Well, until... But if you wait even longer and the election happens and you lose, certainly if the candidate loses by the margin of the late received votes, I mean, Purcell is not in play at that point. They could go back and say, I should be declared the winner, right?
Probably. So there's a complicated body of remedial law about that. Probably. But, but that can get kind of complicated too. Okay. I mean, like Bush versus Gore in part involved the court just saying like it was time to stop counting the votes because it's getting to be too, too close to inauguration day.
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Chapter 7: How does Justice Gorsuch's concurrence contribute to the discussion of Fourth Amendment exceptions?
Yeah. So it's just complicated. So you can see why you want to get it dealt with in the beginning. That's all I want to say. So in that sense, it's straightforward, right? Okay. Yeah. Now, two questions. One is, and the three questions. One is, why do four justices not agree?
One are just sort of related is, I like this opinion, but I'm sort of surprised the other justices in this opinion like this opinion. Like, I'm a standing owl, like you. But they are standing hawks, other than Justice Thomas.
So they think that, like, even if a company, like, maintains false credit reports about you in violation of federal law and you sue saying you have an interest in having true information maintained about you that complies with federal law, they think you don't necessarily have standing until you can search something else, like that the data has been communicated to third parties, a requirement not in the statute.
So I don't know why they suddenly have a more indulgent approach to standing here. This does seem different though, right? Why? So I would say here his interest is in making sure that the law is complied with in this process. Just like the failed plaintiffs in TransUnion had an interest in making sure the law was applied to their credit reports.
And just like the failed plaintiffs in Lujan wanted the law to be applied to them.
The court says it's the interest in a fair election. Okay. Right? That there's some sort of process value and... And that is also a public thing, right? That does seem a little different than just saying it's unfortunate that TransUnion had in their, you know, file cabinet stuff about me that is not good. Right.
If TransUnion had just been like putting on its website, you know, vote is a credit risk. Yeah. That does seem different, right? You have an interest in not... I think... Not having people think of you as that, even if you're not seeking credit, right?
Well, I think the fair process thing was part of the... The complaint was TransUnion does not have a fair process for deciding whether or not I'm a terrorist, and particularly aren't complying with various safeguards they have to comply with to decide whether I'm a terrorist. And the court said, well, so what? What's it to you?
So maybe... Right, maybe fair process and public process is actually like a... Yeah. Like maybe if they count all the ballots wrongly... but do it in secret? I'm not sure how to, you know. Yeah. Or in Lujan, the challengers are people who thought the EPA had not complied with various procedural requirements for rulemaking about endangered species.
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Chapter 8: What broader themes about the judiciary and election law emerge from this episode?
But it's also like, it's not just about compliance with law, right?
Yeah.
He's sort of saying, you as a candidate have an interest in being treated fairly. Isn't this kind of like the same idea where even if someone can't show they would have been admitted to the University of Texas, but for revaction, they still have an interest in participating in a process in which there is no racial discrimination that goes on?
So the cynic might now say, ah, Professor Bode and Professor Epps, the real rule is that if you are a Republicanā about pro-Democrat policies adopted by blue states or a white person complaining about affirmative action, you're standing. But if you are an environmental law group or a consumer complaining that big corporations or agencies did conservative things, you don't have standing.
I don't believe that, but you might ask that.
I mean, do you think... Friend of the show and co-blogger on the Divided Argument blog, Richard Ray, has written a little bit about this kind of realignment that's happening in standing, right, where, you know, at least, you know, by one... when it looks like liberals are becoming standing hawks and conservatives are becoming more dovish. So it sounds like maybe you don't buy that.
No, that's definitely true. Oh, you do buy it. You don't buy the criticism you just laid out a second ago, but maybe you do buy the realignment claim.
The realignment seems to be going on. When we started teaching law not that long ago, If you were told there was a contested 5-4 standing case, you pretty much knew the liberals were in favor of standing, the conservatives were against standing, and somebody complicated was in the middle. And even TransUnion is close to the last case where that's true.
Not even TransUnion, just as Thomas is on the other side. Yeah. But the point of the Richard Ray article is like, we really just don't have cases like that anymore. The contested cases are all where the liberals think there's no standing. The liberals have become hawks and the conservatives have become doves. Seems descriptively true. Unlike Biden versus Nebraska. Biden versus Nebraska.
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