Bok Choy

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 Doherty order. This is a cool one. 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. As many of you 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 are 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 my clothing. Do you have any sense of what it means? No, but just as a brief, Justice Jackson suggested this opinion we're about to talk about that actually Martin was not the first, but they did a submitting to name MacDonald in like 89. For extraordinary risks. And then to syndrome. And then Martin doesn't do it to certain petitions. So it's sort of a coincidence that this is Martinization rather than MacDonaldization or syndromization. But I take the way. 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. And after a certain number of those, the recommendation would become, you know, frivolous, you know, deny and martinize. Cut them off. Yeah. So we did that to Mr. Howell, who is a prisoner in Indiana. And Justice, everyone is okay with it, apparently, or at least not objecting to it, other than Justice Jackson, who has a six-page, six-and-a-half-page dissent. She says this is probably a mistake and it's going too far. At least applying it to incarcerated prisoners goes too far because they could have all sorts of problems. And in lots of ways, we try to make sure that people who are in prison have access to the legal system. And the administrative burden involved in reviewing repeated, even frivolous petitions filed by prisoners is minimal. It's harder than to flood the system because it's harder than to file things at all. so I would not apply the filing bar the court imposes for frequent frivolous filers to prisoners who like Howell seek to proceed IFP yeah and she's picking up a banner previously carried by Justice Stevens yes right who was a dissenter in Martin and always I think my memory is he would just routinely dissent from Martinization Justice Stevens had a perpetual dissent in every Martinization order it appeared on the orders list back before reading the orders list was cool so Justice Stevens had by far more dissents per term than anybody else in the court and nobody ever counted it. I have thought ever since Justice Stevens left the court that it was a shame that nobody else on the liberal wing of the court was going to pick up that banner and I tried unsuccessfully for several years to get Justice Sotomayor to pick up the banner. How? No, I'm not going to talk to her. She doesn't know who I am. You just, you just, you know, tried to send her to the ESP. I just announced you should do it over and over again. Yeah. And then when Justice Jackson joined the court and started becoming skeptical of Munsingweer orders, which are sort of, I was like, maybe we're gonna get there. So I'm gonna 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 the point where there were hundreds and hundreds of frivolous positions filed every day, Yeah. You know, even if the clerks just had a macro that said, like, frivolous deny, there would be a burden. Yeah. Anyway. Yeah. Yeah. I mean, I think that, you know, she seems to want to have a blanket rule that we don't do this to prisoners because, you know, she says, look, there's cases where, you know, we've granted cert and IFP petitioners and they had meritorious claims. And that's certainly true. And, you know, the question is, would stuff slip through? I mean, it maybe suggests to me that we might want to calibrate the rule a little bit. Maybe you get 10. So I'll say one other thing that she, I don't think she says this is you can also say the martinization rule made more sense when the court was not a court of error correction. Because you could say, look, even if there's some injustices or, you know, that's what the court of appeals and district courts are for. And the Supreme Court is there to resolve, you know, issues of nationwide importance, which a pro-state litigant could raise, but losing access to a cert petition from the Speaker of the Litigant is not a huge loss in the court's point of view. As the court has become more and more and more a court of error correction on the interim docket and otherwise, now Justice Jackson's intuition in some ways makes more sense. Sorry, that's a surprising claim. The court has become more and more of a court of error correction? You think it's, well, relative to when? I mean, certainly it's less a court of error correction than it was like 50 years ago. Relative to 2016, 2006, 1996, 1986. You think on the merits docket that's the case? Or just on the interim docket? Well, the interim docket has taken over the merits docket. I think on the sum total of the dockets. If you take the set of opinions, I think that's just become much more of an error correction focus. Could we get somebody to do some empirics on that, just to go through and code cases? I mean, you know, it wouldn't have been, I wouldn't say they've become less of one, but I don't know. I mean, we're seeing, I feel like we used to see more routine summary reversals. Well, I think we did talk about the extent to which summary reversals have moved to the interim docket and then a couple moved back to the summary reversal docket this fall. But I just, in the general expectation, the general vibe that like, if a lower court obviously wrongly says something about the Constitution, I think the expectation that the Supreme Court will intervene and if the Supreme Court doesn't intervene, it's because they're kind of okay with it, has just really gone up. I guess I feel like that claim is right if it's a case involving the government or it's a case involving an executive branch policy. I don't know whether I would agree that it's right as a matter of course. If it's a case involving any politically charged issue. Okay. 