Advisory Opinions - A 'Watershed' Rule

Episode Date: May 20, 2021

On today’s podcast, Sarah and David give their predictions on how the Supreme Court might rule next term in Dobbs v. Jackson Women’s Health Organization, the abortion case challenging a Mississippi law that prohibits most abortions after the 15th week of a woman’s pregnancy. Our hosts also chat about Texas’ new pro-life law, Justice Elena Kagan’s spicy dissent in Edwards v. Vannoy, the Mississippi Supreme Court case they talked about earlier this week, the University of North Carolina board of directors’ decision to block tenure for Nikole Hannah-Jones, and mugshots. Plus, they provide some listener wine pairing recommendations for lead fact-checker Alec Dent’s forthcoming cicada eating experience. Show Notes: -Dobbs v. Jackson Women’s Health Organization -June Medical Services LLC v. Russo -Edwards v. Vannoy Learn more about your ad choices. Visit megaphone.fm/adchoices

Embrace something new at Starbucks. Introducing the Ice Lavender Cream Oat Matcha Tea Latte. A creamy drink where smooth matcha meets subtle floral notes. From our airy lavender cream cold foam. Only this spring, only at Starbucks. Ice Lavender Cream Oat Matcha Tea Latte includes dairy. Welcome to the Advisory Opinions Podcast. This is going to be a potpourri edition of the Advisory Opinions Podcast.

I'm David French with Sarah Isker. We've got a lot to cover. Sarah, are you feeling better today? I am feeling so much better, but maybe most importantly, I am not high on Dayquil, which if, you know, going back to high school, I realized that if I was like seriously sick and had a fever, there was no point in going to school because I would think that I was totally fine and I would take an exam and fail it. And I was like, but I got all the answers right. It was like, no, you were high as a kite on the great products that the people at Vick sell. And I am so grateful to them. But also, I don't remember our podcast, to be honest. I have to admit that Dayquil has never

affected me like that. I think the worst thing that Dayquil has ever done for me is kept me awake. And NyQuil has helped me go to sleep. There's a version of basically pseudophedrine in Dayquil and NyQuil that I seem to have some sensitivity to. So I faint when I take pseudophed. So I've been told not to do that anymore. And like the last time I took NyQuil was like decades ago because I slept for 24 hours and my college roommate thought I might have died. Oh my goodness. Like I just didn't get out of bed. Wow.

So what we're saying is like the hard drugs, you've been very smart to stay away from. That's right. Yeah. Yeah. Yeah. Yeah. Yeah. Okay. So we're going to, we're going to have non-day cold Sarah.

Yes. We're going to talk more about the Dobbs case. Now, if you listen to the advisory opinions podcast on Tuesday, our main on Monday, and then you listen to the dispatch podcast on Wednesday, where we talked about the Dobbs, this is the Mississippi abortion case that

the Supreme Court has accepted cert on. And then now you're listening again, you're probably thinking, what? Enough already. But Sarah has some additional thoughts. We also have some thoughts on a new Texas pro-life law that it's a quirk. It has a quirk on the heartbeat bill, an enforcement quirk where they're trying to make it less able to be challenged in court. So we're going to have a little, some thoughts on that. We did not talk about one of the Supreme court cases that came out on

Monday, and we're going to revisit, we're going to have a redo on that that has some spicy Elena Kagan. We're also going to revisit the Mississippi Supreme Court case that we talked about because, as a listener pointed out to us with this kind of what-the-heck sort of email, I asked Sarah about the case, went through what the case was about, and then I don't think we actually said how it came out in real life. And so we only talked about how it came out in Justice Sarah's court. So we're going to talk about how that came out in real life and respond to some reader mail

about that. And then we're also going to talk a little bit about a tenure dispute in North Carolina that is causing a great deal of controversy. And it involves a grant, what was an apparent grant of tenure to Nicole Hannah-Jones, the architect of the 1619 project that was blocked by the UNC Chapel Hill Board of Directors. So what does that mean for academic freedom? Is that something that people should worry about? I tweeted something about it, got some pushback. So I thought, hey, we need to talk a little bit about academic freedom and viewpoint discrimination in higher education.

So... Plus, we have wine pairings for the cicadas, wine pairings for the cicadas. And you have a question for me about mugshots. Oh, I do. Yeah. Okay. Okay. That's a lot. Well, Sarah, why don't we start with your thoughts about, uh, Dobbs that you wanted to revisit after Monday.

Yeah. So here are my non-Vix inspired thoughts once I woke up from my haze the next day. First, we didn't spend nearly enough time talking about Kavanaugh's role in all of this. So as I thought about it and I was trying to think of how cert was granted, like, so as i thought about it and i was trying to think of how cert was granted like obviously okay here's what i think happened i think you have the four votes for the cert grant as thomas alito gorsuch barrett and then i think the goal is to pin down cavanaugh and Roberts and just make them take sides. So you have Roberts in June Medical saying, sorry to CISIS, but I reject whole women's health. We're going back to Casey's substantial burden. That puts him in kind of no man's land for the Mississippi 15-week ban. But Kavanaugh is really interesting. Remember, he had a concurrence in June Medical,

and here's the money part of it. Today, five members of the court reject the whole women's health cost-benefit standard. A different five members of the court conclude that a Louisiana's admitting privileges law is unconstitutional because it would restrict women's access to abortion to the same degree as Texas, the one in whole women's health. I agree with the first two of those conclusions, meaning rejecting whole women's health cost benefit standard. That's the same thing that Roberts agreed with. But I respectfully dissent from the second that Louisiana was the same as Texas. Because in my view, additional fact finding is necessary to properly evaluate Louisiana's law. He did not like the other dissenters basically say,

yeah, the Texas law is fine and the Louisiana law is fine. There's no Casey problem, even if you reject whole women's health. So Kavanaugh sitting there on the fence in a lot of ways, we don't really know where he is. It was only a three paragraph concurrence as well. So David, here's my prediction before oral argument. It's way too soon. This is a terrible prediction with no real information, but I predict a 4-2-3 split that there is no majority opinion after Dobbs. And you have Kavanaugh and Roberts with a sort of controlling concurrence of some kind. I think that's a very solid prediction. I think that's a very solid.

