A Seat at the Sitting - October 2021

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Dean Reuter:  Welcome and thank you for being with us today. I’m Dean Reuter, Senior Vice President and General Counsel of the Practice Groups at The Federalist Society. Welcome to the inaugural edition of A Seat at the Sitting, The Federalist Society Practice Group’s preview of the Supreme Court docket one month at a time.

 

      Washington, D.C., in particular and even the country more generally are filled with U.S. Supreme Court preview panels at this time of year, almost always examining the entire term, at least to the extent that cases granted are known at the time. Now, though, we wanted to offer insight into the Court’s docket one month at a time for a variety of reasons we’ll discuss.

 

      I want to thank in advance our panelists for today. We’re very pleased to have each and every one of them, and I’ll introduce them momentarily as we look forward to the October sitting. We tried unsuccessfully to recruit other panelists that have more traditional progressive views, opposing views, differing views, but we didn’t fare so well. But I’m sure we’ll do better on that front next month.

 

      Before we begin, a reminder to our audience that today’s session is being recorded and will be posted on The Federalist Society’s website, and that all expressions of opinion are those of the panelists today. We’re going to be using the raise hand and the chat function when we get to the audience question portion of the program.

 

      But first, I want to introduce our panelists in the order they’re going to make their opening remarks. We’re going to hear first from Sarah Harris. Sarah is a partner at Williams & Connolly Supreme Court and Appellate Practice. Last term, she argued two cases before the Supreme Court, won both of them, and again this term is arguing two more cases in the Court, at least so far. There may be more grants pending. Who knows?

 

      She’s received lots of recognition for her advocacy. Law 360 named her an appellate MVP. Bloomberg Law named her a top 40 lawyer under 40. She’s served in the Department of Justice as the Deputy Assistant Attorney General and in the Office of Legal Counsel and clerked for Supreme Court Justice Clarence Thomas.

 

      She’ll be followed in opening remarks by Kate Comerford Todd who most recently served in government as the Deputy White House Counsel from 2018 to 2021. She’s been a Senior Vice President for the U.S. Chamber Litigation Center. Before joining the chamber, she was again at the White House as an Associate Counsel to the President, and before that, partner in appellate litigation and communications practices at Wiley Rein, known for its litigation in communications practice. And she also clerked for Justice Clarence Thomas and Michael Luttig on the Fourth Circuit.

 

      Our final opening remarks will come from Jonathan Adler. He is the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at Case Western Reserve University School of Law. That’s a mouthful, Jonathan. But he teaches environmental law, administrative law, constitutional law, and he carefully monitors the goings on at the Supreme Court.

 

      He’s an author. His most relevant book for our purposes today is Business and the Roberts Court. I recommend it. You can barely see it behind him, but here it is. Pick up a copy if you can. And he’s also a regular contributor to The Volokh Conspiracy, and as we were talking in the pre-call, originally began as Juan Non-Volokh, an anonymous contributor to The Volokh Conspiracy, but now well known for his contributions.

 

      So the October sitting, I want to start -- before we turn to cases, I want to give folks, that is, our panelists, an opportunity to say why are we here. Why look at a particular sitting, one month of cases, rather than the docket as a whole? Is there something—hopefully yes to that—something fruitful and unique to picking the Court’s docket apart in that particular way? Kate, you want to lead us off there?

 

Kate Comerford Todd:  Yeah, I’m happy to. And, Dean, I’m grateful to be included today, and I do think it’s a really good way to package a discussion in a useful way, and different. As you mentioned, this is the season of broader Supreme Court previews where you’re trying to project what’s going to happen based on 30, 35 grants so far in the term, and you’re necessarily picking the big ticket cases, high profile, and focusing on those.

 

      But the justices and their law clerks don’t have the luxury of just focusing on the high profile cases. And so, really, the simple reason I think -- or simplest reason to be focused on just a sitting at a time is because you’re really in that way mirroring the work stream of the justices themselves. They’re, roughly speaking, getting the briefing on these cases at a similar time. Their law clerks are digging into them at the same time. They’re having discussions in chambers and whatever discussions they may have across chambers at the same time. They’re voting on them in proximity to each other.

 

      And so I think it would be strange if there wasn’t necessarily some seepage in the way that the justices are conceptualizing the issues from one case to the next. And we think that’s why there are times when you see the justices put multiple cases with the same statutory scheme together, even if it’s not the same issue or not a similar issue at all. And I think we saw that for the October term. There would have been two Section 1782 cases had one not been dismissed.

 

      And I think also for oral argument, if you think about it from the perspective of someone preparing to go up and argue their case, you don’t know all of the inputs that each justice has, what separate research they maybe have going on, things that they’re reading that are outside of the court materials, but you know for certain that they’re looking into all the other cases of the sitting.

 

      And so any moot that I’ve ever been in necessarily includes some questions that seem a little bit out of left field for the advocate but are really drawing on things that might be on the justices’ minds based on the fact that they’re just not honing in on one case or looking at a collection of cases at one time.

 

Dean Reuter:  That’s very interesting. I want to turn to Jonathan and Sarah in a minute on this same question. But let me ask you, Kate, if I could, since you clerked on the Court, is there a dramatic difference between October, for example, and later months where if the Court’s hearing cases in December, presumably you’re working on opinions from the October sitting. There’s much more work to do, I guess, is my question. How does that sort itself out in later terms?

 

Kate Comerford Todd:  Yeah. I think there are a lot of things that could be said about that. One is just sort of in the concept of seepage, that you’re necessarily taking something that’s fresh on your mind as a legal matter, and it may be affecting maybe not an ultimate decision but just kind of how you’re coming at a later case.

 

      The term is cumulative. It’s also cumulative from term to term, of course, for the justices and for the law clerks who are working there, but in terms of just intensity of things that are going on in people’s minds at the same time and connections they may be drawing that are really related to the fact they just happened to work on this other case the day before, I think it is cumulative, and you start having more -- so cases they may be writing coming out of the October sitting, and they’re going to do those as quickly as they can so they can focus on some of the bigger cases we’re not going to be talking to today. But they’re necessarily going to have these multiple work streams in the chambers.

 

      This is why -- what you could ask is, are they going to have less time to be focused on any one case as the term goes? And I think that people just get less sleep. And it really is -- for those who’ve clerked would describe it as you’re just sort of -- the first day you get a cert petition to review, you think it’s the biggest thing that ever happened, and you spend days, and you wrestle with it.

 

      And by the time you’re cooking in December, you just keep walking deeper and deeper into the water. You’re writing a decision. You’re preparing on these big cases. You’re still fighting about the cases that you’re unhappy about from before. And that cert docket is still continuing to go.

 

      What you can’t know really is whether a cert petition that plops on somebody’s desk that day is going to alter how they’re thinking about a current pending case. But what you do know, and you always know, is what other cases they’re hearing that sitting, which is why I think it’s a great way to package it.

 

Dean Reuter:  Yeah, interesting. Sarah or Jonathan, anything on what’s unique about doing this one month at a time, one sitting at a time, as opposed to the whole term?

 

Sarah Harris:  Yeah, I’m happy to jump in. And thanks so much for having me. One quick correction. I am actually counsel in two cases, not arguing them, but obviously following the Court’s docket very keenly for this term.

 

      I think it’s great to actually think about how the Court schedules things, especially in October because it’s not just all the things Kate said with respect to getting a picture of the cross-currents and how the justices and clerks are processing the cases that are front of mind in a particular month. But for the fall, the Court has allowed leeway in how it sequences the cases in October, November, and December because they’re all granted so far in advance.

 

      And I think the theme of this October is true of some other Octobers, which is the Court can pace itself, take cases in October, take nine of them, get back into the swing of things. There’s kind of a back to school feeling at the Court, and not necessarily picking the most controversial cases right out of the gate. And they have the flexibility not to do that. This is a consensus building month, a month of, again, letting the justices who may not have seen each other as much in person start having those feelings again, start building common bonds among the clerks, and then diving in, perhaps, for cases coming down the pike.

 

Dean Reuter:  Jonathan, your thoughts on this swirl of issues?

 

Prof. Jonathan Adler:  One thing that I would just add is certainly knowing what occurs in a given sitting certainly helps us make judgements and try our hand at predictions in terms of what the Court might do. The Chief Justice has followed the recent tradition of trying to assign majority opinions fairly evenly and as much as possible trying to ensure each justice has the same number of majority opinions and generally the same number from each sitting.

