Transcript of OA473: In Praise of John Roberts and Joe Manchin?!

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 473.  I’m Thomas, that’s Andrew.  How’re you doing, sir?

Andrew:         Hi!  I am fantastic, how are you?

Thomas:         Doing great, I am excited.  You teased this episode on our Stereo Q&A recently, which is every Wednesday.

Andrew:         I did, yeah.

Thomas:         I am actually very excited for this, this could be quintessential Opening Arguments, I can’t wait.  We’re gonna talk about this 8-1 decision in which Roberts was the dissent and maybe Roberts was right?  According to the teasing that you teased, teasingly.  [Laughs]  

Andrew:         [Laughs]  

Thomas:         I can’t wait, we’re also gonna talk about the Manchin news that he recently said something along the lines of he wants to make the filibuster more painful.  Anything he admits that’s gonna be a change is probably good to the filibuster, but we’re excited about that.  Alright, we’ve gotta get right into it Andrew, I can’t wait.  Tuesday deep dive, here we go!

Breakin’ Down the Law: Manchin and the Filibuster

[2:16.6] [Segment Intro]

Thomas:         Okay, you and I were both giddy about this news, I mean the fact that Manchin was quoted as wanting to do anything about the filibuster is already good.  When you dig into the details, do you think this Manchin filibuster news is positive or is it maybe nothing?  I dunno!

Andrew:         I think it is positive, and I think there are two components to this.  Joe Manchin made the rounds on, not this past Sunday as you hear this, but two Sundays ago, the Sunday talk shows, including Fox News.  He did his Joe Manchin-ey thing.

Thomas:         Mm-hmm.

Andrew:         “I have gotta have bipartisanship.”

Thomas:         Yeah, yeah.

Andrew:         And “I’m not willing to go into reconciliation until my Republican friends have their say.”

Thomas:         Mm-hmm.

Andrew:         But keep in mind, for as much as we hate Joe Manchin [Laughs] and I mean we on the left.

Thomas:         I don’t hate Joe Manchin.  [Laughs]  

Andrew:         I know, I know.  But Republicans really, really hate Joe Manchin.

Thomas:         Yeah, yeah.

Andrew:         Because to them, what they hear is they hear 80% of the time okay, well he’s saying good stuff but 70% of the time he’s voting against us.

Thomas:         Yeah.

Andrew:         I have to think if you’re a Republican hoping that Joe Manchin is going to stand like the tank guy, thwart the Joe Biden agenda-

Thomas:         Mm-hmm.

Andrew:         You have a lot of reasons to be very, very skeptical of that right now.  The two things that he said, one on Fox News, that he repeated everywhere was (quote) “if you want to make it more painful, make him stand there and talk, I’m willing to look at any way we can, but I’m not willing to take away the involvement of the minority.”

Thomas:         Mm-hmmm.  Yeah.

Andrew:         That was what he said to Chuck Todd, to a mostly liberal – not mostly, to a centrist audience.  On Fox News Sunday what he said was the filibuster should be painful, it really should be painful, and we’ve made it more comfortable over the years.

Thomas:         Yup.

Andrew:         Maybe it has to be more painful.

Thomas:         [Sighs]

Andrew:         That’s three uses of painful in a sentence.

Thomas:         Yup.

Andrew:         The part we’re not gonna talk about that you have to interpret as an unambiguously positive sign is Chuck Todd as a follow-up asked “would you be open to passing the John Lewis Voting Rights Act via reconciliation” and he said “eh, well, you know, I’m not willing to go into reconciliation until we at least get bipartisanship or get working together or allow the Senate to do its job.”

Thomas:         Yeah.

Andrew:         Which is sort of a non answer and then Chuck Todd was like “you’re not ruling out using reconcil- “and he’s like no, I’m not ruling it out.

Thomas:         Interesting.  I would wonder how that would work under reconciliation.  I mean a $15 dollar minimum wage doesn’t work, I don’t know how voting rights relates to the budget.

Andrew:         Yeah.

Thomas:         That seems – alright.

Andrew:         Yeah.

Thomas:         We’ll skip over that, I don’t really … Yeah.  [Laughs]  

Andrew:         [Laughs]  

Thomas:         I don’t know how that would work.  Anyway…

Andrew:         So, let’s talk about what does it mean to make it more painful?  Then how does this fit in with the history of the filibuster, how it’s implemented, and all of that.  First, the rule that you have to talk [Laughs] you can impose not only a rule that says you have to talk, but you could impose a rule that says the stuff you’re talking about has to be germane.

Thomas:         Oh!

Andrew:         Who would get to decide whether it’s germane or not?  Our friend, the Senate parliamentarian.  You would just build into the interpretation of the rules something that says any Senator may rise for a point of order and say “point of order, that’s not germane.”  By the way, those are the kinds of things that the parliamentarian and/or the presiding officer rule on all the time.  Usually it is in the context of certain amendments in the process, and I don’t want to get super deep into the weeds. [Laughs]  

Thomas:         Let me step back here and say, you know, we’re not doing a full filibuster deep dive right now and we’ll assume you’ve heard either what we’ve talked about on here before or my episode, The Filibuster is Effing Stupid, that I [Laughs] released on Serious Inquiries Only where I went into this.

Andrew:         Such a good-

Thomas:         But let it suffice to say, if you haven’t heard any of that, the filibuster is a complete accident of history, literally an accident.  That’s not a liberal talking point, that’s not blah blah, you’re mischaracterizing it.  No, the founding fathers would not have known – if you could dig ‘em up right now and say “is there such a thing as a filibuster in the Senate?” they’d be like “no, what are you talking about?  We didn’t do that, that’s not in the constitution, we didn’t write that.”  It was a total accident because they got rid of a Senate rule that was a motion for the previous question, and it makes it so you can stop debate on an issues.  This wasn’t something written into the constitution, as Andrew has pointed out many times.  The constitution just says yeah, if you have a majority you have a majority, that’s how it works except for, you know, impeachment and some other things it requires a supermajority for.  This is not something that was meant by the founding fathers.  When I recorded that episode of SIO I actually came up with this plan, I know a lot of people have as well, but I hadn’t heard anyone saying it.  I thought we should brand it as, kind of jokingly, make the filibuster great again.

Andrew:         [Laughs]  

Thomas:         If you have an image in your mind, if you’re somebody who – you know, you’re not steeped in the weeds of all this stuff and you think yeah, the filibuster, it’s like Mr. Smith Goes to Washington.  That makes sense, blah blah blah.  That’s not how it even exists now.  All it is is a staffer sends an email saying we’re not gonna vote on this then it’s a filibuster.  There is absolutely no cost to the filibuster, currently.  You don’t have to talk, you don’t have to get up there.  A staffer sends an email and a bill is basically dead because of that.  That is the level of filibuster we’re at right now.  Hearing Manchin say we should make this more painful is such a positive sign, because that was my plan in that episode.  It was look, you can say yeah, we want the filibuster.  I’m not getting rid of the filibuster, I want to make it like it was in Mr. Smith Goes to Washington, where you’ve gotta stand up there and you’ve gotta talk about stuff.  Look, maybe if you’re such a brilliant Senator, if you’re Jimmy Stewart and you get up there and you convince a bunch of people, look, you had your moment in the sun there and you get to have your say.  But that is so far away from where we are right now.  Everything is assumed to be filibustered unless it’s not, and there’s zero cost to that and no one pays a political price for being the Ted Cruz who has to stand up there reading Green Eggs and Ham which is banned now!