Because one of the things, if people will rewind the tape and listen to us after the June medical decision, there's a couple of things that really stood out to me. One is, again, as I've said a million times, only one justice said, Roe and Casey, got to go. And that was Thomas. Doesn't mean that only Thomas believes that. Certainly doesn't mean that only Thomas believes that certainly doesn't mean that only Thomas believes that. But the one thing we know is that only Thomas staked out that ground and nothing in the Kavanaugh concurrence indicates nothing in that concurrence indicates he stands with Thomas. Everything indicates that he's looking at the Casey precedent and seeking to apply the case. Now it's seeking to apply the Casey precedent. Now it's also true that he wasn't asked, the court wasn't asked to overturn Casey. So that was not a

position that the litigants just willing to toss Casey overboard. So, yeah. So if it is a 4-2-3, what are the two at? Where are the two at? Because the three are with benefits and burdens of Whole Women's Health, which, to clarify for listeners, is a little bit of a modification on the Casey standard because it asks the court to weigh the relative benefits and burdens of the challenge statute. It doesn't just simply ask whether there's an undue burden. I mean, it's a wholesale rewriting of the Casey standard, like whole women's health. I mean, that's a whole new thing to say that the health

benefits of an abortion restriction have to outweigh the burdens on the right to an abortion. That is not what Casey said. I mean, the Roberts concurrence in June Medical lays it out pretty well. But like Casey is just is there a substantial burden on a constitutional right to have an abortion? Not this cost-benefit analysis stuff but yeah yeah okay so you have three votes for the to continue whole women's health cost benefit standard right let's assume you have we know you have one vote for chuck rowan casey um you're saying there's three votes for either chuck rowowe and Casey or just flat out uphold the Mississippi statute. And two where you don't know. Yeah, I think and that three, by the way,

you don't really know. I think they'll uphold the Mississippi statute, but I think they could do it even under Casey standard. Interesting. Chip away at Casey around the edges, but say like, look, we're keeping Casey in place. We're just looking at whether this is a substantial burden and we don't think it's that substantial to have to seek an abortion in the first 15 weeks, something to that effect. Um, or say, you know, Casey in light of row, whatever, but yes, four votes upholding Mississippi, three votes striking it down, and two in the messy middle. All right.

Mark, well, we fully reserve the right. Yeah, totally. All rights reserved to revisit these predictions based on the oral argument, which is going to be fascinating. But I think that's solid. I think that's a solid prediction. Again, just going by the jurisprudence. I mean, this isn't gut. Let's put it this way. This is more than gut feeling. This is a gut feeling based on actual jurisprudence. So

interesting. So, interesting. So mark it down, even though we fully reserve the right to revise. All right, next. Texas, your Texas, Sarah, did something that where they're trying to eliminate abortions after a heartbeat is detectable. It's a pretty standard heartbeat bill, but it contains a provision that's designed to make it more difficult to challenge the bill.

And it's interesting. Essentially, what it does is it says that the state is not going to enforce the heartbeat bill. It is not the job of the state to enforce the heartbeat bill performing abortions in violation of the law. Our previous podcast guest, Josh Blackman, in an interview with the Texas Tribune, said it's a very unique law and a very clever law. Planned Parenthood can't go to court and sue the attorney general like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued to challenge the law. Your thoughts on this? I guess my first thought is it's, A, I'm surprised it took someone this long to come up with that clever tactic. B, I wonder if it will be resolved before that can really wind its way through the courts. We talked about which questions presented the court accepted in Dobbs. in Dobbs. And one of the questions presented that they did not accept was whether you could have this sort of third party standing in these types of cases. I wonder whether that question will get

resolved in some other case at some other point before the Texas one can make its way up, in which case it was a silly, you know, workaround. But at this moment uh yeah clever i'll give clever points does that count yeah it is i mean so what happens is it's sb8 would allow anyone in texas to sue an abortion provider if they believe they violated the state's laws so the person doesn't have to have a connection to someone who had an abortion so So basically, if you're concerned at what's happening in the Planned Parenthood clinic down the street, looks like you might have standing to file a lawsuit.

Now, the same- I don't love that from a matter of public policy, by the way. No, no. Clever points, yes. Public policy, that's terrible public policy. Yeah, it's clever points. It's bad policy. And it's part of this abortion distortion we've talked about, about how a lot of normal policies and normal sort of policy ideas get tossed out the window when you're talking about attacking or restricting abortion rights.