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 taking 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, even as the Martinization press is on 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? Ben, and it is the shortest. I've been to County Island before. This is the case we talked about at the Wilkinson-Steckloff 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 had 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. So, yep. Yeah. And I, you know, I guess one, one question that we sort of toyed with, I mean, I think when we talked about the argument, we felt pretty confident that the court was going to say the reasonable time requirement applies. It's going to side with the Lisa Blatt position And you know one question I I toyed with was you know could a different advocate have made a difference Maybe Maybe could have kind of threaded the needle in a certain way tried to get the court you know here the court says you know this has to be this reasonable time requirement does apply Contra the argument of the respondent that it just doesn't apply, basically, that you can always challenge, avoid judgment. Maybe a better advocate could have gotten the court to say more about like the breadth of a reasonable time requirement. Yeah. So I like something more helpful on remand. Like, yes, it applies, but like 100 years is reasonable if it's a void judgment or, you know, something like that. I mean, they wouldn't say that. Or footnote five. So I think the way the case was framed was pretty simple. And I, in a blog post at some point after the argument, I tried to flag some of the three questions that were arguably outside of frame. which are, is this time limit unconstitutional? Is there another way to attack boy judgments? And what is a reasonable time? Which are all kind of bigger questions. The court resolves the first question. The court gets into the constitutional question. Ish. And they say, Justice Sotomayor, right, separately to say, I don't even think we need to resolve the constitutional question. The majority says, well, look, we got to resolve something. The only possible basis of this argument is a constitutional argument. 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 do 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 say what they are. So that I think is the you know that's the biggest area where you know they'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 yeah even if I can't you know get relief under uh 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 um 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% 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 the due process demands more? 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 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 define any principle and it was hard to accept this proposition. We now accept it. We now divine and accept it. Well, maybe, you know, that argument wasn't sufficiently argued. That's true. And with the benefit of further briefing, I mean, they certainly look, I mean, it's, I would not, you know, feel great if I was an advocate of the due process position. I just, you know i thought the court was a little bit cautious and the reason to be a little bit cautious is also the answer that question actually has to turn on what is a reasonable time and what are the other things available yeah it's it's not that in the abstract which we're not told in the abstract a reasonable time seems hard to be unconstitutional unless reasonable is understood in some fairly strict way to not include things that are kind of reasonable and or there's no other alternative. And so suddenly you're, you know, having void judgments enforced against you without adequate opportunity to fight them. So maybe it has to be written that way. And maybe it's just written that way to make clear that they're not inviting, they're not inviting the exact replay of this case, the slightly better advocate who actually squarely raises the constitutional question. Yeah. I mean, if there is a, you know, due process concern, you might interpret reasonable to be very generous in this one context. I, I honestly don't think it totally follows that if the petitioner is right, that, you know, that would mean you can't have time limits for filing appeals. I don't know. That didn't strike me as such a gotcha argument as the court thought it was. Why? Well, I mean, you might say, like, you know, due process requires there be some avenue to attack, avoid judgment, you know, forever. it doesn't have to be the direct appeal. I think the majority agree with that. They'd say, yeah, that's what Rule 105 is for. Just as it doesn't have to be the direct appeal avenue, it doesn't have to be the rule. Well, maybe it does. 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 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. And whereas there is this opportunity later to come back and kind of challenge the judgment. And that's normally what we would have, 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 motion. 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, 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 analogy you latch us. You know, maybe 11 years is fine if there's a reason you waited to launch it. Yeah. Okay. One down. That brings Lisa Blatt's record to what, like 99 to 1 or something? She's lost, I think, 3 or 4. 99 to 4. 