Andrew:         [Laughs]  

Thomas:         Because we’ve cancelled Dr. Seuss, which would make that even funnier.  But anyway, you don’t even have to do that.  Apologies, I know I went into a little bit of a deep dive there, but it was explaining why we don’t have time for a deeper deep dive. [Laughs]  

Andrew:         [Laughs] And I want to add, I believe your primary source there, that SIO episode was great, and I believe your primary source was Sarah Binder from the Brookings Institution and her testimony to Congress-

Thomas:         I don’t know that, but sure.  [Laughs]  

Andrew:         I’m gonna link that in the show notes.  She goes through and so just to piggyback on what you said, in 1789 the rulebooks between the Senate and the House were virtually identical-

Thomas:         Right.

Andrew:         And they both had the provision for Motion for the Previous Question, which says when you move the previous question by a simple majority vote, you cut off all debate and go instantly to an up or down vote-

Thomas:         Mm-hmm.

Andrew:         -on the thing being debated.  It was Aaron Burr in 1805-

Thomas:         Yup.

Andrew:         -who said “oh, we don’t ever use that, though, that seems weird, let’s get rid of that.

Thomas:         Yeah. There won’t be any consequences 250 years from now [Laughing] or whatever.

Andrew:         Exactly right, said “you have too many rules and this is kind of redundant so let’s get rid of it.”

Thomas:         [Sighs]

Andrew:         They did in 1806.  Now why they listened to one of America’s like 10 greatest monsters, I have no idea.  Aaron Burr, of course, indicted for murder at the time that [Laughing] he is addressing the Senate.

Thomas:         [Laughs] And we’re like “we need to listen to what this guy has to say about Senate Rules!”

Andrew:         Yeah!  Even then, again just look up Sarah Binder, click on the link in the show notes, listen to the SIO first, you do such a fantastic job of breaking it down, even then filibuster didn’t become a thing until the latter half of the-

Thomas:         Yeah, they didn’t even know-

Andrew:         19th Century.

Thomas:         When I say accident, truly an accident.  They didn’t know.  Somebody like 20 years later was like “wait a minute, hold on!”

Andrew:         Yeah.

Thomas:         I think there’s accidentally a thing.

Andrew:         I think there’s no rule that said-

Thomas:         A dog can’t move a bill! [Laughs]  

Andrew:         Yup. 

Thomas:         A dog can’t bark the whole time and we can’t pass a bill, yeah.

Andrew:         Oh my gosh, I tweeted this out but apparently there is Air Bud 4-

Thomas:         Oooh!

Andrew:         -the Seventh Inning Fetch.  [Laughs]  

Thomas:         Alright!

Andrew:         Yeah, we gotta add that to the Law’d Awful Movies list at some point.  But in any event, filibuster truly is an Air Bud kind of rule.  What really changed things was in 1970 when Democrats decided for purposes of the filibuster that the cloture rule was not a (quote) “main motion” any longer.  Here’s what that means.  Previously when something was a main motion that meant you may only have one main motion up for consideration at any point in time in the Senate.

Thomas:         Right, yeah. 

Andrew:         At that point when Democrats were like [Sighs] look, we’re gonna continue – we’ll still have the whole filibustery thing, but let’s do other stuff while we filibuster.

Thomas:         Right, it was an effort to be able to get stuff done still and it kind of had a backfire effect a little bit.

Andrew:         It 100% – when you look at a chart of filibusters over time-

Thomas:         Mm-hmm.

Andrew:         -that is scaled to fit on your screen, it is essentially a flat line-

Thomas:         Yup.

Andrew:         -from 1789 to 1970 and then an 89 degree angle rocketing straight up.

Thomas:         Mm-hmm.

Andrew:         From 1970 to today.  It’s ridiculous.  If one aspect of – and I want to see this be part of the debate.  We’ve talked about how the talking filibuster maybe have a requirement of germaneness, but also have a requirement that cloture be considered a main motion.  Get rid of the dual tracking and say no, look, what we’re gonna have to do here is we’re going to have to – you want to filibuster?  Great.  This is gonna come to a dead halt, and nothing is gonna go forward.

Thomas:         Gosh, that scares me though because there is that downside.

Andrew:         It is, but to me that’s how you wind up working things out.

Thomas:         Hmm.

Andrew:         We’ve locked out the players or the players have struck, and at some point you’ve gotta get back to work, you’ve got to get business done.  I throw that out there, maybe we’ll just have a continuing debate, but there are two points I wish to raise here.  The first is the notion of whether it becomes a main motion.  The second is I want you to think about how the talking filibuster interacts with the requirement that there be a quorum.

Thomas:         Yeah.

Andrew:         Here’s the one weird trick, because I was trying to think like Mitch McConnell.

Thomas:         God, you poor man. 

Andrew:         [Sighs]

Thomas:         I hope you took a nap afterward and recovered.

Andrew:         Yeah, it hurt my turtle brain.

Thomas:         You turn into the emperor from Star Wars, your wife’s like “what’s going on?”  “Ah, sorry, I was just trying to think like Mitch McConnell.”

Andrew:         [Laughs]  

Thomas:         Electricity comes out of your hands.

Andrew:         [Laughs] Here’s what I thought about.  You can continue a filibuster, but still give everybody the night off, if there is no longer a quorum present.  Then the Senate’s business concludes, supersedes everything else, everybody goes home until we come back with a quorum and resume business for the next calendar day.  Suppose this happens.  You start the filibuster, then Pat Leahy has to go to the bathroom.  Pat Leahy is, what, 87?  You know this is not a 30 second trip down the hall, this is a half hour job.  That leaves you with 49 Democrats and 50 Republicans on the floor of the Senate.  Then Mitch McConnell says [Impersonation] “well I don’t think there are 51 Senators present and therefore I move to call for a quorum.”  Then the new presiding – whoever’s presiding, since Leahy is indisposed says okay, well, we’re gonna count up everybody.  If you’re here push the little button that says you’re here.  Then McConnell gets the entire Republican caucus to walk out and the motion for a quorum fails with 49 votes.

Thomas:         Okay.

Andrew:         And the presiding officer says “oh, we have less than 50 Senators in the chamber, okay.  Senate’s adjourned for today.”  Then you get to come back tomorrow, fresh faced-

Thomas:         That’s how the Senate works?  It’s not just like “hey everybody, get back in here.” [Laughs]  

Andrew:         That’s why I tried to come up with a scenario, the bathroom may be-

Thomas:         No, I genuinely don’t know what the rules are.

Andrew:         Yeah.

Thomas:         If you fail the quorum call we’re done for the day?  It’s not oh, we’ve gotta adjourn for a minute?

Andrew:         We’re done for the day-

Thomas:         Wow.

Andrew:         -if you fail a quorum call, yeah.  The question is can you get that vote in by the time the time for voting does not elapse?  Now, if Leahy is jogging at high speed-

Thomas:         Yeah.

Andrew:         -and makes it onto the floor but doesn’t cast his vote he can say “I move to the Chair for reconsideration,” and if there’s still – then the Democrats can say okay, we’re gonna do that.

Thomas:         Sorry, what does this do?  How does this affect the filibuster?  I don’t understand.

Andrew:         What it would do is that would shut down Senate business and would obviate the need for your talking filibuster to continue. 

Thomas:         Oh.

