Advisory Opinions - About Those Dueling Abortion Rulings...

Episode Date: April 11, 2023

Federal courts, bad incentives, culture war exhibitionism, and abortion distortion… And the week's only started. But Sarah and host emeritus are here for you to make sense of: -Dueling abortion rulings in Texas and Washington state -Clarence Thomas’ friendship with Harlan Crow -Transgender cases and the winding down of shadow dockets -Gov. Greg Abbott wants to pardon a convicted murderer under Texas' "Stand Your Ground" law Show Notes: -Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA -Mifepristone and the rule of law -Kluge v Brownsburg Community School Corp. -The case of the Christian professor and pronouns Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgerd. That's David French. And David, it's not slowing down. It's not June, man. This is April. I thought we could ease into June. We're going to talk about the dueling abortion rulings in Texas and Washington state. Yes, we will talk about the Clarence Thomas ProPublica article. And then we've got sort of a transgender basket. The Supreme Court rejects a case about sports. The Biden administration releases a proposed rulemaking. And then we have

a pronoun case as well. And finally, Governor Greg Abbott talking about pardoning a guy in Texas related to stand your ground laws that obviously David will have thoughts on. Indeed. All right, David, let's start with the dueling abortion rulings. Do you want to set this up a little bit? Yeah. So what we have are, this is a situation that I don't think we really, maybe even in all our discussions of nationwide injunctions, hadn't really set up well, but in hindsight seems really obvious. And that is, what do you do if one court in one jurisdiction says stop, and another court in another jurisdiction says go. So it's really relatively rare.

You know, when all this talk about nationwide injunctions, it hasn't happened much before. There's like one or two around, for instance, DACA or Obamacare, where you can sort of find them. And even here, I think that the better argument is that these are in direct conflict with each other. But even here, there's an argument that there's not at least because one of them, the Texas one, is about the 2020, sorry, 2000 approval of Mifeprestone, the RU486 abortion drug that you might have heard about. And the other one is about the 2023 restrictions. And so in theory, if you get rid of the 2000 approval, the 2023 restrictions are meaningless. On the other hand,

the injunction in the 2023 restriction case said that the FDA was required to maintain the status quo. And so that's where the duelingness comes from. Yes. So what we basically have is a lawsuit against the FDA approval of the drug, one of the two drugs, the first drug and the two drug cocktail that is typically used for medical abortions. And so essentially what you're doing is you're the plaintiffs are doing is saying this this 2000 approval is was unlawful, was improper, and they're challenging this in court. Now, what's interesting about this are a number of things beyond the merits of the case.

The merits are the least interesting part in terms of how this is going to get resolved. It ain't going to be on the merits. And if you're wondering how we're now litigating a 2000 approval, like the year 2000, like Y2K. You're right. That's weird. Yeah. Yeah. So we've got a lot here to talk about that has nothing to do, has nothing at all to do with whether the FDA properly approved the drug. So one of the questions is standing. So these are doctors who are claiming in essence that they have standing because other doctors may prescribe the drug. The doctors who are raising this lawsuit are essentially saying other doctors could prescribe the drug. The drug has problems, which should have required FDA not to approve it, those problems have spillover effects, including patients going

into the hospital, patients being sent to them, for example, for further treatment, et cetera. So that's going to give them standing. The standing is derived from the secondary effects of the bad effects of the medicine. Then you have a statute of limitations issue. Now, there was a 2000 approval, an administrative challenge to that approval that I don't believe was resolved until 2016, very long administrative process, but lawsuit on that 2000 approval that was challenged and the challenge wasn't resolved

until 2016 should have been brought months earlier in 2022, even though plaintiffs say, well, wait a minute, this was essentially reset. The 2000 approval was reset by a much later, I believe, 2016 expansion and revision of the terms of the approval of the medication. There's an exhaustion of claims question. There are a lot of questions here, Sarah, that will result in the case, I would say, largely being ultimately decided without any reference at all to the underlying merits of the FDA approval is my best read on it. And my best read on which injunction controls is unclear. Therefore, I don't know about you, but are you expecting some appellate activity on this really, really soon? Because the judge in the Northern District of Texas who

issued the injunction against the drug has stayed the ruling for a few days, I believe only about seven days. So I'm expecting some sort of appellate something before the seven days is my best guess, but I'd love to hear your thoughts on A, which injunction controls, B, standing, C, statute of limitations before we get into the actual merits of the claim itself. Nobody's getting into the merits of this case, except every headline in America.

But if you're a lawyer, the merits are so... Tertiary isn't even the right thing here. Okay. So one, I think there were some shenanigans here, David. We knew, everyone knew that the Kazmarek, Judge Kazmarek was the sort of fireworks case here. The hearing got a lot of coverage. Even just the filings got quite a bit of coverage. And so we've been waiting for about six weeks for this. Now, you and I talked about whether to just cover the hearing itself or the complaints, and we decided to wait for the actual opinion because,

frankly, otherwise it's just a lot of conjecture about how a district court hearing went. This podcast is generally an appellate podcast. But that's all to say, everyone knew this was coming any day now type thing. So it comes out on Friday afternoon. And then two hours later, you have the quote unquote dueling injunction out of Washington. A lot of people speculating that that's not a coincidence in timing. And let me tell you why I at least acknowledge the possibility that it's not a coincidence, which is without the dueling injunction, which the opinion's pretty flimsy in the Washington state one in terms of it's not a nationwide injunction. It only applies to the states that sued, but it is an injunction instead of being an administrative 705 state.

It doesn't matter what that is right now. What matters is that it was just sort of like, yeah, yeah, definitely for sure. And let's not worry about standing right now or any of these other nitty gritty things that matter. Let's just do it. So there's that. But also, if you want to talk about speeding up appellate review, you know what will do it? Dueling injunctions where the government has to find a resolution. So to get to your point, David, yes, I think this will have fast resolution. The question, though, is whether it's going to come from the Fifth Circuit, which in the past has not felt a lot of need for speed, if you will, on some of these things, or whether, in fact, the Supreme Court is going to have to take it before the Fifth Circuit can

rule on it. And we saw some of this happen around that SB8 law, David. You remember, we're like, the Fifth Circuit just didn't really do anything. And then the Supreme Court got, it's like July and we're like, what is happening here? I think we could be heading for something kind of similar. It puts the Department of Justice in a bad spot. But it will get resolved. That's the point of this. And that's going to take me to where my dark place is this weekend. There's a whole lot, I mean, not a whole lot, but more than I'd like, and that's one, AOC on the left, Nancy Mace on the right, saying that the Biden administration should simply ignore the rulings that they don't like from district judges that they don't think are quote unquote

legitimate. And I guess, you know, David, I could do like a whole rant on why that's stupid and undermines the rule of law. I have a whole separate rant on how like particularly stupid it is. This isn't the Supreme Court. This is a district court. You have two layers of review. Hold your horses. Everyone gets district court opinions they don't like. The Trump administration had multiple injunctions on the travel ban, something that they then won at the Supreme Court. They didn't just ignore all of those injunctions in the meantime. That's not how this works. But instead, David, I think I just find it really depressing. I just, for some reason, the fight wasn't in me this weekend. And instead, I just, really, sitting Congresswomen. And Senator Wyden, by the way. So a sitting senator,

not just sort of info, you know, left-wing infotainment celebrity AOC. But also Republican Nancy Mace. I mean, this isn't even, it's bipartisan. Again, it's not stupidity. It's something far more insidious to me. I don't know. I just feel like the rule of law has not been winning a lot of these rounds lately. And it's kind of bothering me.