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 Fuck Troy. I, of course, pick the eerie case, Burke versus Troy. You do? Because you initially said, you know, you didn't want to talk about this one. I had to lean on you a little bit. I just, I wasn't sure I could get you to talk about it. What? I was clerking when Shady Grove was decided. I wasn't, I wasn't, you know, one of the clerks on the case, but I was, it was, you know, it was interesting. Did you not find that traumatic? No, I thought it was interesting. It was traumatic. The court didn't issue a majority opinion and has made conflict of law professors and civil procedure professors curse the court's name for a decade. Well, I don't teach either of those classes, so I was fine with it. Burke v. Troy presents the question of whether or not a state rule about medical malpractice claims applies to state claims filed in diversity. Basically, to file a medical malpractice claim, you have to have an affidavit saying that your claim is not bogus, And that has to be under state law, like attached to docket the complaint. And now we're in federal court, which is supposed to apply state substantive law and federal procedural law. The federal rules is a procedure-ish, but state tort law. And so the question is really, is this kind of rule substance or procedure? And the court says... And just to be clear, like you said, to docket. So like you have to have this basically at the same time. If you're in state court, you don't file your complaint and then file this later on. It's like you've got to do this. Right. It's like a required part of your complaint, effectively, a required attachment to your complaint. 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, right? It's a procedure effects substance. 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, you know, or a state 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. Yeah. Okay. 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 subsidized 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 this 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 the 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. And so you can't, even if a valid rule of civil procedure displaces contrary state law, even if the state law would qualify as substantive under Erie's test. Which the court had kind of already said, but I think just the court says a lot of this with much more of a... So you'd have to, in that situation, I guess you'd have to make a strong showing that the Rules Enabling Act in that application was unconstitutional. Yes, I guess so. And I take it the court's not including that possibility. And I take it you could have a rule of civil procedure. There could be a thing labeled a rule of civil procedure that's not actually a rule of civil procedure. Although since the rules of civil procedure have to be approved by the Supreme Court, it's hard to imagine how one would be approved that... Like it would be invalid under the rules enabling. Not unconstitutional under the rules enabling. Like if I proposed a rule of civil procedure that said anytime Will Bode files a claim, he gets all the money he wants from whoever. And then I bribed somebody on the committee to push it through. Isn Steve Sachs like running the committee now I think that the appellate rules committee Okay okay We safe then No he too principled to do that But I think if I were on the committee, who knows what I'd do. So I take it that could still be invalid and probably wouldn't be promulgated by the court, unless you bribe them too. But I'm not planning a bribery conspiracy, to be clear. So that's pretty straightforward. I do think, I mean, and one thing that's really great about this opinion, like the opinion we just talked about, but even more important for this opinion, is how short it is. Like, it's so short that you could almost just put it in a casebook unedited. Yeah, not quite as short. It's 11 pages. But pretty short. We've got three short majority opinions today. Let's bring back short opinions. But I almost wonder if it's intentional. I almost wonder if you could imagine Justice Barrett, who has taught law school classes, actually thinking, like, let's write an opinion that could just go in the civ-prone fit courts case books, lays it out, gives you the rules. Maybe without the footnotes, but it's nice. It is a little odd in two respects. So one is, I don't know that states have fully thought this through. Like when states enact these various kinds of tort reform laws, which are in part, you know, work based on procedure, my guess is they have not thought through that the laws would be more effective if they were rewritten or at least if like a sidecar law. They guess I'll have this law and then like a sidecar substantive law that was clearly non-procedural because you could amend your tort law. What's the motorcycle in that? The law is the motorcycle and what's the sidecar? The car would be an extra version, so it would be a new version of this statute that says, in addition to the affidavit of merit and separate from any requirement that you file an affidavit of merit, no claim can, as a matter of law, no claim can succeed on the merits if it's not accompanied by an affidavit of merit or something. At the outset. I think you just say it as, you just describe it as a merits rule as a matter of law, then rule eight would pick it up and enforce it as a rule of substance. and I think several people like this too a lot of states have these kinds of laws for what are called anti-SLAPP laws SLAPP stands for Strategic Lawsuit Against Public Participation there are various kinds of like libel and other libel-y claims against people accessing 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 leave nasty up reviews and not have to worry that the kebabs to her will file 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, 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 to 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 Hannah versus Plummer in Burke v. 