Advisory Opinions - Are You There God? It's Me, The Lemon Test

Episode Date: April 27, 2023

Is it unconstitutional to push religion in a state that favors religion generally? Two bills in Texas are igniting the debate over the establishment clause and religious coercion. Plus: -Brother Jesus! -The angriest bee in Scott Lincicome's bonnet also known as The Jones Act -E. Jean Carroll's rape case against Trump begins -Justice Gorsuch in the latest rounds of SCOTUS media hit pieces (edited)  Show Notes: -Backstory on homeless lawyer's crusade against the 10 Commandments -Politico's hit piece on Gorsuch -Critiques of Gorsuch's piece -The Jones Act Is Unconstitutional -Texas bill on 10 Commandments Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we've got a crisp podcast for you today. As we're recording this, the Supreme Court is hearing its last argument of this April sitting, but it's a good one. We're going to save that for the next episode. But for those who remember, this is the little old lady. She was 93 years old. I mean, she still is alive. She's just, she was 93 when the case was filed. Sorry, that's beside the point. She's old. She's very old. I mean, she still is alive. She's just she was 93 when the case was filed. Sorry, that's beside the point. She's old. She's very old. And she owed $15,000 in property taxes, penalties,

interest and costs. So Minnesota took title to her home and then sold it for $40,000 and kept the $25,000. So is that a violation of the takings clause or is it a violation of the Eighth Amendment Excessive Fines Clause? Yes and yes. We'll find out on the next episode of Advice for Opinions. We have ranted about this case, Sarah. We have, but aren't you curious to see what nine people who actually matter think about it? Wait, wait, wait a minute.

who actually matter think about it. Wait, wait, wait a minute. Two people who matter are in unanimous agreement that this is a taking, that this is an excessive fine. So yeah, I actually feel a pretty high degree of confidence. I've been stumped as of late in some of my predictions as to what the Supreme Court will do, But I actually have a pretty decent degree of confidence that these nine folks will look at this case and say, no dog. Well, I got into it back and forth with a listener right after we did that episode now, gosh, six plus months ago. And we dug way into Minnesota statutes. The listener didn't necessarily agree with our take. The listener may or may not be related to me. So I feel... I went back and read those emails. I feel very... I am on pins and needles for this argument. But

that's not what we're doing today. Today, David, we're going to do something that I think will also be really fun for listeners, which is we're going to talk about two bills that are basically set to become law in Texas that both are coming out of that Kennedy v. Bremerton Supreme Court case from last term. This is the football praying coach that Justice Gorsuch wrote the majority opinion for, basically finally putting that stake in the zombie of the lemon test. finally putting that stake in the zombie of the lemon test. And I thought we'd do a little deep dive on the progeny of establishment clause jurisprudence. Start with Van Orden and Ten Commandments and go all the way up to these bills and decide how we think this will all go. Then Then we will do a little Jones Act. Is it unconstitutional theory? A law clerk wrote up a short, very adorable op-ed in the Wall Street Journal.

I want to give that law clerk a lot of credit and the law clerk's judge credit for letting him publish this. It's a cool theory. It's worth a few minutes on the podcast. And then, David, you have done a deep dive into the E. Jean Carroll rape case. I have not at all. So we'll talk about that. It's really a defamation case at this point, right?

But we'll discuss that. Well, also a sexual battery case because they changed, New York law changed to allow adult survivors of sexual assault to file a case. So there is a it's a battery, a sexual battery component to it, as well as defamation. But yeah, yeah, absolutely. We'll talk about it. And then we'll end with Justice Gorsuch. Is he the worst ever based on this slew of now stories coming out about Supreme Court justices and their financial disclosures? I do feel bad for all the reporters who are on the read every financial disclosure piece and come up with a story from them. But this one struck me as particularly silly. All right, David,

let's start with these two Texas bills. They passed the Texas Senate. They're heading to the House. The lieutenant governor, who is actually the sort of most powerful person in Texas, has already said he wants these to become law. So that's why we're going to talk about them on this podcast. The first one, and I have the text of the two bills in front of me. The first one simply says that a charter school or public school any charter school or public school may, by record vote, adopt a policy requiring every campus of the district or school to provide students and employees with an opportunity to participate in a period of prayer and reading of the Bible or other religious texts on each school day in accordance with this section. And in short, it says you have to have like a permission slip, like field trip style. You have to have the parent's permission. It cannot take up any

instructional time. It cannot be an earshot of anyone who doesn't have a permission slip. It can't be done over a loudspeaker or the school sound system. And it may happen before normal school hours, only in a classroom or other areas in which a consent form has been submitted for every employee and student. Any other method recommended by the attorney general or legal counsel. OK, so we'll call that the prayer before school bill. And and again, that prayer before school, in case you missed it, a school district may so is not required to vote to then make it a requirement for their schools in that district to allow this. So it's a little bit of may shall the school district may do it. And then once they do it, they can require each school to include that prayer before school option.