Andrew:         You see what I mean?

Thomas:         Yeah.

Andrew:         You could then – all the Republicans could go home and get a good night’s sleep.

Thomas:         I see.

Andrew:         Come back tomorrow and filibuster for a dozen hours.

Thomas:         So, you’re saying this is McConnell’s effort to – if Manchin made it more painful for him to make it, again, less painful.

Andrew:         Yeah.  Right.

Thomas:         Okay.

Andrew:         He would say “oh you’ve made it more painful for us?  Well, here’s how we’re gonna make it painful for you.  The second one of you leaves for dinner or to pick up your kids or to go to the bathroom, I’m calling a quorum and we’re getting out of here.”

Thomas:         Gotcha.

Andrew:         “It’s Miller time.”

Thomas:         [Laughs]  

Andrew:         One of those things to think about as we are crafting the thought process is to think about how that would interact with the quorum rule, the requirement that there be 50 plus one Senators on the floor to conduct business.  Now, there’s certainly ways for that to backfire on the Republicans.  If Leahy gets back on time, now you’ve got 50 and you’ve got no Republicans there.  You know, you can start cramming some stuff through.

Thomas:         Yeah, I was gonna say, is that how it works?

Andrew:         Yeah.

Thomas:         You get to do whatever.

Andrew:         Yeah.

Thomas:         Oh, wow.

Andrew:         So long as there’s a quorum you can conduct business.

Thomas:         But isn’t a quorum 51?

Andrew:         In terms of whether the Vice President can break the tie-

Thomas:         Yeah.

Andrew:         -for a quorum, here’s the answer.  I don’t think anyone knows.  [Laughs]  

Thomas:         Wow.

Andrew:         If the Vice President is entitled – because the Vice President is entitled to break ties, but a quorum call is just a list.

Thomas:         Yeah, doesn’t seem like a tie to me.

Andrew:         It doesn’t seem like a tie to me either, but the problem is if it isn’t then your quorum call is 51.  Then the Republicans could do this all the time.

Thomas:         Yeah.

Andrew:         Maybe we should put this show in the vault and [Laughing] not give them an idea!  But yeah, they could, every single day say I don’t think there are 51 Senators here, and then pick up their 50 Senators and going home.

Thomas:         Well, shoot.  Yeah, why aren’t they just doing that?

Andrew:         Let’s not suggest that they do that.

Thomas:         Huh.

Andrew:         Well, you could always use some version of the nuclear option around that.  Remember, all of these Senate rules-

Thomas:         Right.

Andrew:         -are ultimately subject to interpretation by an appeal to the decision of the Chair. 

Thomas:         And you have to imagine Joe Manchin would be willing to do certain-

Andrew:         Would say, yeah, I’m looking around-

Thomas:         Republicans, you’re not even doing your job, you’ve left every day.

Andrew:         Yeah.

Thomas:         Fine, we’re changing the rules, here.

Andrew:         Yeah.  But when I tried to look to see if the Vice President could cast a vote in a quorum call, I don’t – I will say it this way, we’re back in Air Bud territory.

Thomas:         Yeah.

Andrew:         I’ve never – it’s never happened.

Thomas:         Just prima facia for me it doesn’t make sense, it just sounds like you’re short.

Andrew:         Yeah.

Thomas:         It would be weird if the rule was “if you’re short by one you get help from the Vice President.”  That doesn’t really make sense as a rule, but who knows?

Andrew:         But great question, I love it!  You’ve asked a question I think no one’s ever asked before!

Thomas:         Wow!  There you have it!  But I just have to say, my feelings about Joe Manchin, I’m sure a lot of listeners, have changed.  I’ve been mad at Joe Manchin, then I’ve been happy about Joe Manchin.  I’m back to thinking, along the lines of last week’s episode, too, when you think about Joe Manchin’s crucial vote for that bill, which was incredibly progressive, I think that Joe Manchin –  I think it’s we’re getting a lot out of Joe Manchin.  We’re getting so much more out of Joe Manchin than we should expect for a West Virginia seat.  I think what he’s trying to do here is just be rhetorically centrist and substantively pretty liberal, which that’s exactly what I would want.  If you had to pick between, okay, he’s going to be rhetorically liberal-

Andrew:         [Laughs]  

Thomas:         -but then vote Republican all the time?  You’d be like no, that’s worthless, but he’s saying stuff like yeah, they just need to be included in the process.  Apparently when Republicans say yeah, we don’t want to vote for your thing at all because we’re Republicans and we want zero dollars of help to anybody, I guess that’s good enough for Manchin.  That is being included in the process, and, you know, I don’t want to get too optimistic, I’m the Negatron here, but the stuff he’s talking about that I touched on last week about a giant infrastructure bill and other stuff like that with some pay-fors, he has to know that Republicans are not gonna support that.

Andrew:         [Laughs]  

Thomas:         But he’s still saying – I want them in the process, blah blah blah, and I’m interpreting that as, as long as rhetorically he’s trying to include them, then he will end up being a vote in our favor as long as we went through the kind of BS process of “okay, come to the table Republicans, tell us what you want” and then it’s garbage and we can just be like okay, well that’s nowhere near what we want so we’re ignoring you.  I dunno, I’m a little optimistic about Manchin.

Andrew:         I share – I mean, you know, I’m Optimist Prime-

Thomas:         [Laughs]  

Andrew:         -so I share that, but I just think you have stated it very, very well.  Again, it’s why I bent over backwards to list just progressive provision after provision-

Thomas:         Yeah.

Andrew:         -that if you were sitting there going “okay, Joe Manchin is a near Republicans curmudgeon,” you know, he put up zero fight about the additional bonus funding for the National Endowment for the Arts that was in the bill.

Thomas:         Yeah!

Andrew:         For the $20 million dollars for the preservation of Indigenous languages that was in the bill, for things that would ordinarily be – if you’ve got a centrist Democrat going up to the chopping block, he’d be like alright-

Thomas:         Yeah, and I will say this.  When we’re talking about the next round of legislation that isn’t tied to COVID relief so not an urgent thing, who knows?  Like, he’ll be a pain in the-

Andrew:         Yeah.

Thomas:         There’ll be some issue that he’ll be a pain in our ass for, but right now if he’s gonna pick an issue or two and say “naw, I’m putting my foot down, we can’t allow the pork barrel blah” on a thing, but then still gonna substantively vote in our favor on massive amounts of money that is much needed for this country for various things?  I’ll take it, I’ll take that bargain.

Andrew:         Yup, and I think, again, I would – let’s throw it up to our listeners and then we’ll end this Manchin love fest.

Thomas:         [Laughs]  

Andrew:         I do not believe that there was a single vote that the Democrats have lost 50 to 49 or 51/50 or whatever-

Thomas:         Right.

Andrew:         -by one vote where Manchin was that one vote.

Thomas:         Gosh, I’m trying to think.

Andrew:         There were a bunch of close votes.  So yes, he voted for Kavanaugh.

Thomas:         He voted-

Andrew:         Right?

Thomas:         Right, and some of those votes we covered at the time I remember saying look, had it been 51 to 50 or whatever, had he been the deciding vote, I believe he would have voted the other way, but I think he takes those opportunities-

Andrew:         Yeah.

Thomas:         -very smartly to say if Kavanaugh’s gonna go through anyway, to say yup, I voted for Trump’s nominee, there, because I’m being centrist, I’m reaching out to the right because I’m in West Virginia.  You know?  I get it, that’s fine.  [Laughs]  

Andrew:         I think he has worked that out with Schumer where he gets, you know, cover votes.