But, so that's the first thing. I do think this will get resolved quickly on appeal and we will be talking about it more. What was your second one? Um, standing. Neither of these have standing. Uh, but this gets to another problem that frankly, I lay more at the Supreme court's feet than either of these district courts. They know that the standing jurisprudence has not given good guidance to lower courts. And they continue to not resolve it over the objections of some of the justices, by the way. But here's the result is that they're like, yeah, they're standing in the cases that I think there should be standing in. So there's that. I mean, in the Texas case, you have a pro-life doctor's group suing.

Now, I mean, again, I don't think they have standing, but we've seen doctor's groups sue on the other side before, for instance. Right. And so this gets to the abortion distortion when it comes to standing idea, which has happened in the past. I wonder whether left-wing groups will see why that expanding standing this gets to the abortion distortion when it comes to standing idea, which has happened in the past.

I wonder whether left-wing groups will see why that expanding standing was a double-edged sword, but maybe not. Maybe, I think there are people of good faith out there who just legitimately believe, let's just expand the standing requirements. We should have more lawsuits challenging government behavior, not fewer. I'm open to that argument. Frankly, conservatives in general have been for contracting standing. I think now they're more in favor of expanding standing. I'm not sure anyone's over time been principled on this in terms of one side or another, but I know individuals have been. Yeah, yeah. As the sides go, it's whichever side feels presently insecure about... And right now both do. So they're both like, yeah. As the sides go, it's whichever side feels presently insecure about. And right now both do. So they're both like, yeah, more standing.

The Washington case is brought on behalf of states, basically sitting on behalf of their citizens' interests. That also has been, as we've talked about, an area of a lot of interest to the Supreme Court. Do states, what is their special solicitude, quote unquote, to bring cases? We certainly know states can bring cases when it's dealing with their own sovereign power, but this isn't that. This is bringing a case on behalf of their citizens. What? That's not even, that's not a thing. At least in Massachusetts v. EPA, the whole argument, and again, you can smirk if you want, but it was Massachusetts will literally lose part of Massachusetts because of climate change as their beaches erode, etc. So there won't be as much of Massachusetts. That's our sovereign interest. I don't know.

There won't be as much of Massachusetts. That's my very loose explanation of how Massachusetts, the EPA went down. I like that. There will be less Massachusetts. And so we Massachusetts want all of our Massachusetts back. These cases have enormous procedural standing, et cetera, problems. They're both great cases of abortion distortion on both sides, I think, in terms of the hoops that the judges had to jump through in order to get to the merits. What was third, David? Statute of limitations. Oh, okay. So this is another procedural problem with the Texas case, not the Washington case.

So in the Texas case, remember I said, this is like a Y2K case. Like literally I was in college when they're talking about reaching back. It's been 23 years. So how are they able to do that? They're arguing, it's not obscure, but it's kind of obscure administrative procedure doctrine called reopening. That basically if the agency reopened the discussion over something that happened, they approved in the past or an action they took in the past, that then that reopening is when the statute of limitations tolls from. In this case, they're arguing that a reopening happened in 2016 and that allows them to reach back to that 2000 approval. The FDA is a little bit unique because

generally when we talk about reopening, it's very easy to see whether they are simply revisiting a previous decision. When you're talking about the FDA looking at drugs, you're constantly re-looking at drugs and what they're good for, what they're not going to be good for, new studies, etc. That, at least in the past, I don't think has really been the foundation for a true reopening argument like this. I think no, but I'm not a reopening expert. It should go without needing to say. So there's that problem. But David, overall, again, I find the two opinions a little bit depressing, except that like there have been bonkers district court opinions every day of the year going back forever. So in that sense, it's like,

there's two bonkers district court opinions. I think they're both wrong. And I do want to get to the merits in a second, because that is a slightly different discussion. But the merits don't matter if you can't get in the courthouse door. And I don't think either of these get in the courthouse door. But what I have found really upsetting is the reaction to it, that now we're just at a point where it's not even like headline news, really, that if you don't like a district court opinion, we're just not going to follow it anymore. And I see no downsides to that. AOC or Nancy Mace or Ron Wyden. Really? You don't, nothing just seems okay to you. Okay. Yeah. Let me, let's pause on, on this for a minute because I'm getting a lot of questions on things like, well, how do we go forward when the courts are nothing but

another sort of highly politicized, extremely corrupt institution like our legislature and our executive. And I'm thinking, objection, presuming facts, not an evidence. Okay. I want to stick up for the court system here for a moment. Let's just put aside for a moment the side eye that we both have at the district court opinions, the both of these district court opinions, which we have side eye at both district court opinions for different reasons. And just, and as you said, note for the record that it is not uncommon to get, and has never been uncommon, especially with the combination of forum shopping and just the sheer number of district court judges to get some pretty interesting district court opinions.

I'm thinking, for example, also of remember the special master down in the northern, I mean, the southern district of Florida with around Trump. Oh, right. Right. That's a great example of like total bonkers stuff that like, just give it a sec, guys, this will work out. Yes. Yes. Just give it a moment. Just give it a moment. And, and there have been district court opinions that are that merit side eye. It's a legal process. It's a legal process. And the fact that everything doesn't get resolved in 24, 48, 72 hours

is actually okay. It's actually all right. And then the other thing that I keep getting back to is a lot of people are questioning, quote unquote, the legitimacy of the courts based entirely on the outcome of cases. Okay. The case is not coming out the way that I want the case to come out. So therefore, there's something illegitimate about the courts. Because I really haven't heard a sophisticated argument that says there's something other at its essence illegitimate about the court system. You're not dealing with district court judges or appellate court judges who are appointed outside of the normal process of the rule of law. As someone who's, you know, a lot of people

on my left who are really angry at the courts, look at conservative judges, and this is kind of shading into another area, and believe that some of them are corrupt. I look at the jurisprudence from conservative judges and you know what I see? A lot of conservative jurisprudence. It is not corrupt to have conservative jurisprudence. That is a legal philosophy that you may disagree with, but it is not corrupt to hold to that legal philosophy. with, but it is not corrupt to hold to that legal philosophy. It is. So, you know, again, I don't want to shade too much into the other conversation, but one of the, one of the markers for corruption for me is not, is Judge Smith ruling consistent with Judge Smith's 40 years of legal philosophy? A, a strain, a question would arise for me is if Judge Smith departed

from his or her legal philosophy to issue a ruling in a case involving suspicious circumstances, that would be indicia or evidence of corruption. But being an originalist is not corruption. Okay, let's just get that out there. Neither is being a progressive jurist. It is not corruption. And so I'm getting really weary of this analysis of the courts that goes something along the lines of, man, courts are really ruling against the positions I would like them to rule for. Therefore, the judges are corrupt. The system

is illegitimate. And let's chuck it. No, no. And the interesting thing is every one of these layers of courts and really every one of the jurists that people are angry about, et cetera, et cetera. that people are angry about, et cetera, et cetera, it's hard for me to think of an exception where these courts and or these jurists ruled in such a way as to save the American election in 2020. So that was valid, right? And that went against, quote unquote, partisan interest, right? And we just skate over that as if that's an irrelevant factor in the consideration of whether or not the courts are corrupt when the fact of the matter is the courts held on a bipartisan basis, and by bipartisan, I mean by who nominated them, one of the severest stress tests on our system that we've experienced in my lifetime. And they just held and they went from a bulwark of democracy in November 2020

