WEBVTT 1 00:00:19.280 --> 00:00:22.399 Hello, and welcome to this week's episode of The trib Cast. 2 00:00:22.640 --> 00:00:26.160 I'm Eleanor Klibanoff, joined as always by my co host 3 00:00:26.239 --> 00:00:27.160 Matthew Watkins. 4 00:00:27.359 --> 00:00:28.879 Hello, welcome back, Thank you. 5 00:00:28.960 --> 00:00:30.679 It's been several weeks since we've been able to do 6 00:00:30.719 --> 00:00:32.759 this together. I think last time we did together in 7 00:00:32.759 --> 00:00:33.840 the Arlington. 8 00:00:33.840 --> 00:00:37.479 That's right. Yeah, and not much has happened since. 9 00:00:37.520 --> 00:00:38.359 Hardly anything. 10 00:00:38.560 --> 00:00:41.119 Yeah, I've been traveling and it's mostly for work though, 11 00:00:41.119 --> 00:00:42.880 But it's crazy to step away from your phone for 12 00:00:42.920 --> 00:00:45.079 like three hours to do an interview or something and 13 00:00:45.159 --> 00:00:46.159 you come back and you're. 14 00:00:46.000 --> 00:00:51.479 Like, oh god, I I'm sure you listened to the 15 00:00:51.520 --> 00:00:54.719 podcast you were on and so but I'll allow me 16 00:00:54.799 --> 00:00:58.039 to extend my apologies in person for Jasper and I 17 00:00:58.200 --> 00:01:01.039 making fun of you for predicting special Session this year. 18 00:01:01.280 --> 00:01:05.519 Yes, yeah, that's I was wanted to come back and 19 00:01:05.560 --> 00:01:07.400 do like a I wanted to be part of it 20 00:01:07.439 --> 00:01:10.200 and uh way in. But maybe we'll have him back 21 00:01:10.200 --> 00:01:12.400 on and we can uh you know, make him suffer 22 00:01:12.480 --> 00:01:14.319 for absolutely through the special Session. 23 00:01:15.519 --> 00:01:16.599 Well, we are going to jump in. 24 00:01:16.680 --> 00:01:18.840 I as I told Matthew before it got started, We're 25 00:01:18.840 --> 00:01:20.200 going to talk with our guests for a little bit 26 00:01:20.239 --> 00:01:22.719 and then I do have a fun trivia fact that 27 00:01:22.760 --> 00:01:25.200 I think I can maybe stump Matthew with at the end. 28 00:01:26.319 --> 00:01:29.000 So stick around after our conversation if you want to 29 00:01:29.000 --> 00:01:32.280 hear that. But you know, a lot, as you said, 30 00:01:32.280 --> 00:01:33.480 a lot to talk about, So we'll go ahead and 31 00:01:33.519 --> 00:01:36.159 jump right in. We are joined by a very special 32 00:01:36.200 --> 00:01:39.959 guest all the way from Washington, d C. Georgetown law 33 00:01:40.000 --> 00:01:41.719 professor Steve Laddock. 34 00:01:41.879 --> 00:01:42.879 Thanks for joining. 35 00:01:42.680 --> 00:01:45.439 Us, Thanks, Elinor nothing great to be with you. 36 00:01:45.959 --> 00:01:48.959 And many of you probably know him as former UT 37 00:01:49.480 --> 00:01:51.760 law professor Steve Laddock. 38 00:01:51.840 --> 00:01:54.400 Yeah, he's a reformed longhorn. 39 00:01:54.680 --> 00:01:58.040 Yes, yeah, yeah, to get to d C, to escape it. 40 00:01:58.879 --> 00:02:01.200 I mean, I'll just say that that the Georgetown athletics 41 00:02:01.239 --> 00:02:05.719 don't quite have the same vibe and energy and excitement 42 00:02:05.760 --> 00:02:07.200 as the Texas athletics. 43 00:02:07.400 --> 00:02:10.000 I could believe that they've at times had a good 44 00:02:10.039 --> 00:02:10.879 basketball team. 45 00:02:11.159 --> 00:02:13.800 You know, it's been a minute. I mean, you know, 46 00:02:14.439 --> 00:02:15.919 I knew we were in trouble when they asked me 47 00:02:15.960 --> 00:02:17.639 if I still had any eligibility left. 48 00:02:19.120 --> 00:02:23.800 Yeah. I went to the other DC university, not American, 49 00:02:24.000 --> 00:02:27.919 the other DC university, George Washington, which doesn't even have 50 00:02:27.960 --> 00:02:30.520 a football team. So, as they say, got to Texas 51 00:02:30.520 --> 00:02:31.360 as fast as I could. 52 00:02:31.479 --> 00:02:35.919 You know, sometimes I wish my school didn't have football team. 53 00:02:36.240 --> 00:02:42.719 We've asked another texts Pat DC resident this question, Steve, 54 00:02:42.759 --> 00:02:47.280 what do you miss most about Texas? Man? 55 00:02:48.479 --> 00:02:53.000 I think probably some combination of breakfast, tacos and the 56 00:02:53.080 --> 00:02:56.080 winter weather compared to what we get in the Northeast. 