And again, imagine this in the climate change context, like create that same law, but instead of anyone being able to be concerned about what's happening at the Planned Parenthood down the street, anyone can be concerned about what the, you know, Exxon or really anyone is doing down the street with regard to climate change and the, you know, number of principled arguments we'd hear on why that's a bad way to create a public law, then they'll just ignore this one. Yeah. I mean, creating a generalized right to enforce the law on the part of private citizens regardless of whether you have been harmed by the action of the defendant. Wow. Wow, Sarah. Imagine this. We're going to increase taxes, but we're not going to give the IRS the enforcement ability to increase taxes. But if you believe your neighbor is cheating,

you can file a lawsuit against the neighbor to stop him from cheating. ability to increase taxes. But if you believe your neighbor is cheating, you can file a lawsuit against the neighbor to stop him from cheating. So yeah, there are public policy problems with that. It's a little bit more of a law school hypo type of drafting process than one that's grounded in solid public policy. And it's not, it doesn't get around abortion jurisprudence because if you file a lawsuit under the Texas law, then the abortion providers are going to be able to use constitutional defenses. able to use constitutional defenses. Yeah, I'm also unclear. I would need to think about this more on the case or controversy aspect of this. If you're not harmed, regardless of this private right of action that's created, you still would need a harm to have a case or a controversy. have a case or a controversy? Because what's the remedy, basically? If you cannot be remedied because you weren't harmed, how is there any jurisdiction for a court?

Yeah, it's very interesting because we have had other statutes drafted that in some ways deputize citizens to enforce, for example, civil rights law, civil rights law, section 1983. You're empowered to defend your own civil rights, and we're incentivized to defend our civil rights, not just by the fact that we can get compensation for the actual harm that we've occurred. You can also get attorney's fees, actual harm that we've occurred. You can also get attorney's fees, which is not the typical outcome in civil litigation in the U.S., where each side bears its own fees and costs. But that's different because you still have to be harmed. So there's an incentive for you to file a lawsuit. They're sort of goosing the incentives by giving you an attorney's fee award. So that allows me to vindicate, to get a hefty attorney's fee award, even if I'm vindicating first amendment

rights where there's no real strong monetary damages. Um, but again, yeah, this is, uh, it's interesting. Um, you know, professor Blackman calls it clever, unique and very clever. I'm not sure that's as much of a compliment. It'd be interesting to get Josh talking about it and say, when you said unique and clever, in what sense did you mean that? I feel like that's what my junior high teachers used to refer to me as, and they did not mean it as a compliment. Unique and clever was definitely not a compliment at the time.

But ha, look at me now, Mrs. Johnson. Yeah, it's an interesting law. It is a public policy that a lot of people would not like to see extended into any other area. And a lot of people don't like to see extended into this area. But again, this sort of goes back to Dobbs and this sort of necessity to figure out where we stand. Now, I know a lot of people will say, David, we know where we stand. We have existing precedent that's been around for a long time.

Well, there's been a lot of changes in the courts since there's been a frontal attack on existing precedent. So that's why this Dobbs case is going to be so huge. That's why it's going to be such a frenzy that we've talked about Monday, we talked about Wednesday, because we're going to know to some degree where we stand, and that's going to provide a lot of clarity

for things like this Texas case, for all the heartbeat bills around the country. It's just huge, Sarah. There's just no way of getting around it that it's huge. All right, we did have a couple other Supreme Court decisions that were handed down on Monday that, again, I apologize. I was too high on the products of the fine VIX people to really weigh in on.

I just want to touch on them both briefly. The first is this BP case versus the mayor and city council of Baltimore. The actual details of this case are incredibly uninteresting unless you are a current student in Fed courts, probably. But it has big implications for these climate change lawsuits

going on around the country. Basically, Baltimore sued BP in state court. BP tried to remove their case to federal court. The theory being that state courts, this is, I'm going to say something mean about state courts. I am just using the caricature of state courts that a lot of corporations have. using the caricature of state courts that a lot of corporations have. The caricature of state courts is that they are lawless, wild west places where they will do whatever they want based on whims or whether their coffee was the correct temperature that morning. Whereas federal courts are disciplined. There's routine to them. There is consistency.

And so you'd rather be in federal court, always. So these companies are always trying to remove to federal court. That decision is unreviewable unless you fall into these very tiny little exceptions. This case was about whether that exception could sort of be broadened. The important thing was, though, that the answer was yes, meaning that from now on, these climate change lawsuits will almost all fall under this exception where they will try to remove to federal court. And if a federal court tries to send them back to state court, that is now going to be reviewable by a circuit court. So the forum shopping, if

you will, gets a little bit of the brakes pumped on it based on the fact that circuits will now review these questions of these climate change lawsuits, whether they are in state court or federal court. They're far less likely to prevail in federal

court than they were in state court. So, you know, congrats to BP. And actually, Cannon Shanmigan, who we need to have on this podcast after the Supreme Court term's over, we got some Twitter requests for him. He argued this

case. A bunch of people thought he was going to lose it. And he didn't just win it. It was a blowout. It was 7-1. Sotomayor was the only dissent. Alito didn't take to lose it. And he didn't just win it. It was a blowout. It was 7-1. Sotomayor was the only dissent. Alito didn't take part in it. So he got Kagan and Breyer.

Congrats, Cannon. Yeah. Well, and to go back to the removal point, so I think we used some terms of art in there that our non-lawyer listeners might not be aware of. And that is, if you file a case in state court, there's some specific ways in which if I'm a defendant, I can get that case out of state court and into federal court.

And that process, the actual procedural process for doing that is called removal. And the grounds for removal are typically, does the case present a federal question? In other words, are you making an argument about federal law, the constitution, et cetera, or is there diversity jurisdiction? It's, you know, a party it's case between two parties of different States above a certain dollar amount. And a lot of the removal controversies are around this sort of federal,

this federal question. And Sarah, I used to represent, back in my litigation days, we'd represent energy companies that were being sued in local courts all the time. And a lot of my early life was actually researching removal, researching the heck out of removal. And let's be charitable and fair

to our state court judges who are listening. There are many outstanding state court judges, but what state litigation does is allow, you know, we've talked about this sort of forum selection where you go and you find the most favorable jurisdiction to file your case and file it there. That's why we've had a lot of cases during the Trump administration filed in San Francisco. A lot of cases against the Biden administration will be filed in Texas. It's the assumption that the judges in those locations are maybe more predisposed to be favorably inclined to your judicial philosophy. You have a form selection ability in state courts, Sarah, that is extreme, extreme.

