Divided Argument

Divided Argument — S7E1: Summary & HighlightsOne-line summary (Beamly)Season 7 opens with a Court busy not deciding: an Alito recusal, a quorum lost to four book deals, and a stern Purcell per curiam for Missouri.Show notesSeason 7 opens after a long delay, a dead sound mixer, and a host who punched himself in the face, so we start with the things the Court didn't decide. Justice Alito's late recusal from Suncor Energy v. County Commissioners of Boulder County and the four book deals that cost the Court a quorum in BMG Rights Management v. Vetter get us into the recusal rules and the odd machinery of 28 U.S.C. § 2109. Then the Court's fall run of Purcell rulings: the stay denied in U.S. Postal Service v. California, the unusually stern per curiam in People Not Politicians v. Onder that ended Missouri's redistricting saga, and the stay in Scanlan v. Coalition for Open Democracy. We close with the third trip of Department of Homeland Security v. D.V.D. and its oddly open-ended questions presented. Along the way: Dan's new essay on the justices' books, John Marshall's unread biography of Washington, Rehnquist's unpublished novels, and the other Dan Sullivan.Highlights[00:00:22] Opening: the long delay, Will's dead sound mixer, and a water cooler that punched back.[00:03:05] Why some interim-docket rulings land on the opinions page: the words "per curiam," not the length.[00:04:53] Suncor v. Boulder County: Justice Alito's recusal a week before the first argument of the Term, his wife's energy stocks, and the awkwardness of spousal conflicts.[00:09:59] The Chevron v. Plaquemines Parish recusal letter, four days before argument, and the worry that recusal timing tracks whether a vote is needed.[00:11:49] Suncor itself: a jurisdictional puzzle about the finality of a Colorado Supreme Court remand, and a preemption case with nothing clearly on point.[00:18:55] Petitioners' best case is Franchise Tax Board v. Hyatt; Will and Steve Sachs's unread amicus brief on interstate sovereign immunity as general law.[00:21:25] BMG Rights Management v. Vetter: four recusals, no quorum, Bertelsmann and Penguin Random House, and why Paul Clement filed anyway.[00:24:04] 28 U.S.C. § 2109: holding a case over, the Alcoa precedent of circuit judges sitting as the Supreme Court, and whether the statute needs a certiorari-era fix.[00:30:59] The rule of necessity, the litigant who sues all nine justices, and Justice Breyer waiting in the wings.[00:32:27] Justice Alito's So Ordered and Dan's "Reading the Justices' Books": John Marshall's five-volume Washington, Rehnquist's unpublished novels, and whether a justice's book can be "good."[00:36:40] The case for short opinions: Rehnquist's reputation, Holmes's dissents, and Will's pitch that long opinions get edited by their enemies.[00:39:34] U.S. Postal Service v. California: the three-sentence denial, Justice Kavanaugh's concurrence, the Alito–Thomas dissent, and two predictions scored.[00:44:35] Missouri redistricting, Act 3: the referendum petition, the Secretary of State's last-hour rejection, a TRO that wasn't, and an Eighth Circuit that misread a red light.[00:48:52] People Not Politicians v. Onder: an unusually stern per curiam, the Robert Alton Harris "no further stays" precedent, and no noted dissents.[00:52:36] Purcell as federal judicial restraint, not an anti-chaos principle: state courts can change the rules late.[00:54:59] Scanlan v. Coalition for Open Democracy: New Hampshire student IDs, a stay over Justice Jackson's lone dissent.[00:57:07] DHS v. D.V.D., round three: third-country removals, a stay application treated as a granted cert petition, and a fourth question presented that says "whatever else you want."[01:01:58] Docket archaeology: the phantom petition, a response due date that will never arrive, and whether deporting the class representatives moots the case.[01:06:59] A term shaping up smaller than last year's, until it isn't; the other Dan Sullivan; sign-off.Relevant linksCasesSuncor Energy v. County Commissioners of Boulder County — argument audio — the Sept. 28 recusal letterChevron USA v. Plaquemines Parish — the Jan. 8 recusal letterBMG Rights Management v. Vetter — the Oct. 19 order list — 28 U.S.C. § 2109 and 28 U.S.C. § 1FCC v. Brown (the per curiam on the opinions page)U.S. Postal Service v. California — order, concurrence, and dissentPeople Not Politicians v. Onder — per curiamScanlan v. Coalition for Open Democracy — order and dissentDepartment of Homeland Security v. D.V.D. — the Sept. 29 cert grant — docketCommentary & articlesDan Epps, "Reading the Justices' Books" (SSRN; forthcoming