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, you know, 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 Rule 8 because these things, these affidavits, are not pleadings. Rule 8 is, you know, 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 eight'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 three requirement that all you need is a complaint do you understand do you understand what is at stake in this disagreement I'm not sure anything there is a separate thing that's about which there's disagreement that maybe there is something at stake about I think what would be at stake is, suppose a state said, you can file, you can docket a claim with just a complaint, but then it can be dismissed unless it also contains an affidavit. I think that would satisfy Justice Jackson, because it's no longer a violence of rule three, but it would not satisfy the claim. So you would say, describe how it works? You can file and docket a suit with just a complaint. It will be dismissed upon a motion to dismiss if it's not also accompanied by an affidavit of merit. I think that that version of the statute would satisfy Justice Jackson's test because there wouldn't be a rule three. Because it's not conflicting with rule eight. It's just an extra thing. It certainly doesn't conflict with rule three because we've let you die with the suit. And then at that point, she'd be more generous about rule eight and she'd say, well, rule eight just says, this is how you can dismiss the suit for failure to state a claim, but it's not exhaustive. It leaves open the possibility there are other ways to dismiss the suit, like failure to contain an affidavit, I guess. I guess. Yeah. Okay. Something maybe slightly more substantive. This is footnote one in her concurrence in the judgment, which kind of gets at the kind of mode of analysis in these kinds of cases, where she says, to the extent that the court suggests that the federal rules, plain text is all that matters when answering the, eerie question. That is not what our precedents hold. And she cites a case called Gasparini and the dissent in Shady Grove and Justice Stevens' concurrence in the judgment in Shady Grove that sort of said, no, you should interpret the federal rules in context. So you kind of are bringing a sort of a more of a loosey-goosey interpretive framework that is sensitive to important state interest and regulatory policies. Yeah. And almost like a... I don't totally know what that means. Almost like constitutional avoidance or rules-enabled act avoidance has applied to the rules, right? Yeah. So, I mean, that suggests that you would interpret federal rules narrowly to be less likely to conflict with state rules. And I think she's right that there is tension between the approach taken in Shady Grove and now Burke versus Troy and the approach taken Which apparently eight justices agree with now, this kind of plain text. No. Which is interesting because you could imagine, you know, let's say some of the other justices. I mean, it doesn't even necessarily have to be a left-right issue, right? If you're a really pro-federalism justice, you might want to say we should really strive to minimize these kinds of conflicts. So can I ask one other substantive question? Is this approach right? Are both of them wrong? Yeah, and it's maybe, so the Rules Enabling Act says, 28 U.S.C. 2072 says, such rules shall not abridge, enlarge, or modify any substantive right. And John Hardeeley argued, as I understand it, that's... He was the law clerk on Hannah v. Plummer, right? He argued that what was the substantive right was partly a question of state law. so the while it's true that like the the a question is this a rule of practice or procedure just asks whether the rule is a rule of procedure he's argued that at b if the if a federal rule of procedure takes away a state rule of substance then that's a b problem that the rule is now abridging enlarging or modifying a substantive right and he thought there were a lot more such cases. Like that in a way, I think he would say, I have a state law substantive right not to have frivolous medical malpractice claims filed against me, where frivolous includes any claim that isn't accompanied by an affidavit of merit. That's like a substantive right of doctors to be left in peace to do their freaking jobs that the state believes in. And now we are using a federal rule of procedure, rule eight, to modify and abridge the doctor's substantive right to be left alone to his job. now steve sacks tells me i'm wrong about this so probably steve sacks versus john hardy lee always has to go to steve sacks well why because steve's alive just because john hardy lee john is a genius and steve is a super genius and super geniuses are better than yes i'm probably out over my skis but i mean but you can describe everything as a state substantive right that way don't you have a state substantive right not to be sued in a class action, you know, for statutory damages or, you know. Yes. I mean, because I still feel like whether it's a substantive state right, I still would want to say, OK, but does it make sense to say you have a substantive right not to be sued unless this procedure is followed? That sounds more like a procedural right, even though, look, procedure is valuable. Right. So I don't know where the substance procedure line is. That's where we started. That's a sort of impossible or very hard line to draw. But the majority seems to say there is no second step. That the majority says, if it really is a rule of procedure and it's covered by the rules of procedure, then we don't care what state law displaces. The inquiry is only about the proceduralness of the federal law that does the displacing and never about the substantiveness of the state law that gets displaced. Maybe there's a little bit of wiggle room there for extraordinary cases, right? But yeah, maybe not. maybe this is it. And I guess I'm, I mean, look, I'm glad I've got the law cleaned up. I don't teach civil procedure, so I'm sure this is right for reasons that are too hard for me to understand. But- Did we know, does Steve like the result here? We should get on the show. Okay. Well, hopefully. If not, we've got a problem. Okay. I was going to ask you the kind of pre-Erie world. Was there any, would they ever have followed state procedural rules in the pre-ERIE, pre-rules enabling act world? Oh