through January 2021. And now they're illegitimate. No, no. That's why I don't like it. That's why it feels so bad to me is because it's not, it's so cheap. It's so transparent. And yet it's so effective. And it's what other people believe. They're not just by themselves out there on some island saying this. phenomenon. But as we've learned, these Twitter phenomena, they leak out all over the real world. And it is leaking out all over the real world. And let's just press the pause button on the crisis and the rule of law until the process works itself out. I do want to give one pushback though, David. I don't think that this happens in an era of the judicial filibuster. Let me explain. Agree, but explain. And remember that Harry Reid got rid of the judicial filibuster for lower court nominees,

and then Mitch McConnell got rid of the filibuster for Supreme Court nominees. For my purposes, it doesn't actually matter which party did it, but the Supreme Court one's not going to be as relevant right now because it's far more recent. That happened with the Gorsuch nomination. And so we haven't, I think, seen the full effects of getting rid of the filibuster for the Supreme Court on Supreme Court nominees. I think Gorsuch, Kavanaugh, and Barrett would have been the nominees for any Republican in any era. Kavanaugh and Barrett would have been the nominees for any Republican in any era. So leave that aside for a second. I think getting rid of the judicial filibuster for Supreme Court nominees has affected the lower court nominees, but certainly getting rid of

the judicial filibuster for the lower court nominees, we've had a longer runway to see the effects. I would argue that it is affecting how people who want to be judges act and how judges act and then how people treat those judges when they act in a way that they don't like. So I'm going to take those in reverse order. One, if you knew that Judge Kazmarek or whichever judge ruled in that case had bipartisan support in order to get onto the bench in the first place, I think it would just undermine anyone saying that the courts are illegitimate. You can just ignore this decision because the Senate was such a deliberative body on these things. and you had to have so much bipartisan support to move anything, it just sort of took the wind out of those sails because there were

so many deals and scrutiny being applied to these judges. So back up a second then. How do I think it's changing the way the judges behave? Well, I think that the Kaczmarek opinion itself has some things in it that wouldn't be in there if the judicial filibuster were still in place. For instance, there's a footnote about why he's not going to use the term fetus and only use the term unborn person. There's another footnote about Planned Parenthood's history related to eugenics and the Rockefellers. Those are footnotes. Then in the opinion itself, there's a sentence about how perhaps the 14th Amendment's guarantee of life applies to unborn persons, of life applies to unborn persons, and therefore abortion itself is unconstitutional.

That has nothing to do with the case here. It's just in there as an aside, like thoughts from the desk of Judge Kaczmarek, frankly. And that's why it's one sentence. I think that that is a result of the new incentives on judges without this judicial filibuster, because if you want to get a promotion to the circuit, or you just want to have a reputation within judging, et cetera, you no longer need or want to have that bipartisan support. It used to be the case, David, that you always used to say you nominate the most conservative person you can get confirmed. But if you're only dealing with your own side, that moves the line way over to the flanks of both. And frankly, those people, and now I'm going to move to number one, who wants to be a judge in the first place, but it applies to those who want promotions as well. Your concern is no longer with angering or alienating the middle or the other side. Your concern is getting outflanked. seeing that time and time again. And I think both of these cases are really good examples of that because they both go out of their way to provide fan service to the people who agree with the

outcome in a way that opinions didn't. It was very rare to see an opinion written that way. I'll put it that way. And it's becoming way less rare. Yeah. No, we've talked about this before. and I think it's a really, really important point to underline. It's interesting. In the filibuster era, I was aware back in my practice of law days, when you were working in a legal community, you could see and you would know the lawyers who had expectations or desires to be a judge. And they had a different path that they took than many lawyers who had no expectation or desire to be a judge.

And, you know, one of the things and there were some good, there were some positive and negative aspects of it. One of the positive aspects is many of these people went out of their way to be sort of seen as the, what would be a good way of putting it, very serious and sober minded. In other words, they were not going to go into court and pitch hysterical fits. For example, they had a demeanor that was designed to give people assurance that they were serious and sober minded individuals. It's the John Roberts model, which you can complain about. But the John Roberts model is do as little as possible. Judicial restraint, lawyerly restraint, only deal with the issue directly in front of you,

why would you reach superfluous additional things that could only pin you down later? Yep. And they were scholarly, but in a non-confrontational way. So their scholarship might be, I've just published a law review on the 1907 Constitutional Convention amendment process in the state of Nebraska, something I just completely made up. But maybe an interesting point of administrative law or an interesting point of past state constitutional law or whatever that demonstrated their intellectual seriousness without taking a position on a hot button issue of the day. And so you can begin to see the picture that I'm painting. There was a judicial career track that was sober, that was serious, that was intentionally non-controversial. And this has had several effects to it as far as who got nominated, who got approved, how law was practiced. And now that's changed. correct me if I'm wrong here, we have not had a situation where the president's party did not control the Senate. Not yet. Not yet. That's going to change the dynamic pretty considerably

because back in the era of the filibuster, there was a pressure to confirm qualified judges that existed. And there were a few circumstances where the filibuster was absolutely wielded unjustly. There's just, in my mind, little question of that. But as a general matter, the Senate knew that the judiciary had to be staffed. There had to be people there. And so there was this, again, the system,

I think there's a defensible argument that parts of the system are breaking down, but I think Harry Reid pulled the trigger way fast on this, way fast on this. And we've been living with the consequences ever since, but it has really changed the way in which people who are considering a judicial career or think they might have a judicial career might be possible for them. It's really changed the way you do this because if you go the old route, no one's going to nominate you anymore because you're iffy. You haven't clearly staked out your claim and it's just completely reversed a lot of the incentives. Yeah, last note on this, by the way, is that, and we talked about this before too,

you pick fights with your enemies. And so in a previous Judge Kazmarek opinion, not this one, there's a footnote where he's talking about an amicus brief, basically, and he says, sort of derisively refers to the amicus brief by a lawyer on Twitter, sorry, a law professor on Twitter. Sort of mocking it, derisive about why he doesn't care about this amicus brief, etc. that the government mentioned,

I guess, in the hearing. And it reminded me a lot of Judge Pryor also making snarky comments about reporters that he doesn't like. And it's the same problem. I don't know why these judges are elevating the people who they think aren't helpful, aren't covering the courts well, aren't the law professors who they think are trying to explain the law in good faith to lay people on Twitter or otherwise. Whether you agree with whether he's right or wrong about those individuals, stop it. Stop picking fights with people. If you want to, elevate the people who you think are doing a good job. And I think there are plenty, and I've said that before too. But the picking fights thing is weird. It's beneath the office. And frankly, it elevates the very people who you say you don't want to elevate. And so I question whether you aren't smart and I don't think that's the case. And instead, I think you want to pick the fight. You don't mind elevating them because you're elevating yourself.