You can go to, there might be one judge in one county, and let's say you're filing pharmaceutical class actions, and that judge is awesome for you. pharmaceutical class actions. And that judge is awesome for you. And the fact that you have a CVS in that county and a judge that you like means that you're going to have a bunch of lawsuits. There's even a, gosh, I think it was in Mississippi. I'll have to look this up. But several years ago, there was this famous county in Mississippi that was like the home of an extraordinary number of lawsuits. And that's your forum selection to the nth degree often can occur in these state jurisdictions. All right, we had one other case. And there's a substantive reason to talk about this case, but I also just want to mention the name because it sounds like it was created in Hollywood, like in a screenplay. Edwards v.

Vanoy. Doesn't that just, it like screams Supreme Court opinion to me, David. So if you remember last year, was it the year before? There was the Ramos case that decided that even state court jury verdicts and criminal trials have to be unanimous. This was one of the last things that had yet to be incorporated against states and incorporated means from the Bill of Rights. All of that really just applied to the federal government. And then piece by piece, the Supreme Court has been saying, like, well, actually, it applies against the states as well. The last remaining one is grand juries. Well, and the Third Amendment.

But the Second Amendment even was incorporated against the states before the unanimous jury verdict was. OK, but then you have the messy question that was always bound to come up. Is it retroactive? is it retroactive? Meaning if you are a current criminal defendant who's already been tried, already been found guilty in, what was it, Louisiana and Oregon or Washington? I think Washington. I thought Louisiana, but... It's definitely Louisiana. Anyway, in one of those two states that still had non unanimous jury verdicts, um, does Ramos actually help you if you're still on appeal? Basically, there's some complications to that of whether you're still on the direct appeal on the state side on the habeas appeal, which is where you've exhausted your state side. And now you're on the

federal side. We should not get into that here, but,. But it was a big opinion because the Supreme Court overruled a precedent. And we know how some of the justices feel about that, David. And we know that when they see overruling a precedent on criminal retroactivity, that's not what the fight is really about. It's really over, I mean, it's over abortion, of course, but it's also just over the role of the Supreme Court and the role of precedent and whether we're just going to reinvent the rules every time we have a new court, especially when it's a quote unquote 6-3 court. I kind of reject that label, but I'll use it here for fun. So it got pretty spicy. The majority overruled an opinion that said, look, most criminal procedure rulings by the Supreme Court are not going to be retroactive

unless they're quote unquote watershed rights. And then everyone's been trying to figure out what watershed means since then. And so every time there's a criminal procedure case, it comes back up a couple of years later on a retroactivity case, and it's determined to be not watershed enough. And so finally, the Supreme Court shedded the watershed doctrine and basically repudiated that whole case. This very much angered Elena Kagan. And I'm just going to read a little bit from her dissent. The majority argues in reply that the jury unanimity rule is not so fundamental because dot, dot, dot, dot. Well, no, scratch that. Actually, the majority doesn't contest anything I've said about the foundations and functions of the unanimity

requirement, nor could the majority reasonably do so. For everything I've said about the unanimity rule comes straight out of Ramos's majority and concurring opinions. Just check the citations. I've added barely a word to what those opinions, often with soaring rhetoric, proclaim. Start with history. The ancient foundations of the unanimous jury rule? Check. The inclusion of that rule in the Sixth Amendment's original meaning? Check. Now go to function. The fundamental, or bedrock, or central, role of the unanimous jury in the American system of criminal justice? Check. The way unanimity figures in ensuring fairness in criminal trials and protecting

against wrongful guilty verdicts? Check. The link between those purposes and safeguarding the jury system from past and present racial prejudice? Check. In sum, as to every feature of the unanimity rule conceivably relevant to watershed status, Ramos has already given the answer. Check, check, check. And today's majority can say nothing to the contrary. It feels like Justice Scalia is back with us. Yes, it does. It does. It does. It does. Yeah, that particular passage rocketed around this micro slice of legal Twitter that is particularly in love with Kagan spiciness. There are many micro cultures in Twitter, and that is actually one microculture on Twitter. But yeah, so that's right. We, this is something,

again, there was a lot that came out on Monday and you're recording a podcast and it takes a while to absorb everything that came out. And this is one of those important cases, important for, you know, not just the specific individuals who had interest in the outcome, but this view of precedent and outcome, but this view of precedent and the reaction to this view of precedent, which of course has so many, so many implications. And this was a 6-3 opinion. So it was a 6-3 court on overturning precedent.

And I think that's part of what bothered Kagan so much. There's also an interesting, I was going to say an interesting footnote, but it is also literally a footnote in her dissent. Kagan was in the dissent in Ramos, as in she did not want to incorporate the unanimous jury rule against the states. But I think her footnote is an interesting point that is worth reading again. It's the last part of the opinion, footnote eight. The majority's final claim is that it is properly immune from this criticism, that I cannot, quote, turn around and impugn, end quote, its ruling because, quote, criminal defendants as a group are better off

under Ramos and today's decision taken together than they would have been if my dissenting view had prevailed in Ramos. The suggestion is surprising. It treats judging as scorekeeping and more as scorekeeping about how much our decisions or the aggregate of them benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases. No one's past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.