57 00:02:56.560 --> 00:02:59.400 That's fair enough wrong answer. If you had said HB, 58 00:02:59.560 --> 00:03:01.120 they might have Ain't you a goodie basket? 59 00:03:01.479 --> 00:03:04.039 Patrick's text at AGB and they said. 60 00:03:04.759 --> 00:03:07.360 I mean, my family complains about not having AGB all 61 00:03:07.400 --> 00:03:09.319 the time. My girl, we've been on a quest to 62 00:03:09.360 --> 00:03:12.560 find a local ice cream store that has cookies over Texas. 63 00:03:13.159 --> 00:03:15.879 Some variation thereof someone tells me you're not finding that. 64 00:03:18.000 --> 00:03:21.120 Listening and you want to send some cookies over to Washington. 65 00:03:21.240 --> 00:03:21.639 Let me know. 66 00:03:22.120 --> 00:03:24.000 Yeah, we'll have your kids on next and we'll get 67 00:03:24.000 --> 00:03:25.439 them to do this for us. 68 00:03:25.479 --> 00:03:26.520 They're much ertatum. 69 00:03:26.800 --> 00:03:30.080 Yeah, well, you know, we invite you on to talk 70 00:03:30.120 --> 00:03:36.479 about the exciting end to a exciting Supreme Court term. 71 00:03:36.719 --> 00:03:37.360 As usual. 72 00:03:37.400 --> 00:03:39.599 They got us out of here before the fourth of 73 00:03:39.639 --> 00:03:43.840 July and got themselves onto their summer vacations. May you 74 00:03:43.840 --> 00:03:45.879 tell us a little bit just to start, Like what 75 00:03:45.919 --> 00:03:49.199 your big takeaways are from this Supreme Court term? 76 00:03:49.479 --> 00:03:52.439 That sort of the headlines for you, sure. 77 00:03:52.240 --> 00:03:54.400 I mean I think in one sense, I mean, yes, 78 00:03:54.439 --> 00:03:56.919 the court is off for at summer recess eleanor. But 79 00:03:56.960 --> 00:03:58.680 one of the big headlines to me actually is that 80 00:03:58.680 --> 00:04:01.639 the term is really not over because you know, at 81 00:04:01.719 --> 00:04:04.560 least formally it goes to October. Usually no one cares, 82 00:04:05.439 --> 00:04:10.080 but the Court has been so inundated with emergency applications, 83 00:04:10.120 --> 00:04:12.639 with cases that have reached the court, you know, out 84 00:04:12.680 --> 00:04:17.519 of the normal flow of boring technical appellate processes, including 85 00:04:17.680 --> 00:04:20.519 nineteen already from the Trump administration, and those have been 86 00:04:20.560 --> 00:04:24.199 some pretty big cases, whether it's you know, birthright citizenship 87 00:04:24.399 --> 00:04:28.759 or you know, alien enemies removals or mass firings of 88 00:04:28.800 --> 00:04:32.000 federal employees, and so, you know, to me, the real 89 00:04:32.120 --> 00:04:35.279 sort of top line takeaway is that this term has 90 00:04:35.319 --> 00:04:39.160 already been dominated not by the sort of traditional big 91 00:04:39.199 --> 00:04:41.959 ticket cases that we're used to talking about, but by 92 00:04:42.000 --> 00:04:45.839 all these late breaking emergency applications in the mind run 93 00:04:45.879 --> 00:04:48.959 of which the majority of the Court has cided at 94 00:04:49.040 --> 00:04:50.639 least temporarily with President Trump. 95 00:04:51.920 --> 00:04:54.519 Is there if anyone wants to, like, read a book 96 00:04:54.600 --> 00:04:58.560 about this process of things happening off off the main docket, 97 00:04:58.600 --> 00:05:00.600 would where would you point them? 98 00:05:01.040 --> 00:05:03.040 I mean, so, I will say the part of why 99 00:05:03.079 --> 00:05:05.040 I wrote this book called the Shadow Docket a couple 100 00:05:05.040 --> 00:05:08.959 of years ago is because I had thought already that 101 00:05:09.000 --> 00:05:11.639 this was becoming an increasingly important part of the Supreme 102 00:05:11.680 --> 00:05:14.000 Court's work. You know, I think this term proved that 103 00:05:14.079 --> 00:05:17.879 in spades, and it's important in a couple of respects. 104 00:05:17.879 --> 00:05:20.680 It's important because we're not used to thinking about the 105 00:05:20.720 --> 00:05:23.000 Supreme Court as a twenty four seven, three hundred and 106 00:05:23.040 --> 00:05:27.240 sixty five operation. It's important because when the Court rules 107 00:05:27.240 --> 00:05:30.759 on these emergency applications, it's rare for the Court to 108 00:05:30.759 --> 00:05:33.199 actually explain what it's doing, let alone to do so 109 00:05:33.240 --> 00:05:37.120 in any detail. And so you get these cryptic orders 110 00:05:37.120 --> 00:05:39.240 that folks look at online and say, well, wait a second, 111 00:05:39.240 --> 00:05:42.800 where's the opinion? There Usually isn't one. But also I 112 00:05:42.800 --> 00:05:44.839 think eleanor it's rare to see them in this volume. 