Uh, and I don't, again, in a pre-filibuster era, we'd never seen such a thing. And yes, it's a little hard to separate the filibuster from the rise of social media, from sort of the rise of judicial power as Congress has receded, as the executive branch has encroached, all of that. I agree. They're all intertangled in ways that I can't just say it's the filibuster alone, but I think has certainly been an unintended consequence of getting rid of the filibuster. But as you said, David, and I think it's worth a little bit of underlining, there's a reason that the filibuster went away. Maybe it went away too soon,

but frankly, both sides weren't acting in good faith by that point. And we're holding up nominees, acting in good faith by that point. And we're holding up nominees, you know, and the left was holding up especially, and just percentage-wise, the non-white, non-male nominees from Republicans, George W. Bush in this case, Miguel Estrada, Priscilla Owen, Janice Rogers Brown, the people who they thought would make for compelling Supreme Court nominees from Republicans, they wanted to make sure they never got on the circuit courts. It was disgusting. You were more likely to get on with bipartisan support as long as you were a white man. Yuck. And Democrats just like, we're fine with that. And then on the reverse, by the time Obama comes to office, Republicans were just blocking everyone. And they were. And then on the reverse, by the time Obama comes to office, Republicans were just

blocking everyone. And they were. And then they were doing it in a tit for tat. And they pointed back to Miguel Estrada. And then they pointed back to Bork. And like you end up in this like Capulet, you know, Montague situation where, well, it's a pox on both their houses and it will continue forever. And, you know, again, I think Harry pox on both their houses and it will continue forever. And, you know, again, I think Harry Reid made a mistake and I think you're right that he probably pulled the trigger too soon. There were other things

that could have been tried at that point. But nevertheless, it's not like it came out of nowhere. It's true. It's true. You know, and then the Democrats signaled, they amassed 44 votes to filibuster Gorsuch, okay? Which is a really interesting tactical move because there's just no argument that Gorsuch isn't someone qualified for the Supreme Court of the United States. I mean, this is a guy who's about as solid a nominee as you're going to bring forth and traditionally would have received an up or down vote without a filibuster

for decades and decades and decades. I mean, this is not somebody who was susceptible to being borked, for example. I mean, this and they were going to filibuster Gorsuch. But, you know, look, Sarah, we all know that once the filibuster, once Harry Reid pulled the trigger on ending the filibuster for judicial nominees, what that meant was the trigger was going to be pulled by one party or the other on the very next filibuster of a Supreme Court nominee. That was inevitable at that point. with the consequences. But I will still say, I will still say, so far, so far, the court system has held up pretty darn well. That if you're looking at, you know, now again, you and I can point to circumstances where I think an opinion wouldn't, maybe wouldn't have been issued or maybe wouldn't have been written the way it was written. There's a case that we talked about during the pandemic,

remember, where a judge sort of wore out, I believe it was the city of Louisville, for its pandemic-era church regulations, and did so in a court opinion that was far more of a polemic than it was a court opinion traditionally. So you can point to examples like that. But as a general matter, the system has held pretty darn well overall, which is why I strongly object to the illegitimacy argument about the court system. But with the caveat that we've not yet lived through a generation-long shift with the filibuster. And we'll see what that leads to. Well, speaking of the court's legitimacy, let's put a pin in the dueling abortion rulings. Because again, I know we're going to be talking about it

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All right. So late last week, ProPublica published a story about Clarence Thomas vacationing with someone named Harlan Crow. And just a couple quick disclaimers here. Harlan Crow did invest in the dispatch, one of many, but nevertheless. And David, you and I have both stayed at Harlan Crow's property in upstate New York. And additional disclaimer, I have spoken at Harlan Crowe's sponsored events at Old Parkland in Dallas. He sponsors debates. He has this beautiful property in Dallas where he sponsors debates. So I've debated, I believe, three times.

And each time, if I remember correctly, because it's been a while, So each time, if I remember correctly, because it's been a while, but each time I had a left-wing opponent and debating a point of constitutional law. So this is something that he's done. So keep this, by the way, just keep this in mind when we talk about the online reaction. There's a lot of people on the left who have enjoyed Harlan Crowe's hospitality, have been paid an honorarium by Harlan Crowe. Um, so this is just keep that in mind. So that's the triple, the triple disclaimer from my end. And through the course of this ProPublica thing, just a few facts that we'll, we'll put out there. One,

uh, they've been friends for a long time. Two, they go on trips together a lot. Uh, Justice Thomas spends a lot of time at Top Ridge each summer. Two, they go on trips together a lot. Justice Thomas spends a lot of time at Top Ridge each summer. They went on a vacation on a yacht in the South Pacific or somewhere like that. My geography is not great, but it was far away and it sounded nice.

Yeah. And this is where the sticking point is really going to be, Justice Thomas has certainly flown on Harlan Crowe's private jet. Now, I want to asterisk that because I think there's different ways for one to fly on a private jet. Let me just lay those out here. One, you are flying with Harlan Crowe. The jet was going anyway. It doesn't cost additional money. Harlan Crowe invites people on the jet. Two, Harlan Crow is sending the jet to go get you, to pick you up, to bring you to Harlan Crow. As in, you're in DC, the private jet goes to bring you up to upstate New York. Three, Harlan Crow just lets you borrow his private jet to do something wholly without Harlan Crow. Right. ProPublica doesn't distinguish between those three, and I think there are actually pretty large differences between the three. And so that's all to say we don't know

how many or whether, et cetera, fall into which of those three private jet categories. The other thing that ProPublica doesn't cover is any other justices. Because the whole thing is this wasn't disclosed and they have obviously pretty well-placed sources giving them this information, including pictures, et cetera. But there is no question in my mind that Clarence Thomas is not the only justice to use private jets in the last 30 years. Nominated by Republicans and or Democrats. Nope.

And in fairness, I'm sure ProPublica's source doesn't have that information. I will tell you, I don't have the information of who owned the private jets to which I am referring to. I will tell you, I don't have the information of who owned the private jets to which I am referring to. So that's why I'm not going to talk much about it, because I think it's a little unfair to throw out their stuff that I'm like, yeah, but I don't actually have any details about any of this. So, OK, so then the question is, is there a legal problem with it? And is there an ick factor, a moral factor, a prudential factor to it. Also, let's just say then as this report came out, a lot of people then focused on Harlan Crowe, who has a huge historical collection.

And he has a particular interest in 20th century authoritarian regimes, both fascist and communist. He has preserved a lot of artifacts from fascism and communist. He has preserved a lot of, uh, a lot of artifacts from fascism and communism. And that got distorted because I, let's just deal with this right off the bat because it got distorted into this idea that Harlan is some sort of Nazi sympathizer because he has some Hitler artifacts. Um,

interesting that he was tagged as a Nazi sympathizer, but not a communist sympathizer for having Soviet era artifacts because that kind of complicates it because you can't be both. They kind of hated each other with a white hot burning passion, the Nazis and the Soviets.

But let me just deal with this. I don't know. You can tell what David's most worked up about. I don't know Harlan well, but I know Harlan well enough to say the idea that he's some sort of Nazi sympathizer is the most ludicrous thing I've ever heard. And it is absolutely disgusting to me the number of quote unquote serious people who took a partial report about an expansive historical collection and turned that into an ironclad narrative that said that he's a Nazi sympathizer

and that when anyone who actually knows Harlan pushed back on that and said, if you know this man, you know he abhors tyranny, he abhors totalitarianism. Then gang tackled you as having lost all credibility for actually defending a person you know. And then they say to me, well, the dispatch was funded by him. So I'm like, wait a minute, an actual Nazi sympathizer could dangle a check for a billion dollars in front of me. And I'm not going to say, yeah, let's go. I mean, I'm not for sale to Nazis. Okay, Sarah, like how little do you have to think of somebody to say for a couple of speaking

honoraria, you're now for sale to Nazis. I mean, it's insane. So I just want to get that out there. The level of personal vitriol directed at him over that historical collection is blowing my mind. Just blowing my mind. It's absurd. That's the easiest part of all of this. So let's just get it out there.