Something felt deeply Federalist society about that, David. Yeah, it did. It did. I mean, we've already determined that there ain't nobody as diligent in reaching out to conservatives in the more progressive wing of the court as one Elena Kagan. That has been talked about a great deal on this podcast as part of a historical pattern, even predating the court. So yeah, she speaks fluent FedSoc. She really does. She can speak some fluent FedSoc. I thought her point was well taken there because I also, at first, was a little side-eye like,

wait a second, you dissented in Ramos and now you're having this breathless freak out that Ramos isn't retroactive, the thing you didn't think should exist in the first place? But you know what? Her footnote persuaded me. She's right. I'm wrong. It doesn't matter where she was on Ramos. Whether it's retroactive under Teague's watershed should be taken as its own question, not whether she thought it should have been incorporated in the first place. You're right, Justice Kagan. I still am learning from you.

All right, should we move on to the Mississippi case? Yes. Now, this is the case where we talked about that medical marijuana was on the ballot in Mississippi, one, overwhelmingly. If Sarah had been broadcasting from podcasting from Jackson instead of Northern Virginia, she could have been on something very different to deal with her cold. and we were talking about this because I wanted to know where Justice Isker would fall on the question, a very interesting question that arose under the Mississippi Constitution, and apparently I didn't tell everybody how the Mississippi Supreme Court ruled in the case and why it trended, and it trended because the Mississippi Supreme Court struck down

the constitutional amendment, passed with a very strong majority vote that legalized medical marijuana. And it struck it down exactly for the reasons that Justice Isker would have struck it down, which was that the constitution pretty explicitly states that there are going to be, that there are five congressional or were five congressional districts in Mississippi. The signatures that met the requirement, no more than 20% could come from any one of these five districts. So when Mississippi went down to four districts, it was mathematically impossible for a ballot initiative to meet those constitutional requirements. So if you just had no more than 20% from each congressional district,

you would only get to 80% of the number that you needed to get on the ballot. And so therefore, the argument was made to the Mississippi Supreme Court that there's no way anymore that the Mississippi Constitution is in essence broken, that the provision for putting a law on the, a constitutional amendment on the ballot is broken because Wrong, wrong, wrong, wrong, wrong, wrong. When you're saying original intent, you should not say original intent when you're talking about originalism. You should say original public meaning. That nobody would have taken this provision to mean that you get to do

a constitutional amendment by referendum only if there are five or more, only if there are five or more congressional districts, not if you lose one. And so the original public meaning would be that there should be an equal, that the number of ballot signatures should be, that the percentage should be equalized

amongst the number of congressional districts. But it doesn't say that. It doesn't say that. And I dispute that the original public meaning of that language would have been that there were five congressional seats and they just wrote it too specifically. But we had lots of people write in to point out to me, and I'll just take one person's. How does your textualist interpretation change when you recognize that at the time of the drafting of the 1890 Mississippi Constitution, apportionment had been increasing the size of Congress every time except for some weirdness in 1843? What about the fact that the

size of the house wasn't capped at 435 until the reapportionment act of 1929. Yeah, I mean, I guess it makes it less egregious what the Mississippi constitutional drafters did, but it doesn't change what the text says. And it, to me, doesn't even change what the original public meaning was. This person, by the way, also added somewhat unrelatedly, but how is your willingness to give full faith that Constitution as a whole affected by the fact that its framers specifically wrote the 1890 Constitution to disenfranchise and generally oppress blacks in the state at the time with much uglier language? But all the more reason that you take the text as it is, you don't try to rewrite it. Because to the extent parts of that Mississippi Constitution violate the federal constitution, I don't want us rewriting that for them. I want us invalidating it and making them do it again and or just falling under federal law.

We also had, related to that discussion another question. In my mind, there seems to be a lot of overlap between an original public meaning originalist and a textualist. Maybe they're the same thing. The main ambiguity left is what to do when the text is ambiguous, contradictory, or poorly drafted, as in the case you discussed. Sarah, and my inclination is to say that fixing problems with a law is the job of the legislature and not a job for the courts. But I imagine some people feel differently and would delve into the congressional record to try to discern what the legislature meant to write, rather than what they actually wrote. Okay, so let's break this down a little, because there are three different methods of interpretation that he's actually referencing.

Original public meaning, textualism, and legislative intent is the third one. Legislative intent, I think, is the only way you save this Mississippi provision and just make it like wave a wand and say it means 25%, not 20%. See, we fixed it by the courts. I think that is an incredibly dangerous thing to do because while it is clear here how you would fix it, that is not going to be the case for the vast, vast majority of drafting screw-ups. And the best thing to do is always to leave it to the most politically accountable branch to just fix the problem. It's not that hard. It's not sort of unfixable in any sense. They can easily fix it. But on the textual are textualists, but not all textualists are originalists. Do you agree with that? I have to think through that. You just kicked up a firestorm in our inbox.

I know. Yeah. Because all original public meaning still revolves around the text it starts with the text it correct it starts yeah but absolutely not all textualists rely on the original public meaning of the text i i think of your i think your statement is, as I'm processing it, I'm going to generally agree with it. I'm going to generally agree with it. Originalism still being the one true faith of legal conservatives, as we've seen, right? Textualism in the Gorsuch sense is not pleasing a lot of people.

As we've seen, right? Textualism in the Gorsuch sense is not pleasing a lot of people. And then there's the whole accusation when you're a literalist, which is what you call a textual lines. And then when you're talking about constitutional interpretation with the Constitution written in such a way that it is shorter than the vast majority of statutes that are now drafted, the entire U.S. Constitution is shorter than most statutes. So when you have a First Amendment, which is talking about Congress shall make no law, you know, respecting the freedom of speech, what's the textualist approach to that? Because there's this word, the freedom of speech, that has a meaning that has to be discerned somehow. And the originalist response, well, there's an original public meaning of what the freedom of speech is because we knew that there was a certain kind of framework for speech at the time of the founding.

