Dan Epps: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will Baude: And I'm Will Baude.
Dan: So it's now the kind of thick of summer. I was on a little bit of a vacation. I am back, and we're going to try to work our way through the extensive backlog. I think we can do it. We're not going to cover everything, but we're going to cover a lot. This is episode 26 of the season. And going— looking back, I think to beat our all-time record, we need to get to 29. I think we're going to get there.
Will: I think I expressed doubt the last time you predicted we were going to get there, and I have less doubt.
Dan: Good. Good.
Will: Not no doubt, but less doubt. Yeah.
Dan: I mean, things happen. We're unpredictable for a reason, but I think we're going to get there.
Will: Yeah.
Dan: Okay. So while I was on vacation, I did a little of substance, which was reading and catching up on more things, but I also went back and generated more of our delightful images for our back catalog. I don't know if, Will, you've even gone and looked yet.
Will: Uh, no.
Dan: You haven't? I told you to.
Will: Oh, wow. Some of these are really awesome, Dan. I'm looking at them now.
Dan: Yeah, they're really cool. They're really good ones.
Will: Not everybody likes them, Dan.
Dan: I think most people— we've heard, like, it's like 90% of people we've heard from like them. I think we've gotten one negative comment, right?
Will: There was a negative review.
Dan: Yeah. That said, we've made so much money, we should hire an artist to do these. And first of all, we don't make money from the show other than a tiny amount over the years from merchandise, which our margins are not very high. And that's it. So you think we're going to commission an artist to do a painting for each episode? Also, the episodes— That would take a while, right? We come up with the name for the episode and then release the episode 5 minutes later.
Will: If there were some awesome artist who loved the show who wanted to, at an unpredictable schedule at 11:00 PM, somehow brilliantly dash off cool custom art, that'd be great.
Dan: For free. For free.
Will: Yeah, that'd be great.
Dan: But that's unlikely.
Will: Seems unlikely.
Dan: But listeners, I haven't done the entire back catalog, but I've done quite a bit of it. And there's some in there that I really like—
Will: Uh-huh.
Dan: And so if the listeners would write in or tweet at us or whatever saying what their favorites are, I would be delighted.
Will: Proximity Mines in the Facility, really well done, Dan.
Dan: I really like that one. Yeah, I'm not going to spoil it for people, but just as a reminder, that one is about the classic Nintendo 64 game GoldenEye, and that one I think came out very nicely.
Will: If you know, you know.
Dan: Yeah. Okay. We're going to talk about one opinion. What other non-substance stuff should we talk about? Luckily, because it's summer, not that much happens.
Will: I got some especially strenuous criticism about some remarks I made, I guess a couple episodes ago now, about continental philosophy, including Kant.
Dan: It was still a debate about which branch of philosophy claims him, right? But okay, fair enough.
Will: Let's just say some of our most loyal listeners think that my stance on Kant and my lack of a deep engagement with Kant is sufficiently embarrassing that I need to recant and repair it soon before I irrevocably destroy my professional reputation.
Dan: Well, I wasn't embarrassed for you. I was a little surprised because you're so generally open-minded and read so widely, and it's hard to get you to say something is bad, right?
Will: I say all sorts of things are bad.
Dan: Well, I just feel like you always think arguments are reasonable, right? Like, you're never like— I mean, not never, but you rarely say, well, that's a really dumb argument. You say, oh, you know, like, maybe there's—
Will: Didn't I say that the birthright citizenship arguments adopted by 3 to 4 members of the Court are not plausible?
Dan: Yeah.
Will: Okay.
Dan: Yeah, that's reasonable. This reminds me of something else that I did. So I've been having a lot of fun with, as our listeners know, with AI, and one thing I did, in fact, it wasn't even my idea to do it, but Claude has this new model, Fable, and initially it looked like they were going to throttle access to it after a certain date. So I said to Fable, hey, what are some things while I still have access that we should do that would be kind of—
Will: Useful.
Dan: would require a high-end model. And its suggestion was a prediction scorecard. It was going to look at our entire back catalog of transcripts, identify the places where we made some kind of a prediction, and then make a running scorecard.
Will: Scorecard like you versus me or the podcast as a whole?
Dan: Both. And I have not audited this data, but this is the true frontier model.
Will: I predict that you are way ahead of me.
Dan: Okay. So let me tell you this. I've got a little file here that has produced a TL;DR at the beginning, and it says, retrospective hit rates, all episodes before July 6th, graded after the fact from the back catalog sweep. Dan, 82.4%. Will, 71.2% correct.
Will: Well, those are both a lot higher than I would've thought.
Dan: Well, it says Dan's edge comes mostly from hedged low-variance calls. Will took more high-variance swings, which cost him on hit rate but produced some of the sharpest specific calls.
Will: Oh, okay. I actually got extra points for that.
Dan: Yeah, no, I think that we— I'll go through and ask it to do like a kind of like, you know, sabermetrics type analysis that accounts for your like slugging percentage. I'm clearly just trying to get on base and not swinging at pitches.
Will: And this is actually one of the important things about both the discipline of trying to do predictions and make bets and stuff like that in your life. I don't know if it's something you do. Certainly when I was in high school, my friends and I were strongly into trying to bet and forecast aspects of our personal life and debate what were the odds and the like.
Dan: Would you put money on them or just the bragging rights?
Will: Sometimes money.
Dan: You're not into like Kalshi, are you?
Will: No, no. I subscribe to the Manifold app, which is all play money. Although I go back and forth on how, because of that, its liquidity isn't great. I like the idea of prediction markets, although I do think there are a set of integrity and manipulation issues that I'm not totally sold on.