All right. We may return to it, but I'll leave that be. So on the legal side, the rules for Supreme Court justices, the rules for federal judges changed a couple of weeks ago. Before that change, basically personal hospitality was exempted and personal hospitality, they had some examples of personal hospitality. It's what you think, right? Lodging, meals, et cetera. But are private jets personal hospitality? Is that a lodging? Is it hospitality? Clarence Thomas put out a statement saying that when he

first took the bench, he asked fellow judges what counted, what he needed to disclose. And he was following their advice in not putting this on his financial disclosure. And I guess what I'm telling you is that makes a lot of sense to me, given who was on the bench at that time. There's a lot of subtext to your comments, Sarah. I very much believe that, I guess, because again, ProPublica didn't go through other justices and whether they had ever ridden on private jets owned by very wealthy people. Even though, for instance, I don't think there are any justices currently on the court. I don't know of any, but it's just hard. It's hard to say, aha, we should attack Clarence Thomas for this, but we have no idea if anyone else was ever doing it. That seems pretty relevant to me of whether

he violated the disclosure rules of whether he's a total outlier or not an outlier at all, or maybe kind of an outlier in this one respect, but not this other respect for the legal side of that. It matters a great deal. The disclosure rules have now been changed so that it clearly exempts transportation. So that you're going to have to write your private jet back and forth on your disclosure forms. There's another part to the... And everyone just jumped in their corners, right? What Clarence Thomas did was obviously illegal. What Clarence Thomas did was obviously not part of the

disclosures. I think that the previous disclosure rules were intentionally and very ambiguous. And I believe him that he followed other people's advice because I don't think any of the justices were disclosing anything like what everyone wants them to disclose. But there's another problem, which is welcome to life tenure. What is the actual punishment that you think comes with this? So that then gets us to the second part, which is the ick factor, the prudential side, is this a good idea? It's worth noting, by the way, Harlan Crowe. But that doesn't change the ick factor that much for me, David. What do you think about all of this? So I will tell you this. On the corruption side of this, I'm very firmly on the side of

firmly on the side of no. In the sense that, look, let's just begin with, I have no knowledge, and ProPublica exposed nothing that said that Harlan had business in front of the court. If Harlan had business in front of the court, that changes this whole dynamic a great deal. Okay. So he had no business in front of the court. You had hospitality rules that were open, quite ambiguous, had enough loopholes to drive an 18-wheeler through. So was there a legal problem with what Thomas did? The biggest question I have in my mind is the private jet usage that Har, that Harlan was not involved with. So in other words, if Justice Thomas took the private jet from DC to another place with no Harlan Crow involved there at all, in other words, he's not going to see Harlan or

whatever, or he's not hitching a ride with Harlan where Harlan was already going. I got real questions about that. But I'm with you on, I'm definitely with you on the, I don't know the right word, the ick factor, the vibes, et cetera. And I think that one of the really good rules of thumb, if you're involved in public life and rules are ambiguous and they have loopholes. And if your thought is, okay, this rule is ambiguous, it has loopholes, I'm going to be able to benefit from that. Think about this. think about this. How would you, what is the argument that you're going to make when you're benefiting of the ambiguity, when your benefit from the ambiguity is in the national media? Just think about it along those terms. Is this a practice that my principal defense to

is, well, I could do it. It wasn't illegal, right? If that's the posture, well, it wasn't illegal, but it's the kind of thing that, um, in a reasonable person, not a, not a hyper-partisan person, but in a reasonable person would generate concern, then put pause on it. Press pause. And that's my general view of it. And look, a ton of people are defending Clarence Thomas and defending his integrity. And look, if you look at Clarence Thomas's jurisprudence, Clarence Thomas has been Clarence Thomas. I mean, my gosh, there's just no... Which gets to what the actual problem is. If the problem isn't the disclosure, because the disclosure wasn't clear what was required, and the problem isn't quid pro quo corruption, and the problem is an appearance of quid pro quo corruption, because Clarence

Thomas hasn't changed his jurisprudence in 30 years, then what actually are people trying to get at here other than it makes me feel uncomfortable that Clarence Thomas is living outside the lifestyle of his salary? Well, and I think that it's always good when you're thinking about a situation to, before you open your mouth to engage in a full-throated defense, to think about what would your view be if you just changed all of this, you know, if you just changed the hypo that instead of justice Thomas is justice Sotomayor instead of Harlan Crowe,

it's, I don't know, David Geffen or, you know, a left-wing billionaire, George Soros or George Soros, his son. And they're spending a lot of time together

and going on big vacations together. Yeah, yeah. And providing benefits that would be equivalent of hundreds of thousands of dollars if you had to actually pay for it. Yeah. And Sotomayor is doing that. I'm pretty confident Fox would not be, for example, defending the integrity of

Justice Sotomayor, right? And so I think, so then the question is, well, then is that unfair to question the integrity or is it unfair to defend the integrity or where are we on this? And so I think when you reverse it, it can maybe, if you're a deeply dedicated defender of Clarence Thomas and you reverse the situation and you put Sotomayor in the same situation and try to be honest with yourself and say, what would be your arguments against? Because nobody's saying Sotomayor. Sotomayor's jurisprudence is Sotomayor's jurisprudence, right? We haven't seen any big changes.

At this point, we kind of know her jurisprudence. Yeah, I think that's a clarifying hypo. What is your issue? So again, this goes back to the three different types of private jet use. Because that third one, you're just using his private jet to go from a place that you live to a place that you want to go. And the person who owns the private jet is unrelated to either of those two places. That's just a present. That's a very expensive gift. It comes in the form of transportation. But ProPublica didn't actually explain whether that's what's at issue here, and I don't know the answer to that. And so I would feel differently about that on whatever the example is.

I think that the ick factor comes from the fact... well, let me phrase this as a question, David. Would you feel differently? Do you think others would feel differently? If this was his high school buddy who, um, you know, had a trust fund and was just super wealthy and I don't know, like screwed around on the beach all day and they've been best buddies forever. And this person has no public profile whatsoever. They do nothing. They say nothing. They simply exist with huge amounts of money and their relationship is wholly preexisting. I.e. does it matter that in the George Soros example or the Harlan Crow reality, that they have their own public figures, their own political giving and place in the political world? Is that part of the problem?

Yes. I think without question. That's why I chose the Geffen or Soros counterexample, is because you're talking about people who have very well-developed worldviews on their own, who are billionaires, who expend a lot of resources advancing their view. In that circumstance, it makes sense in many ways why they would be friends, right? That they are people of like, you know, of like mind who have common interests and common intellectual pursuits, perhaps, or whatever. So interestingly enough, the ideological side of it also helps explain an underlying friendship or underlying kinship perhaps. But the, yeah, I do think it's a little bit different if it's like, man, this is my friend Joe from the block who hit it big, right?

