Divided Argument

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 pirates

Relevant links
Cases
Cisco Systems, Inc. v. Doe I — slip opinion

Trump v. Barbara — the birthright-citizenship decision the new executive orders are testing

Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County — the OT26 opener

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)

Edwards v. Vannoy, 593 U.S. 255 (2021) — slip opinion

Lance v. Dennis, 546 U.S. 459 (2006) (per curiam) — the Stevens "Rooker good, Feldman bad" dissent

Commentary & articles
CNN on the Alito interview — coverage of James Taranto's Wall Street Journal interview

Gallup, "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 amicus

Oona A. Hathaway et al., "Has the Alien Tort Statute Made a Difference?," 107 Cornell L. Rev. (2022) — the settlements study cited in Cisco footnote 2

Carlos 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 action

Other
Divided Argument, "Separation-of-Powers Police" (S4E23) — the Daryl Levinson Law for Leviathan book episode

The 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 links
Cases
Hunter v. United States — slip opinion

Trump v. California

Commentary & articles
"Hunter v. United States — the most important criminal case of the term" — SCOTUSblog opinion analysis

Amy Coney Barrett, "The Supervisory Power of the Supreme Court" — 106 Colum. L. Rev. 324 (2006), cited in the Barrett concurrence

Amy Coney Barrett, "Procedural Common Law" — 94 Va. L. Rev. 813 (2008), the other self-citation

Other
Ice by Magneto — last episode, where the Magneto debate began

Smart Microwave — the Chatrie episode, where the Aurora Tap of Ybarra v. Illinois first came up

Gorsuch 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 record

Relevant links
Cases
West Virginia v. B.P.J. / Little v. Hecox — slip opinion

Jouppi v. Alaska — Institute for Justice case page

Culley v. Marshall

United States v. Skrmetti

United States v. Virginia (VMI)

Nguyen v. INS

Flood v. Kuhn

Commentary & articles
D'Onfro & Epps, "The Fourth Amendment and General Law" — the Yale Law Journal predecessor to the new Harvard Law Review piece announced on the show

Other
Divided Argument, "Originalism Hulk" — the back-catalogue episode whose new custom cover art comes up in the Marvel tangent

We're back from vacation and chipping away at the summer backlog. Before the substance: listeners weigh in on our AI-generated cover art, Claude's new prediction scorecard grades our respective forecasting records, and Justices Kagan and Barrett take the Court's budget request — and some docket-terminology talk — to Congress. Then we spend the rest of the show on T.M. v. University of Maryland Medical System Corporation, in which the Rooker-Feldman doctrine, pronounced dead in the Green Bag two decades ago, proves alive enough to reach state-court judgments still on appeal. We try to figure out what the doctrine actually is, whether § 1257 or § 1331 is doing the work, and why the Court's committed formalists split down the middle. Along the way: insider trading as a University of Chicago virtue, a concurrence that may be playing a long game on federal habeas, and a dissent that's "exactly correct and not the law."
Highlights
[00:00:21] Opening: back from vacation, episode 26 of the season, chasing the all-time record of 29

[00:01:15] Listener verdict on the AI back-catalog covers — Proximity Mines in the Facility gets its due, and no, we're not commissioning an artist

[00:03:33] Will's Kant remarks draw "especially strenuous criticism"; he declines to recant

[00:04:38] Claude's prediction scorecard grades the back catalog: Dan 82.4%, Will 71.2% — hedged singles vs. high-variance swings

[00:07:06] Are prediction markets just gambling? Kalshi, Manifold, and insider trading as a University of Chicago virtue

[00:10:16] Justices Kagan and Barrett testify before the Appropriations Committees: the security budget, life with a detail, and a remembrance of Lindsey Graham

[00:14:03] Kagan on the "terminology nightmare" — shadow vs. emergency vs. interim docket — and why the shadow docket "is not currently shadowy"

[00:16:14] The main event: T.M. v. University of Maryland Medical System Corporation, a fed-courts-class case if there ever was one

[00:17:44] Doctrine origins: Rooker v. Fidelity Trust, District of Columbia Court of Appeals v. Feldman, Exxon Mobil v. Saudi Basic's attempt to bury them, and Sam Bray's Green Bag obituary

[00:20:35] What Rooker actually held: no bill in equity to void a state judgment — only the Supreme Court has appellate jurisdiction over state courts

[00:25:17] The unusual lineup: Sotomayor writing for Thomas, Alito, Kavanaugh, and Jackson; Barrett in dissent with the Chief, Kagan, and Gorsuch

[00:28:53] Where does the doctrine come from — § 1257 exclusivity, § 1331 "original" jurisdiction, or something constitutional about "inferior" courts?