 

      And so having a sense of the range of issues, the range of cases in a given sitting, does help us get a sense of where the Court might be going on uncertain cases. If a justice got a big case in one sitting, then they’d be less likely to have a big case in the next. As the opinions start to come out, knowing what cases were argued in the same sitting can help us get a sense of why certain cases may be taking longer than others.

 

      The other thing I’ll note about why I think it’s useful to have this sort of program is, as you mentioned, Dean, everyone is having the Supreme Court term preview, and all of those previews tend to focus on the same three or four cases that tend to suck all the air out of the room. And it’s not that those cases aren’t important, and of course we care about the abortion case, we care about the gun case, and so on. But I think that that focus on a handful of cases that are high profile, that are the front page news cases, tend to obscure some of the other work the Court does.

 

      And going term by term -- or sorry, sitting by sitting creates the opportunity to really look more closely at the work the Court is doing, the sorts of questions that the Court is dealing with in terms of statutory interpretation or what sorts of relief to offer and the like and really allows you to get a better sense of the full range of what the Court is considering and what it’s going to do in a given term.

 

Dean Reuter:  For our two other experts, I want to turn to the cases momentarily, but before I do that, on the issue of assigning cases so they’re even over the term but also even within a sitting, is that done—to the extent there’s an answer to this, I don't know—but is that done out of respect and fairness, or is that done to even the workload for everybody, or is that just the way it’s done?

 

Sarah Harris:  I have no personal knowledge of how exactly the Chief or the justice in the majority would apply that sort of calculus, but I do feel like all of the things you said are definitely a strong explanations. If you look over time, it certainly seems like the workload in particular balances out among different justices, and that makes sense because whatever else happens, you know that the Court has to finish its work by the end of the term.

 

Kate Comerford Todd:  Yeah, I have no insider information on that either. And I think it’s actually a good point to be able to make because we spend a lot of time talking about law clerks, and we talk about the Supreme Court. And the reality is we’ve never been inside of that conference room.

 

Dean Reuter:  Interesting. Great. So let’s turn to the cases. We’re going to hear opening remarks on select cases from each of our panelists in the order I introduced them, Sarah Harris, then Kate Todd, and then Jonathan Adler. Sarah, turn to you, and if you could just lay out your cases and your thinking on that.

 

Sarah Harris:  Sure. Fortuitously, both of my cases will be argued on October 2, so if you are interested in these cases, you should totally block out your morning and just listen in. But the first one I’m going to talk about is Thompson v. Clark, which actually was not meant to be an October case at all. Servotronics v. Rolls-Royce, which is a case about arbitration discovery, was removed for a stipulated dismissal. The Court had a gap. It juggled around its calendar, and Thompson v. Clark was the lucky winner to get moved around, up from November, presumably so that there were still nine.

 

      So the question presented in this case, I think, makes it my candidate for the sleeper case of the October sitting because it sounds unbelievably narrow but actually turns out to be pretty important. So the question is if there is an existing role that a plaintiff must await favorable termination, i.e., some sort of favorable resolution of their suit, before bringing a 1983 action alleging unreasonable seizure pursuant to legal process. Basically, if you’re a prosecutor for something, you need some sort of favorable outcome before you sue the government for, say, maliciously prosecuting you.

 

      The question here is how do you know that there is termination? Does the plaintiff have to show that the criminal proceeding against him has formally ended in a manner not inconsistent with his innocence, which is what the Eleventh Circuit had said, or do you have to show the proceeding ended in a manner that affirmatively indicates innocence?

 

      So again, that sounds super, super narrow and maybe semantic, and it turns out that it’s not remotely semantic because most cases that end with sort of quote, unquote, favorable termination, the facts are similar to this case, which is someone is prosecuted. It turns out the prosecution was not well founded. The person has various constitutional claims sounding in Fourth Amendment excessive force, wrongful arrest, etc., etc., but they all boil down to the idea the government had no business prosecuting me, and so I’m going to sue the state officials under Section 1983.

 

      And the way the prosecutions usually get dropped is that a district attorney will simply stipulate to dismissal of the charges without obviously saying much more. So there’s no statement that says, “Just kidding, you’re 100 percent innocent.” It’s more like, “We’re dropping this one.” And under the Second Circuit’s approach, the “we’re just dropping this one” is not going to be good enough to meet this standard, so you would not be able to file a 1983 suit in the Second Circuit, whereas a manner not inconsistent with innocence, you’d be okay.

 

      So that’s why it’s important. And another clue that’s it’s actually, despite the narrow sounding question, quite important is that this case, I think, has almost more amicus briefs that all of the other cases this sitting totaled. There are 13 amici for the petitioner, who is the plaintiff trying to file his 1983 suit, including the United States, and there are two amici for respondent, the District Attorney’s Office.

 

      And the amici in support of the petitioner also span the ideological spectrum. You have Alliance Defending Freedom in support of a homeschooling group which has an interest in this issue because it comes up quite often from child welfare investigations that may turn out to be unfounded. And then you also have the ACLU, the NAACP, and a lot of other groups favoring criminal justice reform types, so kind of an interesting case.

 

      The basic thing you need to know about 1983 before I get a little more into this is that the statute that incorporates the common law, it’s enacted in 1871. The rule is to figure out what the contours are of 1983, you need to find a common law tort that most closely resembles a constitutional claim at issue, and then just use the contours of that tort to figure out what kind of guardrails 1983 has.

 

      So here, petitioner is saying, “I’ve got a malicious prosecution claim,” essentially, which means, again, that I’m suing state officials for an arrest that prompted an unfounded prosecution terminating in my favor. And the rest of petitioner’s brief is sort of saying, well, given that it’s malicious prosecution, the rule at common law, and there’s a lot of common law discussion, is that it turns out you did not need to show affirmative innocence was proven to make that claim successfully just, that you didn’t have anything that excluded your innocence, that the resolution was consistent with the idea that you were, in fact, innocent.

 

      And then the respondent’s brief responds in two ways. One is just saying the facts in this case are not so good. Maybe you didn’t want to take this one. There are fact specific barriers to framing this claim as a malicious prosecution. Are you sure you want to do this, Court? So basically, all of the sorts of things you might do if you are angling for the Court to dismiss the case as improvidently granted.

 

      And  then the back half of the brief is saying, okay, okay, if you want to look at the common law history of malicious prosecution, that’s fine, but it was a little bit ambiguous as to what favorable termination involved. The respondents do not dispute that it did cover some of the things petitioner said, but respondents also say, “You know what, sometimes, Court, the common law around 1871 actually also made you affirmatively show your innocence. So it’s too unsettled to be really incorporated into Section 1983.”

 

      The justices, I expect, are really going to have fun with this one because it gets into the common law history, and they tend to find that really interesting. A lot of them really like the kinds of cases that let them delve into the history of the common law and what these various torts entailed.

 

      And I think there’s also a lot of parallels to a case from last term called Uzuegbunam v. Preczewski where there is also similar cross-ideological support for a petitioner who there was arguing that nominal damages awards do not move to civil rights cases. And that case too attracted the justice’s love of delving into common law history. So perhaps they stir up some nostalgia for this issue, and that also explains the grit.

 

      The next case I will talk about is Cameron v. EMW Women’s Surgical Center, which I like to think of as the other abortion case of the term, the abortion case that no one is talking about. And the reason for that is that it is not actually about abortion but a very, very technical procedural question. Cases about abortion usually attract hundreds of amicus briefs, and you can tell that this one does not actually involve abortion because it got four amici total.

 

      The question presented is whether a state attorney general who is vested with the power to defend the state’s laws should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law. So if that sounds very fact-specific, it is indeed very, very fact specific.

 

      So you might ask why the heck did the Court grant this pretty background case. The reason is that the Sixth Circuit, which is the Court of Appeals in question here, appears to have split with the Ninth Circuit on this highly fact specific question about what happens when one part of the state stops you having to defend a state law, and there’s no one else to defend it, can the attorney general or someone else then take it over? And I think the other thing that’s probably going on, reading between the lines, is, given that it was a pretty weak sort of 1-1 circuit split, I would guess that the Court was pretty skeptical of what the Sixth Circuit below did in this case.

 

      So how did this come about? It is one of an increasingly common number of cases that gets to the Court’s docket because weird things happen in state departments whenever parties swap party control. So it’s Kentucky in this case. Here, there are two things you need to know about Kentucky. One is that Kentucky attorney general’s office litigates separately from the rest of the Kentucky executive branch. And two is that there are separate elections for the Kentucky governor and Kentucky AG so that you can simultaneously have a Republican governor and Democrat AG, or vice versa, which is exactly what Kentucky had.