Dan: They've basically just become gambling, right? Kalshi, as far as I can tell, is just a gambling site and probably should be regulated as such.
Will: Well, should gambling be regulated?
Dan: Well, I said as such, right? You should just figure out how you feel about gambling. But the idea that this is somehow like a security, I think that's silly. I mean, the thing that's interesting is I sort of had always thought one of the supposed benefits of prediction markets were that people with better information would participate and that they would give you— you'd be able to look at them. That's supposed to be illegal? They're starting to try to treat this as insider trading when people with private knowledge participate? I sort of thought that was a feature.
Will: Well, but those are not unrelated. So the classic, the University of Chicago position is that insider trading is good for exactly this reason, that it makes stock markets more efficient. Now you do run into the problem—
Dan: I mean, there's fiduciary duties issues there, I think, is the—
Will: Sometimes. And also, you run into the problem, what if people actually make different decisions in the world in order to make the prediction markets come out differently? What if we invade Iran so as to help JD Vance's staff enrich himself?
Dan: That is problematic. It's certainly problematic for CEOs to juice the numbers to benefit from insider trading.
Will: Right. Also, I think to the extent you wanted a gambling prediction market distinction, you'd say the things on the other side of the line are things where either there's real hidden information that some people have and some people don't that you can get. And that was a little true in gambling because some people know that one of the star players is injured or whatever, but it's less true. And that there's social value to that information.
Dan: Unless the players themselves are gambling and they're going to throw the game or whatever.
Will: That's the insider trading concern you have, right? That's exactly just insider trading problem.
Dan: Yeah.
Will: And then also, is there value to the information? There are a bunch of things where you just might have good economic reasons for wanting to hedge, either to hedge or to get more information. If I'm a petroleum-selling company and then I know the Strait of Hormuz is or isn't going to be landmined, that's economically valuable information. And that's maybe a spectrum, but I mean, there was a time when states regulated securities as gambling, right? There are these old antitrust cases where they— yeah, securities are illegal because they are gambling. And it's not— they're not totally wrong to see those as the same thing.
Dan: Yeah.
Will: You just got to decide whether it's a, you know, how to ratio the economically valuable generation of information against the need to regulate some of us from our— yeah, our vices.
Dan: Okay, well, any other non-substantive things? I think you had reminded me about Justice Kagan and Barrett's testimony before Congress.
Will: Yes. So they appeared, I think, a week or two ago as we're doing this, in front of the Appropriations Committees in both the House and Senate because the Court wants more money for security. And the total level of the justices' security details has been up post-Dobbs, but not just Dobbs, post a sort of range of threats.
Dan: Do we think that they just drive around with security drivers all the time, or do you think they live as civilians some of the time now? I don't really have a sense.
Will: I did not listen to the entire testimony, although I— but it sounds like they have a lot of security. I mean, it sounds like they have— I wouldn't say—
Dan: 24/7, or?
Will: I'm not sure whether it's 24/7. Although I think it's a lot.
Dan: Yeah. And it's not unreasonable. I mean, it's unfortunate for many reasons, but one of which is it's going to make the justices less ordinary citizens who can relate to what ordinary citizens do, which I think is a useful thing for a judge to have.
Will: Yes. Although security might make it easier. So if you didn't have security, you might actually have even doing less ordinary citizen stuff. Yeah. Like, so if your security detail can survey a restaurant, you know, and like quietly be in the restaurant, make you— that makes you feel more comfortable going out to dinner than if you can only eat at your country club or—
Dan: Yeah.
Will: Your house.
Dan: But I mean, the best situation would be, you know, they can just go out without security comfortably, and we just may not live in that world at all.
Will: Maybe we'll get back to that world. But yeah, so that was interesting. Also, there was just a lot of— I mean, a couple of interesting things were there's just various substantive exchanges while they were there. Justice Kagan, I think, stole the show by opening one of her remarks with a sort of remembrance of Lindsey Graham, who died recently, and about how grateful she was for his famous question of her at her confirmation hearing of what she was doing on Christmas, where she got to say, all Jews, I was at a Chinese restaurant, and then explain the Jewish traditions of non-Christmas celebrating. And as she said, I didn't know him very well, but many people said he was the funniest person in the Senate. And he did something even harder. He made me look funny. And so that was a good moment. I think David Lat said in his newsletter that they had to do this more regularly, and specifically that Justice Barrett and Justice Kagan are a pretty good face for the Court, and that 2 of them do a good job of being substantive and disagreeing, but respectful. And there's a time when the justices used to go to Congress and testify more about appropriations, and they should make this a— this should be the new roadshow in the way that Justice Scalia and Justice Breyer or Kennedy used to be the kind of classic roadshow.
Dan: Yeah. And I think the most recent instance related to justice testimony was the Chief Justice's declining to appear before the Judiciary Committee in that letter.
Will: Yes.
Dan: Which was interesting, where he basically said, as I recall, Chief Justice doesn't really ever do this. We don't testify before the Judiciary Committee, and it would raise separation of powers concerns and not be appropriate, and I'm not going to do it.
Will: Yes. But with some idea that the Chief Justice was distinctive in that sense.
Dan: Yeah.
Will: Yeah. It was more like the president.
Dan: Yeah.
Will: And the president sends his cabinet secretaries, and the Chief Justice sends his associate justices, I guess.
Dan: Yeah.
Will: Not sure everybody shares that picture of the Court. Anyway, Justice Kagan also gave some comments, was asked some questions and gave some comments about the shadow/emergency/interim docket, which I have already incorporated into the latest draft of my article, The Interim Docket, where she talked about the terminology. And she— I appreciated— she said several interesting things. She said, I don't like to call it the shadow docket. We call it the emergency docket. And then she paused and said, well, some of us call it the interim docket. And then she said, it's a terminology nightmare. I call it the emergency docket.