[00:38:42] Will's alternative: you're either in appellate mode or collateral estoppel mode — and the Full Faith and Credit Act already covers this

[00:42:44] The Thomas concurrence: Rooker "correct as an original matter" — and footnote 4's possible long game on federal habeas

[00:46:34] The puzzle of the missing Feldman: Thomas's concurrence is almost entirely about Rooker

[00:48:06] The Barrett dissent — "exactly correct and not the law" — and Rooker-Feldman given an inch

[00:51:49] What goes in the fed courts supplement, and whether Hart and Wechsler needs a bigger Rooker-Feldman chapter again

[00:53:25] Sign-off: an efficient episode; browse the back-catalog art at dividedargument.com

Relevant links
Cases
T.M. v. University of Maryland Medical System Corp. — slip opinion

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005)

Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908)

Commentary & articles
Samuel Bray, "Rooker Feldman (1923–2006)," 9 Green Bag 2d (2006) — the obituary

William Baude, "The Interim Docket" (SSRN, forthcoming U. Chi. L. Rev.) — now with Justice Kagan's terminology testimony incorporated

David Lat, "Justices Kagan And Barrett Are The Spokeswomen SCOTUS Needs Right Now" (Original Jurisdiction)

SCOTUSblog, "Justices Kagan and Barrett testify before Congress"

Other
The custom back-catalog episode art — tell us your favorites

We picked two immigration decisions from the same day over the transgender-sports case because — Dan’s protests notwithstanding — that’s where the interesting law is. In Mullin v. Doe the Court lets the administration terminate temporary protected status for Haiti and Syria, holding the statute’s no-judicial-review bar swallows the procedural challenges and that the equal-protection claim fails on the merits — with a genuinely odd move: skipping the jurisdictional question the way Steel Co. says you can’t. In Mullin v. Al Otro Lado a fight about asylum-metering collapses onto a single preposition — whether a migrant stopped at the border “arrives in” the United States — and the majority says no. Along the way: brown M&Ms and Van Halen riders, whether Congress can strip review of constitutional claims without turning in a circle and sprinkling salt on the ground, Bolling v. Sharpe as a candidate for the worst decision ever, and why there’s no White Somalia to run a controlled experiment.
Highlights
[00:00:28] Opening: hype music, and listening to your own podcast to get in the mood

[00:01:42] Building a live-show rider with Claude Code, and the Van Halen brown-M&Ms test as a safety checklist

[00:03:18] Blogging origin stories — GeoCities, Movable Type, the death of Google Reader, a ransomed domain

[00:06:26] Why we date-stamp episodes; the “too many episodes” complaint

[00:07:27] Today’s slate: two June 25 immigration decisions, Mullin v. Doe and Mullin v. Al Otro Lado, chosen over the trans-sports case

[00:10:37] A digression on the opinion’s broken line spacing on page 1

[00:12:11] Mullin v. Doe setup: TPS, the consultation-and-review procedures, and the “no judicial review of any determination” bar

[00:19:07] Does the bar reach the procedures or just the bottom line? The Court says the whole thing

[00:24:32] Can Congress strip review of constitutional claims — or must it first “turn in a circle and sprinkle salt on the ground”?

[00:25:01] Dan on his and Alan Trammell’s The False Promise of Jurisdiction Stripping

[00:31:42] Steel Co. and jurisdiction-first — and the Court’s strange skip of it on the interim docket, which costs it Gorsuch and Barrett on that Part

[00:38:54] Why leave a hard jurisdictional question unwritten — the stare-decisis dodge and the “do you write on the shadow docket” dilemma

[00:42:17] The multiply-the-probabilities problem (70% × 70%), by way of the Section 3 disqualification argument

[00:44:04] The merits: Trump v. Hawaii redux, and Alito’s very ginger, sanitized recounting of the President’s statements about Haitians

[00:48:21] Arlington Heights, race as a motivating factor, and the burden-shift the Court blends into one step

[00:52:32] The Thomas concurrence: equal protection doesn’t bind the federal government — Bolling v. Sharpe and Primus’s Bolling Alone

[00:59:27] The Kagan dissent: the review bar reaches only the bottom line, so the failure-to-consult claim survives

[01:03:34] Why there’s no perfect test case — no White Somalia — so the burden of proof is the ballgame

[01:04:42] Mullin v. Al Otro Lado: metering, and whether a migrant stopped at the border “arrives in” the United States

[01:08:31] IIRIRA swapped “arrives at” for “arrives in” — did changing the preposition change the meaning?

[01:12:16] Dueling everyday-language examples: the running back, the mailbox, and Sotomayor’s Penn Station / DCA / Golden Gate / movie-theater hypos

[01:15:44] The Chicago Skyway’s “Now arriving in Indiana” signs — “we say no thanks”

[01:18:28] The dissent’s practical stakes: perverse incentives to cross illegally, the SS St. Louis, and the Footnote 5 vs. Footnote 4 spat

[01:20:51] Mootness and the voluntary-cessation exception; Jackson’s advisory-opinion dissent and the Chatrie citation she just missed

[01:24:13] The second Thomas concurrence: the § 1252 injunction bar (Garland v. Aleman Gonzalez) and an inherent Article II power to expel — “milling around”

[01:26:18] The “an uniform rule” indefinite-article tangent; Conor Clarke on how we can’t pronounce anything

[01:28:06] Sign-off: Dan’s two-week vacation, and thanks to the Constitutional Law Institute and SCOTUSblog

Relevant links
Cases
Mullin v. Doe — slip opinion (No. 25-1083, consolidated with Trump v. Miot; TPS termination for Haiti and Syria)

Mullin v. Al Otro Lado — slip opinion (No. 25-5; asylum metering and “arrives in the United States”)

Commentary & articles
Daniel Epps & Alan M. Trammell, “The False Promise of Jurisdiction Stripping” (Columbia L. Rev. 2023) — the argument that jurisdiction stripping is a far weaker tool than advertised

Richard Primus, “Bolling Alone” (Columbia L. Rev. 2004) — after Bolling v. Sharpe, the Court has never actually invalidated federal discrimination against Black plaintiffs at the Court

Henry Monaghan, “Marbury and the Administrative State” (1983) — how a court “says what the law is” when the law tells it to defer