yeah, so pre-ERIE there were federal statutes, the conformity laws that largely required them to follow state procedural rules and to use the state forms of action So there was tons of state law but that was both pre and pre rule social procedure And the federal rule social procedure in part are designed to produce uniform rules of practice in federal court. So it used to be in the pre-1930s world, if you were an expert in Illinois law or Illinois procedure, you could file an Illinois state court and Illinois federal court, and they were pretty much the same. But you couldn't really be a federal practitioner because the rules of federal practice in every state were different depending on the conformity laws of the state. Post-rules of procedure. That sounds incredibly confusing. Well, it was, I mean, it's just as confusing now for people who practice law in Illinois state courts and suddenly have to go into federal court. Yeah. It's just a question of... Yeah, although if you're a federal judge, would you have to do multiple states' procedures or would it just be based on where your court was? I think it was based on where your court was. Although the appellate court would have to figure out the, you know. Okay, yeah, simple enough. And now we just think the uniformity of being able to have, you know, fancy appellate lawyers and fancy trial boutiques around the country doing federal practice in every court is the more relevant kind of confusing. Which is fine. I mean, they're just different kinds of uniformity. All right. Next case. Last case. Bellingberg versus United States. This is a crimmy one. Does that mean you have to do it? I mean, do I have to? I'm happy to do it. This one is even shorter. This is, we've got a five-pager, five-page majority opinion by Justice Kavanaugh. This is about a statute called the Mandatory Victims Restitution Act of 1996, which says, you know, defendants convicted of certain crimes have to pay monetary restitution to victims. This is a very, you know, common part of, you know, judgments against criminal defendants after they've been convicted. Defendant here was sentenced in 1996. That's when the law came into force and was ordered to pay restitution in the amount of about $7,500. Has not paid it, I guess, 30 years later. And his argument is he didn't have to do this because actually he committed the relevant crime prior to April 24th, 1996, when the act became law, which makes this an ex post facto punishment, right? We have a principle in constitutional law that you can't punish people for crimes under laws that were not in place when the action occurred, when the crime occurred. Very, very longstanding principle, you know, has a lot of, you know, kind of consider it like a basic principle of legality. But it doesn't apply to like laws generally, right? It's been understood to apply to criminal laws. Only since the 1790s. Yeah. And so I think somewhat routinely, there are kind of like ex post facto civil laws, right? For better, for worse. Right. You see all these billionaires trying to flee California before they enact an ex post facto wealth tax, right? Yep. Okay. And so question is, this law, basically, is it civil or criminal, right? Because if it's civil, we don't need to worry about this retroactivity ex post facto thing. If it's criminal, if it's punishment, then it can't apply. Answer, yes, it is criminal. In fact, it is plainly criminal for purposes of the ex post facto clause. We have Justice Kavanaugh opinion that, you know, as he sometimes does, kind of doesn't give us, you know, a distilled down, you know, simple rule. Instead, he says, look, here's some factors, right? This reminded me a little bit, was it the United States versus Texas? That one where he was like, here's five reasons why there's no standing. I forget whether it's the United States versus Texas or Biden versus Texas, but yes. Yeah, I forget what the, yeah, I forget what the caption of that one. I mean, you know what I'm talking about, though. Yes. And he was like, five reasons, you know. Five reasons why Texas can't join the immigration authority. Yeah. So I agree, although I think there is an overarching theme here, which is just that the hard cases under the Expo's Factor Clause, are where the government says this is civil, but we're worried it's kind of de facto criminal. As the test is like, well, we mostly defer to what the government says, but we got to kind of make sure, you know. But here, as I understand it, he's like, look, the government basically says it's criminal. Like the statute basically admits it's criminal. So. Well, and also like the United States here has confessed error, right? So this is a case where the Solicitor General's office said, yeah, yeah, it's wrong. Sorry. And so they had to appoint John Bash to come in and, you know, argue as an amicus in support of the judgment below. I mean, in an earlier age, would this case have never arisen? They just would have done a little GVR in light of the confession of error? Maybe, although I think there are other circuits that have said this too, right? Or was the circuit the only one? Yeah, I mean, I wonder whether, you know, you mean like you feel like you couldn't do that if there's a circuit split as opposed to a case where it's just a one-off? I mean, because you want the other circuits to correct themselves too. But although it's interesting, I mean, this is an issue of kind of really diminishing importance, right? I mean, how many people are there who still like haven't satisfied their restitution judgments that were entered like more than 30 years ago? Probably, it's probably a non-trivial amount, but, you know, fewer, no, no, that is a closed class, right? No, no new defendants are falling into this class because the statute is now in force. Similar issues could arise. Similar issues still arise because what if you, I mean, what if somebody tried