Dan: Yeah.
Will: And in fact, the Court as a whole called it the interim docket in Trump v. Cook. I think the first time the Court's taken a position. And she said specifically, the reason I think it's probably not appropriate, at least not now, to call it the shadow docket— and she has called it the shadow docket herself in writing before— is because we have now done a better job in the recent past of, where appropriate, explaining ourselves to at least a moderate degree. And she said even more concretely— this surprised me a little bit— that if you had asked me a year ago, I would've said that we were not doing a good enough job of giving an explanation of what laid behind our order—
Dan: What?
Will: but that's not so much a problem anymore. So she thinks that in the last year, so during Trump 2, that there's been an intentional change about how much they're hearing argument, issuing opinions, giving explanations that satisfies her. The shadow docket is not currently shadowy. That's interesting.
Dan: That might be true. Yeah, I like that. And it's good to hear that she thinks that. I don't know if the critics think that, but I like that. Yeah. Interesting. So on to substance.
Will: Yeah.
Dan: Okay. So we are going to talk about one case. I don't know if this is the case our listeners are most clamoring for that we haven't touched yet. Probably not.
Will: Oh, I think it's— our best listeners are, Dan.
Dan: We don't have best listeners. We love all of our listeners equally, except for the ones that give us bad reviews on the podcast.
Will: Maybe you love all our listeners equally, Dan.
Dan: This is going to be T.M. v. University of Maryland Medical System Corporation. This is a very fascinating federal courts case, the kind of issue that would really only come up in a fed courts class at law school. And among those kind of issues, I think it's kind of a big one. Would you say?
Will: I'm actually not sure it's a big one, but I do think—
Dan: Okay.
Will: I do think, or at least it wasn't a big one until now.
Dan: Until today? Or what do you mean?
Will: Until this case.
Dan: Recording on it?
Will: No, until—
Dan: Oh, the issue. You're saying the issue. I meant the case. I meant the case. Is the case a big one?
Will: Well, the Rooker-Feldman doctrine—
Dan: Yeah, let's not get ahead of ourselves.
Will: All right. This is a case about the Rooker-Feldman doctrine. And if you know what that is, great. If you don't, you're probably like many other lawyers. The Rooker-Feldman doctrine is a federal jurisdiction doctrine. Exactly what it is is part of the debate. That is in some way about federal courts not hearing cases that were already heard by state courts. It has this great name, the Rooker-Feldman doctrine, that like you say it and you sound like—
Dan: Well, even the way you just explained it, is that not accurate after today?
Will: After I think it's a case in some way about federal courts not hearing cases by state courts. And in what way does that affect state courts?
Dan: I think you said— but you said something state courts have already said, already decided.
Will: I think already decided.
Dan: Okay.
Will: There has been some kind of already deciding. Yep.
Dan: Okay. Some kind.
Will: Okay. And Rooker and Feldman are 2 cases, Rooker v. Fidelity Trust and District of Columbia Court of Appeals v. Feldman, that have together gotten married and produced this doctrine with this name.
Dan: And to be clear, prior to this case, those were the only 2 cases in which this doctrine had been applied to bar a suit. Is that correct?
Will: Well, I'm not sure. So—
Dan: By the Supreme Court, in that these are relied on quite heavily in the lower courts.
Will: Yeah. So what is the doctrine? So Rooker is a case from 1923. Feldman is a case from 1983. When Feldman was decided in 1983, it obviously was not yet the Rooker-Feldman doctrine, because there was no Feldman. There was a case in 1980 saying we should revive the Rooker doctrine. And there are some cases like Prentis v. Atlantic Coast Line that some people believe were earlier applications of the Rooker doctrine. So, you know, and then— but once Rooker and Feldman are decided, there's an interesting question we can get into about—
Dan: Yeah.
Will: When do they become the Rooker-Feldman doctrine rather than just the Rooker doctrine, and why? But in 2005, the Supreme Court decides a case called—
Dan: This is Exxon?
Will: Yeah. Exxon Mobil v. Saudi Basic Industries, in which it says, and I think this is right, that the Rooker-Feldman doctrine has never been applied outside of Rooker and Feldman, and hopefully it never will be again. Now, again, what you think the doctrine is may shape whether you think that's a correct characterization or not, but one of the big questions is, how does this doctrine relate to all the other doctrines about federal courts not hearing things that have been decided by state courts?
Dan: Yeah.
Will: But in 2005, the Supreme Court said that. A law clerk for the Honorable Michael McConnell of the 10th Circuit wrote a clever article in the Green Bag called Rooker-Feldman, RIP. That person's now my colleague, Sam Bray. That was just written as the style of an obituary of Rooker-Feldman. Because of Saudi Basic. Rooker Feldman, the legal personality, died yesterday at his home in Washington, D.C. He was 83. And goes on to describe the way the Court had sort of quietly killed Rooker Feldman. Now, obviously, apparently, Rooker Feldman lives. But— So to talk about this case, I think we have to talk about kind of 2 different things. So one is there's a specific question presented in the case. Does the Rooker-Feldman doctrine apply to a state court decision that is still on appeal in the state court system? And then more generally, is the Rooker-Feldman doctrine a thing, and what kind of thing is it?
Dan: Okay. And so can you try to explain to people the core Rooker-Feldman? I think you gave a kind of plain English explanation, but let's maybe dig into the, where does this come from? Or at least, where did we think this came from before this case?