113 00:05:44.959 --> 00:05:47.480 I mean, you know, not that long ago, we were 114 00:05:47.519 --> 00:05:51.600 seeing maybe a couple of these high profile emergency applications 115 00:05:51.639 --> 00:05:54.040 a year, and many of those were in capital cases, 116 00:05:54.120 --> 00:05:58.040 so you know, individual death cases that were very important 117 00:05:58.079 --> 00:06:01.040 of course to the death row. Prisoner, to the state, 118 00:06:01.120 --> 00:06:05.319 to the victims, but maybe not nationally important from a 119 00:06:05.319 --> 00:06:08.199 policy perspective. You know, now we're seeing one of these 120 00:06:08.240 --> 00:06:13.079 a week, and I think that's problematic wholly apart from 121 00:06:13.120 --> 00:06:15.600 the results that the Supreme Courts reached it in those orders, 122 00:06:15.639 --> 00:06:20.720 because you have the Supreme Court issuing massively important decisions 123 00:06:20.759 --> 00:06:24.639 and doing very very little to explain why, and putting 124 00:06:24.720 --> 00:06:28.120 policies into effect without explaining whether or not they're even legal. 125 00:06:28.439 --> 00:06:31.439 And so you know, that really is a fundamental shift 126 00:06:31.759 --> 00:06:33.680 in what the Supreme Court's doing in ways that at 127 00:06:33.759 --> 00:06:37.519 least to this point, have favored the Trump administration without 128 00:06:37.600 --> 00:06:40.120 actually upholding almost any of its policies. 129 00:06:41.240 --> 00:06:44.439 Right, Yeah, interesting, it does feel like I mean, when 130 00:06:44.480 --> 00:06:45.959 you look at even the cases that sort of came 131 00:06:46.000 --> 00:06:48.519 out at the end of term, like the high profile cases, 132 00:06:48.560 --> 00:06:51.120 like some of them moved through the normal, like years 133 00:06:51.160 --> 00:06:53.160 long process to get to the Supreme Court, but some 134 00:06:53.240 --> 00:06:55.199 of them are things that you know, have really only 135 00:06:55.240 --> 00:06:58.240 popped up since since January, That's. 136 00:06:58.079 --> 00:06:59.959 Right, And so you know, I think it really is 137 00:07:00.000 --> 00:07:03.120 the tale of two terms. And I apologize to Charles 138 00:07:03.199 --> 00:07:06.560 Dickens for for for that reference, but it's a tale 139 00:07:06.600 --> 00:07:07.879 of two terms in the sense that you do have 140 00:07:08.040 --> 00:07:11.040 like this you know regular docket, which has some big 141 00:07:11.079 --> 00:07:14.279 cases on it, I mean scurmetti about you know, upholding 142 00:07:14.399 --> 00:07:18.800 Tennessee's ban on gender affirming medical care for transgender adolescents. 143 00:07:19.199 --> 00:07:21.680 You have you know, the mo Mood case about whether 144 00:07:21.839 --> 00:07:25.600 parents can opt their children out of having to read 145 00:07:25.600 --> 00:07:30.120 books in public schools that have LGBTQ plus thematic elements 146 00:07:30.160 --> 00:07:33.399 in them. I mean, those are massively important decisions. You 147 00:07:33.439 --> 00:07:35.279 have a bunch of cases where the court reversed the 148 00:07:35.279 --> 00:07:38.360 Fifth Circuit, the Federal Appeals Court for you know, Texas, Louisiana, 149 00:07:38.399 --> 00:07:42.279 Mississippi on issues that could have been huge if the 150 00:07:42.319 --> 00:07:45.079 court had affirms so for example, you know the non 151 00:07:45.120 --> 00:07:48.800 delegation doctrine vis a vis something called the Universal Service Fund, 152 00:07:49.120 --> 00:07:50.680 which a lot of folks don't know about, but it's 153 00:07:50.720 --> 00:07:53.160 actually a massive pool of money. That's how a lot 154 00:07:53.160 --> 00:07:56.120 of folks in America, including in Texas, have access to 155 00:07:56.160 --> 00:08:00.560 the Internet. And so those were big cases by any metric. 