Shoe of Damocles

Dan Epps (0:20)

Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

Will Baude (0:25)

And I'm Will Baude.

I told a couple of colleagues this week that we were going to record on Friday, and they said, wait, then it's no longer unpredictable. We now have a lead.

Dan Epps (0:35)

For them, not for most listeners though. And it has been a bit of a break after a pretty steady run. So I feel like that was unpredictable.

Will Baude (0:46)

Do we have any excuses for that?

Dan Epps (0:49)

You were on vacation.

Will Baude (0:50)

And you started class.

Dan Epps (0:52)

Semester started here. I am swamped teaching fed courts for the first time using your book and with your guidance. That's been a lot of fun.

Will Baude (1:02)

It's not really my book.

Dan Epps (1:05)

You're the first name on it. It's Baude et al.

Will Baude (1:09)

It's good for my citation counts, I'll admit that. But it's Hart and Wechsler's book and we're all just holding it in trust.

Dan Epps (1:17)

I mean, how many words remain from the first edition?

Will Baude (1:21)

That's an interesting question.

Dan Epps (1:23)

Probably not many, right?

Will Baude (1:24)

Well, I mean, a lot of things are cases that have not changed.

You had edits in the cases. Marbury.

Dan Epps (1:32)

Okay, but of the notes, how much is left?

Will Baude (1:36)

The notes have changed a lot.

Dan Epps (1:39)

The notes have changed a lot. Well, it's fun to teach out of. I'm actually finding it slightly less challenging to teach out of than I was worried about. So we will see if I still say that.

I’m 2 weeks in, 11 weeks to go.

Learning a ton, having fun. Students are great. So I'm busy, but I got nothing to complain about. Yeah.

Will Baude (2:03)

Good.

Dan Epps (2:04)

Teaching 4 days a week. I haven't done that maybe ever.

Will Baude (2:09)

That's good for you. Build your stamina.

Dan Epps (2:11)

I think so. Yeah. Law professors should have to work hard once in a while just to see what it's like.

Excellent.

Will Baude (2:21)

Well, speaking of standing in federal courts, I think we got some stuff in your wheelhouse to talk about.

Dan Epps (2:27)

Yeah. So I actually just finished teaching standing, so I feel a little bit more knowledgeable about that area of law and a little bit more prepared to talk about the cases that we're going to talk about than I would've been otherwise.

Any preliminary matters to get out of the way? One thing that was interesting was Jodi Kantor's story about secrecy at the Supreme Court that had some interesting tidbits in it, one of which was that Justice Scalia didn't make any arrangements for what to do with his papers after his death, which is not the norm. I think most justices have come up with some plan. Obviously, he died somewhat unexpectedly, but I still think it's the kind of thing you might do a little earlier.

Will Baude (3:16)

I guess I wonder, as of 2016 when Scalia died, do you think everybody else on the Court already had plans for their papers in place? Or do you think—

Dan Epps (3:25)

I don't know.

Will Baude (3:26)

Because he was the first person to die kind of quite unexpectedly. I mean, several other people have died on the bench, but—

Dan Epps (3:35)

Yeah. I mean, Justice Ginsburg, it sounds like, did have plans.

She donated them to the Library of Congress with certain conditions. I don't know when that plan was made.

Will Baude (3:46)

Yeah.

It seems like, are we trending to a world where the default plan is something like, my papers remain closed until everybody in the relevant period is dead? Either everybody who was on the Court when I was is dead, you just do a whole period, or maybe tranches, like the early part of my service.

Dan Epps (4:06)

Yeah, I think that seems to be common. Now, there seems to have been some kind of discussion at the Court after Justice Scalia's death about trying to come up with some kind of more uniform plan.

But it seems like it's not actually clear from the reporting. It's not clear what the plan is.

Will Baude (4:31)

Right. But it might be something like that.

Dan Epps (4:35)

It might be.

Will Baude (4:36)

Everybody designates a custodian and designates a rough—

Dan Epps (4:40)

I mean, to the extent that that's what Ginsburg did, that suggests— I mean, she could have broken with what the Court wanted or not.