Will: Okay. So it's easiest to start with Rooker. So the core of Rooker-Feldman, the Rooker-Feldman doctrine is you litigate some case in state court, you lose, you try to get cert from the Supreme Court, they say no because they think there's no good reason to grant cert. And at that point, you go to federal district court and try again to— and this is where already we get debated, but try to do what? So in Rooker, the plaintiff went to federal court to seek a bill in equity to have the judgment of the state court declared null and void because it was unconstitutional. So he said, like, this decision violates the Contracts Clause. He lost in state court. The Supreme Court didn't grant cert. And now, like a federal habeas case, he went to federal court to say, look, this decision was unconstitutional, set it aside.
Dan: Yeah. The idea is, like, that case, the court's going to say, you're functionally trying to appeal this judgment that you tried to bring here, couldn't— you can't go take another shot by filing a new district court action.
Will: Right. So the core maxim of Rooker, which is true, is the only federal court that has appellate jurisdiction over state courts is the U.S. Supreme Court. All other federal courts, like federal district courts, only have original jurisdiction. So they can't hear appeals from state courts, and that's not a thing you can do. Now, what counts as an appeal and whether it's functional or not, that all gets more complicated. And that's, you know, but a bill in equity seeking to have a state court decision set aside because it is unconstitutional, that is an example of, says Rooker, sort of an impermissible appeal. Therefore, federal district courts just don't have jurisdiction to do it. Okay. Feldman is similar. Feldman is a— gets into sort of a challenge to bar admissions rules, which have to go to state courts. 'Cause they're also in their capacity as bar officers. But again, the idea is like, this is a thing, this is a state court decision where—
Dan: To the extent the plaintiff is asking to reconsider their own determination by the state bar, correct?
Will: Yes.
Dan: I thought it kept open the possibility that you could go say this entire scheme is unconstitutional or illegal.
Will: Right. What you can't do is challenge the— again, challenge a specific state court decision that you should have appealed.
Dan: Yeah.
Will: Or did appeal and didn't— so thus the two— I mean, it's kind of one of those things that like makes a lot of sense, right? And then the two natural questions it raises are, in a sense, the two QPs in this case, or the two different questions in this case. So one is, well, what if it's something that you actually couldn't appeal to the Supreme Court for some reason? For instance, the Supreme Court's jurisdiction over state courts is only over final state court decisions. So if the whole theory is like, well, this is supposed to be a cert petition, like, it's a matter that it couldn't be a cert petition because it's still on appeal in the state courts, or some other reason it couldn't be a cert petition. And then more generally, like, well, what if I am not explicitly trying to appeal the state court decision? I'm just trying to litigate something that has some overlap with the thing that's already been decided in state court. Like, does Rooker-Feldman necessarily cover that? And one of the longstanding criticisms and confusion is that we have other doctrines for trying to litigate things that other courts have already decided, like collateral estoppel or issue and claim preclusion, the staples of first-year civil procedure, are about not litigating things that have already been litigated in other courts. So is Rooker-Feldman kind of a constitutionalized collateral estoppel doctrine or different, or what's— why do we need it?
Dan: And there's an interesting thing that we're going to see in this case is you might look at this and say, oh, this is kind of this squishy made-up doctrine. It's, you know, the kind of conservative textualist position is that that's not a thing. But we actually see a split on that, right? We see— we're going to see in a minute Justice Thomas, arch-formalist, say, this is great. And we're going to see some other formalists in dissent. For that reason, I was curious what your priors are. You know, I assume you have a very well-thought-out view on this doctrine. What is it?
Will: Oh, I have to spoil that?
Dan: Okay. You want to save it?
Will: You can save it.
Dan: No, it's fine. It's fine. Well, I don't know.
Will: How do you want to go through this now?
Dan: Well, whatever you want. We could do the case here, and then you could—
Will: Well, you just raised this. Let's just say 2 things about what the Court does. So first of all, the Court rules in favor of the Rooker-Feldman doctrine. So for the first time since Feldman—
Dan: Yeah. In a very unusual configuration, right?
Will: Right. And that's the second thing.
Dan: Okay. Majority opinion by Justice Sotomayor, 5-4. She's got Thomas, Alito, Kavanaugh, and Jackson.
Will: Indeed.
Dan: Thomas concurrence. And then dissent, we've got Barrett writing, joined by the Chief, Kagan, and Gorsuch.
Will: Yes. And how do you describe— people sometimes describe, okay, that's the liberal versus conservative lineup. And occasionally you got the formalist versus non-formal— I don't know. What do these 2 groups have in common?
Dan: I mean, I'm not going to take a position. I do think that there are people out there who would say you've got the 3 smartest justices in dissent.
Will: Which of the 4 would they not put on that list? Or do you not want to say?
Dan: Well, I don't think people would say Justice Gorsuch is dumb. I think Justice Gorsuch is very smart. I feel like people often say the Chief Justice and Justice Kagan are the best writers. I think Justice Kagan, by some people, is considered maybe the top intellect on the Court. Roberts too. And then I think you are a big Barrett fan, and I think some of your friends are big Barrett fans. Is that fair?
Will: Everyone's a big Barrett fan.
Dan: Except for me. Yeah.
Will: Yeah. Okay.
Dan: Okay. Point demonstrated.
Will: Yeah. No, it is an odd lineup.
Dan: Yeah.
Will: And it does not map, you know, it splits Justice Kagan from Justice Sotomayor and Jackson. It splits Justice Kavanaugh from Chief Justice Roberts. It splits Justice Thomas and Alito from Gorsuch and Barrett.
Dan: So, I mean, if I saw this without knowing anything else about the case, I might think, you know, this is probably a pretty reasonable outcome. But if we're going to be real technical about it, probably the dissent is going to have a better case in terms of the technicalities of the law. That would be my prior, just if I looked at that lineup.