You know, we grew up together and we've always been close. And, you know, from that circumstance, but filtered through the current political moment, a lot of those lines would be blurred. But I think it does make it different. But again, I just go back to this idea of if you're a person making decisions about, you know, the things you're going to do, and there's a lot of ambiguity, on which direction do you push the ambiguity? Is, to me, the real question here. That's the underlying piece of wisdom and discretion about this. But David, the downside of that is exactly what we see happening. So you, Clarence Thomas,

are friends with Harlan Crowe. And you, Clarence Thomas, are friends with Harlan Crowe. And you're right, there was ambiguity and he could have simply disclosed all of it on his financial disclosures. And then what was going to happen? His friend was going to get picked apart for being a Nazi online. And then they're going to pick apart his dead brother for being connected to Jeffrey Epstein. I just have no idea whether that's true or not. So I just mentioned it because I then saw the mob kept expanding since this story got published. So it's not just that I think Clarence Thomas was trying to protect himself.

Maybe he was. But clearly there's a cost to your friends. A cost, right, right. And why would you do that to your friends? Especially if there's ambiguity. Again, Right. And why would you do that to your friends? Especially if there's ambiguity. Again, I think I side with you overall, but I wanted to point out, it wasn't just purely a selfish, like, I don't want to write this on my financial disclosure because the mob stuff is just, it's miserable. And it gets, at the end of the day, it gets back

to this. There's no actual allegation that he actually broke the financial disclosure rules. That's just not there. As much as everyone wants it to be there, it ain't there. It's there now. For the last two weeks, it's been there. Okay. But it wasn't there before. Two, there's no evidence of quid pro quo corruption. There's no cases that Harlan ever had pending before the court. And three, there's no evidence of the appearance of quid pro quo corruption. That would be Clarence Thomas changing opinions or shifting in his jurisprudence so that he could continue to enjoy the fruits of this, you know, the vacations and everything else. Those are the things that as a polity we should be most concerned about.

The other stuff, the ick factor stuff, I don't, I guess I just don't know that it's any of our business actually. Yeah, I mean, I think you raise a really valid point. And the bottom line stuff that you, when you really sit down and you look at this and you say, Harlan had no business in front of the court. So that is a incredibly important aspect of this. Number two, there's no evidence of a violation with the asterisk of there's some gray area on

some of these point-to-point jet trips that we don't know all the details of. So Harlan had no business in front of the court. There's no evidence of an underlying ethical violation. Number three, rules have been changed to shrink the zone of ambiguity, so to speak. And there's no evidence since rules have been changed that Clarence Thomas has done anything in violation of the new rules that have been around for just a very, very short time. So as a legal scandal, there's not a lot here. And I have to say that part of the early coverage here was really irresponsible. It was cast as definite evidence of a legal scandal, the definite evidence that Clarence Thomas violated rules of ethics. And we have to be, this is a legal podcast. It's not a vibes podcast. And although we talk about vibes as well, but it's fundamentally a legal podcast. The evidence of the violation of the rules of ethics was just lacking. It was just lacking. And part of me does wonder if this hadn't been presented to the public as initially leading with violation of ethics rules, which would be a very, very,

very serious thing. If it wasn't let, if we didn't lead with that, instead it's Clarence Thomas has a rich friend who has no business in front of the court. It's a different scandal. It's a different controversy, shall we say. All right. We still have quite a few things to cover, so let's get through them. So the Supreme Court denied cert on a case in which West Virginia had passed a law limiting the participation of transgender athletes in the state on women's teams, basically. And the Supreme Court didn't take the case. There was a dissent from denial by Justice Alito. Justice Thomas joined. This was not a spicy dissent from denial, David, which people might find surprising. It was a bit more of a like, yeah, yeah, I mean, I see it,

but maybe also. Basically, Justice Alito saying, we're going to have to take one of these cases at the same time, acknowledging that this had been not an emergency application, noting that the district court here preliminarily enjoined the law's enforcement in July, 2021. And the state did not appeal that injunction for the almost 18 months during which it was in effect. Then the respondent appealed, a divided panel of the Fourth Circuit issued an order in joining enforcement of the law for the duration of the appeal. Now, the panel, the Fourth Circuit panel didn't say anything. They just issued the injunction. That's what Alito's beef actually is, is that he would have taken this to say, like, you don't get to enjoin a state law without comment. That's very different than I think what you would expect from a normal

Justice Alito. Why don't I have four votes for this BS? Yeah. Tirading around. His point is we're going to have to address transgender athletes at some point, and we shouldn't allow circuit courts, especially to enjoin state law silently. That being said, he seems to acknowledge it's hard to say that the state actually believes this is an emergency considering they put the law on hold for the entire 18 months of the district court proceedings. And so there's a bit of a shrug at the end of the Alito dissent from denial that Thomas joined. And so there's a bit of a shrug at the end of the Alito dissent from denial that Thomas joined. And this, by the way, it's such a great one to put into our basket of, hey, how are those emergency applications going? How's that shadow docket going?

And the answer is post-COVID, post-election, the court is clearly not in the mood whenever they can avoid it. Yeah, I think there's a couple of factors going on here. One is exactly what you said, that they're obviously narrowing down the emergency docket, although that might be broadened back up with the abortion cases we just talked about. But they're narrowing down the emergency docket. Number two, I think it's just really important here that the state did not appeal the injunction for about 18 months, almost 18 months. They basically never appealed it. They allowed the district court to run its course. That lasted 18 months. They didn't just wait 18 months. They never did it. They just never did it, right? And so 18 months, they could have appealed the injunction. They chose not to. They waited for the district court to decide the case on the merits. So, again, all of that is not screaming. State believes this is an emergency.

and sort of the law ripening a bit, the law maturing a bit on these issues. I think they might be waiting perhaps for a little bit of more maturation of the law regarding these issues, but that's just complete speculation. But I would agree that this was a, not a spicy dissent, but it will say it, what it does say to me, Sarah, it's just not going to surprise me at all when the court does take a, perhaps a trans athlete case or another trans, you know, a case involving transgender litigants sooner rather than later. It's coming. It's coming, just not right

now. Well, and this is sort of a fascinating reason why the Supreme Court does like to wait and let things percolate both in the lower courts and through the political process, because shortly after that dissent from denial, you had the Biden administration unveiling its proposed rulemaking from the Department of Education in which, David, I was very surprised because I have been railing against the pattern that we've seen across administrations, do a rulemaking or anything from the administrative state that your side will like, knowing that it won't really withstand legal scrutiny, and let the courts strike it down. Let them be the heavies, and you get to be the good guy. And you get all the headlines in the

meantime about how great you are. And then when the court strikes it down, the headline isn't, and I've used this example before, Congress failed to ban bump stocks. The headline is Supreme Court strikes down bump stock ban. And by the way, in neither of those is the administration blamed for anything. President Trump stops bipartisan lawmaking on bump stocks leading to Supreme Court reversal. That's never going to be the headline. So that's all my lead in to say this Biden administration proposed rulemaking. It does not mean it'll be the final rule. We are a long way from the lawsuit for those keeping track at home. Basically says you can't have a statewide ban on transgender athletes participating in women's sports. What you can have though, is a narrowly tailored ban or restrictions related to fairness

and related to safety and particularly highlighting elite sports and elite levels of sports. So for instance, let me give the most generous version before we get to the hard cases. The most generous version is you cannot ban fourth grade dodgeball for transgender athletes, quote unquote, participating if you're decided to divide it between boys and girls. There's not a safety issue at that point between boys and girls playing dodgeball. Frankly, most of them are going to be co-ed teams in fourth grade. And second, this is not an elite sport. There's nothing at stake in fourth grade, non-co-ed dodgeball. On the other side, it's pretty clear that you can ban transgender athletes

from participating on women's teams in all of the elite things we've talked about, David. Track, swimming, tennis, all of these things where people who have gone through male puberty have a huge inherent advantage and where there could be safety issues, like in wrestling, it's been mentioned, things like that. Basketball.