to, you know, what if the penalties change or adjusted for inflation? They have to ask, can you apply them retroactively or what if you, I don't know. But this exact question is going to apply to fewer and fewer people every year, which is often a reason that, you know, one of the reasons that the court denies cert, right? Diminishing importance. You could easily have denied certainness on the grounds that, again, this goes to the error correction point, on the grounds that while this is obviously wrong, it doesn't really matter. Yeah. The court did not deny certainness. Okay. So, yeah, can I just get the features of the MVRA that tell us that it's plainly criminal. It's labeled a penalty for an offense. Court may order restitution only with respect to a criminal defendant, only after a conviction. It's imposed during sentencing. It's imposed with other criminal punishments like imprisonment and fines. It's placed in Title 18, crimes and criminal procedure, lots and lots of clues. Now, there is this other, you know, he alludes in the footnote to what you were talking about, that maybe there are situations where Congress didn't intend criminal punishment, but the statute may still be deemed criminal or penal if the party challenging the statute provides the clearest proof that the statutory scheme is so punitive, either in purpose or effect, as to negate the government's intention to deal civil. So, you know, I don't totally know what that would look like. I think that's ex-Party Garland. So I think in the Civil War, Congress imposed a sort of pre-section three like loyalty oath requirement that you couldn't be a member, couldn't be under the bar unless you could take an oath saying you'd never support the Confederacy, which was described as just a civil rule. And the Supreme Court said it's actually that's actually a de facto criminal rule and therefore... Because it's like designed to punish people for having... For committed treason. Yeah. Okay, so short majority... The only reason I wanted to talk about this case was the concurring opinion by Justice Thomas and Justice Gorsuch, which first of all doubles down on something Justice Thomas had written before, which is his questioning whether this court's 1798 decision in Calder versus Bull is rightly decided. color versus bull is where the court said the ex plus facto clause only applied to punishment for a crime you know it has been 228 years and it's still on the table of of opinions justice thomas is willing to reconsider which is i think a record for justice thomas uh this is also an opinion that the great william winslow krosky who i've been writing about uh thought was wrong and previous opinions just as thomas has cited krosky's analysis the lead unfortunately does not get cited here but then just as thomas now has a new move which is like well even even if i can't overturn calder versus bull after 228 years we should return to the original understanding of calder versus bull which when it said which is broader as he as he reads exactly when it said criminal law it didn't mean the modern tests for criminal law it meant basically to first approximation any time the government is the person imposing the, so the government is the real party imposing the thing. So it's a public wrong versus a private wrong. So it fits nicely into the Thomas, Caleb Nelson et al. theories of like public versus private rights in standing. So for the same reason that Justice Thomas would resolve a lot of standing cases by saying, look, if the proper party in a civil case is an individual, but the proper party when it's public wrong is the government, So he would sort of bring that in here and say, in most cases, the inquiry will just come down to who enforces the law, the sovereign or the injured party. And if the sovereign is the one enforcing a public wrong against you, then it's a crime. Do you think that would be true for all the other criminal law provisions too? Like all the, you know, the jury trial right and all that stuff? like is this a Calder only rule or would Justice Thomas actually give you the full benefit of like the criminal so you mean like when is it a criminal case or when is it a civil case like for purposes of criminal procedures if Justice Thomas is suggesting that like the original understanding of criminal in 1798 in Calder was this test should that be also be the test for you know the fifth false claims act cases that would be, that would be big. That's interesting. And False Claims Act, you sometimes have the private person as a relator, but like, I don't know, you know, like, but they're just, they're acting and they're stepping into the shoes of the United States. But even like tax penalties, right? Like not just your taxes, but the penalties that are currently treated as civil. Would Justice Thomas now say that's actually criminal and so the self-incrimination clause applies and the Sixth Amendment applies and all that stuff? I don't know. Yeah, that's interesting. I don't think we're going to answer that question today because I'm about out of time. Ask your students during our socks. We'll see if we get there. All right. Well, thanks very much for listening. If you like the show, please rate and review on your podcast app of choice. Visit the website, dividedargument.com for transcripts, blog.dividedargument.com for commentary from the wider extended Divided Argument universe. store.dividedargument.com for merchandise. Send us an email, pod at dividedargument.com and leave us a voicemail, 314-649-3790. Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks to the University of Chicago Women's Board and Deborah Cafaro for your further support. And if there's a long delay between this and our next episode, it will be because it has been determined we have issued too many frivolous episodes and we are barred from filing further episodes. Justice Jackson. The case is a medical matter.