Will: Yeah. Okay. And that might be close to my view. Okay. So one question is, does the Rooker-Feldman doctrine apply if the decision is still under appeal and thus not a final judgment that could go to the Supreme Court on cert?
Dan: Okay.
Will: And the Court says, yes, the Rooker-Feldman doctrine still applies.
Dan: Okay. And this is a case that arose because this woman was involuntarily committed, at least as alleged, it seems like really unreasonably.
Will: Yes.
Dan: So, and she's filed various actions about that. And, you know, there are some, as you said, the state thing going on, and now she's also in federal court trying to get some kind of relief. Right.
Will: It seems like part of the state thing was to get immediate release from custody. She and her parents signed a consent order continuing to agree to a bunch of conditions. And then immediately after getting released, appealed and said that was coerced and doesn't count, it was unconstitutional, and so on. And so you've got some sort of state adjudication sort of through a consent order, and then you've also got lots of reasons to wonder about it and reasons to imagine it could have been coerced and so on. And so that's in the Maryland courts now, but the— and the federal district court said, well, I probably shouldn't get involved in this because of Rooker-Feldman.
Dan: Right.
Will: Because you're effectively saying, look, there's some sort of state court judgment, this consent order that you think was unconstitutional. That's a lot like what Rooker was saying. Rooker was saying there's some sort of state court decision that he thought was unconstitutional, and there's no jurisdiction to go to a federal court and get relief against an unconstitutional state court decision.
Dan: Yeah. And so can we talk about where this might come from? And maybe you have a view on this. I mean, I think that under the mainstream understanding, this is a statutory doctrine, right? This is a necessary implication of— and we'll talk about which one in a second, but this is a necessary implication of the jurisdictional statutes and how jurisdiction is allocated between different kinds of federal courts. Is that fair?
Will: I think that's the standard view, although the Constitution does speak to the Supreme Court's appellate jurisdiction in ways that you could— you could think are exclusive.
Dan: It doesn't say that though, right?
Will: I don't think it says that.
Dan: Yeah. What is your view about that? If the Congress were to say appeals from all, you know, on federal issues from all state high courts shall start out in, you know, the Northern District of Illinois?
Will: Let's see.
Dan: So I don't think it answers that question. I think it talks about what the Court has jurisdiction over.
Will: Right.
Dan: And what has to be original and what has to be appellate.
Will: Right. And I think there'd be a question about what was assumed by supreme and inferior when they described the judicial powers vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. We often think of their inferiority in relationship to the U.S. Supreme Court. But it's possible that it was assumed or indeed understood as part of those words that what it was to be an inferior federal court was to lack appellate jurisdiction outside. I'm not sure that's true. And the conventional view is something like, this is an understanding of the statutory scheme, but with a federalism overlay.
Dan: Yeah. So you could find a constitutional grounding for this. Whether it's right or not, I'm not sure.
Will: And to shore up your point, I think the conventional view is that something like federal habeas, where a federal habeas court reviews a state court criminal conviction and sets it aside, is an exception to this.
Dan: Yeah, yeah, it basically is.
Will: And Justice Thomas talks about this in his concurrence, which we'll get to in a second. So unless you think federal habeas is unconstitutional, and not unconstitutional in the way that people sometimes complain that AEDPA suspends the writ of habeas corpus, but constitutional in the— in the habeas direction?
Dan: Yeah.
Will: Now, I will say, I've had colleagues in various contexts who have argued to me exactly that, that federal habeas is unconstitutional on these grounds.
Dan: I think I know a friend of the show, one of yours, who has taken that view.
Will: Yeah. But that's obviously not the mainstream position.
Dan: Okay. So let's say that's not the mainstream position. The mainstream position is that this comes from statute somehow.
Will: Yeah.
Dan: I think there's 2 candidates from— of which it could be both, but at least 2 leading candidates in terms of which statute it would come from. Is that fair?
Will: You tell me. Okay.
Dan: First one would be Title 28, United States Code, Section 1257.
Will: Okay. One of my favorites.
Dan: This is the statute giving the Supreme Court jurisdiction over final judgments or decrees rendered by the highest court of a state in which a decision could be had.
Will: Yes.
Dan: Okay. So that's the jurisdiction of the Supreme Court.
Will: Yes. Okay.
Dan: And so the idea there would be, by giving the Supreme Court that jurisdiction, and only the Supreme Court that jurisdiction, that precludes the possibility that federal district courts can exercise that jurisdiction as well.
Will: Right. It's an implicit— implicitly, it's exclusive jurisdiction.
Dan: Yeah. Yeah. Okay. That's candidate 1. Yep. The other candidate would be Title 28, Section 1331, which is not about the jurisdiction of the Supreme Court. It's about the jurisdiction of the federal district courts, the trial-level courts in the federal system, giving them original jurisdiction of all civil actions raising federal questions.
Will: Right. And so then the idea would be when it says original jurisdiction, that implicitly forbids them from exercising appellate jurisdiction, right?
Dan: Yeah. Yeah. I mean, when both of these have some plausibility to them. I mean, we haven't figured out what it means for a case to be an appeal, and I haven't figured out what it means for a case to be original, and so forth. But I mean—
Will: Yeah.
Dan: I mean, certainly, it is true that federal district courts don't have jurisdiction over something that is definitely an appeal, right?
Will: Right.
Dan: If we think something is definitely appeal within the meaning of the statutes, the district courts can't have jurisdiction over it.
Will: Right.