Yeah, yeah. Any contact sport, really. Now, those are the easy cases. There's going to be a whole bunch of edge cases that people are going to then squabble about. But fascinating, David, because frankly, the Biden administration's getting hit, I think, much harder from the left than the right

on this performance filmmaking. Much harder, yeah. It was a real shock to those on the left when this came out. Yeah yeah it was a real shock to those on the left when this came out yeah it was it was a real shock because they thought the body administration was going to draw a line in the sand title nine essentially overriding all of the state restrictions on biological males participating in in women's sports and it didn't it did override the blanket bans but it left in place the ability for example we've talked about this connecticut case that's being reheard on bonk at the second circuit where you had these two i believe two runners who were quite dominant. They were trans girls.

So they were biological males racing in girls' competition. And they, so this case, they were incredibly dominant. They were dominant. And the issue was, did they deprive these girls of the opportunity to compete for championships?

And that was one of the issues that we talked about. And that's going to come up in the en banc arguments of the opportunity to compete for championships. And that was one of the issues that we talked about, and that's going to come up in the en banc arguments of the Second Circuit. So in that circumstance, the Biden administration guidance is clearly allowing state authorities to say, you know, for state championships, for example, or contact sports, for example, that there's not going to be biological male participation in female sports. And so a lot of folks on the left got really, really, really upset about that. Now, the interesting thing to me is the way it's phrased leaves it open for a lot of discretion on the part of state officials, a lot of discretion. In my view, it leaves it open for a lot of discretion on the part of state officials, a lot of discretion.

In my view, it leaves it open to a lot of discretion. So you're going to see a lot of state-by-state distinction here. But clearly, the Biden administration is trying to compromise here. I think it recognizes that the large majority of Americans see some clear distinctions at issue when you're talking about biological males participating in girls' sports, especially at elite levels, that there's fairness and competitiveness issues there. And I think the Biden administration is acknowledging that fundamental reality

that is really hard for anybody to deny. And that's made some people angry. All right. And this brings us to the last one in this little basket, which is we had a case, a pronoun case that had been making its way up in which a teacher, and it wasn't a pronoun case. That's actually, I think, mislabeling what this case was. A teacher did not want to use pronouns or names that he felt were traditionally male or female for transgender students. And this was about religious accommodation.

The school tried to accommodate his religious needs by allowing him to simply refer to students by their last names, like a gym coach, and didn't explain it to the students. They just said that orchestra from now on would be team orchestra. And it would, you know, he would explain it in terms of like, yes, because we're like a sports team. And every orchestra student I'm sure was like, yeah, except for all the popularity. Again, speaking as a former orchestra president, I feel like I can throw some shade at the idea of team orchestra there. Wait, you were orchestra president? I was, David. I was. It came with a lot of responsibility. I was in charge of making funny transparencies for the end of the week, for instance. Big stuff. I actually should clarify because we care about facts here. I was a tri-president. I shared it with my two best

friends in orchestra, both in the violin section. I was the violist, but I think that I was lead president as the violist, obviously. Lead president. Okay. So David, this all kind of goes awry because basically the students kind of reject the accommodation and it turns into this distraction and disruption as the students then sort of figure out what's going on. The teacher makes some slip ups and refers to some of the students as, you know, Miss Isger, but then you transgender David only get called French. You know, there's little things like that along the way. The LGBTQ club clearly figures out what's going on very quickly, tells everyone what's going on. It's an interesting case, David, to me,

not necessarily over pure question of whether the school did try religious accommodation and it didn't work. I actually think it's pretty clear in this case that they bent over backwards to try. But what's interesting to me is what, does it matter why the accommodation didn't work? Does it matter? And this is not necessarily the facts and evidence, but what if, for instance, the students themselves did not want the accommodation to work? They wanted this teacher fired because of his religious beliefs. And so they're the ones who rejected the accommodation and disrupted the educational environment because then the accommodation doesn't work. And then he can't be accommodated for his religious beliefs and loses his job and it doesn't violate anything. for his religious beliefs and loses his job and it doesn't violate anything? Yeah, that's a really good question. But there's, I think, even a deeper legal distinction here that makes your question interesting. Okay, so here's the deeper issue. So there's another case, and we've already talked about it, a pronoun case out of the Sixth Circuit. And this case is called Meriwether versus Hartop. And this was a case brought by a professor at Shawnee State University. We talked

about it. University professor, pronoun case, decided in his favor on First Amendment grounds. In other words, he had a free speech right not to affirm something that he doesn't believe to be true, which is that somebody who's biologically male and a trans female is actually female and therefore should be addressed with female pronouns or whatever, but vice versa. And that was decided on first amendment grounds. Then you go to the seventh circuit and you have a high school teacher and it's not decided on first amendment grounds. It is not a first amendment case. And I think it's really important to highlight this. Um, why? Because college professors, the consensus of the circuits, Because college professors, the consensus of the circuits, even public university college professors have their own free speech rights in on-the-job speech.

The consensus of the circuits is that high school teachers do not. They do not have free speech rights in on-the-job speech. And this is something that the court highlighted in its majority opinion. There's actually a pretty famous Seventh Circuit opinion involving a teacher who spoke out against the Iraq war, faced a penalty, I believe terminated, and the court advantage of that lack of free speech rights on the path of professors with the anti-CRT laws that have passed. So these are laws that would be unconstitutional and have been ruled unconstitutional if they were applying to a college. But applying to secondary school, essentially the speech of the teacher belongs to the state in secondary schools. So there's no First Amendment claim here. So what is the claim? Then the claim has to be religious accommodation under Title VII, which prohibits religious

discrimination. All of a sudden, right there, Sarah, the teacher has a really weak and vulnerable case compared to the First Amendment. Why is that? Because the accommodations employers are required to provide under Title VII, Title VII does not ask much of them. It basically is saying, well, you know, even a de minimis impact can be sufficient to overcome the request for a reasonable accommodation. So they don't have to show much. They don't have to show much at all to overcome the employee's request for an accommodation. Now, to add the extra layer of complexity on this, the Supreme Court currently has a case that is going to be deciding whether this reasonable accommodation standard, which is extremely deferential to employees, continues. And the smart money is

saying that the Supreme Court might make it more difficult for employers to reject accommodation requests. Okay, so what does all that mean? It means that this was not a First Amendment case. The professor lost under reasonable accommodation law. Reasonable accommodation law is extremely permissive to employers, and that all might change in a matter of months. So this case might go right back to the Seventh Circuit. But it really does highlight something that I've been sort of used to term from Jonah,

like I'm like banging my spoon on my high chair about. And that is when you love the fact that high school teachers have no independent free speech rights when you're in charge. You might not love it so much when you're not in charge, because when you're not in charge, things like this happen. And so I've been sitting there and saying this time and time again to all of those folks who are saying we need to use maximum state authority over teachers. Okay, well, what's good for the goose is going to be good for the gander here. And I see some people who are absolutely dedicated to anti-CRT laws and taking over teacher speech there, apoplectic that the court came out this way in the Seventh Circuit. And I'm like, it's inevitable y'all. That's, that's what this

means when you take over a teacher speech with you, when you obliterate the first amendment in the classroom and you completely take over teacher speech, you know, what's going to happen. Governments are going to take advantage of that. Okay. Can I just say one thing on the merits of this case that I find odd and annoying? Yes, for sure. The pronoun cases make a lot of sense to me. The name case, like this one, makes no sense to me. Names over time have shifted in between male and female presumption.