 

      So here, the Kentucky governor started off as a Republican in this suit, and so that governor’s office and the branches that that office controlled were pursuing defense of the state’s abortion law, but then the governor’s office switched to Democrat. Meanwhile, the Kentucky attorney general’s office started off Democrat but flipped to Republican in the same ensuing election.

 

      So what happened was the attorney general had originally sat the case out, letting the governor’s office folks pursue this case through the Sixth Circuit briefing. And then, the parties switched. The Sixth Circuit upheld the district court's injunction against the law, at which point, the governor’s office via the secretary involved refused to keep defending the law though the en banc and cert petition stages.

 

      And then the AG said, “Hey, what about me? I’m a lawyer. I get to represent the state,” and moved to intervene on the commonwealth’s behalf. The Sixth Circuit said, “You’re too late. You should have tried to intervene earlier, AG, if you wanted to participate in this case, so too bad. It’s untimely.” There are not a lot of rules for intervening in federal courts of appeals. And the Kentucky attorney general’s office now says their intervention motion was really just a hand-off to continue the representation. It’s a normal intervention, they’re saying. And any other result would really disrespect state sovereignty because of the way that the state is set up. It’s supposed to be facilitating the attorney general to defend laws in these sorts of instances.

 

      Respondent is the abortion clinic, represented by the ACLU, and they say the AG should have just acted sooner. They should have filed a notice of appeal after the district court loss. That’s jurisdictional. They also say that states should be treated like everyone else in terms of jurisdictional rules, in terms of timeliness of intervention, and that if the state is now regretting this, the attorney general has other recourse, can approach the district court for potential relief, so a very narrow question.

 

      There are some echoes of cases the Court has taken before like Virginia House of Delegates v. Bethune-Hill where this issue percolates to the Court where one part of the state there, or one house of the legislature want to sue. This case is the next chapter in that because everyone here agrees, I think, that the attorney general does have the power under state law to represent the state. And the only real question is what’s the Court going to do about it?

 

      So I think these cases will keep bubbling up, and the reason is the norm that states or federal government would simply defend whatever statute is on the books has eroded, and so it’s increasingly common when there are shifts in who is in power to see various parts of a state or federal government not wanting to defend a law anymore.

 

      Now, it’s off to you, Kate.

 

Kate Comerford Todd:  Thank you. So the two cases I’m going to talk about are both government as topside, meaning the government lost below. And both are very unfun cases just in terms of the underlying subject matter, but I think they’re important and they’re significant in their own right just as individual cases, which is both a combination of the U.S. supporting the petition but also just their independent significance that would have led the Supreme Court to take these cases regardless of what they end up deciding as to how the lower court did.

 

      The first is United States v. Zubaydah, where respondent was captured post 9/11 in Pakistan, detained in CIA black sites, and subjected to enhanced interrogation, there’s no question about that, repeated waterboarding, other techniques that were part of that program, before eventually being transferred to GTMO where he still is in custody.

 

      In this particular matter, he sought to compel discovery from two former CIA contractors, psychologists who were behind this program, for use in a criminal investigation taking place in Poland by Polish prosecutors. And as the government describes it, is seeking to confirm or deny whether the CIA operated a detention facility in Poland during the relevant period, so in the early 2000s, the alleged use of these interrogation techniques at that facility, to the extent it existed, and the details of respondent’s treatment, again, in that facility, assuming it existed in Poland.

 

      On the one hand, there’s been significant disclosure of the CIA program, including declassified CIA documents that go into some detail of the treatment of the respondent himself, discovery in a different civil case involving these same two contractors that described some of the interrogation, a decision which I think will end up coming to play in the oral argument of the court by the European Court of Human Rights that seemed to take the Polish government’s refusal to confirm or deny and turn that into an inference and ultimately a conclusion that, yes, of course, it must have been one of these black sites operated in Poland that related to respondent, as well as a Senate select committee intelligence report that did a comprehensive review. So you’ve got a lot out there that is very detailed about respondent.

 

      On the other hand, the U.S. government has repeatedly across administrations rejected the MLAT requests. Those are the mutual legal assistance treaty request, government to government transfer of information from the Polish prosecutors, and has never confirmed where the particular black sites were located.

 

      The district court found that, yes, there was still some information, despite a lot of speculation and a lot of reporting of some information, there was still significant information that was being sought here that should be protected by the state secrets privilege, which is how the government responded, motions to quash the subpoenas of these individuals based on state secrets.

 

      But then also acknowledge there may be some of that information that is being sought that is really already in the public domain but ultimately concluded when you look at it, that inform isn’t really what is going to be useful to the Polish prosecutors, and there is a risk that you will actually end up having revelations related to that information that is protected by state secrets, and of course, of trying to winnow this down. So the district court took the step of just cutting off the discovery altogether. A divided panel of the Ninth Circuit would reverse and send back with a heavy hand toward allowing the discovery to move forward.

 

      Rehearing was denied in this case but had a very notable, strong 12 judge dissent, which didn’t even include two of the Trump judges who had not participated in the case. So the Trump administration filed the cert petition, followed up by the Biden administration filing the reply and the merits briefing, all taking the same view as to the Ninth Circuit, that the Ninth Circuit had gone too far in imposing its own judgement, not provided the proper amount of deference to the CIA’s assessment of what the national security risk was, making too much of the fact that these were contractors and not government officials, and then also just arguing that the discovery in this type of a proceeding, which I’ll get to in a second, is just the wrong place to try to dabble with information that may ultimately have a state secret element to it.

 

      So what should we be watching for when this case is argued? As I said, this was a topside U.S. government request for cert, strong national security interests further supported through a change of administration. It makes it a strong case for cert, no matter what. So I don’t think we can assume the Court necessarily took it to reverse, which they often do when there are Ninth Circuit grants.

 

      But I do think there are two things that may trouble a majority of the justices here. The first is this sort of logical, intuitive notion that it’s precisely official confirmation of speculation about Poland’s involvement the respondent is seeking. If what was already in the public domain is taken as fact, it’s not clear why the Polish prosecutors would need more.

 

      Now, I should disclaim at this point that I have no insider information about this case, despite my government service. But I do have some experience with information being widely reported and there being multiple purported sources who confirm it, and it can be nonetheless false. So I just put that out there. And I think most people who’ve lived in this town, worked in this town, and potentially some justices at the Supreme Court have witnessed that experience too. And so I just think it’s important to keep in mind as the Court is looking at is there still a nugget of a secret left here sufficient to be protected?

 

      And the second thing about this case is its procedural posture. This is a Section 1782 request, which means there’s no underlying case filed in a U.S. federal court. There’s no underlying case or controversy in a traditional Article III sense, so there will be no Article III judge that is in continued monitoring of how any information that is gleaned through this compulsory process might be used in an ongoing basis.

 

      And so I think that, given that it’s got that overlay and the government is making much of that, that you’ll see a lot of questioning by the justices about how exactly we feel about using this slightly odd mechanism, although it has existed for a long time, to hand over information that potentially gets near state secrets, which is ultimately why the district court made the decision that it did.

 

      The only other thing I’ll say about this case is just sort of stepping back and looking at the context, there are undoubtedly strong emotions surrounding the CIA’s now ended enhanced interrogation program, of which respondent was a part. And respondent did assemble a very powerful lineup of amici to chronicle that treatment.

 

      The case is also being heard when memories of 9/11 are probably at their strongest that they have been in quite a few years. You had Biden officials on the Hill this week talking about how the war on terror is very much alive and ongoing, and you have not just the Trump and Biden administrations continuing to invoke the need for state secret privilege here but would have included Obama and Bush before that. And so I think that’s another element to watch in what might be the backdrop.

 

      And finally, just a note that there’s another case involving state secrets that will be argued in November, so I think we may see these cases aren’t before the court very frequently, so we may see these cases aren’t before the court very frequently, so we will get some insight, perhaps, into how the justices are viewing state secrets more broadly that might relate to that case.

 

      The second case I’m going to mention I mention very briefly, and not because it’s not significant in its own right but just really in the interest of time, and that’s the United States v. Tsarnaev case out of the First Circuit. This involves the death penalty. Tsarnaev was the surviving brother of the Boston Marathon bombers. No question of guilt here for the terrorist acts that took place in Boston.