Dan: And we also think that the district courts cannot have jurisdiction over things that are definitely appeals of state high court judgments, right? We know that too. But then the fight is all about, like, well, what is this? What is this thing that we're talking about, this kind of relief that a plaintiff is seeking, is that actually an appeal in some sense?
Will: Yes. And that's actually where— now, okay, now that's the what is Rooker-Feldman doctrine question, and it entangles with the supposed QP.
Dan: Yeah. And is it fair to say that going into this case, both of these threads were alive, but maybe we were more on the 1257 line, that that seemed to be more where the center of gravity was?
Will: Yeah. At least that's where the intellectual center of gravity was.
Dan: Okay. That's where your center of gravity was, as the intellectual.
Will: Well, here's the problem. So the 1331 point is obviously correct.
Dan: Yeah. At some level of generality.
Will: Right. The 5-justice majority says, look, it can't just be about 1257. It has to also be about 1331. For starters, Feldman actually talks about this issue in a footnote and rejects the view that the Rooker-Feldman doctrine is limited to cases that can be reviewed by the Supreme Court under 1257. Now, their example in a footnote is, what if the constitutional issue just wasn't even raised in state court? It's a jurisdictional requirement that the federal ground be raised. So the Supreme Court would lack federal jurisdiction over a constitutional challenge to a state court decision. But it can't be that you get more federal review of your state court decision by failing to raise it than you would by raising it.
Dan: Yeah.
Will: So they say it can't— I mean, they say in Feldman, it can't just be tethered to 1257. And, you know, if— I mean, again, if it were something called an appeal, I filed in the federal district court, the District of Maryland, a petition for writ of certiorari or writ of appeal from the following lower court, namely the Court of Maryland, the court would correctly say, like, that's not a thing. I only hear original jurisdiction. The problem is all Rooker-Feldman cases are not things called appeals. Like, nobody goes into— I was gonna say nobody, at least nobody who's not an incompetent pro se lawyer.
Dan: Yeah. would write on the front of the brief, you know, an appeal from, you know, this district, this trial court, or the state Supreme Court, docket number XYZ.
Will: Right. The problem is people always file a thing they say is a complaint in the court's original jurisdiction. Yeah. And then the court reads it and decides that given what's happened, given what you're asking for, you're wrong or you're lying. It's not really an original jurisdiction action, it's really an appeal. And appeals are forbidden.
Dan: Yeah.
Will: And that's the principle that's now more complicated.
Dan: Yeah. And so I think in terms of— we can walk through it in more detail, but at a high level, I think what's motivating the majority here is a kind of functional consideration, right? Which is, if we're going to have Rooker-Feldman and take it seriously, it doesn't make any sense to say, as long as you file your federal action the day before the state Supreme Court rules, it's good to go. Whereas if you wait a day, you can't. That seems deeply implausible.
Will: Right. And I mean, of course, we do have some weird timing issues in these federal-state things. We often have race to judgments, so it's not about filing, but if you file in federal court and state court, whoever decides it first, their decision is binding. And we do have some areas like Younger abstention, where it's like, well, you can't try to challenge a pending criminal prosecution. Now there, this fully bolsters your point. The Court has moved. I think some people once thought the Court should have a, you know, okay, if it's a rule of pending criminal prosecutions, if I file the day before my criminal prosecution, that should count. And then the Supreme Court in a case called Hicks v. Miranda said, well, even if the criminal prosecution isn't pending yet, if it's filed—
Dan: Right.
Will: After the federal lawsuit, but before anything interesting happens in the federal lawsuit, that's close enough to pending. So yes, there's something to be said for the kind of functional approach. And again, I think there's something to be said for whatever you think of Rooker and Feldman, they don't seem to be— they don't say this is all just a theory of 1257 exclusivity. And as to things that were actually appeals, it's not clear why it would be a theory of 1257 exclusivity. The problem is Rooker and Feldman are wrong and make no sense, and the 1257 rationale was the sort of standard received wisdom about how to pretend that they make sense and thus domesticate them so they wouldn't cause any damage. Okay. And let's—
Dan: I think I'm receptive to that view. I've been going back and forth on this, but let's get that out on the table.
Will: Okay.
Dan: Because— and let me try to come up with the best argument. So again, you totally agree that you can't go to a district court and say, I'm filing an appeal from the Supreme Court of Illinois.
Will: Correct.
Dan: Right. But you can— your view is going to be that you can do something else. And then how do we figure out what the line is? Is it literally just what the, like, caption on the front page of your brief, your PI motion, or your— maybe do you call it on the front page an appellate brief or something? Do you label yourself appellant versus plaintiff? Because that can't be the difference, right? That can't be the difference.
Will: Well, it could be. So here's the other piece we need is collateral estoppel. So what I would say is that it's important to remember that there is a doctrine called collateral estoppel, a real doctrine, about not revisiting judgments that have already been litigated by you, the parties. And appeals, of course, are not governed by collateral estoppel. The whole point of an appeal is you get to revisit it. Yeah. So I just see it as there are 2 paths. When there has been a previous decision, you either are in appellate mode and there's no collateral estoppel, or you're in original mode and there is collateral estoppel. So as long as you say on the cover this is original, so I understand the rules of collateral estoppel apply here, then Rooker-Feldman doesn't apply because collateral estoppel applies, and we just are on the collateral estoppel train.
Dan: If it's an issue that you raised before. If it's not an issue that you raised before—
Will: I mean, whatever it is, if there's a previous decision to deal with, we either deal with it in appellate mode or we deal with it in collateral estoppel mode. And now sometimes in collateral estoppel mode, it will or won't stop you based on various principles of law. But the question is just like, which lane are we in? And so district— the Rooker-Feldman principle ought to just say district courts are always in original jurisdiction, the original jurisdiction lane. They should never dismiss something on the grounds that you say you're in the original jurisdiction lane, but you're wrong. They should say, okay, you're in the original jurisdiction lane and you lose because of collateral estoppel, or you win for some reason. Okay.