156 00:08:00.720 --> 00:08:04.439 But given the sort of contrast between those cases and 157 00:08:04.480 --> 00:08:07.600 what really feel like fundamental rule of law cases about 158 00:08:07.879 --> 00:08:10.399 you know, whether migrants have a right to do process 159 00:08:10.480 --> 00:08:13.879 before their designated alien enemies and removed from the country. 160 00:08:13.920 --> 00:08:18.680 About whether you know, the president can unilaterally change what 161 00:08:18.759 --> 00:08:21.680 it means to be entitled to birthright citizenship. I guess 162 00:08:21.800 --> 00:08:25.120 you know, Eleanor That's why it feels unusual as we 163 00:08:25.160 --> 00:08:27.839 sit here when the court has finished up what we 164 00:08:27.920 --> 00:08:30.000 might call the sort of regular part of its work, 165 00:08:30.399 --> 00:08:33.120 but the Trump rule of law stuff is ever ongoing. 166 00:08:36.200 --> 00:08:39.120 Can we talk about this birthright citizenship case because I 167 00:08:39.159 --> 00:08:40.639 think this, Do we have to? 168 00:08:40.960 --> 00:08:43.159 Yeah? It's hardly I mean, I don't. I don't get 169 00:08:43.159 --> 00:08:44.519 the sense it's gonna be a huge deal. 170 00:08:44.399 --> 00:08:47.200 Right, yeah, yeah, yeah, yeah, you know, first and foremost, 171 00:08:47.200 --> 00:08:51.320 can you just explain to us what the court decided 172 00:08:51.320 --> 00:08:53.679 in what it didn't decide in this in this real. 173 00:08:53.759 --> 00:08:55.000 Yeah, I mean, so the first thing to say is 174 00:08:55.039 --> 00:08:57.799 it didn't decide anything about whether the president's executive order 175 00:08:58.080 --> 00:09:01.080 purporting to limit birthright citizenship is legal or not. And 176 00:09:01.120 --> 00:09:04.240 so you know, there was nothing on that. The whole 177 00:09:04.279 --> 00:09:06.559 fight in that case is about something called a universal 178 00:09:06.639 --> 00:09:09.480 or a nationwide injunction. And to do the sort of 179 00:09:09.519 --> 00:09:11.919 thirty second Oh my gosh, I'm really happy I didn't 180 00:09:11.919 --> 00:09:16.080 go to law school version. The typical injunction says, hey, defendant, 181 00:09:16.159 --> 00:09:19.440 you can't do this thing to that person, and it's 182 00:09:19.480 --> 00:09:22.799 specific about who the defendant is prescribed from acting against. 183 00:09:23.279 --> 00:09:26.840 What makes a nationwide injunction different is that it's not 184 00:09:26.840 --> 00:09:28.759 that specific. It just says, hey, defendant, you have to 185 00:09:28.759 --> 00:09:31.480 stop doing the same period. And so it's not that 186 00:09:31.519 --> 00:09:34.879 it's nationwide, it's that it's not planef specific. But no 187 00:09:34.919 --> 00:09:37.720 one really wants to use that term. What the Supreme 188 00:09:37.720 --> 00:09:42.639 Court said in the birthright Citizenship cases is that in general, 189 00:09:42.720 --> 00:09:45.840 federal court should not be issuing those kinds of injunctions, 190 00:09:45.879 --> 00:09:50.159 that in most cases federal court should be issuing injunctions 191 00:09:50.200 --> 00:09:53.879 only that benefit the planiffs. And so if that was it, 192 00:09:54.039 --> 00:09:56.360 if that was the end of the story, that would 193 00:09:56.360 --> 00:10:01.159 be a massive kneecapping of the power lower federal courts 194 00:10:01.200 --> 00:10:05.759 to basically stop nationwide federal policies. Right, you'd have to 195 00:10:05.799 --> 00:10:10.240 have hundreds of thousands of lawsuits. Every single undocumented immigrant 196 00:10:10.279 --> 00:10:12.000 who's going to have a child would have to sue 197 00:10:12.039 --> 00:10:16.679 themselves to challenge the Birthright Citizenship Executive Order. What is 198 00:10:16.879 --> 00:10:20.559 messy about last Friday's ruling in the birthright Citizenship case 199 00:10:21.120 --> 00:10:23.840 is that the Court hasn't closed the door to other 200 00:10:23.919 --> 00:10:27.840 ways that plaintiffs, both in these cases and in other cases, 201 00:10:28.159 --> 00:10:31.039 could still try to get some kind of broader nationwide relief. 