Somebody who's a strict textualist would not look at that. a strict textualist would not look at that. But it makes it a very difficult interpretive task then. And so, yeah, I think directionally, you're right. And I will solicit reader feedback on this, and we'll get it. And can I just say how much I love our listeners when you have, I would say within 40 minutes of the posting the podcast, somebody could write to us about not just the Mississippi Constitution of 1890, but the Apportionment Act of 1929. And like they're probably listening, screaming at their iPhone. What about 1929, Sarah?

And we didn't just get one. We didn't just get two. We got a lot. We got a lot of apportionment active 1929ers out there. I know. I know. No, it's fantastic. It's fantastic.

So that's your assignment, listeners. Answer Sarah's question. Answer Sarah's fantastic. So that's your assignment, listeners. Answer Sarah's question. Answer Sarah's question. And we're going to get some really good answers, I think. So, yeah. All right. What's next? Okay. What is next?

This is before we talk about mugshots. Let's talk about tenure and North Carolina. And it's a very interesting, a very interesting issue. And that very interesting issue is, all right, so I'll just give you some basic parameters. So Nicole Hannah-Jones, she's won a Pulitzer Prize. She has a MacArthur Fellowship Genius Grant. She was offered a tenure-track position at UNC-Chapel Hills Hussman School of Journalism and Media, okay, in what it's called its Knight Chair, K-N-I-G-H-T Chair in Race and Investigative Journalism. It's a tenured professorship. So she's offered that chair in Race and Investigative Journalism, and it created a firestorm of

objection because, as we have discussed many times, mainly on the Dispatch podcast, less on this podcast, the 1619 Project came under a lot of criticism from historians who believed that it was too reductionist in its larger sort of approach to American history, had some errors in its description, just its narrative description of American history. And there were stealth edits to the 1619 Project that the New York Times Magazine mounted that were improper. In fact, they stealth edited some of the most contentious statements in the 1619 Project. So if you want to talk about problems with the 1619 Project, there is a lot out there that you can dive into that rabbit hole and you can absolutely discover very serious problems

with individual aspects of the 1619 Project. Now, a lot of people, when they think of the 1619 Project. Now, a lot of people, when they think of the 1619 Project, they don't realize that there were a lot of essays, and there was a lot of content, and not all of it had suffered from some of these problems. There were some of these essays that I read and benefited from greatly, some things that I read and thought, that's just not right. A lot historians agreed okay so she is offered this tenure track position um the way tenure is typically granted is that it's it's there's generally a process where a an academic department will say for example example, we have a slot, in this case, for the

night chair in race and investigative journalism. We make our determination based on the academic freedom of the department and the academic priorities of the department. That determination is essentially a tenure recommendation that is sent in different universities of different processes, sent up to, say, the chancellor of the school or the president of the school, then often just kind of rubber-stamped by the board. The boards tend to receive these applications, and as a general matter, they defer to the departments. They defer to the academic branches. But in this case, it was announced that Hannah Nicole, Nicole Hannah Jones was going to receive this tenured professorship and the board began to object.

The chancellor stood up for Hannah Jones before the board, but then the board balked at it, and then UNC essentially created a workaround where they offered her a position that the board did not have to approve, which was sort of a five-year appointment that could be renewed or she could be reviewed for tenure afterward. Okay, that's the big picture. A huge amount of, so a lot of conservatives were saying, what on earth is UNC Chapel Hill doing promoting this person? A lot of progressives are going, wait a minute, I thought you conservatives

like academic freedom and you hated cancel culture and you've put pressure on the board and now the board is intervening and that's censorship fire the foundation for individual rights and education which is a full disclosure for you guys i used to be president of fire i think i was the very first member of fire's legal network before i became president i've litigated with FIRE folks. I ran FIRE. I've worked with FIRE for years. So I am a fan of the FIRE approach, which is very rigorously nonpartisan defense of civil liberties. And here's what they said. FIRE is investigating reports that the University of North Carolina Chapel Hill's Board of Trustees declined to follow through on recommendations from the faculty and chancellor

that journalist Hannah Nicole Jones, best known as the creator of New York Times 1619 Project, be granted a tenured appointment as the night chair in race relations. If it is accurate that this refusal was the result of viewpoint discrimination against Hannah Jones, particularly based on political opposition to her appointment, this decision has disturbing implications for academic freedom. I said the statement is correct, an investigation is necessary, and if the refusal to offer tenure was the result of viewpoint discrimination, then there are indeed disturbing implications for academic freedom,

and a lot of folks did not like that. Okay. That's a long windup. But a good one. That's a long introduction. So, Sarah, this is basically the argument. You see this come up a lot in arguments about professors. Okay, so you will have a professor who has a point of view,

and also Hannah, Nicole Jones, or why do I keep saying Hannah Nicole? I keep thinking, I'm getting, I keep getting names reversed. All right. So often Nicole Hannah-Jones, she's also very confrontational on Twitter. I was just going to say that, that that's an interesting wrinkle to this, that there's a difference between viewpoint discrimination and attitudinal discrimination, if you will, that not wanting someone who is so aggressive on Twitter. You know, we saw that play out in some of the confirmation hearings. Obviously, it's a totally different thing when you're talking about a Senate-confirmed

position in the federal government and the executive branch, uh, maybe worse, maybe better. I don't know. But, uh, you know, she has certain troll like characteristics on Twitter.