Dan: Do you want to say more about the majority, or do you think that what we have said basically articulates the majority position? Maybe one more word on that.
Will: Yeah, I think so. The best thing, again, to say about the majority is they are faithful to Rooker and Feldman. They are right that if you took Rooker and Feldman seriously, they don't have the view I just described. They have the view that sometimes there are things called original actions that are secretly appeals and should be blocked. And in Saudi Basic, the Court tried to describe that category as narrowly as possible, but still, this is in the narrow category of that.
Dan: Yeah.
Will: So if you take Rooker and Feldman seriously—
Dan: And the functional point I made a minute ago, which is, come on, this seems like a silly way to draw the line. To the extent this is actually a doctrine that a lot of lower courts do use to kind of clear their desk, that would— coming out the other way in this would make it worse, right? People would just be like, oh, I got to go to federal court sooner.
Will: Well, again, although it depends on how you want to do it functionally, the metafunctional point would be Rooker-Feldman is not the only doctrine about this. It's just one of many doctrines, and it's maybe not even a particularly good one.
Dan: Okay, but it is jurisdictional, unlike collateral estoppel.
Will: That's one of the things that might make it worse.
Dan: Or might make it better from the district court. The district courts like it because they can get rid of stuff even if it's not raised, right?
Will: Yes, although they might not like it because that means they have to raise it sua sponte and they have to consider it at the outset before it's pleaded, and they might not always do it as well as they will when it's argued. But yes, so functionally, whether you like or don't like having a kind of made-up jurisdictional doctrine, that would be part of the functional calculus. Expanding or reducing its footprint is also a— yeah. Okay. Should we talk about Justice Thomas?
Dan: Okay. Yeah. And so this is interesting. Had he staked out a position on this in the Exxon Saudi case?
Will: I don't remember him doing so. I think he does allude to it in Reed v. Goertz, one of these DNA testing cases. He cites his opinion in Reed v. Goertz there, but I don't remember anything like this in the Thomas corpus before, and I definitely did not have a first principles defense of Rooker on my Justice Thomas scorecard until now.
Dan: So he says he writes separately to explain why Rooker, properly understood, is correct as an original matter.
Will: Yeah. And he talks a lot about what is baked into the idea of original jurisdiction and appeal, and about whether it's just a matter of technicalities, and whether there's something a substantive core to that. I will say, when I was reading Stevens when it came out, I read the Justice Sotomayor opinion, and I thought, okay, this is a little annoyingly wooden, and but I see the point. And I read Justice Thomas, and I thought, well, okay, actually, maybe even I shouldn't be as against the Rooker-Feldman doctrine as I always have been. And then I read the dissent, and I thought, oh, this is sad. When you read a dissent that's just exactly correct and not the law. And now it'll be forever built into the U.S. Reports that this exactly correct proposition is not the law. It always makes you sad. But reading Justice Thomas, there was a lot to it. What was your reaction?
Dan: His argument is more constitutional, right?
Will: More. I mean, much of his argument is based on what is the— what is the nature of appellate and original jurisdiction?
Dan: To which he's looking at both pre- and post-founding sources.
Will: Right. But then it says, and that's also the statutes reflect that, and nothing's changed since then. He has this footnote, footnote 4, where he gets into the habeas issue though. So footnote 4, he says, now arguably, modern federal habeas corpus practice has drifted in the direction of appellate review of state court judgments, I have my reservations about this development, but at least it has the advantage of some grounding in statutory language, namely that, ironically, AEDPA for the first time explicitly makes clear that federal courts can do this. So I couldn't tell from this footnote whether that means he's ultimately implying that it's more like a sort of presumption and Congress can deviate from it.
Dan: Mm-hmm.
Will: Or whether he's ultimately setting himself up to say, AEDPA's unconstitutional in the based direction, that actually you can't have appellate review of state court judgments. And it almost made me wonder if the whole reason he wrote this opinion was the habeas issue, like if this attracted his attention as a way to limit the—
Dan: That's interesting. Kind of playing a long game.
Will: Right. Yeah.
Dan: I mean, he could have said more about it though, right? He could have said more to plant that seed, which he normally would have no compunction about doing.
Will: Justice Thomas is a subtle man. And even this version, even if it's not constitutionalized, if your story of habeas is there was no basis for federal habeas review of state court judgments until 1996, that's very different from the current doctrine of the standard story that the court got that jurisdiction either in the 1860s or in the 20th century interpretations of it. So that was a very interesting turn in terms of the role of the constitutional backdrop and about the kind of inherent roles of state courts. There's one other thing about this opinion that really puzzles me.
Dan: Mm-hmm.
Will: So I don't know if you noticed this, but Justice Thomas's opinion is almost entirely about Rooker.
Dan: Yeah. I was wondering about that.
Will: Feldman is mentioned only twice. Once in the second sentence where he refers to the so-called Rooker-Feldman doctrine, and then cites Feldman. And then after that, it's just about Rooker.
Dan: Yeah.
Will: And I kept expecting him to— and even, you know, he says, like, the Court's opinion properly rejects petitioner's quest to reimagine, artificially cabin, or overrule Rooker-Feldman. I join it in full. I write separately to explain why Rooker, properly understood, is correct as an original matter. And I kept expecting there to be a part 2, which is like, and now here's Feldman, which is also correct, or maybe a little more questionable. It's just like—
Dan: Yeah.