 

      Instead, before the Court are issues connected to this capital sentence, although one not -- both of them not uniquely so. One is sort of how the trial court dealt with prospective jurors’ exposure to pretrial publicity, namely whether each juror should have been questioned particularly and uniformly about specific content to which they were exposed.

 

      And the second is a very fact specific to this case, whether it was proper to exclude particular evidence about an alleged crime that the respondent’s brother committed a couple of years prior, really with the view by respondent’s position that if that information had been presented at the death penalty stage, the jury may have seen the younger brother as less culpable and more under the sway of the older brother.

 

      Ultimately, I think people know what happened here. In the trial court, there was extensive voir dire but not scripted and not always proving exactly of what the content exposure of particular media was per juror.

 

      And just very quickly, I’ll say in terms of what one might be watching, first I’d note, as Professor Adler has, others have, it’s interesting that you have the Biden administration fully briefing this case, sticking with the Trump administration’s positions. Obviously, this prosecution was brought during the Obama administration, but you also have this pause in federal executions by the attorney general. I don’t think it’s in the interest of any particular justice to raise this possible tension. It’s just something to keep in the background.

 

      The second thing is a lot of the reporting about this case is focusing in on some social media statements that were made by a couple of jurors. And that issue actually isn’t directly before the Court. That’s an issue that would need to get resolved, depending on how the Court resolves the question before it. But my guess is the Court’s going to spend a significant amount of its time on the first question about whether it’s okay to have a rule for or if you need to have a rule for how much in-depth you’re going to question jurors as to the specific media exposure they’ve had.

 

      I think there will be questions about what we do when we have a system that’s largely based on putting investigating the jurors on the part of adverse parties with mixed incentives and ultimately have relied heavily traditionally on prospective jurors self-disclosing both what they’ve seen and heard and how they would handle that. And I think in an era when we all think you can have a trail on the computer of what we think people read, should that change what we think is the fundamental approach to talking about jurors?

 

      The second issue I think is highly fact specific. They will absolutely ask a lot of questions about it, but it’s a little bit hard for me to see what bigger principles legal standards going forward might be affected by a decision on that particular issue.

 

      So with that, I will hand it over to Professor Adler.

 

Prof. Jonathan Adler:  Well, great. And like the others, it’s a pleasure to be here. It’s great to have the opportunity to dig into some of these lower profile cases because they certainly are an important part of the Court’s work.

 

      I want to start off just by talking about two criminal law cases that come from the Sixth Circuit, not because I live and work in the Sixth Circuit, but I think that it’s particularly interesting to follow the travails of the Sixth Circuit in the Supreme Court, particularly in the criminal law context.

 

      In some circles, the Sixth Circuit is sometimes referred to as the new Ninth because over the last 15 or so years, the Sixth Circuit has had a pattern of reversals in the Supreme Court, particularly in the context of criminal law and even within criminal law, particularly within the context of habeas petitions filed under AEDPA, under the Antiterrorism Effective Death Penalty Act, which, among other things, limited the basis upon which federal courts can grant habeas petitions to those who are convicted of crimes within state court.

 

      In fact, just recently, there was a case in which one of the judges on the Sixth Circuit noted that the Supreme Court has reversed the Sixth Circuit in 22 cases under AEDPA in just the last 20 years. It’s something that we have come to expect once at least every term. And in the October sitting, we have an AEDPA case from the Sixth Circuit in which the Sixth Circuit, I should note, those 22 cases, almost all of them were cases in which the Sixth Circuit had granted a habeas petition and the Supreme Court ultimately concluded that petition should not have been granted. In the lion’s share of those cases, the reversals were actually summary reversals.

 

      Now, we have a case in the October sitting, Brown v. Davenport, which is a case involving a grant of a habeas petition by the Sixth Circuit. The Court has scheduled argument. We’re going to hear argument, so there won’t be a summary reversal. But certainly it’s hard not to think about the record the Sixth Circuit has had before the Supreme Court when one sees this case.

 

      In this particular case, it does present an interesting question about what it is federal courts are supposed to be looking at when evaluating whether or not a habeas petition should be granted. In this case, Ervine Lee Davenport was convicted of first degree murder. But what happened during his trial was that he was visibly shackled. And that’s unconstitutional if the court does not have a good reason for the shackling, if there’s not some need to have the defendant restrained in that way.

 

      And the Supreme Court has held for some time now that the jury being able to see the criminal defendant shackled during trial is unduly prejudicial. So there’s no question that the trial court here did something it shouldn’t have done, that it should not have allowed Mr. Davenport to be tried while visibly shackled.

 

      And this is something he raised in his direct appeal. But both the court of appeals in Michigan and the Michigan supreme court concluded, based on interviews with the jurors as well as with what those courts felt was the overwhelming evidence of Mr. Davenport’s guilt, that even though this was a constitutional violation, it was not prejudicial, that it was a harmless error.

 

      It was on this basis that the court filed the habeas petition. And the issue that the district court and the Sixth Circuit wrestled with is whether or not in evaluating this petition it should be focusing on the nature of prejudice that Mr. Davenport experienced or whether they should be focusing on the way that the appeals courts evaluated that claim on appeal.

 

      Now, under AEDPA, the standard is that an application for a petition of a writ of habeas corpus shall not be granted unless the adjudication of the claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. That’s the language from AEDPA.

 

      So the question is in answering that question, is the unreasonable application of established federal law the action taken by the initial trial court in allowing Mr. Davenport to be shackled, or is it the appeals court and Michigan supreme court’s evaluation of whether or not that was indeed prejudicial to Mr. Davenport? And the dissenters in the Sixth Circuit said that it should be the latter question.

 

      And this is a case that almost went en banc, and there was a concurrence in the denial en banc review by Chief Judge Sutton that was essentially a cert petition in this case. It said this case was wrong but not en banc worthy, but the Supreme Court can probably sort it out because the Supreme Court had not clearly addressed this question. When you read that concurrence in the denial of the petition for en banc review from someone like Chief Judge Sutton on the Sixth Circuit, that is a de facto cert petition, and I think certainly was influential in the Court accepting cert.

 

      And I think that it certainly suggests both looking at what we saw below and the pattern that we see in the Sixth Circuit that we certainly go into this case assuming that the Court is looking to reverse the Sixth Circuit, that it is looking to clarify that when one is evaluating a petition for a writ of habeas corpus, one is looking for whether or not the last court of review at the state level unreasonably applied the relevant federal law in its decision. And that’s really what’s being evaluated.

 

      Now, the idea here which AEDPA embodies and what certainly the Supreme Court has been fairly consistent in applying over the last several years is that in our federalist system, the presumption should be that state courts do their jobs, and that state appeals courts consider the relevant legal questions appropriately and fairly when evaluating appeals by criminal defendants, and that it’s not enough to conclude that the state court got it wrong, but the error has to have been so egregious that it was really an unreasonable application. This is not something a reasonable jurist could have had a reasonable disagreement about, but something that’s essentially the sort of clear error that could not have been reasonably made.

 

      And I that’s certainly a high standard as applied by the Supreme Court over the last decade. That’s a very high standard. It’s why the Supreme Court rarely affirms the grant of habeas petitions under AEDPA. And certainly, going into this case, combined with the poor record of the Sixth Circuit on these sorts of cases, that’s certainly what we would expect here.

 

      Another criminal law case which perhaps coincidentally comes from the Sixth Circuit—it’s actually going to be the first case heard next week—is a case called Wooden v. United States. And it’s an Armed Career Criminal Act case. And what would be a Supreme Court term be without an Armed Career Criminal Act case? We seem to get one of those almost every year.

 

      And it’s a fascinating statutory interpretation case, I think, that is deceptively simple, but perhaps not since it’s divided the circuit, and that is how it is that we count prior offenses under the Armed Career Criminal Act. Under the ACCA, there is a 15 year mandatory minimum for gun possession when someone has been convicted of three or more predicate offenses that were, quote, “committed on occasions different from one another.”

 

      And that seems rather simple. You have to have committed multiple predicate offenses at different times on different occasions. But maybe not. What happens if you are engaged in a crime spree, and you do lots of predicate offenses one after another, so they are sequentially separate? These aren’t multiple offenses that all occurred from the same narrow set of events but occurred one after the other.

 

      Well, that’s what William Wooden did. When he was arrested for gun possession, he had previously been convicted for ten burglaries that occurred at a single storage facility. But they were separate burglaries of separate units within the storage facility. And the federal government argued in its position that the Sixth Circuit accepted was that those were separate occasions because they were temporally distinct. Each burglary was completed before the next one was started, and that, therefore, each one of these is a predicate offense.