Harvard Law Review)Will Baude, "Things to Read This Week (10/12/26)" (Divided Argument blog, with the essay and the So Ordered reactions)Justice Samuel A. Alito Jr., So OrderedKelsey Dallas, "Justice Alito will no longer participate in climate change dispute" (SCOTUSblog, Sept. 28, 2026)Alito on the recusal as "prudent" but not required (ABA Journal, on the Bloomberg interview)Steve Vladeck on the justices' book deals and 28 U.S.C. § 2109 (One First, Oct. 22, 2026)William Baude & Stephen E. Sachs, amicus brief in Franchise Tax Board v. HyattWilliam Baude & Stephen E. Sachs, "The Misunderstood Eleventh Amendment" (169 U. Pa. L. Rev. 609 (2021))SCOTUSblog on the Court's third Missouri ruling (Sept. 25, 2026)SCOTUSblog on the New Hampshire student-ID stay (Oct. 22, 2026)Steve Vladeck on the Court's third D.V.D. ruling (One First, Oct. 1, 2026)Steve Vladeck on the DOJ's Alaska suit (One First, Oct. 26, 2026)CBS News on the DOJ's Alaska Senate suitOtherDivided Argument S6E30, "Shoe of Damocles" (the Trump v. California discussion this episode picks up)The Court's December 2026 argument calendar (D.V.D. is set for Dec. 9)

We're back after a break, and the August interim docket handed us two per curiam standing rulings. In Trump v. California, the Court stayed the injunction against the mail-ballot executive order because the states' injuries were too hypothetical, even as the Postal Service's final rule has already been enjoined and is already back at the Court. In National Park Service v. National Trust for Historic Preservation, the Court let the ballroom construction continue because a historic preservationist's aesthetic injury is "mere offense," which leaves us asking why a crocodile counts and the White House doesn't. We work through ripeness, the Purcell principle turned inside out, the standing realignment that may not have realigned after all, and why the Chief dissented. Along the way: the Justices' papers and who really owns them, a philosopher's note on conditionals, a mixed metaphor unmixed, and the difference between teaching from a script and teaching from a cocktail napkin.Highlights[00:00:21] Opening: a scheduled Friday recording is no longer unpredictable; Dan is teaching fed courts out of "Baude et al." (Hart & Wechsler), and Will insists he's only holding it in trust.[00:02:27] Jodi Kantor's NYT story on the justices' papers: Justice Scalia made no plan, Justice Ginsburg's Library of Congress conditions, and whether papers printed on government paper are personal property.[00:08:17] Will's tentative new institutionalist view: release everything after ten years so the justices have to talk to each other in person.[00:11:26] Feedback: Yale philosopher Daniel Greco on conditionals in formal logic vs. spoken English; a listener catches Will retelling the "thriving atrocities practice" story from Season 1.[00:15:27] Two per curiam standing rulings from the August interim docket, 6-3 and 5-4.[00:16:08] Trump v. California: Executive Order 14399's citizenship lists, prosecution priority, and Postal Service rule, plus a lowercase-r republican form of government and Luther v. Borden.[00:24:19] The stay: no standing, no ripeness, and whether ripeness is jurisdictional or equitable.[00:27:31] Walking Sections 2(a), 2(b), and 3: making a list is not an injury, "no well-founded fear" of prosecution, and Clapper.[00:32:26] The Post Office's final rule issued the weekend before the opinion, is already enjoined again, and is already back at the Court; cremated humans, replica explosives, and enough green ink.[00:36:29] Predictions: Will says at least five justices will keep the rule off the books before this election; Dan bets at least one majority justice says the president is fine; the major questions doctrine vs. Gregory v. Ashcroft.[00:39:09] Purcell inside out: when the body that isn't supposed to regulate elections meddles on the eve of one, courts stand back to let instability prevail.[00:45:11] The dissents: Justice Sotomayor's four don't-panic pages vs. Justice Jackson's 23, and her recurring Trump v. CASA-era argument that the Court should ask who is actually right.[00:49:45] "Another shoe drop in the Kafkaesque nightmare": Dan objects to the mixed metaphor, researches the origin of the other shoe, and proposes the shoe of Damocles.[00:53:42] Re and Paz-Priel's The Standing Realignment lands in the Supreme Court Review the same week an old-school 6-3 standing lineup comes back.[00:56:53] National Park Service v. National Trust: the demolished East Wing, 40 U.S.C. § 8106, Nixon's tennis nets, and a strong argument on the merits the Court never reaches.