Will: And this, I will confess, has sent me down quite the rabbit hole about Rooker and Feldman. And we talked a little bit like, when did the Rooker-Feldman doctrine become not just the Rooker doctrine, but the Feldman doctrine? I'm on the verge of maybe turning this into a blog post, but it— because it's not obvious. I don't know if it's the Rooker doctrine. It's older, but it sounds less fancy. It might all be Paul Bator's fault. So I found that— I found that odd, and I wondered, like, is that— is that because there's something about Feldman that actually he doesn't buy?
Dan: Yeah, I don't know. That would be useful to know.
Will: Maybe we have to wait for the next Rooker-Feldman case to get to part 2. Yeah, I write separately to explain why Feldman is wrong.
Dan: Yeah, the next Rooker case.
Will: Yeah.
Dan: Okay. And then the dissent, which I think you just said you found quite compelling. I think it was a very good dissent by Justice Barrett.
Will: Yes. And she says, look, I thought that the whole point of Saudi Basic was to limit Rooker-Feldman to its facts, but apparently not.
Dan: Yeah. And she seems to be saying that Rooker-Feldman is really 1257, and that the Court is now kind of retconning things by making it more 1331.
Will: Yes. Or at least I think they're retconning against sort of— I think, again, one of the questions is, should you be more faithful to Rooker and Feldman or to Exxon v. Saudi Basic's unfaithful reimagining of Rooker-Feldman? Which is a classic, in all seriousness, that's a classic doctrinal thing, right? You get Miranda, then you get a bunch of decisions dishonestly restating Miranda in a more limited fashion. And then you get a case where it's like, well, what should we do? And sometimes some people say, well, look at Miranda. And then we'll say, no, no, you're supposed to look at this other case that limited Miranda. And in a way, that's part of the dispute here. But she does also do a good job, I think, of just restating how much the Rooker-Feldman doctrine is getting in the way of other things where we have law. So in addition to 1257, she also brings up several times the Full Faith and Credit Act.
Dan: Mm-hmm.
Will: Because there is a statute enacted by Congress that says federal courts should give the judgments of state courts the same effect that those state courts would give them. So it's not even like this collateral estoppel rule in the state-federal context. It's just a matter of procedural common law or something. Like, there is a statute that says what you should do with a judgment rendered by a state court in a federal court, namely apply the collateral estoppel rules of the forum. So why do we need another doctrine to say something? You know, if it says the same thing and just calls it jurisdictional, why would we do that? And if it says something different, why would we do that?
Dan: So do you think this case ends up having much impact? Do you think this changes the behavior of litigants at all? Does this change the behavior of district courts, or do you think most of the time it's kind of more unusual? I mean, obviously there was a circuit split, so these cases do happen, but it's more unusual for people to come in kind of in the middle of the state proceedings to go to federal court?
Will: Yeah. So I mean, right, the total set of Rooker-Feldman-relevant cases is not huge, although they are sometimes messy. I think the question is, were there lower courts that previously had treated Rooker-Feldman as largely dead that now will not? Either— yeah. And Justice Barrett— I mean, and this is what I mean by Justice Barrett's dissent made me sad— is sometimes when you have a dissent like this, it may make that outcome more likely. Because you might be so persuaded by her arguments that Rooker-Feldman should be dead. I think, well, apparently that's not the law. She does try to end with, still, the news is not all bad. Although the Court expands Rooker-Feldman beyond Exxon's line, it repeatedly emphasizes the doctrine is narrow. Courts should not lose sight of that message. In the end, Rooker-Feldman has been given an inch. It should not be allowed to take a mile. And I think it's just a question of whether that is how lower courts will treat it.
Dan: Yeah.
Will: And I don't know the answer to that.
Dan: Okay. Well, how much of this are you going to put in your fed courts supplement for your casebook?
Will: Good. So there's a page or so in the supplement document, which is like 60-some pages long. There's a page or so on this decision, less opinionated than what is described here because it's just the casebook. I think it does also set up the question of whether the next edition of Hart and Wechsler needs to talk more about the Rooker-Feldman doctrine in light of this. And how to—
Dan: Mm-hmm.
Will: There's a whole chapter on these various doctrines of sort of parallel jurisdiction. After— so the 3rd edition of Hart and Wechsler, which came out after Feldman, was the first one to have a big section on this doctrine, although it called it the Rooker doctrine. And then it called it the Rooker doctrine, and then occasionally called it the Rooker-Feldman doctrine. And then it's dwindled, especially since Exxon. And so I think there's a question of how much more airtime to give this doctrine. The next edition is not going to come out for a couple years, so maybe we'll have a little bit of time to reflect on that and figure it out.
Dan: And so maybe— and maybe it will turn on developments in the lower courts.
Will: Yeah. I mean, I don't know that the— yeah, the casebook is just based on the lower courts, but that would be right. Like, if it seems like the Rooker-Feldman doctrine is a much bigger part of the law again, or at least a big set of questions are, then there would be a need for more coverage.
Dan: Yeah.
Will: For sure.
Dan: All right. Anything else to say about this one?
Will: No.
Dan: Okay. I think this has been an efficient episode. Thanks for listening.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: Please remember to rate and review the show wherever you get your podcasts. Website, dividedargument.com, for transcripts and to take a look at our back catalog of custom images for each episode. blog.dividedargument.com for commentary from the larger Divided Argument universe. store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com. You can leave us a voicemail at 314-649-3790 or a voice message on our website. If there's a long delay between this and our next episode, it will be because Will has been so shamed by Claude's scorecard and the failure of his projections.
Will: I thought you were going to say I'd been shamed for my ignorance of Kant again.
Dan: No, we're past that.