 

      But this is something that the circuits have split on, and I think it will be very fascinating, a pure statutory interpretation question, but how do we interpret this phrase? What do we do with the phrase committed on occasions different from one another? Does it require these to actually be separated by extended periods of time? Is it enough that they are temporally distinct from one another?

 

      And one of the reasons why I think this case will be worth focusing on and it will be worth thinking about the questions that are asked at oral argument is a lot of times when we see statutory interpretation cases and we focus on them, they’re the big cases that are very politically freighted, cases like Bostock, or what have you, where we expect, certainly as observers, and we may even expect the justices to at least be aware of the broader political context in which the case is heard.

 

      I doubt many people have really strong priors about the Armed Career Criminal Act, and it does implicate to what extent do we interpret a phrase like this based on a common sense meaning, or perhaps even kind of a plain meaning that we might have outside of a legal context, to what extent we should be influenced by our understanding of what the broader purpose of the statute is.

 

      In this case, it’s about career criminals, people that are recidivists, people that keep committing crime after crime. Well, is a single evening’s crime spree consistent with that underlying purpose, even if it fits within at least one possible interpretation of the phrase? As someone who teaches statutory interpretation, I’ll be very interested to see the sort of questioning we get.

 

      Super quickly, because it’s the only environmental case in the October sitting, and it relates to a question that I think is going to be coming before the Court with increasing frequency, I want to say a tiny bit about the original jurisdiction case that the Court will be hearing next week, Mississippi v. Tennessee. We get, right now, one or two original jurisdiction cases per term.

 

      For those that aren’t aware, original jurisdiction cases are those cases where there is no lower court opinion. These involve cases where one state is suing another. They go straight to the Supreme Court, but because the Supreme Court doesn’t really like fact-finding, it typically appoints a special master to do the fun work of going through the facts, and figuring out what occurred, and making a set of recommendations. And then the states file objections to the special master’s recommendations.

 

      Here, Mississippi is claiming that Tennessee, and in particular of the City of Memphis, has stolen some of its water. And water is important. It’s important to many states. It’s important particularly in the southeastern United States and the western United States. We see lots of original jurisdiction cases involving water because water is so important for so many things. And as we’ve seen increased development, increased demands on water supplies, we see states increasingly concerned about whether or not the actions of their neighbors are taking their water.

 

      So Mississippi is claiming, “Tennessee, you are taking our groundwater.” Tennessee’s response is, “Well, no. This is an aquifer that stretches underneath not just both of our states, but, in fact, eight separate states. And since we don’t have an interstate compact, at most, you could claim equitable apportionment.” And then -- in which we would have to, in equity, determine who gets what share of this aquifer, and then use that as the basis for determining whether or not water has been taken. Mississippi doesn’t want equitable apportionment. Mississippi’s claim is, “You are taking groundwater from underneath our land, and you should be stopped.”

 

      In some respects, this is a sleepy technical question, but I think it has very significant implications, both because, as I already mentioned, increasing development and demands on water supplies combined with changes in water distribution and availability and rainfall that are occurring due to climate change, this is the sort of thing we’re going to see increasingly before the Court because states are going to disagree over who’s water it is. And clarifying this case will, to the extent to which groundwater should be subject to equitable apportionment, will be significant and important.

 

      And a sign of that is that a bunch of western states who don’t share this aquifer at all have filed an amicus brief in this case, as have some academics, making clear that it’s really important that the Court clarify the rules for who owns what water. As the western states say, “Whiskey is for drinking; water is for fighting over.” Water is something that states fight over a lot, and we’re seeing that this term too.

 

      I will stop there, Dean.

 

Dean Reuter:  Terrific. There’s a great deal on the table, and I’ve got dozens of questions. But I want to maybe turn to the more thematic questions first rather than pick these cases apart, however interesting they are.

 

      A couple of you have mentioned there are some outstanding, high-profile cases later in the term. This, I think we’ve described -- all of us have referred to it as sort of a more workman-like term, but bread and butter cases, the important cases. We talk about water disputes between states or criminal justice reform issues that cut across the political spectrum, some very important things.

 

      I wonder if anybody wants to address the whole of the October sitting in terms of its level of press attention or public interest versus the bread and butter aspect of what the Court really does with probably 95 percent of its caseload.

 

Prof. Jonathan Adler:  Let me jump in there real quick, Dean. I think there’s a lot in this first sitting that is very typical of a term. We have an original jurisdiction case. We have an ACCA case. We have an AEDPA case.

 

      What’s interesting about this sitting, or what’s missing, is we don’t have much in the way in terms of a big business case. There’s been a lot of discussion about business cases in the Supreme Court. Certainly, a lot of Supreme Court litigation does involve questions involving regulation, involving ERISA, involving commercial disputes or business disputes. That’s something that seems somewhat absent from the October sitting.

 

      So while there are things that are staples of Supreme Court litigation, it is interesting, at least that not only does the October sitting not have the big political flashpoint case of the sort that we’ll see later in the term, but it doesn’t have a lot of cases that have attracted interest in the business community, which is something we’ve certainly come to expect in the Roberts Court.

 

Sarah Harris:  I guess the interesting thing there is I think Rolls-Royce fit the bill exactly for business cases, but it went away. There were certainly sort of -- I think there were at least six amicus -- full disclosure, I represented one of the parties in the case, Rolls-Royce. But the case went away from a stipulated dismissal. The business community certainly seemed to be very interested in the issue, but arbitration discovery, as the name may suggest, involves discovery, and thus, this particular type of case is prone to settling or going away for other reasons.

 

      And interestingly enough, I couldn’t agree more with you, Jonathan, about the Court’s looking for business cases. The other feature in the docket right now is another case, also involving discovery, in the securities contracts, Pivotal Software, also important to business, also involving discovery, also went away.

 

      So I think there is a sort of gap in the October sitting right now, and I think it remains to be seen whether the Court is going to try to -- are they conscious of it? Do they want to grant more business cases? I don't know, but it does feel a little light right now.

 

Dean Reuter:  Kate, do you want to weigh in on this point, or should we move on?

 

Kate Comerford Todd:  No. My old hat, I would have been promoting very greatly that there should be more business case grants, but I don’t disagree with Sarah and Professor.

 

Dean Reuter:  Great. This does give me the opportunity to mention once again Jonathan Adler’s most relevant book, Business in the Roberts Court. And I’ve got to ask you one question, Jonathan. And I have heard it said -- I’ve never seen this really in writing, but that -- well, I have seen it in writing that some different eras of the Court are considered pro-business. But I’ve also heard but not read that that conclusion is in some ways based on data that people run the numbers, and that might include a case where a business sues a business in the Supreme Court. A business wins, so it’s considered a pro-business outcome under that study. Is that happening?

 

Prof Jonathan Adler:  Well, I think -- and this is a great opportunity to talk about the book and the thesis that it ultimately reaches, which is there are structural reasons why we would expect there to be a lot of cases that matter a lot to business. Supreme Court litigation is expensive. Hiring good advocates is expensive. When there’s a lot of money on the table, there’s a greater willingness to push ahead. And so it shouldn’t surprise us that there are private disputes that matter a lot. The larger stakes are often the ones that end up making it to the Supreme Court.

 

      In terms of the Supreme Court, how it resolves those cases, my own view, and certainly in doing the book and other work I’ve done on business cases before the Court, I do think a lot of the claims that are made about business cases are overly simplistic. And I think that we often see people talking about cases about who won. Did the police win? Did the defendant win? Did the business win? Did the consumer win?

 

      And I think that obscures that what the Court is really focusing on, what the justices focus on are the underlying doctrinal questions. And so those areas where business parties tend to win are those areas where their claims are consistent with what the dominant judicial philosophy is on the Court. And those areas where they’re pushing against the dominant philosophy of the justices on the Court, they tend to lose.

 

      And I think that that’s a better way of explaining -- so the Court, as currently composed, tends to be skeptical of what I might characterize as entrepreneurial plaintiff’s litigation. The Court’s view is if there’s going to be a new type of litigation out there, we expect Congress to have authorized that. We’re not going to discover causes of action that lie dormant in a preexisting statutes the way courts in prior eras used to discover implied causes of action all the time.