Thomas:         Yeah.

Andrew:         But he’s there to add in.  If I’m wrong, if we’re wrong and Manchin has been the deciding vote, let us know!  Because look, that would also change my evaluation of that.

Thomas:         Mm-hmm.

Andrew:         I share that with you.  My perception right now is boy, if we’d gotten one more vote on Kavanaugh then we would have gotten Manchin as well.  If it had really come down to the wire he would have been a dependable vote.  If I’m wrong on that, I’d like to know because that changes my assessment of things going forward. 

Thomas:         Alright.

Andrew:         Do let us know, but I think I’m right.

Thomas:         Man, so interesting, and chance for us to both be Optimist Primes a little bit, but we’ve gotta get to our classic OA deep dive.

Andrew:         [Laughs]  

[24:28.2] [Commercial]

Deep Dive: John Roberts was Right (Uzuegbunam v. Preczewski)

[25:45.0] [Segment Intro]

Thomas:         Andrew, I know nothing about this decision, I have no idea.  I have waited – it’s like Wanda Vision.  I don’t know what happened in that show, I assume I’ll watch it at some point.  No spoilers.

Andrew:         [Laughs]

Thomas:         What is this 8-1 decision in which Roberts [Laughing] says the rest of the – all eight of you are pundits and you teased that you think he might be right?  What is it?

Andrew:         Okay, this was a decision by the Supreme Court last week in a case called Uzuegbunam v. Preczewski.  I’m going to read you the first paragraph of John Roberts dissent, and then we’re gonna unpack the argument, and I think at the end of the day I hope to persuade you that John Roberts is right and the entire rest of the Supreme Court is wrong.

Thomas:         If – we’re gonna lose our far leftie cred.  This is the episode of “we love Joe Manchin and John Roberts.” 

Andrew:         [Laughs]

Thomas:         It’s over.  It’s over for us.  [Laughs]

Andrew:         Yeah, no.

Thomas:         No!  We’re calling it like we see it!

Andrew:         I’m actually gonna say why I think – look, the majority opinion is a Clarence Thomas opinion.

Thomas:         Huh.

Andrew:         I’m gonna tell you why I think the liberal wing signed onto it, and I’ll tell you even a little more when we’re done.  Let me read your first Roberts’ – this is the opening salvo of Roberts’ dissent, which accurately summarizes the case.  (Quote) “Petitioners Chike Uzuegbunam and Joseph Bradford want to challenge the constitutionality of speech restrictions at Georgia Gwinnett College.  There are just a few problems: Uzuegbunam and Bradford are no longer students at the college.  The challenged restrictions no longer exist.  And the petitioners have not alleged actual damages.”

Thomas:         Hmm.

Andrew:         “The case is therefore moot because a federal court cannot grant Uzuegbunam and Bradford ‘any effectual relief whatever.’”  Those statements are factually correct.  Georgia Gwinnett College passed certain speech restrictions, Uzuegbunam challenged those restrictions, and the college said yeah, okay.  In fact, let’s unpack it a little bit by looking at the majority opinion, then we’re gonna come back and see how this doesn’t answer Roberts’ argument at all.

According to the Complaint, Uzuegbunam is an evangelical Christian who believes an important part of exercising his religious faith includes sharing that faith in public with others.  In 2016, Uzuegbunam was a student and wanted to share his faith at Georgia Gwinnett College, public school where he was enrolled as a student.  He was at an outdoor plaza on the campus near the library where students often gather, and he started engaging in – look, you know what it’s like when people are at your college and evangelizing. 

Thomas:         Hmm.

Andrew:         He’s handing out tracks, he’s yelling at people as they come by, it’s a college, that’s a perfect place for that kind of activity to take place.

Thomas:         Sure.

Andrew:         Everybody, I think, should be out there and engaging in that.  Go to college, and if you can’t refute the arguments of street preachers then …

Thomas:         Well, by that token I went to college in 2005 – well, ’04 through ’08 I guess, and there was a lot of yelling about the Iraq war.

Andrew:         Yup.

Thomas:         Other topics like that, too.

Andrew:         Yeah.

Thomas:         That takes place on college campuses.

Andrew:         That’s what college is for, right.

Thomas:         Yeah.

Andrew:         He was approached by a campus police officer who says “hey, our campus policy is that you can’t distribute written materials in this area.”

Thomas:         Hmm.

Andrew:         “You have to go over to the free speech zone.”

Thomas:         Okay.

Andrew:         So, you’ve gotta stop.  Uzuegbunam complied with the officer’s order.  Again, this is all from the Complaint.

Thomas:         Yeah.

Andrew:         This is in the light most favorable to Uzuegbunam, which is how we should be approaching it, and I want to approach it that way.

Thomas:         Okay.

Andrew:         He then visited the college’s Director of the Office of Student Integrity, who was directly responsible for promulgating and enforcing the policy.  When asked if Uzuegbunam could continue speaking about his religion if he stopped distributing materials, said okay, I won’t give out the tracks but I do want to still proselytize, the Director said no, we’re gonna enforce this other part of this-

Thomas:         Hmm.

Andrew:         The official explained that Uzuegbunam could speak about his religion or distribute materials in only one of two designated free speech expression areas, and then would need to get a permit, so Uzuegbunam applied for and got the permit to use the free speech zone.  Again, I just want to add in parenthetically here, if this were the story in the news and you asked me, you’re on the Board of Regents of Georgia Gwinneett College, I would say that’s a terrible policy.

Thomas:         Hmm.

Andrew:         Indeed, they quickly decided that was a terrible policy, but I haven’t gotten there yet.  Gets a permit, goes out to the free speech zone, is proselytizing for 20 minutes, and then another campus officer comes up-

Thomas:         Jeez.

Andrew:         Says “you’ve gotta stop, people are complaining about your speech.”

Thomas:         That guy must be really annoying.  [Laughs]

Andrew:         Look, we know exactly why he’s annoying.  He’s up there doing the Ray Comfort playbook, “have you considered that you’re going to hell for being a fornicator.”

Thomas:         Yeah.

Andrew:         There’s no doubt that it’s annoying, but again, college is where you got expose yourself to different beliefs.  People were complaining about the speech, and campus policy prohibited using the free speech zone to say anything that (quote) “disturbs the peace and/or comfort of persons.”

Thomas:         Hmm.

Andrew:         Then the officer told Uzuegbunam that his speech violated the policy because it led to complaints, and said “you’re gonna get disciplinary action if you continue,” which, presumably, could lead to being kicked out of school, who knows?

Thomas:         Oh, so he is a student at this time.

Andrew:         Yes, he was a student at the time.

Thomas:         Okay, sorry, I missed that.

Andrew:         Then another student joined in, this guy Joseph Bradford, he joined in the lawsuit, he said yeah, I was going to proselytize but I never did, I was intimidated into silence when I saw what happened to Uzuegbunam. 

Thomas:         Okay.

Andrew:         Then the students sued a number of college officials in charge of enforcing the speech policy saying they violated the 1st Amendment.  Again, here, I’m gonna go back to Thomas’ description, which is drawing from the Complaint.  This is, you know, we have to go by.  “Although [respondents] initially attempted to defend the policy, stating that Uzuegbunam’s discussion of his religion arguably rose to the level of fighting words,” that would be a very bad argument, we’ve talked about this on Opening Arguments before.