[01:00:12] Alison Hoagland's aesthetic injury: Lujan's crocodile, Mineral King, the White House as a national park, and the majority's "mere offense" line.[01:05:44] Alliance for Hippocratic Medicine and Judge Ho's aesthetic-babies theory; the ballroom is closer to a national park than to a baby; seeing X vs. not seeing Y.[01:08:21] Why the Chief dissented (the Smithsonian theory vs. the good-lawyer theory) and who wrote the per curiam ("Start with this" sounds like Justice Gorsuch).[01:13:52] Breaking mid-recording: National Republican Congressional Committee v. Brown, the FCC's lowest unit charge, Justice Jackson alone in dissent, deferred to next time.[01:15:33] Teaching notes: Will's one-page Word docs (now consolidated by Claude into something beyond a cocktail napkin) vs. Dan's scripts; sign-off.Relevant linksCasesTrump v. California — per curiam and dissentsExecutive Order 14399, Ensuring Citizenship Verification and Integrity in Federal Elections (91 Fed. Reg. 17125)National Park Service v. National Trust for Historic Preservation — per curiam and dissent40 U.S.C. § 8106National Republican Congressional Committee v. Brown — per curiam and dissentCommentary & articlesJodi Kantor's NYT story on the justices' papers (Sept. 1, 2026)Steve Vladeck, "The Justices' Papers" (One First, Sept. 7, 2026)Will Baude, "The Purcell Principle and the Post Office" (Divided Argument blog, Sept. 2, 2026)Will Baude, "Esthetic Standing in the White House Ballroom Case" (Divided Argument blog, Aug. 31, 2026)Richard M. Re & Yoav Paz-Priel, "The Standing Realignment" (Supreme Court Review)Steve Vladeck, "Four Lessons from the Ballroom Ruling" (One First, Sept. 3, 2026)Josh Blackman, "Strictly Ballroom: Justice Kavanaugh Defeats Chief Justice Roberts" (Volokh Conspiracy, Aug. 31, 2026)OtherDivided Argument S1E7, "Triple Bank Shot" (the first telling of the atrocities-practice story)Audio Arguendo (the courts-of-appeals argument podcast)

After following up on Justice Alito's summer interview, the new birthright-citizenship executive orders, and the Court's record-low approval numbers, we devote the episode to Cisco Systems v. Doe, the Falun Gong surveillance case that closes the door Sosa v. Alvarez-Machain left open for new Alien Tort Statute claims. We try to build a theory of the ATS from first principles — Section 9 of the Judiciary Act of 1789, the law of nations, and the Marbois affair — before running through two decades of the Court narrowing the statute. Then we ask what to make of "door closing" as a phenomenon, from Edwards v. Vannoy to Rucho, and whether the Court would really be stuck if the perfect ATS unicorn finally showed up. Along the way: whether Justice Alito is an I-95 or an Amtrak guy, the seven-case October calendar led by Suncor, Rooker anti-Feldmanism, and a Phoenix bar band called the Blackstone Three.Highlights[00:00:21] Opening: 29 episodes makes a record-breaking season, and the secret to sub-4-hour recording sessions[00:02:28] Justice Alito's WSJ interview with James Taranto: "Obviously I'm here for another term," the vultures, and his high school English teacher's psychoanalysis[00:06:27] How Will became a libertarian: Mr. Flannery, Lexis news alerts for "Ayn Rand," and golfer David Duval[00:09:48] Still no action on the mail-in voting applications; a White House ballroom emergency application expected any day[00:11:15] No rehearing petition in Trump v. Barbara — instead, new executive orders probing the decision's edges[00:15:32] The October calendar: only 7 cases, starting with Suncor — "conservative intuitions in search of a constitutional clause"[00:17:04] Mailbag: Rooker anti-Feldmanism via Lance v. Dennis, and Michael Rosman on whether sex-segregated sports are really "equal opportunity"[00:20:32] Gallup has the Court at 33% approval, a record low — the maximally anti-legitimacy strategy[00:22:35] The main event: Cisco Systems v. Doe — an anonymous person versus a faceless corporation[00:23:16] ATS first principles: Section 9 of the Judiciary Act of 1789, the law of nations as brooding omnipresence, and the Marbois affair[00:37:27] The 1980 revival, Sosa v. Alvarez-Machain, and the door Justice Souter left ajar[00:42:45] Two decades of narrowing: Kiobel, Jesner, Nestlé — and Will's brush with a thriving atrocities practice[00:47:33] Cisco closes the door; the Edwards v. Vannoy parallel, and whether door closing is ever dicta[00:52:33] Door closing as a genre: Vieth v. Jubelirer, Rucho — a Green Bag piece for Richard Re[00:56:36] What about pirates? The Blackstone 3 — the doctrine, and the Phoenix bar band[01:00:18] Implied causes of action, the slow death of Bivens, and the Ex parte Young irony after Trump v. Cook[01:05:19] Scoring the opinion: a win for the Bradley–Goldsmith "Erie algorithm" — or selective originalism?