 

      Well, if a case involves some new creative theory of -- some new creative class action theory, for example, the Supreme Court is likely to reject that, and that will be chalked up as a business win. But if businesses go to Court saying excessive punitive damages are unconstitutional, that they violate due process, well, this is a Court that is skeptical of that, not because of a favor or disfavor about business but because this is a Court that is skeptical of very aggressive substantive due process claims.

 

      And so, especially since Justice Kennedy has left the Court, there isn’t a majority of justices on the Court that are open to that sort of claim, and so that’s an area where business is going to lose, not because the Court is more or less solicitous of business but because of the nature of the claim that’s being brought before the Court. And I think that pattern replicates itself over a wide range of subject matter.

 

Dean Reuter:  Interesting, Well, turning back to the business of this Court, the term opens on Monday. I think we’re going to see a new form or format for oral argument. I wonder if one of you could talk about that and maybe describe what’s changed from last term and what we’ll see on Monday. Anybody want to weigh in there? Sarah, you’ve unmuted.

 

Sarah Harris:  Yeah. Sure, I’m happy to do it. So since the special May 2020 session, the Court, as many of you may know, has held remote arguments with seriatim questioning, starting with the Chief and going through each justice in order of seniority. Next is Justice Thomas, and then so on.

 

      I actually did two arguments in that format, and so I’ll just say my take on the plusses and minuses. The plusses are there’s more uninterrupted time with one-on-one questions. You get to flesh out your arguments a little more without getting interrupted, which can be great.

 

      The other plus is Justice Thomas asks questions, which as a former clerk for him, I consider awesome. But I think the general consensus also was that he was a great questioner and really did a nice job of setting the stage for the ensuing questions that the Court was concerned with. You would hear Justice Breyer saying, “As Justice Thomas said,” and sort of picking up the baton from there.

 

      And I guess one theoretical plus, although I did not use it, was that you, in theory, could wear like a hoodie or sweatpants or something if you were a really casual person. I am not. I wore a suit. But if that makes you feel comfortable, you could totally do it.

 

      The minuses are that you are at one justice’s mercy for about two and a half minutes. And if you represented a criminal defendant last term, for instance, you might not have enjoyed being at Justice Alito’s mercy for quite that long without a friendly question jumping in. And then you also had the fears of technological failure, which did happen every so often. I liked it. I think the Supreme Court bar, it’s fair to say, was split over it.

 

      But now, the Court is debuting a new format that is sort of almost back to normal, which is arguments are now in person, but it is very restricted to argument counsel plus one, the justices, and, I think, a tiny number of press. You still get a two minute opening at the start, which the Court’s been doing for a couple of terms now, but then it’s the free-for-all. And then there’s a bonus round of seriatim questioning after that.

 

      So what’s it going to be like? No one really knows, but I think the only clear thing is that it’s definitely going to be a longer argument format. The Court clearly is not afraid of having arguments run over. And I think the most interesting two things to say about this are one, is Justice Thomas going to participate? It may well be that they’re still keeping the seriatim questioning option so that he feels more comfortable participating. I hope that’s true.

 

      And two, I think for the justices who use arguments strategically, and so I’d put Justice Alito, Justice Kagan, and increasingly, Justice Barrett, I think, we saw last term, in that category. It’ll be really interesting to see whether they choose to make their really hard hypos or efforts to extract concessions near the end of the free-for-all, or whether they want to really zero in on it during the seriatim point where other justices can interrupt them. I don't know, but that’ll be something I’m looking for.

 

Kate Comerford Todd:  Yeah. And I would just add I think it’s interesting that the Court decided to do the free-for-all first and then the seriatim. It just seems, as a complete logical matter to me, if I -- no one asked me. I would have started with the seriatim first to just make sure that all of that stage-setting was happening. I also would have liked to have Justice Thomas going earlier in the proceedings. But I think that’s what’s a little bit strange about it is sort of tacking this seriatim piece on after.

 

      And I agree with Sarah. I’m not sure whether people are going to use that strategically or whether -- what exactly that’s going to look like. But I think that’s a little bit strange, both for the advocates, and, frankly, for what I think they were trying to accomplish with setting up the format.

 

Dean Reuter:  Jonathan? Anything on this point, Professor Adler?

 

Prof. Jonathan Adler:  Just as an academic, it will be very fascinating. It was very interesting -- as Kate and Sarah both noted, it was very interesting to see how the dynamic of oral argument changed going from the old format to going to seriatim in this new hybrid. Certainly, it will produce some changes in the dynamic that are hard to predict.

 

      The bigger point, I think, is I hope this indicates that the Court is going to stick with live or nearly live streaming. I think that has been a very good step forward in terms of Court transparency. I’m no someone who believes that we necessarily need video or live video of oral arguments, but having live -- if not live, same-day audio of oral arguments is, I think, incredibly beneficial and incredibly useful. And I like to think that the Court’s experience during the pandemic has been to acclimate itself to the idea that live audio is okay, and the world won’t end.

 

      And if anything, it will help people understand more how the Court works. And hearing especially the cases that we’ve been talking about today, being able to, in real time, hear the justices engage with the meat of these cases and wrestle with the legal materials and the questions they present, I think is valuable. And I think it helps demystify the Court in ways that are good for general public understanding of the work the Court does.

 

Sarah Harris:  Yeah, and the Court actually did just announce this morning that they are going to do live audio. So I think that’s exactly right. Clearly, they got a lot of positive feedback.

 

Dean Reuter:  I seem to remember, I think, one of the arguments against was the potential for grandstanding. I think mostly the fear was about advocates grandstanding or playing to the larger audience, playing to the public, maybe some concerns about justices grandstanding. But I take it there was none of that, at least to date, and that’s at least part of the reason we’re going to get live streaming going forward.

 

Prof. Jonathan Adler:  There’s one example or one instance where some protesters interrupted an oral argument. And certainly, there is a concern that’s been voiced that a live stream does create incentive for protesters or others who want to get their message out.

 

      But these days, that sort of thing could easily be solved by even just a short delay. So it would be relatively easy for the Court if it was concerned about that, once there is an audience in the courtroom again, to have a 10 or 15 minute delay on the stream so that any sort of protest could be edited out so that some outsider couldn’t use the stream as a platform. So it’s something they can deal with, and hopefully they will continue to do this.

 

Dean Reuter:  I don't know if anybody has any information on this, but I’m curious if you do and you can share it, how first we came to the format from last term, and then how and why it’s been revised. Who decides this? Is it just the Chief? Is it a consensus? Does anybody want to speak to that, or should we move on?

 

Kate Comerford Todd:  Yeah, I would assume that there is some discussion among the justices, but I don't know how that ultimate decision is made.

 

Dean Reuter:  Fair enough. That makes sense. I want to mention to the audience we’ve got about another -- we’re resolved to do this in less than 90 minutes, so we’ve got almost 25 minutes left. I’ve got plenty of questions to carry us through, but if you’d like to use the chat or the raise hand function, if you’re in the audience and you’d like to ask a question, please do so.

 

      This might be -- we might start with Sarah here, I don't know. But you mentioned in your discussion of Cameron the dissonance, I suppose, between one administration at the state level and the next and differences in opinion between the AG and, I guess, the rest of the rest of the executive branch. But the question is really about the federal government now in the Supreme Court, and changes of administration, and consistency or inconsistency between one administration and another.

 

      And, Kate, I think you mentioned that in a couple of your cases, there was consistency. And layered on top of all of this is like what causes inconsistency? What can we expect? Why does this happen? And with particular regard to this administration, is it important that there was no confirmed SG in maybe fostering a change in position? Anyhow, I throw all of that open to any of you.

 

Sarah Harris:  I think the interesting thing right now is the government -- the Biden administration’s Solicitor General’s office last term when they came in, I think, knew that they were under the gun and flipped positions in a lot of cases but did it fast, except for in United States v. Carey, which was a little bit later.

 

      And I think it’s safe to say at argument, both the Chief Justice and Justice Barrett really, really held the government’s feet to the fire on that, asking some very uncomfortable questions about has the government shifted from its calculus as to when it should change its position, what metrics do you use, etc., etc. These are not questions that you really want to get as a government lawyer, although I suspect that the deputy who argued the case did expect them. It’s just they’re not comfortable.

 

      But in contrast, as Kate has mentioned, this term the Court is now hearing cases that got granted last term and would have been briefed by the outgoing Trump administration folks. But clearly, the Biden administration had decided to queue to the position. So going forward, I think the next likely flip that’s going to happen is the Court asked for the views of the United States in the Harvard affirmative action case. That brief will probably come in by December, and I would probably put money on the idea that the Biden administration is not going to agree with the Trump administration that Harvard’s affirmative action policies are unlawful. I’m guessing they’re not going to say that.