Thomas:         Mm-hmm.

Andrew:         Fighting words is-

Thomas:         Yeah.

Andrew:         -I’m an inch from your face and I say something derogatory about your mother.  It is-

Thomas:         Well, I – but hold on, leave in the possibility, is this person spouting off, like, homophobic, disgusting stuff to people?

Andrew:         Yeah, yes.  I mean, I’m sure they are.

Thomas:         Yeah.

Andrew:         But it would surprise me – you have the right to say homophobic, transphobic, awful things on a college campus, particularly in a designated-

Thomas:         Free speech zone?

Andrew:         Free speech zone, yeah.  “But the college officials quickly abandoned that strategy and decided to get rid of the challenged policies.”

Thomas:         Hmm.

Andrew:         They then moved to dismiss the complaint, arguing that the suit was moot because of the policy change.  The students agreed that injunctive – this is the critical part of the history – “The students agreed that injunctive relief was no longer available, but … disagreed that the case was moot.”

Thomas:         Right.

Andrew:         I want to say – I want to emphasize that there because injunctive relief would still be available if you think that the change is pretextual or that they’re going to change it back the second you drop your complaint.

Thomas:         Uh-huh.

Andrew:         That is a way of saying – when it says that in the procedural history, that is the way of the student saying okay, we get it, we think you have sincerely changed your policies, but we s till want a determination that we’re right.  That the old policies, you have no intention of enforcing, violated the 1st Amendment.  On what grounds?  They contended their case was still alive because they had also sought nominal damages, and nominal damages – that is the Latin root “nominus,” in name only.

Thomas:         Hmm.

Andrew:         That’s when you get a dollar.  The Court says yup, you’ve won on liability, but you haven’t proved any damages so you get nominal damages, you get one dollar.  “The District Court dismissed the case, holding that … nominal damages” is not, in and of itself, sufficient to establish standing.  That was upheld by the 11th Circuit.  The very first thing I want to walk through is why a Court would allow you to have nominal damages in the first place. 

But first, let me ask the question, how’re you buying what Clarence Thomas is selling, here?

Thomas:         I’m having a hard time differentiating what you’ve said Clarence Thomas is saying versus what, you know, just the facts of the case that you’re reading.

Andrew:         That’s a better clarification.  So far this is just history.

Thomas:         Mm-hmm.

Andrew:         School has the policy-

Thomas:         Yup.

Andrew:         -these two students challenge it, the school says yeah, you know what?  You’re right, we’re gonna change that policy, we’re gonna let you proselytize in the free speech zone.  Then the kids say “right, right, right, but we still want the court to tell you that that policy was wrong in the first place,” and the school says “no, why would we go into court to defend a policy that we don’t implement anymore?”

Thomas:         Yeah.  I mean, I feel like that’s reasonable for the students, though, because there might be the threat of “they’re just changing this to get out of the lawsuit,” then five minutes later they’ll bring it back.  I dunno, it seems reasonable to get a decision on that.

Andrew:         That’s kind of how nominal damages came about in an era before declaratory judgments.

Thomas:         Hmm.

Andrew:         This is – actually comes from the seminal horn book on damages, which is called “Modern American Remedies” by Laycock and Hasen, Rick Hasen.  It is that nominal damages was one way for plaintiffs at common law to obtain declaratory relief in a legal system with no declaratory judgment act, and it goes something like this.  As it turns out there’s some legal concepts were if a tiny little injury persists over time that that can give rise to a big injury down the line.

Thomas:         Hmm.

Andrew:         The classic example of that is adverse possession.  I put my foot on a piece of your property, and I kind of stomp and mark it off, and it’s a teeny tiny little area that you barely see, but if I do that in a way that is open and notorious and exclusive for 30 years, at the end of the 30 years I own that little chunk of your property.

Thomas:         [Laughs]

Andrew:         It’s true!  [Laughs]

Thomas:         Wow, that’s a one weird trick.  Okay.

Andrew:         It is, it’s a one very weird trick, and we should do a deep dive on adverse possession.

Thomas:         We’ve touched on it, I think, before, but yeah.

Andrew:         Yup.  That is, in fact, the example that they give.  This is quoting from the textbook, “a trespass to land or water rights might raise a prospective threat to a property right by creating the foundation for a future claim of adverse possession or proscriptive easement.”

Thomas:         Hmm.

Andrew:         “If an unlawful diversion of water is suffered for 20 years, it ripens into a right which cannot be controverted.”

Thomas:         Right.

Andrew:         You would say alright, I’m trying to sue you now because you stepped foot on my property and then walked off, or you’ve diverted a molecule of my water.

Thomas:         Yeah.

Andrew:         Is that worth anything?  No!  It’s worth zero right now, but-

Thomas:         Over time, yeah.

Andrew:         Over the long term, yeah!

Thomas:         We want to be able to stop it now, kind of thing.

Andrew:         Right.  It absolutely could be worth something in the long run, so I cannot just sue for a declaratory judgment for where my property boundary is, so I sue for nominal damages.  The only problem with this story is, of course, we now have a general right of being able to sue for declaratory relief.

Thomas:         Hmm.

Andrew:         These plaintiffs did not sue for declaratory judgment.

Thomas:         Ooh, okay.

Andrew:         Roberts answers that “nominal” argument.  Here’s what he says – well, first I suppose I should add that both the trial court and the 11th Circuit said where there were no compensatory damages, where there was no actual harm, a plea for nominal damages could not by itself establish standing, then the Supreme Court granted cert to answer that question.  Are nominal damages enough?  We agree this would have been an injury but for the fact that there is no continuing conduct, and there was no harm done to you in its initial application. 

Here’s Roberts answer on the nominal damages.  He says, “In the Court’s view, nominal damages can save a case from mootness because any amount of money -no matter how trivial – ‘can redress a past injury.’ … But an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to. If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.  Because I would place a higher value on Article III, I respectfully dissent…

The Court sees no problem with turning judges into advice columnists.  In its view, the common law and (to a lesser extent) our cases” I love that construction, “(to a lesser extent) our cases” “require that federal courts open their doors to any plaintiff who asks for a dollar.  I part ways with the Court regarding … the framework it applies and the result it reaches.”

Thomas:         Hmm.

Andrew:         Okay, that’s a shot across the bow! [Laughs] Here’s how the majority answers that.  The majority says “look, you can get around the dollar thing by just agreeing to stipulate to a judgment.”  If you have a case and you really don’t want to be in it, and all the plaintiffs have asked for is nominal damages, you can just say “okay, we agree to the damages, we agree to a dollar.” 

In fact, Brett Kavanaugh wrote a separate concurrence to state that, to say “look, I think that solves the whole problem.”  It’s a short little concurrence and literally all Kavanaugh says is “I agree with the Court that, as a matter of history and precedent, plaintiff’s request for nominal damages … satisfy[ies] Article III standing … I write separately … to note that I agree with THE CHIEF JUSTICE and the Solicitor General” (put a pin in that) “that the defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end [a] litigation without a resolution [on] the merits.”

Kavanaugh’s like look, come on, it’s not a big deal, you can get around the “we tack a dollar onto everything” by just saying okay, we’ll plead guilty to anything where it’s just a dollar – and I’m using plea, it’s a civil case, I was using that metaphorically.  We will accede to the judgment; we will stipulate that the plaintiffs are correct and the entry of a dollar in damages and then we get to go home.