[01:13:33] Sign-off: rate and review — and if we go quiet, Will has been taken by piratesRelevant linksCasesCisco Systems, Inc. v. Doe I — slip opinionTrump v. Barbara — the birthright-citizenship decision the new executive orders are testingSuncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County — the OT26 openerSosa v. Alvarez-Machain, 542 U.S. 692 (2004)Edwards v. Vannoy, 593 U.S. 255 (2021) — slip opinionLance v. Dennis, 546 U.S. 459 (2006) (per curiam) — the Stevens "Rooker good, Feldman bad" dissentCommentary & articlesCNN on the Alito interview — coverage of James Taranto's Wall Street Journal interviewGallup, "Supreme Court Job Approval Slumps to Record Low"Jonathan Adler, "Amicus Brief in Suncor Energy v. County Commissioners of Boulder County" — the solo plaintiffs-side amicusOona A. Hathaway et al., "Has the Alien Tort Statute Made a Difference?," 107 Cornell L. Rev. (2022) — the settlements study cited in Cisco footnote 2Carlos M. Vázquez & Stephen I. Vladeck, "State Law, the Westfall Act, and the Nature of the Bivens Question," 161 U. Pa. L. Rev. 509 (2013)Samuel L. Bray & Paul B. Miller, "Getting Into Equity," 97 Notre Dame L. Rev. 1763 (2022) — why equity never needed causes of actionOtherDivided Argument, "Separation-of-Powers Police" (S4E23) — the Daryl Levinson Law for Leviathan book episodeThe Blackstone Three — original and cover music for all events, parties, and concert venues

We squeeze in one more episode before Will's vacation, tying the single-season record in the process. The mailbag then demands a reckoning on whether Magneto's powers are really limited to ferrous metals, along with the origins of the S tier and the truth-value of conditional predictions. The main event is Hunter v. United States, which holds that a plea bargain's appeal waiver is unenforceable when enforcing it would work a "miscarriage of justice." We try to figure out where that rule could possibly come from — contract law? Rule 11? the supervisory power? procedural common law? — and why an opinion this law-free commanded this much agreement, while the separate writings range from a declaration of war on plea bargaining itself to a hunt for a sounder source of authority. Along the way: a field trip to the shuttered taproom of Ybarra v. Illinois fame, and thanks to the expanding Divided Argument production universe.Highlights[00:00:21] Opening: squeezing in one more before Will's vacation — and tying the single-season episode record.[00:01:42] The only Court news: Trump v. California, the mail-in-voting application, is fully briefed.[00:03:15] Mailbag: "lead is not magnetic." Are Magneto's powers limited to ferrous metals? The comic-book record says no.[00:05:40] Why is S the top tier? Japanese video-game rank screens and contested backronyms.[00:08:09] Parsec retcons in Star Wars, and the art of redeeming past misstatements.[00:09:09] Caleb Rogers on the logic of conditional predictions: "if A, then B" is true whenever not-A.[00:11:08] Thank-yous to the production universe — and the show is now on YouTube.[00:12:06] Jessie Henderson's field trip: the Aurora Tap of Ybarra v. Illinois fame, located and (sadly) shuttered.[00:15:30] The main event: Hunter v. United States — appeal waivers in federal plea bargains.[00:21:30] The wrinkle: a forced-medication condition, and a judge who says "you have a right to appeal" anyway (cf. Class v. United States).[00:24:45] Plea bargains as free-floating general contract law — territory of the forthcoming Epps & D'Onfro Harvard Law Review paper.[00:26:52] The circuit split: the Fifth Circuit's statutory-maximum rule vs. everyone else's miscarriage-of-justice exception.[00:29:16] The real puzzle: where does any of this authority come from — Rule 11? the judiciary's own self-image?[00:37:51] What definitely counts: race-based sentences, a no-pregnancy condition, sentencing by 12 orangutans.[00:40:40] Dan logs a scorecard prediction on what the Fifth Circuit does on remand.[00:43:04] How does an opinion this mushy get 8 votes in 2026? In for a dime, in for a dollar.[00:45:40] The Gorsuch concurrence comes out swinging against plea bargaining itself — Stuntz and Barkow make the U.S. Reports.[00:52:50] The Kavanaugh concurrence's high bar, and the 3–3–2 math of who wouldn't take sides.[00:55:00] The Thomas dissent: no source of law — and no sentencing appeals for most of American history anyway.