202 00:10:31.080 --> 00:10:34.360 They could try something called a nationwide class action, where 203 00:10:34.759 --> 00:10:38.720 a handful of plaintiffs represents everyone in the country who 204 00:10:38.759 --> 00:10:41.720 is like them, and then in order that benefits them, 205 00:10:41.960 --> 00:10:46.360 ends up benefiting everybody. Or even Justice Barratt's majority opinion, 206 00:10:46.440 --> 00:10:49.559 in which she said we're getting rid of universal injunctions, 207 00:10:50.159 --> 00:10:54.240 had a caveat unless she says, you have to provide 208 00:10:54.399 --> 00:10:58.039 nationwide relief to give the plaintiff everything that they're asking for. 209 00:10:58.559 --> 00:11:01.000 And so, you know what's really frustrating guys to me 210 00:11:01.039 --> 00:11:05.399 about this case is it's a huge deal analytically because 211 00:11:05.399 --> 00:11:08.000 of how it curtails the power of lower federal courts. 212 00:11:08.279 --> 00:11:10.919 How big a deal it is practically really depends on 213 00:11:10.960 --> 00:11:13.799 what happens next as opposed to anything that the Court 214 00:11:13.840 --> 00:11:15.720 actually did or said on Friday. 215 00:11:16.320 --> 00:11:21.200 This These nationwide injunctions have been a headache for administrations 216 00:11:21.240 --> 00:11:24.360 of both parties. You have written and talked about in 217 00:11:24.399 --> 00:11:28.440 the past about you know, our Texas District Judge Matthew 218 00:11:28.480 --> 00:11:31.000 has Merrick, who has been known to issue a lot 219 00:11:31.039 --> 00:11:32.879 of those or was known and. 220 00:11:32.919 --> 00:11:37.000 Judge read O'Connor and Judge Wesley Hendrix and judge like Texas. 221 00:11:38.200 --> 00:11:40.120 I don't know that Texas actually came up with this idea, 222 00:11:40.120 --> 00:11:45.159 but Texas certainly has used this nationwide injunction trick. 223 00:11:44.960 --> 00:11:47.279 A lot, exactly exactly, and so. 224 00:11:49.759 --> 00:11:52.200 And you know, the idea of the frustration was, you know, one, 225 00:11:52.440 --> 00:11:55.919 you know, to use a term of the right activist 226 00:11:56.120 --> 00:12:01.879 judge could essentially, you know, play decider for the fate 227 00:12:01.879 --> 00:12:04.679 of a law for the entire country. And that has 228 00:12:05.000 --> 00:12:07.120 been frustrating to some people. I mean, I guess what 229 00:12:07.120 --> 00:12:09.879 you're sort of saying here is that it's too soon 230 00:12:10.000 --> 00:12:12.679 to know how much that practice has been curtailed. It 231 00:12:12.759 --> 00:12:15.200 kind of depends on how this order is interpreted and 232 00:12:15.879 --> 00:12:16.759 taken from here. 233 00:12:17.320 --> 00:12:19.759 That's right. I mean, so, you know, nothing stops the 234 00:12:19.799 --> 00:12:22.879 same judges who were the focal point for so much 235 00:12:22.919 --> 00:12:26.480 of this judge shopping from certifying a nationwide class action, 236 00:12:27.320 --> 00:12:30.120 which is technically a different procedural device, but which would 237 00:12:30.120 --> 00:12:33.320 produce the same outcome, which is to say, a federal 238 00:12:33.360 --> 00:12:37.480 policy is blocked on a nationwide basis, or even from 239 00:12:37.720 --> 00:12:40.919 using the caveat in justice Barrett's opinion and saying, oh, well, 240 00:12:40.960 --> 00:12:43.600 here's one of those rare cases where I have to 241 00:12:43.600 --> 00:12:48.120 provide universal relief. Matthew. What's frustrating to me is that 242 00:12:48.240 --> 00:12:54.279 I think folks have conflated criticisms of nationwide injunctions with 243 00:12:54.480 --> 00:12:57.960 the kind of abusive forum shopping and judge shopping that 244 00:12:58.039 --> 00:13:00.360 you know you just mentioned that, you know, you could 245 00:13:00.399 --> 00:13:03.720 fix that problem without getting rid of the power of 246 00:13:03.759 --> 00:13:08.639 district courts inappropriate cases to actually stop lawlessness by the 247 00:13:08.639 --> 00:13:11.399 executive branch. And I think part of why, folks, part 248 00:13:11.440 --> 00:13:14.759 of why you've seen such a I think bipolar reaction 249 00:13:15.440 --> 00:13:18.600 to Friday's ruling is because for folks who look at 250 00:13:18.600 --> 00:13:22.720 the current president and see lawlessness everywhere, it looks like 251 00:13:22.720 --> 00:13:25.720 a Supreme Court that is basically, you know, pulling the 252 00:13:25.799 --> 00:13:28.360 rugout from under the ability of lower federal courts to 253 00:13:28.399 --> 00:13:30.720 slow that down. And for folks who look at the 254 00:13:30.720 --> 00:13:34.399 current president and see, you know, very see what they've 255 00:13:34.559 --> 00:13:37.320 you know, quote what we voted for unquote, and things 256 00:13:37.320 --> 00:13:39.879 that don't bother them, you know, this looks like it's 257 00:13:40.120 --> 00:13:43.039 almost hypocrisy on the part of folks who criticize these 258 00:13:43.120 --> 00:13:46.320 kinds of injunctions. During the Biden administration. So, you know, 259 00:13:46.519 --> 00:13:48.799 I think the problem is that the answer is somewhere 260 00:13:48.799 --> 00:13:52.200 in the middle, that you know, district courts had been 261 00:13:52.200 --> 00:13:55.120 doing this too often, but that that was exacerbated by 262 00:13:55.159 --> 00:13:59.080 things having nothing to do with nationwide injunctions and everything 263 00:13:59.080 --> 00:14:00.360 to do with the fact that you can bring a 264 00:14:00.399 --> 00:14:04.879 lawsuit in Amarillo that had no relationship to Amarillo and 265 00:14:04.919 --> 00:14:07.879 be guaranteed to draw someone like Judge Chasmeric and so 266 00:14:07.960 --> 00:14:10.679 I guess, you know, part of what's tricky about this 267 00:14:10.840 --> 00:14:15.159 case is that there are you know, decent, substantive arguments 268 00:14:15.559 --> 00:14:20.840 against nationwide injunctions as a pure, boring, formalistic legal matter. 269 00:14:22.039 --> 00:14:25.240 What is exasperating is that the Supreme Court took this 270 00:14:25.360 --> 00:14:28.360 moment at this you know, in this concept and frankly 271 00:14:28.399 --> 00:14:32.240 in these cases, to you know, hand on that mandate 272 00:14:32.279 --> 00:14:33.000 to draw that line in. 273 00:14:33.039 --> 00:14:35.039 The sand, right. 274 00:14:35.120 --> 00:14:36.720 I mean, it is interesting, I mean, and I think 275 00:14:36.799 --> 00:14:39.600 this is something like Justice Corsich has been very outspoken about, 276 00:14:39.639 --> 00:14:43.679 like the nationwide injunction is a relatively new thing, Like 277 00:14:43.720 --> 00:14:45.879 we basically didn't have them for a long time, or 278 00:14:45.960 --> 00:14:48.559 judges weren't weren't issuing them, and then suddenly this has 279 00:14:48.559 --> 00:14:50.720 become a thing that really has taken off, and like, 280 00:14:52.000 --> 00:14:55.639 what do you see as you know the reality if like, 281 00:14:55.679 --> 00:14:57.320 let's say this sort of does end up playing out 282 00:14:57.360 --> 00:15:00.120 and is curtailed. What looks different a year from now, 283 00:15:00.159 --> 00:15:03.320 two years from now by the time you know this 284 00:15:03.440 --> 00:15:04.320 sort of is inacted. 285 00:15:05.320 --> 00:15:06.720 I mean, so I think the problem is, right, take 286 00:15:06.759 --> 00:15:09.519 a president who probably gets a new executive order that 287 00:15:09.600 --> 00:15:13.559 we all agree is unlawful. Right, how are we going 288 00:15:13.639 --> 00:15:16.480 to establish its unlawfulness in a way that prevents it 289 00:15:16.480 --> 00:15:20.039 from harming people? And so the virtue, I mean, there 290 00:15:20.159 --> 00:15:22.440 are cost a nationwide junctions, but the simple virtue of 291 00:15:22.440 --> 00:15:25.600 the nationwide injunction was it was an express train to 292 00:15:25.919 --> 00:15:30.919 blocking unlawful federal policies in the world you're describing eleanor 293 00:15:31.000 --> 00:15:35.000 we're doing everything retail, not wholesale. And that means you're 294 00:15:35.000 --> 00:15:37.879 gonna need a lot more lawsuits. It means those folks 295 00:15:37.919 --> 00:15:41.360 who don't have the resources to bring lawsuits might actually 296 00:15:41.440 --> 00:15:44.240 be harmed even by a policy that we all think 297 00:15:44.320 --> 00:15:48.600 is unlawful. It puts more pressure on federal courts to 298 00:15:48.679 --> 00:15:51.200 actually entertain more and more of these cases as opposed 299 00:15:51.240 --> 00:15:53.720 to a small handful of them. And so you know, 300 00:15:53.840 --> 00:15:56.440 the guys, the right answer is probably somewhere in the middle, 301 00:15:57.519 --> 00:16:00.159 where you know, certain kinds of claims really should be 302 00:16:00.159 --> 00:16:03.200 able to produce nationwide relief and certain ones shouldn't be. 303 00:16:03.720 --> 