You Should See the Other Guy
Notas do episódio
Season 7 opens with a Court busy not deciding: an Alito recusal, a quorum lost to four book deals, and a stern Purcell per curiam for Missouri.
Show notesSeason 7 opens after a long delay, a dead sound mixer, and a host who punched himself in the face, so we start with the things the Court didn't decide. Justice Alito's late recusal from Suncor Energy v. County Commissioners of Boulder County and the four book deals that cost the Court a quorum in BMG Rights Management v. Vetter get us into the recusal rules and the odd machinery of 28 U.S.C. § 2109. Then the Court's fall run of Purcell rulings: the stay denied in U.S. Postal Service v. California, the unusually stern per curiam in People Not Politicians v. Onder that ended Missouri's redistricting saga, and the stay in Scanlan v. Coalition for Open Democracy. We close with the third trip of Department of Homeland Security v. D.V.D. and its oddly open-ended questions presented. Along the way: Dan's new essay on the justices' books, John Marshall's unread biography of Washington, Rehnquist's unpublished novels, and the other Dan Sullivan.
Highlights[00:00:22] Opening: the long delay, Will's dead sound mixer, and a water cooler that punched back.
[00:03:05] Why some interim-docket rulings land on the opinions page: the words "per curiam," not the length.
[00:04:53] Suncor v. Boulder County: Justice Alito's recusal a week before the first argument of the Term, his wife's energy stocks, and the awkwardness of spousal conflicts.
[00:09:59] The Chevron v. Plaquemines Parish recusal letter, four days before argument, and the worry that recusal timing tracks whether a vote is needed.
[00:11:49] Suncor itself: a jurisdictional puzzle about the finality of a Colorado Supreme Court remand, and a preemption case with nothing clearly on point.
[00:18:55] Petitioners' best case is Franchise Tax Board v. Hyatt; Will and Steve Sachs's unread amicus brief on interstate sovereign immunity as general law.
[00:21:25] BMG Rights Management v. Vetter: four recusals, no quorum, Bertelsmann and Penguin Random House, and why Paul Clement filed anyway.
[00:24:04] 28 U.S.C. § 2109: holding a case over, the Alcoa precedent of circuit judges sitting as the Supreme Court, and whether the statute needs a certiorari-era fix.
[00:30:59] The rule of necessity, the litigant who sues all nine justices, and Justice Breyer waiting in the wings.
[00:32:27] Justice Alito's So Ordered and Dan's "Reading the Justices' Books": John Marshall's five-volume Washington, Rehnquist's unpublished novels, and whether a justice's book can be "good."
[00:36:40] The case for short opinions: Rehnquist's reputation, Holmes's dissents, and Will's pitch that long opinions get edited by their enemies.
[00:39:34] U.S. Postal Service v. California: the three-sentence denial, Justice Kavanaugh's concurrence, the Alito–Thomas dissent, and two predictions scored.
[00:44:35] Missouri redistricting, Act 3: the referendum petition, the Secretary of State's last-hour rejection, a TRO that wasn't, and an Eighth Circuit that misread a red light.
[00:48:52] People Not Politicians v. Onder: an unusually stern per curiam, the Robert Alton Harris "no further stays" precedent, and no noted dissents.
[00:52:36] Purcell as federal judicial restraint, not an anti-chaos principle: state courts can change the rules late.
[00:54:59] Scanlan v. Coalition for Open Democracy: New Hampshire student IDs, a stay over Justice Jackson's lone dissent.
[00:57:07] DHS v. D.V.D., round three: third-country removals, a stay application treated as a granted cert petition, and a fourth question presented that says "whatever else you want."
[01:01:58] Docket archaeology: the phantom petition, a response due date that will never arrive, and whether deporting the class representatives moots the case.
[01:06:59] A term shaping up smaller than last year's, until it isn't; the other Dan Sullivan; sign-off.
Cases
Suncor Energy v. County Commissioners of Boulder County — argument audio — the Sept. 28 recusal letter
Chevron USA v. Plaquemines Parish — the Jan. 8 recusal letter
BMG Rights Management v. Vetter — the Oct. 19 order list — 28 U.S.C. § 2109 and 28 U.S.C. § 1
FCC v. Brown (the per curiam on the opinions page)
U.S. Postal Service v. California — order, concurrence, and dissent
Department of Homeland Security v. D.V.D. — the Sept. 29 cert grant — docket
Commentary & articles
Dan Epps, "Reading the Justices' Books" (SSRN; forthcoming Harvard Law Review)
Will Baude, "Things to Read This Week (10/12/26)" (Divided Argument blog, with the essay and the So Ordered reactions)
Kelsey Dallas, "Justice Alito will no longer participate in climate change dispute" (SCOTUSblog, Sept. 28, 2026)
Alito on the recusal as "prudent" but not required (ABA Journal, on the Bloomberg interview)
Steve Vladeck on the justices' book deals and 28 U.S.C. § 2109 (One First, Oct. 22, 2026)
William Baude & Stephen E. Sachs, amicus brief in Franchise Tax Board v. Hyatt
William Baude & Stephen E. Sachs, "The Misunderstood Eleventh Amendment" (169 U. Pa. L. Rev. 609 (2021))
SCOTUSblog on the Court's third Missouri ruling (Sept. 25, 2026)
SCOTUSblog on the New Hampshire student-ID stay (Oct. 22, 2026)
Steve Vladeck on the Court's third D.V.D. ruling (One First, Oct. 1, 2026)
Steve Vladeck on the DOJ's Alaska suit (One First, Oct. 26, 2026)
Other
Divided Argument S6E30, "Shoe of Damocles" (the Trump v. California discussion this episode picks up)
The Court's December 2026 argument calendar (D.V.D. is set for Dec. 9)