 

      So what sort of drives it? I think it is the case that on the one hand, the SG’s office has to balance institutional interests where it is more unusual, at least, for the government to change positions in, say, criminal cases or cases where the government has really an institutional interest in a particular issue across the board where the government usually wants to win. They prosecute cases. They like to claim immunity for federal officials, stuff like that. That doesn’t mean it’s impossible to see a flip, but it’s less likely.

 

      And then there’s cases about a particular administration’s rulemaking where there are more political considerations. And there have been, over time, many more flips of position on those kinds of things because one administration will think that the next administration’s rule is not lawful and/or wants to get rid of it for rulemaking.

 

      So what does that all add up to? I think that it means that we may be approaching more of a norm where it is more expected that if there is a change in administration, the SG’s office will flip more. And I think the question is, is that a good thing or a bad thing? I’m not sure it’s inherently either. I think it’s just probably a change from the more institutional path that the office has historically taken.

 

Kate Comerford Todd:  Yeah, I think that that’s a really good description of the types of cases where you could expect to see a change. And I think it’s like a lot of discussions we have about the Court, and it makes me think of the business case discussion as well, you end up with -- it’s very difficult to get perspective on the Court, and I think that’s part of what’s the good discussion today. And you get this sense when there’s a bunch of flippage, usually at the beginning, I think we will see some more on some new areas that the Biden administration is being asked to weigh in on, or at least hasn’t had the opportunity to yet.

 

      But by and large, most of the cases, most of the issues have a continuity that go across administrations. And nobody talks about that, and nobody is pointing it out and really jumping up and down on that. That’s just the norm, and these are relatively few exceptions that come.

 

      I think largely, in contrasting it from the Cameron case, the Cameron case is what it is because at the state level, we have nonunitary executives. And necessarily, you’re going to end up with these situations where in hindsight, we can say why didn’t you stay in? Why didn’t you do it? But it gets complicated in the predicting ability and which way which component is going to flip.

 

      I happen to view the federal government as a unitary executive, and I think there will be differences from one president to the next and one administration to the next. And it would be really kind of strange if the SG were just standing pat with everything that had been done in every strategic decision as well as policy decision that had been made along the way. And we should expect to see some, but we should also highlight when we’re able to the many cases where it doesn’t happen.

 

Dean Reuter:  Jonathan, do you want to weigh in here?

 

Prof. Jonathan Adler:  Yeah. I guess the only thing I’d add is that when we look at the federal government and its litigating position, and the SG’s office in particular, we have to remember that that office has to balance a certain set of considerations that I think a lot of times political commentary about the actions of the Justice Department overlooks, which is not just the outcome of a particular case but what it means for all of the litigation that the federal government’s involved in and how a case might affect that.

 

      So we talked about the Tsarnaev case before. The Biden administration isn’t particularly interested in maintaining that position because it’s in favor of capital punishment, but rather because the Justice Department is involved in lots of criminal prosecutions around the country. And something that changes the way voir dire is conducted or changes the way appeals courts might review voir dire in criminal trials could have broad-reaching ramifications for a wide number of cases.

 

      And the Justice Department has an institutional interest in maintaining positions that help the executive branch maintain the work that it does. And that sometimes chafes a bit with what a given administration’s policy preferences are. And so I think that that is important to remember because it helps explain why we see consistency on certain legal questions, even though what might appear to be the policy particulars have changed so dramatically.

 

Dean Reuter:  Very interesting. Again, if you have a question, use the raise hand function if you can. I’ve seen a couple in the chat, and we’ll get to those momentarily.

 

      But we mentioned the new format and the possibility of longer oral arguments. I don't know if that’s a foregone conclusion or not. But on a somewhat related question, and that’s about the shrinking docket of the Supreme Court, I can’t identify, really, off the top of my head anything else in the federal government that has been shrinking over the past decades, certainly not to the extent we’re seeing in the caseload of the Supreme Court. I think it’s more than halved, or it’s 40 percent of what it used to be. Any thoughts or reflections on what used to be the number of cases and now is the number of questions?

 

Prof. Jonathan Adler:  Too few. The Court -- this was a trend that began initially in the 1980s when Congress reformed the nature of the Court’s jurisdiction. So the Court used to have a decent number of cases every term that were part of a mandatory appellate jurisdiction. And Congress has, I wouldn’t say eliminated, but dramatically reduced the range of cases that can invoke the Court’s mandatory appellate jurisdiction, and it tends to involve election cases, redistricting cases, a very narrow set of cases where Congress has required or effectively required the Court to hear.

 

      So the Court’s docket is made up almost exclusively of certiorari cases, cases where it’s discretionary on the part of the Court. And under both Chief Justice Rehnquist and Chief Justice Roberts, the trend has been to grant fewer and fewer cases over time. And it’s gotten to the point where we don’t even get to 100 cases. We now get to 70, 60, 55. And it’s unclear whether or not that is in part a function of the pandemic that it’s gotten that low.

 

      My own view, though, is that there are more circuit splits than that. There are more cases that are worthy of the Court’s attention. I also think that one of the many factors that may explain the pressure that we’re seeing on the shadow docket, the emergency docket, whatever you want to call it, is that the Court is deciding fewer merits cases. And hopefully, we’ll see some recalibration there.

 

Dean Reuter:  Are you suggesting, Jonathan, that there are fewer cases being argued in the Court because of the shadow docket, or because there are fewer cases being argued in the Court, the shadow docket has emerged or become more prominent?

 

Prof. Jonathan Adler:  Well, I think the shadow docket has become more prominent for a range of factors. I think there are multiple factors that have contributed to that. But I think it is fair to note, as some commentators have, that some of the issues that are being handled on the shadow docket are issues that should be handled through normal argument and briefing. And the Court, I think, should do that. And if it heard more cases generally, that would create less pressure for people to seek emergency relief because these cases would be handled in the regular courts.

 

      But shadow dockets is a whole other -- there are other factors, some of which I think were specific to the last four years, that also contributed to the large number of cases on the shadow docket, as well as the increased entering of nationwide injunctions by district courts, something that began or really started to increase about seven or eight years ago and has continued at a pace that also puts pressure on the shadow docket.

 

Dean Reuter:  Sarah or Kate, anything on the overall caseload or the shadow docket?

 

Kate Comerford Todd:  Other than I would -- I don’t use that term. I know that it’s become very popular, but I think whatever you might want to call it, the emergency motions docket, we might call it oftentimes the bread and butter docket of the kinds of things courts all over the country do to deal with things on an emergency motion.

 

      I’m hard pressed to think of a lot of situations where the Court has done something there that is normal argument, full briefing timeframe that the Court uses in its actually argued cases that I really see a play off there, that one is coming at the expense of the other. The Court isn’t equipped generally to do really fast beginning to end type of litigation or review that involves oral argument.

 

      I clerked during the Bush v. Gore term. It pushed the Court to the limit to do those two cases back to back and the emergency manner the way that it did. It was capable of doing it. It did hear the oral argument. But I don't know that that’s something that the Court is -- that would be a change in how the Court typically acts to take those things that really are emergencies and shove them into their workaday sittings.

 

      Now, I understand the argument that they don’t have a bunch of things going on in their workaday sittings, but I think there’s plenty to come from the normal cert fare that could go into those dockets and build them up. But I don’t necessarily see the relationship between the two of those things, and I’m a little bit hard pressed to give as much credence to this concept of the shadow docket as I think is kind of popular to talk about right now.

 

Dean Reuter:  Interesting. Sarah?

 

Sarah Harris:  Yeah, I agree with that. I think that just to talk about what’s causing the small number of merits cases, I really don’t think it’s likely that it is so much the so-called shadow docket, emergency docket, other docket.

 

      It does sort of seem like the Court is deciding that they are taking a pass on various circuit splits. Maybe this is the plea of the advocate, but I do wish they would take more because you see petitions go up, not just your own, but other people’s, and they really do point to a circuit split or a really important national issue. And the Court, nonetheless, says not right now. They might say try again later. We’ll cede the circuit split, whatever. But the end result does seem to be not so many cases.

 

      The long conference just happened. That’s the conference that happens right after the summer where the Court considers a bazillion petitions that have been building up over the summer. They had five grants this morning. Now, who knows, they might be issuing more orders later, but five grants after the long conference is not a big number. Your odds are really low.