Yeah. Yeah. So we have gone over sort of this legal and we've gone over this legal analysis a few times, but let's go over it super briefly again with an academic freedom twist. And that is, while I do not, I, David French, do not have a constitutional right to be appointed to the night chair in race and investigative journalism, I do have a constitutional right

not to be denied it for unconstitutional retaliatory reasons related to viewpoint, related to constitutionally protected speech, etc. And so the question would be, was this a dispassionate analysis of her academic credentials and the presence or lack thereof of her academic credentials? Was this an analysis of her scholarship, an analysis of, and here's the academic freedom twist to it, as a general matter, in the academic freedom context, it is frowned upon to have as a criteria anything that smacks of so-called, quote-unquote, collegiality. Because that has been sort of the camel's nose under the tent of viewpoint discrimination. And it's been used against, that concept has been used against a lot of professors sort of as a workaround. The problem isn't their politics. The problem isn't their religion. It's just that they're just not collegial. Well, how can you dispute that? That becomes a very difficult task. And so if the board, if there's... Oh, go ahead. Well, and also interesting. So on the one hand, I think they have a better case

for the collegiality point than in most. On the other hand, for the board to be the one raising that also a little bit undermines the collegiality point. So like plus one because of her Twitter feed, minus one because it's the board. Yeah, because it's the board. Yeah, because they're not the ones who'd be interacting with her.

Nor have they, therefore they have no idea. Right. And the other thing is, the very interesting thing here is there have been circumstances where you have had a professor who has said, this has happened so many times, Sarah. A professor says something terrible, like bad. Probably the paradigmatic post-9-11 example of that is this guy named Ward Churchill out of University of Colorado. And he compared the victims to the 9-11 attack to little Adolph Eichmanns, okay?

The people who were killed in the Twin Towers. And he wrote that in an essay that sort of resurfaced sometime after 9-11. And there was a huge outcry, huge outcry. Now, that's repugnant that he said that. There's no question that's repugnant that he said that. There's no question that's repugnant that he said that. It's also a constitutionally protective expression. So then what ended up happening was people realized, wait a minute, we can't fire him from UC Boulder because of his speech. So they began to comb through his academic background for another reason to fire him. And they found that

he didn't have the same academic credentials as other kinds of department chairs, that this or that aspect of his past resume was kind of thin. And still, that's not going to work for you because everyone knew that's pretextual, that he would just be sailing along fine at UC Boulder if he had not said those words. However, later on, there was some discovery of plagiarism, and plagiarism is a no-no,

no matter what you've said. In this circumstance, the question would be, if the board is saying, no, no, no, no, it's not because we had a conservative letter-writing campaign to deny her tenure. It's actually because of these specific historical problems with the 1619 Project. And unwinding all of that would be really, really difficult because from a credential standpoint, you've got that Pulitzer Prize and a MacArthur grant, and now a lot of people would say she only got it because this was all progressive home cooking all the way down. But from a resume standpoint, she's coming into that board meeting qualified from a resume standpoint. Well, this will be interesting to see how that lawsuit's going to go. Or if she files.

I mean, if she files. I mean, she's got the five-year appointment. Yeah. So, who knows? But it's an interesting question. All right, Sarah, mugshots. Yeah, last couple things here. So I was reflecting as we've seen some mugshots of famous people of late. There's like really two different categories of mugshots. there's like really two different categories of mugshots. There's the not smiling, looking kind of harried mugshot. And then there's the smiling, nothing's wrong mugshot. And I'm just curious,

David, if either for yourself, if you get arrested or if you're advising a client, on the one hand, the like looking sad and remorseful kind of makes you look guilty. And then that picture splashed everywhere and you look like a bad guy. On the other hand, smiling for your mugshot is a little bit weird. And by the way, if you're like, who smiles for their mugshot? Look at the Duggar mugshot. Oh, I was just going to say. It's interesting because on the one hand, you're like, okay, he is not remorseful. Got it. And on the other hand, you're like, yeah, you were just arrested for child pornography.

Maybe you shouldn't be smiling quite so big. So what do you think, David? Who's got the better argument here? I'm going to say it's super highly contextual because the originator, so far as I can remember, and astute listeners will no doubt tell me of somebody before this, but the originator of the mugshot grin in the modern era is Tom DeLay. Yeah, at least as far as I know, yeah. Yeah, Tom DeLay was arrested really on kind of trumped up. It was a lot of it was this kind of Texas has a history. Your state, Sarah, has a history of some politicized prosecutions. We do.

And there was a prosecution of Tom DeLay. And he was for his mugshot. He's in a suit. I'm looking at it right now. It looks like a congressional, like he's sitting down for a congressional yearbook photo. He's got his congressional pin. He's smiling. And I think in that circumstance, what he did was appropriate because this was something that from the beginning, his prosecution smacked of a lot of political reprisals. It felt very fully politicized. And so for him to sort of say this, if this was a tit for tat game of politics, for him to sit down and just smile for that kind of thought you know he took

away a kind of propaganda moment uh from this politicized prosecution but if you're josh duggar um and you've just been arrested for child porn and the facts come out uh one of the agents said this is one of the five worst instances that he's ever seen in his career. And when the agents come, Duggar has reportedly told them, are y'all here because someone's downloading child porn? And it wasn't any old smile, Sarah. It was kind of an impish little smile. any old smile, Sarah, it was kind of an impish little smile. And if I was the prosecutor, you know what I would do? I would just set that mugshot up in the corner of the, if I was allowed to, I would just set that mugshot up, put it poster sized in somewhere in the courtroom is

like, well, that's my evidence. I'm going to bring it at some point where the jury gets to look at that little impish grin throughout every moment of, one of the most punchable faces given the circumstances I've ever seen. So in that circumstance, I think that's a giant mistake. I think that's a giant mistake. So that's why I say context matters. What about you? I just, I thought it was so bizarre when I saw it. And then I tried to like step back and

be like, okay, but imagine a world similar to our Kavanaugh conversation. Like, yeah, but I'm going into this thinking he did it rightly or wrongly. That's just how I looked at the photo. So now imagine that you didn't do it. You're totally innocent and they arrest you on, I mean, that'd be wildly upsetting if someone marched into your house right now, David, and arrested you on federal child porn charges. And you want to convey to the world that you didn't do it. And then it's like, okay, now what do you do? I still don't think you do that. I don't think that's the right look. No, you, I would think you look grim and determined. I would think you look grim and determined. Yeah.