Here Roberts, once again, has I think thought more deeply about this than the rest of the Court.  He says, “The United States agrees,” and what he means is that at oral argument the Solicitor General, when asked about this, said yeah yeah yeah, if the defendants stipulate to the entry of a dollar that ends the litigation.  “The United States agrees, arguing in its brief in ‘support’ of the petitioners” (with “support” in sarcasm quotes) “that ‘the defendant should be able to end the litigation without a resolution of the constitutional merits, simply by accepting the entry of judgment for nominal damages against him.’ … The defendant can even file an offer of judgment for one dollar, rendering the plaintiff liable for any subsequent costs if he receives only nominal damages.” 

That has to do with a quirk of procedure that if you, in a civil lawsuit, you, as the defendant, make an offer of judgment for X dollars and the plaintiffs don’t take it, and the jury verdict comes back with a verdict of less than X dollars, then you are liable for costs and sometimes attorney’s fees.

Thomas:         Hmm.

Andrew:         It doesn’t happen very often, it’s another sort of one weird civil trick.  Roberts says, “This is a welcome caveat, and it may ultimately save federal courts from issuing reams of advisory opinions.  But it also highlights the flimsiness of the Court’s view of the separation of powers.  The scope of our jurisdiction should not depend on whether the defendant decides to fork over a buck.”

Thomas:         Yeah.

Andrew:         Here’s Roberts’ larger point.  Gwinnett College, after this ruling, now has to go back into court and they have to do one of two things.  They either have to pay to defend a policy they no longer implement, or they have to concede as a matter of law that what they did was unconstitutional, and that converts settlements into judgments with precedential value.  Look, there are a lot of policies that you might look at and go “you know, this is not a wise policy, this was not smart, this opened us up to potential litigation, we’re not gonna do it.”

Thomas:         Yeah.

Andrew:         We’re not conceding that we violated your constitutional rights!  We don’t want to put that on the books, but what we want to say is, “yeah, we-

Thomas:         Let’s try again.  Do over.

Andrew:         Yeah, yeah!  Let’s not – we agree, we don’t want to implement our policy in such a way that you can’t proselytize on our campus.  That’s wrong.  But that doesn’t mean the way our policy was initially implemented was discriminatory, and this case, I think, number one it absolutely – every case I file as a civil plaintiff from here on out I will include nominal damages in my ad damnum clause.

Thomas:         Wow, wow.

Andrew:         And it will be malpractice if you don’t.  This will change the way every single lawyer does business.

Thomas:         I hope it’s just me, but I’m not fully sure you explained the outcome of this case.  [Laughs] Who lost?  What …

Andrew:         So, the Supreme Court – you’re right, because I think I wanted to jump ahead to the policy implications.  The Supreme Court reversed the 11th Circuit and the trial court and they said look, the fact that you’ve asked for nominal damages, the fact that you want a buck, is enough for us to say that you still have standing and for us to send this court back to the District Court for them to try it on the merits of whether Gwinnett’s no longer enforced policy is still constitutional.

Thomas:         So, they’re not letting the college out?

Andrew:         Correct.

Thomas:         They’re not letting ‘em just get out.  Okay.

Andrew:         Correct.  Now, as they point out, Gwinnett can get out, and undoubtedly will, by just stipulating to the entry of judgment of a dollar. 

Thomas:         Yeah.

Andrew:         But think about what that does!  That means there will now be a court approved trial court’s judgment, on the merits, that says defendant concedes to the entry of a dollar in damages against it and that it’s wrong.

Thomas:         Yeah, that does seem kinda dumb.

Andrew:         Yeah.

Thomas:         Is the point that you’re making is that no, we should’ve said yes you can just pull out.  [Laughs]

Andrew:         Yeah!

Thomas:         You can’t just get out of here unless the students had asked for a declaratory judgment, is that what you’re saying?

Andrew:         Unless – that the students would have had to have done one of two things.  Number one, requested declaratory relief.  And look, we definitely don’t have time for that rabbit trail.

Thomas:         Yeah.

Andrew:         You can’t just ask the courts to declare anything.

Thomas:         Hmm.

Andrew:         You have to meet certain criteria to say we think that there is a live case or controversy that they are in some way likely to infringe on those rights again.  That would require a higher threshold, or to say we think injunctive relief should still be on the table because this is one of those cases that is capable of evading review and capable of repetition.  Yeah, you’re gonna voluntarily dismiss out the case, and they’re gonna go right back to imposing this old rule against us.  The fact that they didn’t allege either of those two things leads me to believe that there was no evidence that would have supported that.  In other words, all parties agreed in this case that Gwinnett’s rescission of the policy was sincere.  That they said you know what?  Upon reflection, you’re right, we’re getting rid of the policy, let’s shake hands and go forward.

Thomas:         As of now I feel like – I mean, this is predictable, but I feel like I kind of agree with you that it seems weird we’re making people have to do this one weird dollar trick in order to get a certain outcome or whatever, to get reviewed.  It does seem weird; it seems like it adds a lot of waste into the system that makes no sense.

Andrew:         Yeah.  Look, the system – what I want to clarify is everything good that could come out of this ruling, in my view, is already covered and protected by the law.

Thomas:         Mm-hmm, right.

Andrew:         If you have a bad faith actor that has repeatedly changed their policies, and those exist even in free speech cases.

Thomas:         Yeah!

Andrew:         Then all you have to do is make a request for declaratory judgment-

Thomas:         Sure.

Andrew:         Or say no, we think Judge you should still issue and injunction here because here’s what they did the last three times we sued them.

Thomas:         Right.

Andrew:         They said oh, yeah, we’re gonna change it, and then they changed it right back.  All of that bad faith is still protected, but I don’t think we should assume just because an institution abandons a policy, or somebody changes their mind, that they’ve done so in bad faith.  I think one of the things we want the law to do is to reward and encourage people who have said “yeah, you know what, I was arguing for X and I was wrong on that, you’ve convinced me I was wrong, I’m going to voluntarily change my behavior without the court forcing me to do so.”  This moves us in a direction that makes it easier for courts to say “yeah, right, but we still want to tell you you have to do that.”

That, by the way, I think I told you this at the beginning, is what I think explains the alignment in these cases, because I think John Roberts is now singularly focused on the activist potential of this Court, because of the institutionalism thesis.  I think he’s looking around at his fellow howler monkeys salivating at overturning lots and lots of existing precedent in favor of new rulings, and is like “alright, I’ve gotta reign these idiots in in some way.”  And I think the liberals have joined on because historically standing has been a way in which right wing courts have said “we’re not going to look at certain civil rights challenges that are brought.”

Thomas:         Mm-hmm.

Andrew:         Standing is a way of saying yeah, you may or may not have –

Thomas:         Yeah.

Andrew:         But, standing, you don’t get it.  I understand the left wing’s hostility to standing here, but I think it’s ill placed in this case.  I think if RBG were still on this Court that this would have been at least a 7-2 and maybe they could’ve gotten some additional votes.  Now that is almost certainly me projecting my judicial philosophy onto Ginsburg, but I have good reasons for believing that in looking at her opinion in various standing cases.  I think this ruling is – it’s a bad ruling.

Thomas:         Yeah.