Think names like Ashley, Lindsay. All of those names used to be hardcore boy-only names. Now, they're hardcore girl-only names. And especially today, there's all sorts of names that are sort of in between. You can find Lincolns of both genders. Same with, I think, Madison's leaning more girl now. It didn't used to, et cetera, et cetera. Reagan. Reagan, all of these. So this idea that you can't possibly, without offending your religious beliefs, call someone by a different name, I just reject that. That's silliness. Well, this is a classic bad facts make bad law case as well.

And the teacher tripping up sometimes and calling the students that aren't transgender with Miss Isger. There's a lot of bad facts here. Well, and also, one of the things that was interesting is he says that he believes effeminacy is sinful with this really interesting definition of effeminacy. So there's a lot going on here. And I agree with you on the names. Like I've always taken a different position between names and pronouns. You know, for me-

Names are totally arbitrary in a cultural moment. Pronouns aren't. Right. And also there's another factor here involving parents. So if you have parents who are saying, this is the name that we call our son or daughter by, and the teacher says, no, I got an issue with that. I got an issue with that. But the pronoun issue to me is different because you're assenting or not to a description. A description is different

from a name. And as you said, the names can be quite arbitrary. I mean... And there's the accommodations for pronouns. Don't use pronouns. Use people's names. There's all sorts of other things we can do around pronouns. Oh, yes. The name thing, though, I just, yeah.

I just wanted to say my little bit about that that I think it's stupid. No, I'm with you on that. Like, if the parents say, call, you know, call my son or daughter whatever Tina and you go no right what happened to parental rights then yeah there's some parental issue yeah exactly so it's it's a mess it's a mess last thing just so people don't think I was picking on true crime podcasts the other week uh I'm going to pick on true crime governors as well. Let's do it.

And I do feel like I should add some caveats as people have sent me comments about my true crime, you know, side eye. I would carve out some things. There's a difference between true crime podcasts that reopen a case that's been decided versus true crime podcasts and look at cold cases where they never caught anyone and they're looking for new evidence and they're basically junior, you know, amateur detectives. Those are very different to me.

I'm all for opening cold cases, you know, to try to find a bad guy. Yeah. So anyway, this though, after a person was convicted in Texas for shooting and killing another person, Greg Abbott is saying that he is going to pardon this person, although the governorship in Texas is notoriously a weak governorship, David, like Virginia and some of these other states. They just aren't strong governors. They don't have the powers of the presidency, for instance.

The governor in Texas cannot just pardon people. He has to have a recommendation from the parole board, the board of pardon, something like that. There's a process. But basically, he's saying, I'm going to fast track this. We're going to get the pardon recommendation, and then I'm going to pardon him. So for our purposes, let's just say he's saying he wants to pardon this person who was convicted by a jury. I'm a no, David. And you know why we don't need any additional facts on this? Because he wasn't on the jury. Same as all of the listeners to the True Crime podcast. And really, it actually tracks pretty closely to me because the narrative picked up by the side

that wants the pardon, of course, has an agenda. Same as the people who host true crime podcasts. They want listenership. They want you to feel like it's a close call, etc. All my complaints adhere, but David, you might actually care about the facts of this case. Yeah, I do actually care about the facts here. And it looks to me, gosh, it looks to me like Tucker Carlson said jump and Governor Abbott said how high. But this is a case where an Army sergeant drove into a BLM protest, drove into a BLM protest, got into an altercation with an individual who was carrying a rifle

and then alleged, this is the Army Sergeant's sort of version of events is that the guy raised his rifle and then Perry shot and killed him. The Army Sergeant shot and killed him in self-defense. It was when, I know I know from when the incident

initially happened, there was a lot of conversation mainly on right-wing Twitter that this was a justified shooting, that this was, look how scary the BLM protests were. This guy had an assault weapon. He raised it and then he got what was coming to him. And the problem though, is that when you actually began to dive into the case, you saw that it was a bit more complicated. And what made it more complicated? One is that the guy posted on social media, One is that the guy posted on social media in essence that he wanted to go and and potentially go kill somebody that he was going to go down to the go down to the protests and expected expected violence. me or my car. He says, quote, I might go to Dallas to shoot looters. Another message, he says, I might have to kill a few people on my way to work. They're riding outside my apartment complex. This is from a Guardian report. A few days later, Perry commented on a Facebook post of a video titled Protesters Looters Get Shot, San Antonio, Texas, writing, glad someone finally did something.

shot San Antonio, Texas, writing, glad someone finally did something. There was evidence that he drove through a red light. He was an Uber driver, didn't have a passenger at the time. Endangered some of the protesters by driving through a red light into the crowd of protesters. Then this is where the facts get hazy. And the question was, did the victim raise his gun

and point at the shooter, at the defendant? And here, the witnesses said, no, that we did not see him aim his gun at Perry, the shooter. And Perry told a sympathetic officer, he says, he talked to the police. He said, I believed he was going to aim at me. I didn't want to give him a chance to aim at me. Now there's a video of the incident that is not super clear. So that's one of the reasons why witness testimony was really important. But what's very critical is he says, again, I'll say it. I believed he was going to aim at me. I didn't want to give him a chance to aim at me.

really hard to claim self-defense. It's really hard. The other thing is, the question also became, even if he claims self-defense, you don't have the ability to provoke a confrontation, then shoot the person who confronts you and claim self-defense. So when he drove into the crowd, the question was, did he create the dangerous situation by driving into the crowd? And that was a big part of the case. Did he create the confrontation, which he then resolved by opening fire? And that's not what you get to do. And so those were some of the key legal questions. And let me add with one final rant, don't open carry rifles. Okay. Look, just don't do it. Don't open carry rifles. I mean, one of the things that came out in this case is if the guy is saying, I thought he might aim at me, I didn't want him to aim at me. You know what the time difference between someone carrying a rifle,

the way you see all of these sort of people walking around open carrying rifles at protests do and the low ready position. The difference between the low ready and shooting is way less than one second of movement. So walking around open carrying a rifle, you're creating an inherently dangerous and unstable situation. You just are. I'm sorry. Don't do it. It is ludicrous to walk around streets open carrying a rifle. But in this case, the question for the jury was, did he instigate the confrontation? Did the guy point his gun at him? There was strong evidence he did not point at him. The evidence came including from the defendant saying he shot before he could aim at me.

at him. The evidence came including from the defendant saying he shot before he could aim at me. And so this is not a case that is screaming miscarriage of justice. This gets to a larger point though of like when I think pardons are appropriate. And I guess I think pardons are appropriate in far more blanket circumstances rather than individually re-judging what a jury did. But maybe that's a conversation for another time, David. And we are going to have plenty to talk about for several more episodes to come. So let's leave it at that. Thank you for joining us. We'll see you again later this week. Bye.