You don't want to look sad like you did it, but like, yeah, you don't want the impish grin either direction. You did it. You didn't do it. No impish grin. So anyway, that's how I approached it. But I like really thought about it for a long time because it's a really important decision that you make in some of these cases. The more celebrity you are. Yeah, absolutely. Because that's going to be

the image people are going to have in their mind of you. And as soon as you said, you sent me in the Slack, let's talk mugshots. I thought she's going to bring up Josh Duggar because I have not been able to get that like kind of impish grin out of my mind. Yeah, the fact that it was a month ago and I today was like, no, we got to talk about mugshots tells you what a mistake

that picture was. Yeah. All right, David. We asked for the wine pairings and we received the wine pairings. First, a wonderful email. I was thinking cheap wines like Steakhouse Red,

but as you point out, cicadas only come around every 17 years, so they call for a splurge. Begin with a salad course and a Nicolas Filate Rosé. It's light and not too sweet and one of my wife's favorites. It will go well with greens, a nice vinaigrette, and some Parmigiano-Reggiano. For something like Cicada Alfredo, I would recommend a Barolo, the king of Italian wines. I like this Francesco Rinaldi. It will cut through the butter and the cream and is just a great wine. Open the bottle about 30 minutes before you drink it.

Perfection. Thank you. And now to dive into the comment section. For hors d'oeuvres, I would pair a nice Tempranillo. A bottle of our Taddy's 2017 La Paz de Balesteros would fit the bill nicely. The bold, firm tannins will offset the exotic spice of the cicada butt fungus, I can't even. This is so great. Terroir provides a psychically matching quality, while the intense ripe fruit nose will help to mellow the hallucinogenic

qualities of the nosh. I recommend pairing with a strong blue cheese such as a Stilton or Cabrales and truffled Marcona almonds so that the cicada butt fungus has fungal companions. Good point. You can argue with that. I can't argue with it.

This course is best served accompanied by the sound of the Dispatch's founding editor weeping over the waste of fine Spanish wine. To accompany a main course of Cicada Fettuccine Alfredo, I would recommend a 2015 bottle of Austin Hope's Morvejre. A healthy dose of acidity helps the wine balance the rich, creamy pasta dish. creamy pasta dish, while an Italian barbara or nebbiolo might do the trick, it seems only fitting to pair a dish featuring an American, quote, fruit of the fields, whose carapaces you have so lovingly harvested with a similarly American fruit of the vine. This Paso Robles varietal fits the bill nicely. The label art of the bottle should also complement the experience.

As a child's rendering of what appears to be man-bear-pig, it will transport you into the mentality of a six-year-old as you realize you are in fact eating bugs. With dessert, I would recommend a bottle of Bollinger's RD2004. As a vintage that spent almost as long resting on leaves prior to disgorgement as the cicadas spent underground prior to their eruption, it will provide a perfect complement to whatever novel cicada dessert you have in store. The fresh, sweet palate of the wine paired with the aromatic intensity of a long-aged wine will

complement the cicadas in flavor, style, and character. I recommend cicada chip cookies sprinkled with flaky salt such as Maldon and cicada wings. Fantastic. Fantastic. We have the best listeners. The best. The absolute best, who will shortly engage in hand-to-hand combat with you in the email inbox over textualism and originalism,

and it will be fantastic. Well, that's all i got today david that's all i got we we put i think 73 topics into one hour and three minutes we did it that's pretty impressive all right well we'll be back monday and can i go ahead and pre-announce that we probably are going to have a guest monday towards the end of the podcast our very own cicada alec dent our very own cicada uh connoisseur is going to come in and assuming he's still alive and not consumed entirely by fungus is going to share the experience i've been deeply concerned by some of the things he's saying in our slack channel that like for instance he did talk to experts about any health dangers related to eating this many cicadas.

And in particular, the butt fungus that I have brought up before. And they said that, nope, the cicadas are fine. And the butt fungus will not affect humans, except that if you eat the cicadas in large enough numbers, it could have some psychedelic effect. the cicadas in large enough numbers, it could have some psychedelic effect. Interesting. Okay. Which could suddenly create a surge in cicada popularity. Or you could just have some DayQuil and call it a day. Exactly. So we'll hear firsthand from Alec, assuming he's willing to come on. We don't want to make any promises. If he's willing to come on, we'll hear firsthand from Alec and we'll see how it goes.

So we will be back on Monday. Are we going to have opinions Monday? Yes. That's not Memorial Day. The next week is. Right. So maybe we'll have some opinions. But at the very least we'll probably have some cicada analysis. So you will not want to miss that.

Please go rate us on Apple Podcasts. Please go subscribe. Please check out thedispatch.com and we will talk to you on Monday. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family give the moms in your life an aura digital picture frame pre-loaded with decades of family photos she'll love looking back on your childhood memories and seeing what you're up to today even better with unlimited storage and an easy to use app you can keep updating mom's frame with new photos so it's the gift that keeps on giving and And to be clear, every mom in my life has this frame.

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