Andrew:         It makes it hard to back out of situations and I think Roberts is correct that it says if we ask for nominal damages it converts the suit into something that the Court has to consider even if there’s nothing, there’s no relief they can actually give you that matters.  That’s always been – I mean, think about it.  Long before you and I talked about this lawsuit the standard in the back of your mind is always “okay, can the Court do anything for you?” and at the end of the day, there’s nothing these plaintiffs want that any court can do for them, other than say they’re right, and that’s the definition of an advisory opinion.

Thomas:         Yeah.

Andrew:         There you go, that is “John Roberts is right and everybody else is wrong.”

Thomas:         Oh, jeez.

Andrew:         Can’t wait for the hate mail.

Thomas:         You convinced this non-qualified lawyer.  [Laughs] Person who would probably be convinced no matter what.  Yeah, no, I see what you’re saying, it does seem a little weird, but there you have it.

[51:37.0] [Commercial]

[52:52.7] [Patron Shout Outs]

T3BE Answer

[1:04:07.6] [Segment Intro]

Thomas:         And now it’s time for T3BE, answer time!  Let’s see if I continue the non-porkage or if we do a little porking.

Andrew:         [Laughs]

Thomas:         I dunno, let’s find out.

Andrew:         Alright!  This was a diversity and removal question.  Woman from State A filed an action against a retailor in State court in State B and said you had not delivered $100,000 dollars’ worth of goods and I gave you the money.  20 days after being served, the defendant, which is incorporated in State C, but has its principal place of business in State B, filed a notice of removal to federal court in State B.  Was the action properly removed?  Couple of pieces here, number one there is sort of the weird Federal Rules of Civil Procedure language, but you file a notice of removal, and the reason for that is you don’t have to move any court to remove an action from State court to Federal District Court, it is presumptively removed when you give them notice.  You say, “this meets the requirements of diversity under the statute,” which is 28 U.S.C. § 1441(a)-

Thomas:         Yeah.  The language is weird.  You file a notice of removal in federal District Court.

Andrew:         Yup.  It is, it’s a little weird.  You file a notice of notice in the State court.

Thomas:         Really?

Andrew:         Yeah-

Thomas:         Because just like, non-lawyer brain, you would have thought oh, you remove it in State court.  You file that notice of removal.  Hey, State court, remove this.

Andrew:         Nope.

Thomas:         Then you’d go to the federal court and be like “add this” [Laughing] or whatever.

Andrew:         Yeah, yeah.

Thomas:         I guess in lawyer language you file the notice of removal in Federal court, which is weird.

Andrew:         Yup, yup.

Thomas:         Okay, threw me off a little bit.

Andrew:         I knew that was giving you a little difficulty, and basically that’s just because there is no discretion.  When it comes to removal and remand, which is sending it back to the State court, that decision is 100% in the hands of the Federal court-

Thomas:         Hmm.

Andrew:         -once the process starts.

Thomas:         Okay.

Andrew:         That’s why it’s described as a notice.  It’s not up to the State court to let you remove or whatever, nope.  They don’t get a choice.

Thomas:         Okay.

Andrew:         You remove it, you just give them notice.  You’re like “hey court, you used to have this case, now you don’t.”  Was it properly removed?  A was no, because the notice of removal was not timely filed.  You’re like 20 days seems short, so I’m gonna go with that is timely filed.  Good.

Thomas:         Okay.

Andrew:         You have 30 days to remove.

Thomas:         Alright, good!

Andrew:         But I will tell you-

Thomas:         I thought it might be 30 or 60 or – okay, cool.

Andrew:         Yeah.

Thomas:         So far, so good! [Laughs]

Andrew:         Yup!  Then you had B, your answer, B, no because the retailer is a citizen of State B.  Put a pin in that.

Thomas:         [Laughing] Okay.

Andrew:         You have C, yes because the parties are citizens in different States and more than $75,000 is in controversy.  That would be the standard surface level, seemingly obvious answer.  Or D, yes, because the retailer is a citizen of both State B and State C, which led you off on a slight rabbit trail on complete diversity, which isn’t quite the right answer here-

Thomas:         Yeah.  Okay.

Andrew:         But Thomas, you picked B!  You have porked the streak, my friend!

Thomas:         I porked the streak!

Andrew:         You porked the streak!

Thomas:         Yaaay!

Andrew:         All the principles you described you analyzed exactly correctly.  Those principles are A – you didn’t quite say it like this-

Thomas:         Mm-hmm.

Andrew:         -but the principle that the plaintiff is master of her Complaint.

Thomas:         Yeah.

Andrew:         Many lawsuits can be brought in different States or in different courts, in federal or state courts.  Basically, we respect the plaintiff’s choice.

Thomas:         Yeah.  Here’s what threw me off so much with this question.

Andrew:         Okay.

Thomas:         And there was a lot of deliberation that might have hit the cutting room floor.  [Laughs] What confused me is you do need the complete diversity, but I was having a hard time remembering it’s the fact that she filed it in State B, that’s a thing you need diversity.  Here’s my question that I’ve been waiting to ask all week.

Andrew:         [Laughs]

Thomas:         If she filed it for some reason in State F, then would the corporation be able to say “oh, okay, federal court.”

Andrew:         Yes! 

Thomas:         Okay.

Andrew:         100%, that is exactly right.

Thomas:         That’s the part I was getting – I went back and forth so many times because I’m like “wait, they have complete diversity because she’s in State A, they’re in State B.”  But then I was like that can’t be right, there’s no way.  [Laughs] I went back and forth, I was like you should definitely be able to just file in the State that the corporation is, so what am I missing?  And it’s that you also need where she filed it to be complete diversity, right?  Do I have that right?

Andrew:         You’re using the wrong words.

Thomas:         [Laughs] Okay.

Andrew:         But you have the concept exactly correct.

Thomas:         Okay.

Andrew:         First, complete diversity.  What would defeat complete diversity is if she sued the retailer, which is a citizen of State B, and also the retailer’s agent, who would be a citizen of State A.

Thomas:         Okay.

Andrew:         It’s when – complete diversity is you have Thomas Smith’s a citizen of California, you can sue a million people, but if any of those million people are also from California than you no longer have complete diversity between the parties. 

Thomas:         And it has to be in California?

Andrew:         No no no no no no.

Thomas:         Sorry.

Andrew:         But it would not be eligible – I’m not saying the only place it could be.

Thomas:         Oh, okay.

Andrew:         I’m saying you would not be eligible to remove on the basis of diversity-

Thomas:         Ah.

Andrew:         -if you’ve sued a group of people and one of them is from California.

Thomas:         Right.

Andrew:         In fact, because generally-

Thomas:         Okay, actually this is important.  That would make it so I couldn’t go to federal court, but I could still be in State court in any of the states that they’re in?

Andrew:         Yup-

Thomas:         Not just California?

Andrew:         Depending on – that would depend on the underlying merits.

Thomas:         Okay.

Andrew:         But in general, as you articulated properly on last week’s episode, State courts are courts of original jurisdiction, federal courts are courts of limited jurisdiction.

Thomas:         Right.

Andrew:         I can rule stuff out in federal court without necessarily ruling it in in any other State court.

Thomas:         Mm-hmm.

Andrew:         I can just say without a doubt we know you don’t get into federal court, and you don’t get into federal court on diversity grounds if any of the defendants is a citizen of the same State of any of the plaintiffs. 

Thomas:         But it isn’t the same State of any of the plaintiffs.

Andrew:         No, no-

Thomas:         It’s the same State of where she filed.

