New Episode: Even Eve-ier
CPP Memos, Abbott v. LULAC, DC v. RW, and Hencely
A new episode of Divided Argument dropped today, Even Eve-ier:
We open with reporting on leaked internal Supreme Court memoranda related to the 2016 stay of the Clean Power Plan, including what the documents may reveal, why the leak itself is so unusual, and whether timing and incomplete records change the story. We also discuss Justice Sotomayor’s public apology after comments about Justice Kavanaugh, and what that moment says about judicial professionalism and public exchange.
From there, we turn to some shadow docket happenings: a one-line summary reversal in a Texas redistricting case and a Fourth Amendment summary reversal out of the D.C. courts. Finally, we move to the merits docket and consider Hencely v. Fluor Corporation (24-924), a case involving federal contractor preemption and a terrorist attack in Afghanistan, where the Court narrows a (possibly infamous) Scalia opinion.
As always, comments welcome!
I was also disappointed that Justice Thomas's speech was not discussed.
Thomas attacked the political beliefs of half of American society, saying that "Stalin, Hitler, Mussolini, and Mao all were intertwined with the rise of progressivism," that "Progressives strove to undo the Declaration’s commitment to equality and natural rights," that "progressives had a great deal of contempt for us, the American people." It is striking that Sotamayor felt the need to apologize for quite a mild, in my opinion, critique of Kavanaugh in unrecorded remarks, while Thomas feels comfortable making a polemical speech on camera attacking the sincerely held beliefs of a significant chunk of the society that he wields power on behalf of. Thomas's remarks seem at least as worthy of discussion as Sotamayor's.
A lot of disappointments for me in this episode before the discussion of the summary reversal and Hencely.
I was disappointed that, while you devoted 20+ minutes to the leak, you never actually addressed the criticisms of the clean power plant decision. I wasn't following Will 10 years ago and I don't think this blog/podcast existed then. I certainly wasn't aware of the details surrounding the decision or Will's at the time thoughts on how it shook out. I was disappointed that you characterized the memos as "giv[ing] us no new information" when it seemed to me that some of the arguments from the memos, the tick-tock of intra-justice memos, the factors being considered, and even the framing of battling over Kennedy's vote were all new. I'm sure much of this was speculated about, but it seems like the memos at least confirm much of what happened. That seems "new" to me. I'm very frustrated that over 10 years we seemingly have developed a policy about irreparable harm that seems to be that the government always suffers irreparable harm, but only if it's on one side of the v. It's doubly frustrating that the justices haven't explicitly articulated this stance, it has been developed on the rushed shadow docket with scant writing, and it largely (entirely?) coincides with partisan framing of the cases it is hearing. I largely agree with concerns that that there can be too much transparency, i.e. knowing exactly what justices say and think at all steps of deciding cases, will lead to a bad place where the justices don't try to hash things out and grapple with tough issues. I was disappointed to hear the clean power plant decision discussed in that light. To me, part of the scandalous nature of the clean power plant decision was that it was being decided on seemingly novel grounds, in a rushed manner, without much explanation, and on the shadow docket. To me this is different in kind to learning about how the sausage is made on a merits docket case. The modern shadow docket is quite new and I think it's good we know how it's being developed and used. I was a little disappointed Dan didn't weigh in more here as he has been seemingly more in favor of greater transparency and more writing when it comes to the shadow docket. On two much more minor notes, I was disappointed there wasn't any discussion of why comments were disabled on the blog for most of the leaks posts, and I didn't seem to get much of Dan's take on the clean power plant decision.
I was also disappointed that there was no discussion of Thomas' speech at the University of Texas. To me, the news worthy quotes involved some troubling language used that at best can only be explained as a historical.
Unfortunate and ironic that you discuss LULAC on the day Callais comes out. Would have liked to hear if either of you think there is any possible way to make LULAC and Callais consistent with one another. Seems like the answer is "no" to me.