 

      And so I do wonder a little bit about the timing of it because there are some times in the Court’s calendar now where they are so parsimonious with grants that they can barely fill -- like, I think it was a real struggle for them this past term to fill the October, November, December sittings. They even granted an immigration case -- two immigration cases over the summer, which happens approximately very, very rarely to have summer grants. I think just they have things to say and things to do in December.

 

      So I don't know what the drive really is, but it is a really pronounced trend. And I think it is causing challenges to even -- it seems like they’re having trouble keeping pace, for whatever reason.

 

Dean Reuter:  There’s a question in the chat, and it’s a question I suppose I’ll share. I think it’s for Sarah, and that is concerning Thompson v. Clark. “I don’t understand how almost anyone could ever file a 1983 case if the government can choose to block lawsuits against itself.”

 

      I think implicit in this question is when you had mentioned that if charges are dismissed, that in some circuits means you can’t file a Section 1983 case. And I think the questioner is asking is that being done deliberately? Is the word out that that would preclude a Section 1983 case?

 

Sarah Harris:  This is certainly -- you’re sort of preaching to the choir about the petitioner’s brief here because the petitioner is basically saying the standard in circuits like the Second Circuit, at least for malicious prosecution type claims where there is this element prerequisite to filing a 1983 suit, you do need to show, quote, “favorable termination.”

 

      I don’t think anyone is accusing the government of systematically having bad faith, but the rule being that the government -- if the government just does this sort of normal course dismissal and doesn’t have to affirmatively admit that you are innocent, or more likely, not innocent, then yes, it is the case for good or bad intent that you would -- this is what petitioners say. You virtually never can file a malicious prosecution 1983 suit under the Second Circuit’s rule, and I think that is one of the policies/practical arguments that they are really pressing home in their brief.

 

      And I would certainly expect that kind of question to come up at argument for the other side to say can you explain to me -- are you aware of examples in which there have been successful malicious prosecutions in the Second Circuit because it seems like that would be really hard.

 

Dean Reuter:  Either of our other guests want to weigh in on this? Okay. We've got just a couple minutes left, and I want to try and stick to this sitting rather than venture into future cases unfairly.

 

      But I have a question of Jonathan Adler, on the original jurisdiction case, Jonathan. And that is I do see that the water war is coming, especially in the western states. And there are dozens or maybe hundreds of water treaties. Is it common to have water treaties for groundwater, that is, water that is under the ground?

 

Prof. Jonathan Adler:  No. Most of the compacts that arise or that are litigated are over river water. So you see quite a few cases involving upstream states versus downstream states, and they entered into a compact 30 years ago about how to figure out how much water can be diverted upstream and leave them enough for downstream. And we don’t usually see -- there are some that involve groundwater, but usually we think about these in terms of river compacts. Certainly, states can do that. Any compact involving water, though -- any compact involving anything has to be accepted by Congress for it to be effective.

 

      What’s becoming an issue increasingly is assumptions that states have made about how much water will be available, when, and where, have turned out not to be true for a range of reasons. Some of it’s increased demands on water. Some of it’s a lack of stationarity, basically that systems are more dynamic than we thought they were. And certainly, climate change adds to that as well.

 

      So I do think we are going to see more of these sorts of cases. There are aquifers around the country where we historically never came close to outstripping their recharge rates. And it’s not clear that that will be true going forward. And states are in a position to advance those claims. In the absence of compacts or the absence of legislation, they will take their cases to the Court.

 

Dean Reuter:  Let me ask a final question. I think each of you, or at least two of you, have mentioned en banc, denial of en banc, granting en banc, concurring or dissenting from denial of en banc. What’s the effect of all of that on the Court?

 

      One of you mentioned that Chief Judge Sutton wrote an opinion in that process that basically became a cert petition. How does the Court look at that? If there were just three judges who have gotten it wrong, or maybe two out of three judges on a panel, it strikes me that the Court might think that’s less important than if an entire court en banc has gotten it wrong, or right. But anyhow, I’d love to hear your thoughts on that.

 

Kate Comerford Todd:  My reaction to that is I think it’s less important whether the lower court took it en banc or how many judges voted, wrote a dissent, exactly what the lineup of it is, than the actual writings that are produced in that process. And because there are a lot of very circuit-specific considerations as to whether they’ll take something en banc, and some are more stingy than others, I don’t think that there’s a lot that the Supreme Court should put into weight as to whether they did or they didn’t, although certainly if they did, I think it suggests that there was some level of importance in that circuit that they felt they needed to grapple with that particular issue.

 

      But I think what’s more significant is that process revealing thoughts and views of some of the other judges in a circuit, particularly a larger circuit like the Ninth Circuit, but in other circuits as well that are getting to weigh in and put their two cents, and oftentimes much more than two cents, into a really well-reasoned argument as to why either the panel got it wrong, and so they’re really making the case for the Supreme Court taking that up on review and coming with their view of the merits, or just why it’s something that’s really -- sometimes, it’s written as this is really frustrating, and we’re doing our best, but we have really no guidance from the Supreme Court. And it would be really useful if you all would step in and review this particular case.

 

      And so that’s why I think particularly judges that are very savvy at the cert process and who know how to write to that and/or to particular justices, if you think about the amount of energy, money, resources put into garnering amicus support in any given cert petition or a merits based case, I’ve always thought the much more powerful amicus is having a federal judge, and particularly a very good writer of a federal judge, weigh in on the issue on your behalf. And so, oftentimes, these petitions for rehearing, no one thinks they’re even going to be granted, but you really are trying to get some good, thoughtful writing by one of the other federal judges you weren’t otherwise able to reach at the panel time.

 

Sarah Harris:  I would just add on that score, I think the Ninth Circuit has their bat signal process really down to a very finely honed process because if you look at some of the grants out of the Ninth Circuit over the past two terms in particular, it is almost a formula. If you get more than 12 dissents at the rehearing en banc and a couple of opinions, the Supreme Court usually grants because they are really, really effective in saying -- one or more of them will be like, “This contravenes Supreme Court precedent,” and the other one will be like, “This creates circuit splits,” and then another one will be like, “This is profoundly wrong.” And you see it time and again in different areas of the Ninth Circuit’s decision-making.

 

      And it is pretty hard to get en banc in the Ninth Circuit, simply given the number of judges. But these are sort of en banc petitions that fell short or even the Ninth Circuit often will, sua sponte, call for rehearing on en banc. And so I feel like they have their process of getting the Court’s attention pretty good.

 

      Other circuits are not as active. The First Circuit virtually never rehears anything en banc and is, I think, more inclined to not really go out there on a limb and have a dissent from denial rehearing en banc. And other circuits are kind of in the middle of those two. But I think the Sixth Circuit is sort of more like the Ninth Circuit.

 

      And also, as Jonathan was saying, I think, for some of his cases explain why some of the judges will withhold the votes that might actually have led to rehearing en banc—that was certainly true in Brown v. Davenport—and instead concur and say, “You know, we could rehear this en banc, but there’s already kind of circuit split. It would be more helpful if the Supreme Court stepped in, more efficient. It seems like it’s going to go to the Supreme Court anyway.”

 

      I agree with Kate, though, too, also. Whenever you’re working on a cert petition or looking at having the judges, an amici is really by far the best because they have already looked at a case and have a level of credibility that amici may not.

 

Dean Reuter:  Right. Jonathan, 30 seconds for a final thought.

 

Prof. Jonathan Adler:  Well, just on that, it’s interesting. There was actually a recent case in the Fourth Circuit where the judges on the Fourth Circuit in the context of an en banc petition actually raised this issue. And one judge in particular complained about some of his colleagues using dissents from denial of en banc as de facto cert petitions.

 

      And I think we certainly see that the justices, at least in certain types of cases, are aware of dissents from denial of en banc petitions. And it certainly can’t hurt in terms of distinguishing a case from the piles and piles and piles of cases that the justices have to consider granting.

 

Dean Reuter:  Very interesting. Well, we promised to do this in less than 90 minutes, and I think we’re close to that. But I want to thank our three experts today, Kate Todd, Professor Jonathan Adler, and Sarah Harris. This has been very entertaining and informative, a good blend, I would say.

 

      Thanks to our audience for Zooming in as well. A reminder to our audience to check The Federalist Society’s website for the next iteration of this, which will proceed the November sitting, but also the many, many other Federalist Society programs and events that will be taking place in the interim. But until that next event, we are adjourned. Thank you very much, everyone.

 

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