[01:00:20] The Barrett concurrence: procedural common law, with citations to Professor Barrett.[01:08:16] Sign-off: thanks to the Constitutional Law Institute; Dan's predictions may yet be made falsifiable.Relevant linksCasesHunter v. United States — slip opinionTrump v. CaliforniaCommentary & articles"Hunter v. United States — the most important criminal case of the term" — SCOTUSblog opinion analysisAmy Coney Barrett, "The Supervisory Power of the Supreme Court" — 106 Colum. L. Rev. 324 (2006), cited in the Barrett concurrenceAmy Coney Barrett, "Procedural Common Law" — 94 Va. L. Rev. 813 (2008), the other self-citationOtherIce by Magneto — last episode, where the Magneto debate beganSmart Microwave — the Chatrie episode, where the Aurora Tap of Ybarra v. Illinois first came upGorsuch Genie — our episode with Rachel Barkow on Justice Abandoned, now cited in the Gorsuch concurrence

We're back — maybe getting a little too scheduled — with one opinion on the docket: West Virginia v. B.P.J. and Little v. Hecox, where the Court held that states may limit girls' and women's sports teams to biological sex without violation Equal Protection or Title IX. First, though, Will collects on a two-year-old prediction when the Court grants Jouppi v. Alaska, an Institute for Justice case about a five-figure airplane forfeited over a six-pack of beer. On the main event, we work through how the opinions are written (no pronouns, no "Lindsay"), what the litigants' Title IX concession did to the case, and whether there is any such thing as an as-applied equal protection challenge. Will makes a big-swing prediction about transgender status and heightened scrutiny, and we ask whether the Court's reasoning can be squared with VMI and the anti-stereotyping cases. Along the way: fencepost problems, Magneto's powers, Magic: The Gathering's crossover-IP wars, scrawny men, and Justice Kavanaugh's ode to the championship trophy.Highlights[00:00:21] Opening: continuing the roll, "starting to get a little scheduled," and record-setting season ambitions[00:02:05] Summer interim-docket check-in: a new SG filing on mail-in voting; still no rehearing petition in the birthright-citizenship case[00:03:23] Filing-day counting and the classic fencepost problem[00:04:50] Will doesn't condone violence, Dan; UFC, violent video games, and Dungeons & Dragons[00:07:46] The prediction workflow pays off: Will called the IJ excessive-fines cert push back in May 2024 (Culley)[00:08:05] Cert granted in Jouppi v. Alaska: a 5-figure aircraft forfeited over a 6-pack of beer[00:09:58] Scorecard methodology: easy predictions, Magneto clauses, and a slugging-percentage proposal[00:12:51] Dan's good news: Constitutional Rights in General Private Law, accepted at Harvard Law Review[00:13:32] The main event: West Virginia v. B.P.J. and Little v. Hecox — states can keep transgender athletes off girls' and women's teams[00:15:25] How the opinions are written: no pronouns, and the majority never says "Lindsay"[00:18:44] The Thomas concurrence: suspect class, "biological men and boys who identify as girls," and the Josef Pieper abuse-of-language quote[00:21:49] Title IX: the statutory text, the litigants' concession, and what the dissents are trying to preserve[00:29:39] The Equal Protection Clause: Skrmetti, two kinds of anti-trans laws, and Will's big-swing prediction on heightened scrutiny[00:35:29] VMI's inherent differences, bathrooms, and the anti-stereotyping mainstays (Craig v. Boren)[00:43:33] Is there such a thing as an as-applied equal protection challenge? Footnotes 7 and 9, scrawny men, and Nguyen[00:52:35] The Ninth Circuit's dropped thread: Idaho's invasive verification testing and the cis-woman plaintiff[00:54:41] Justice Kavanaugh, the sports justice: the championship-trophy passage and Flood v. Kuhn lore[00:56:52] The flip side: does Title IX sometimes require excluding transgender athletes? Dueling predictions[01:00:30] Why this isn't Bostock: Gorsuch, formalism, and a contested Indian-law analogy[01:02:49] Sign-off — and a preemptive accusation that Will will game the scorecard by refusing to recordRelevant linksCasesWest Virginia v. B.P.J. / Little v. Hecox — slip opinionJouppi v. Alaska — Institute for Justice case pageCulley v. MarshallUnited States v. SkrmettiUnited States v. Virginia (VMI)Nguyen v. INSFlood v. KuhnCommentary & articlesD'Onfro & Epps, "The Fourth Amendment and General Law" — the Yale Law Journal predecessor to the new Harvard Law Review piece announced on the showOtherDivided Argument, "Originalism Hulk" — the back-catalogue episode whose new custom cover art comes up in the Marvel tangent