00:16:07.559 The problem is that I think those kinds of policy 304 00:16:07.600 --> 00:16:11.039 calibrations are ones that the Supreme Court is especially ill 305 00:16:11.080 --> 00:16:13.399 suited to do on its own. And if we had 306 00:16:13.399 --> 00:16:17.080 a functioning legislature, you know, that could actually resolve these 307 00:16:17.159 --> 00:16:19.000 kinds of policy debates, we might be able to find 308 00:16:19.000 --> 00:16:21.399 an answer that Democrats and Republicans could both agree to 309 00:16:22.159 --> 00:16:25.600 versus the sort of unilateral disarmament that we're seeing right now. 310 00:16:26.120 --> 00:16:30.360 I'll say, just really quickly, I mean, I'm cautiously optimistic 311 00:16:30.960 --> 00:16:33.559 that instead, what's going to happen is we're going to 312 00:16:33.559 --> 00:16:36.519 see a resurgence of class actions, and we're going to 313 00:16:36.519 --> 00:16:40.480 see a resurgence of you know, a handful of especially 314 00:16:40.559 --> 00:16:44.360 sympathetic plaintiffs bringing a lawsuit in which they claim to 315 00:16:44.399 --> 00:16:48.080 represent everyone who's harmed by a nationwide policy, and district 316 00:16:48.080 --> 00:16:51.200 courts letting those cases go forward. But you know, if 317 00:16:51.200 --> 00:16:54.360 that's what happens, guys, it's the same problem because which 318 00:16:54.399 --> 00:16:57.679 district courts are the class actions filed in right, You're 319 00:16:57.679 --> 00:17:00.240 going to have one district judge in one part of 320 00:17:00.240 --> 00:17:03.000 the country who is yet again right, at least as 321 00:17:03.039 --> 00:17:06.279 a temporary matter, being tasked with providing a nationwide relief 322 00:17:06.680 --> 00:17:09.599 on a federal policy. You don't make that problem go 323 00:17:09.640 --> 00:17:11.759 away just by making the nationwide injunctions go away. 324 00:17:12.079 --> 00:17:15.559 Are the stakes for this different in Texas than they 325 00:17:15.559 --> 00:17:17.519 are in other places? In part because of what we 326 00:17:17.640 --> 00:17:19.839 just described some of the judges that we have here, 327 00:17:20.039 --> 00:17:22.960 but also because we have an attorney general right who 328 00:17:23.880 --> 00:17:27.119 sides with the Trump administration right. Like you can see, 329 00:17:28.160 --> 00:17:31.000 you know, a lot of these nationwide injunctions are in 330 00:17:31.039 --> 00:17:35.039 cases where our attorney general would be less likely to 331 00:17:35.359 --> 00:17:37.799 be bringing a case against the federal government than say, 332 00:17:37.880 --> 00:17:39.839 in California. 333 00:17:40.279 --> 00:17:42.240 Yeah, I mean, I think the short answer is yes, 334 00:17:43.519 --> 00:17:45.559 it was already true, of course that you know, Texas 335 00:17:45.559 --> 00:17:47.759 assumed the Biden the sorry, the Trump administration a lot 336 00:17:47.799 --> 00:17:51.319 less than to the Biden administration. You know, so far, 337 00:17:51.359 --> 00:17:53.640 the only lawsuits we see between Texas and the Trump 338 00:17:53.640 --> 00:17:56.480 administration are the collusive ones where the federal government sues 339 00:17:56.519 --> 00:18:00.640 Texas and Texas immediately settles. But I I guess, Matthew, 340 00:18:00.680 --> 00:18:03.799 my reaction is that The real question is, by the 341 00:18:03.880 --> 00:18:09.240 time there's another democratic president, has some procedural device emerged 342 00:18:09.640 --> 00:18:12.319 that is playing the same role as the nationwide injunction, 343 00:18:12.519 --> 00:18:15.799 be it a nationwide class action or something else. If so, 344 00:18:16.359 --> 00:18:18.640 then I don't doubt that you know, whoever the Texas 345 00:18:18.640 --> 00:18:22.119 Attorney general is then will be just as aggressive in 346 00:18:22.200 --> 00:18:25.279 trying to utilize those devices. If not, then yeah, I mean, 347 00:18:25.359 --> 00:18:28.240 you know, then maybe we actually do see a return 348 00:18:28.319 --> 00:18:31.920 to the pre twenty twelve, twenty thirteen you know world 349 00:18:32.400 --> 00:18:36.599 where every time a president of either party does something significant, 350 00:18:36.599 --> 00:18:39.680 it's not immediately challenged in court by an attorney general 351 00:18:39.720 --> 00:18:41.440 from a state of the other party. 