Andrew:         That’s not this question, I’m saying that’s the Complete Diversity Doctrine.

Thomas:         Oh, okay.

Andrew:         When you keep saying “complete diversity,” I just need to say, because otherwise-

Thomas:         Oh, I’m saying that wrong.

Andrew:         That the words are not complete diversity.

Thomas:         Okay.

Andrew:         I was explaining what complete diversity actually is.  What is applicable here are a couple of principles that you sort of correctly understood.

Thomas:         Mangled.  [Laughs] I said, but in a weird way, got it.

Andrew:         Yeah.  Here’s what it is.  It is first that the retailer is a citizen of both States.

Thomas:         Okay, yeah, I think I got that.

Andrew:         State B where it has its principal place of business and State C where it’s incorporated.

Thomas:         I was a little tripped up because of the thing where if it’s an LLC it’s also where the members are, right?

Andrew:         That’s right!  That is exactly right!

Thomas:         Okay, yeah.

Andrew:         And not where it’s incorporated, because LLCs aren’t incorporated.

Thomas:         Oh!  So, if this were an LLC, even though it’s a Limited Liability Corporation.  Or is it Company?  I can never remember.

Andrew:         Company.

Thomas:         I think it might be both.

Andrew:         Company, yeah.

Thomas:         If it’s an LLC you don’t look at where it’s-

Andrew:         You don’t look at where it’s organized, that’s right.

Thomas:         You only look at the-

Andrew:         You only look at-

Thomas:         You look at both the place of business and where the agents are, right?

Andrew:         And where the members, that is the LLC equivalent of shareholders.  Yup, that’s exactly right.  Exactly, exactly, exactly right.

Thomas:         Gotcha.

Andrew:         Now you look at it and you’re like okay, the defendant is a citizen of both B and C.

Thomas:         Yeah.

Andrew:         The woman is a citizen of A.

Thomas:         Mm-hmm.

Andrew:         That seems to be diverse.

Thomas:         That’s what I kept thinking, yeah! [Laughs]

Andrew:         And it definitely has more than-

Thomas:         It’s more than 75,000.

Andrew:         It’s above $75,000, so it meets the amount in controversy requirement, but then you went back, and this is the real brilliance.  Again, plenty of people are gonna guess C.

Thomas:         Mm-hmm.

Andrew:         Plenty of people are gonna go the other way.  You said “oh, but wait, when in doubt the idea of diversity jurisdiction is to prevent you as a defendant from getting unfairly homered.”

Thomas:         Mm-hmm.

Andrew:         Is to prevent Thomas, you sue me in State court in California, and I’m gonna go out there and the judge is your best friend.  Yeah, what’s this bullshit?  I should be protected from having to be in the State courts of the State that the plaintiff is in, unless I’m also in that State.

Thomas:         If you have no presence there?

Andrew:         Yeah, right.

Thomas:         Assuming you have no kind of, gotcha.

Andrew:         Right.  But here, the woman isn’t trying to homer this defendant-

Thomas:         Yeah.

Andrew:         -in her State courts, she’s chosen the State courts of the State in which the defendant resides.

Thomas:         Mm-hmm.

Andrew:         And the removal statute – at the end of the day, this is just you’ve derived why the removal statute explicitly excludes – here, let’s give the exact reading.

Thomas:         Give me the wording! [Laughs]

Andrew:         Yeah, 28 U.S.C. § 1441, every federal litigator knows this statute and knows how to cite it.  Subsection (b) says “removal based on diversity of citizenship.”  It says a civil action otherwise removable solely on the basis of diversity jurisdiction, may not be removed if any of the parties in interest, properly joined and served as defendants, is a citizen of the State in which such action is brought.”

Thomas:         Okay.

Andrew:         That’s exactly this situation.

Thomas:         So, I got the principle, but I tried to assign it to the wrong thing?

Andrew:         Exactly, exactly.

Thomas:         Essentially.  Okay.

Andrew:         Yup.

Thomas:         Gosh, that explains why I was so confused about this, but I’m glad I eventually got there.  [Laughs]

Andrew:         Yeah!  That’s the way that the federal rules split the baby. 

Thomas:         Huh.

Andrew:         They’re like yeah, we don’t want you to be homered in an unfamiliar State court, but if the plaintiff decides to sue on your turf, so to speak-

Thomas:         Mm-hmm.

Andrew:         Then we’re gonna respect that choice.  Too bad for you, you don’t like the State courts in your own home State?  I dunno, maybe don’t do business in that State.

Thomas:         Don’t live there, yeah! [Laughs]

Andrew:         Move somewhere else!

Thomas:         Had it been that the suit was originally filed in State A-

Andrew:         Yup.

Thomas:         -then it would have been answer C? 

Andrew:         Then it would have been answer C.

Thomas:         Oh, that’s so interesting.

Andrew:         Had it been that the suit was filed in State F, it would be answer C.

Thomas:         Yeah.  Now had it been in State C, then it still would have been B, but the answer would have been State C.  [Laughs]

Andrew:         It would have been answer B, that is correct.

Thomas:         [Laughing] Right.

Andrew:         Because the Defendant is a citizen of –

Thomas:         But the wording would have had to say “citizen of State C.” 

Andrew:         Of both States, that’s exactly right.

Thomas:         Okay, yeah.  Oh, wow.

Andrew:         Great work!

Thomas:         This is still a porked test, I just happened to have a moment of being Neo in the Matrix and actually it made sense for a second in a weird way and I got the answer right.  This is still impossible.  This is such a hard test! [Laughs]

Andrew:         I have actually litigated this issue.  This exact same issue.

Thomas:         Well, I bet it was easy for you!  Mr. Lawyerpants. 

Andrew:         [Laughs]

Thomas:         Not so easy for me!

Andrew:         I had to get affidavits from my client.  They were arguing that my New York based client was actually a citizen of the District of Columbia because – arguably – its principal place of business was out here and my client was like “no, we have a satellite office in DC, and … no.”

Thomas:         I’m so excited for the porkage that I might play that music again.  How about that?  [Laughs]

Andrew:         Alright!  Play that porky music, white boy!

Thomas:         Yeah!  Roll that beautiful bean porkage music.

[T3BE Victory]

Thomas:         Anyway, Andrew, I got this one right!  Let’s see who else might have gotten it right, or sometimes you pick a wrong answer, but anyway, who’s our big winner who played along this week?

Andrew:         Well, Thomas, this week’s winner is Sam “I Love Mess” Brady on Twitter who writes “B. Testing the Forum State Exception.  Diversity jurisdiction exists to protect parties from out-of-state bias through the presumably more neutral federal forum.  When it’s brought in defendant’s home state, however, that reason does not apply, and removal is not appropriate.”

Pithy, to the point, congratulations Sam on being this week’s winner, and everyone give Sam a follow, @creeptasticsam on Twitter, that is @creeptasticsam, hopefully he’s not actually creeptastic, and congratulations on being this week’s winner.

Thomas:         And that’s our show!  Reminder, join us every Wednesday on Stereo.  Get that Stereo app on your phone, we go every Wednesday at 5 pm Pacific, 8 pm Eastern, it’s so much fun.  Ask us questions, we hear your voice, we interact with you.  It’s a lot of fun.  By the way, sometimes the questions get turned into show topics, so that’s a good chance to do that each and every week.  Alright, that’s our show, we’ll see you for Rapid Response Friday or Wednesday on that Stereo app!

[Show Outro]

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