Shmoland

Divided Argument

We try to catch up on what the Court did since we last recorded, but end only making it through the Court's opinions in United States v. Zubaydah and Wooden v. United States.

2022-03-12 57 min Transcript
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Dan: Anything else you want to say about the separate opinions in this case? Justice Kagan disagrees with the decision of the court not to remand. So, a narrower, [unintelligible already noted that she wanted to kind of do something a little bit narrower here. She wanted to remand. We have a very short opinion from-- Justice Kavanaugh really likes to write these kinds of concurrences, where he sort of is like, "Here's how I think we should approach these kinds of cases. Here's how I understand the relevant test to be." And he says, "Look, here's how I want it to work, here's how I understand it to work. There's an assertion of the privilege, the outset by the government, the court must make a threshold judicial inquiry to determine whether this should be applicable. The court should then accept the assertion of privilege if the requester only has kind of a dubious need for the requested information here. And even if there's a strong need, the court should not necessarily demand to examine the evidence itself." I'd say a fairly deferential approach.
Will: Well, maybe he's not going to [unintelligible fair justices anymore.

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