352 00:18:42.319 --> 00:18:43.960 I know, eleanor you probably want to move on, But 353 00:18:44.079 --> 00:18:45.839 just one last question on this subject. 354 00:18:46.039 --> 00:18:48.759 Kidding me, judge shopping nationwide injunctions? 355 00:18:48.799 --> 00:18:49.759 I love this stuff. 356 00:18:50.680 --> 00:18:54.000 What about the issue the issue of birthright citizenship? I 357 00:18:54.039 --> 00:18:56.000 mean that I know the court and you know, put 358 00:18:56.039 --> 00:18:58.640 a thirty day pause on this, you know, going back 359 00:18:59.680 --> 00:19:01.720 what happens next in this case, in what you would 360 00:19:01.720 --> 00:19:04.160 be watching in terms of the future of that, particularly 361 00:19:04.440 --> 00:19:07.599 in Texas again, because of the situation we have here 362 00:19:07.599 --> 00:19:08.480 with our journey general. 363 00:19:08.559 --> 00:19:10.839 So I mean, the short answer is I think it's 364 00:19:10.880 --> 00:19:14.799 incredibly likely. I mean, like, you know, north of eighty 365 00:19:14.799 --> 00:19:18.279 to eighty five percent that before that thirty day period 366 00:19:18.400 --> 00:19:22.079 runs out, there's yet another ruling by a district judge 367 00:19:22.119 --> 00:19:24.200 somewhere that has nationwide effect. And there are two ways 368 00:19:24.200 --> 00:19:27.119 that could happen. You could have certification of a nationwide 369 00:19:27.119 --> 00:19:29.839 class of planiffs, or you could have a case where 370 00:19:29.839 --> 00:19:33.480 the Court says, even under Justice Barrett's reasoning, this is 371 00:19:33.519 --> 00:19:36.720 the rare example of a case where nationwide relief is 372 00:19:36.759 --> 00:19:40.160 necessary to give the PLANEFF everything they need. Probably not, Matthew, 373 00:19:40.200 --> 00:19:42.000 a case where you have an individual PLANEFF, but like 374 00:19:42.039 --> 00:19:45.880 New Jersey, for example, has really good arguments about why 375 00:19:46.039 --> 00:19:50.240 a New Jersey specific injunction would actually cause real harm 376 00:19:50.640 --> 00:19:52.799 if states like Texas were not bound by it, right, 377 00:19:52.880 --> 00:19:54.839 if you could still have people born in Texas and 378 00:19:54.880 --> 00:19:58.079 not be citizens under the executive order. So, Matthew, my 379 00:19:58.160 --> 00:20:02.599 best guess is that the policy still never goes into effect. 380 00:20:04.000 --> 00:20:06.400 But you know that's going to depend not just on 381 00:20:06.720 --> 00:20:10.640 a district court somewhere following one of these two pathways 382 00:20:10.640 --> 00:20:13.240 that the Supreme Court decision has left available to go 383 00:20:13.279 --> 00:20:14.880 back to where we started, Guys, it's going to depend 384 00:20:14.960 --> 00:20:18.200 upon the Supreme Court then letting the district court do that. Right, 385 00:20:18.279 --> 00:20:20.960 it's going to depend upon the Supreme Court denying the 386 00:20:21.039 --> 00:20:25.559 inevitable emergency application that the Trump administration will file when 387 00:20:25.599 --> 00:20:28.720 a district court issues that relief. And so you know, 388 00:20:28.880 --> 00:20:30.279 we're going to be talking by the end of the 389 00:20:30.279 --> 00:20:34.599 summer about the second round of birthright citizenship cases. And 390 00:20:34.640 --> 00:20:37.079 this goes back to why I think this is a 391 00:20:37.279 --> 00:20:40.400 very unusual term in that the summer could end up 392 00:20:40.440 --> 00:20:43.920 being just as busy right as the spring and the fall, 393 00:20:44.279 --> 00:20:46.160 because it's not just birth right slazenship. They're going to 394 00:20:46.200 --> 00:20:48.519 be any number of disputes where that's going to be 395 00:20:48.559 --> 00:20:50.000 the fight over the next eight weeks. 396 00:20:51.079 --> 00:20:54.119 Wow. Yeah, I mean certainly not like playing out maybe 397 00:20:54.119 --> 00:20:59.480 as the original dividers of our powers imagined all of. 398 00:20:59.400 --> 00:20:59.920 This would go. 399 00:21:00.880 --> 00:21:02.359 I do want to talk about some of the like, 400 00:21:02.359 --> 00:21:04.680 like you said, the more substantive cases that came up. 401 00:21:05.000 --> 00:21:08.359