OK, second bill. And this is a Ten Commandments bill. A public elementary or secondary school shall display in a conspicuous place in each classroom of the school a durable poster or framed copy of the Ten Commandments that meets these requirements. It must be 16 inches wide, 20 inches tall. It actually reads out the Ten Commandments as they need them displayed, including, I am the Lord thy God. Am is in all caps. Lord is in all caps. It says that a public or elementary school in which each classroom does not include a poster or framed copy of the Ten Commandments. Must, one, accept any offer of a privately donated poster or framed copy of the Ten Commandments. Two, display the poster or framed copy as specified in this section. I'm just going to go ahead and yikes this, but I want to go back and talk about it because it's not actually obvious what courts will do with it.

So I think we start with the Kennedy v. Bremerton case writ large. And then I want to go back in time to 2005. So remember, Kennedy v. Bremerton, the football coach who's trying to do a private prayer on the 50-yard line. The football coach who's trying to do a private prayer on the 50-yard line. I didn't love the outcome, but basically it gets rid of a bunch of the establishment clause cobwebs that are out there. Justice Gorsuch writing for the majority, replacing it with a history and tradition test, and upholding basically the coach's ability to do that, and saying that there was no coercion based on the facts of this case.

We'll get into some more of the details as we move up through time. But I want to go back now to, first up, Van Orden v. Perry and another case called McCreary are basically decided within minutes of each other in that 2005 Supreme Court term. They're both Ten Commandments cases. Van Orden is on the Texas grounds of the Capitol. For anyone who's been there, it's beautiful pink granite. There's all sorts of things on the grounds of the Capitol. It's like a little menagerie. And one of them is a 40-year-old Ten Commandments statute. A homeless lawyer brought a challenge to that. And it's just quite a lineup. And for those who don't remember... Wait, wait, wait, wait. Did you say homeless lawyer brought a challenge to that. And it's just quite a lineup. And for those who don't remember-

Wait, wait, wait, wait. Did you say homeless lawyer? Yes, there was actually a fascinating backstory to this whole thing. So he had, goes without saying, fallen on some rough times. He had had his law license suspended for a temporary amount of time.

And during that time, he lost his home. And from that point forward, was homeless. And in fact, part of his complaint was that he spent a lot of time traversing the Capitol grounds to get to the UT Law Library, where he would hang out during the day. And so that was where the complaint came from. Very interesting, right? But there's another interesting part of this, which is who argued the case. Quite the lineup here. First of all, Ted Cruz was counsel of record as Solicitor General for Texas, but he didn't argue the case. Greg Abbott, who was Attorney General, argued the case. Paul Clement was solicitor general and

argued on behalf of the United States. And Erwin Chemerinsky argued on behalf of Van Orden. So it was a star-studded event that day at the court. Rehnquist wrote for the majority, but that's not really the opinions that are remembered. So it was 5-4 for the vote. But Rehnquist's majority opinion only got four votes. Breyer becomes the swing vote in these two Ten Commandment cases. So the Supreme Court upholds the Ten Commandments on the Texas Capitol grounds, and they strike down the Ten Commandments in the McCreary case in which two courthouses in Kentucky sort of had newly prominent Ten Commandment displays. And so Breyer is the swing vote in these cases.

But you also have this, going back to the Texas case, Van Orden, a Scalia concurrence and a Thomas concurrence that are going to be prophetic. And I'll just read you the entire Scalia concurrence because it's short. I joined the opinion of the chief justice because I think it accurately reflects our current establishment clause jurisprudence, or at least the establishment clause jurisprudence we currently apply some of the time. I would prefer to reach the same result by adopting an establishment clause jurisprudence that is in accord with our nation's past and present practices, and it can be consistently applied, the central relevant feature of which is that there is nothing unconstitutional in a state favoring religion

generally, honoring God through public prayer and acknowledgement, or in a non-proselytizing manner, venerating the Ten Commandments. Thomas, in his concurrence, says this case is really easy because the establishment clause shouldn't be incorporated against the states and this is state action. So boom, I just made this much easier for all of you. And he says, but fine, if we're going to continue with this incorporation charade, now reading from his, the framers understood an establishment necessary to involve actual legal coercion. There is no question that based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel Petitioner Van Orden to do anything. The only injury to him is that he takes offense at

seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the commandments as guides for his life. The mere presence of the monument along the path involves no coercion and does not violate the establishment clause. All right, so then head over to McCreary where again, Breyer flips this, they strike down the 10 commandments in these two Kentucky courthouses. And frankly, sort of the big difference that everyone took away from this is in Texas, it had been on the grounds for 40 years and was in this menagerie. There was like a Flamingo nearby,

you know, like a lawn Flamingo, not like a a real flamingo. So we could have those in Texas. Whereas in Kentucky, they just put them up and it clearly seemed like, you know, they wanted to like thumb their nose at the whole thing or whatever. But you have now Scalia getting very spicy in his dissent. And again, this is the same term. These cases come out very, very close to each other. He opens it with his story of where he was on September 11th, which sort of tells you how spicy this thing starts. But here's the legally relevant part. How can the court possibly assert that the First Amendment mandates government neutrality between religion and non-religion,

and that manifesting a purpose to favor adherence to religion generally is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society's constant understanding of those words. Note the history and tradition language there. Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. That is indeed a valid principle, where public aid or assistance to religion is concerned. All right. So keep that in your little travel mug. And let's fast forward

10 years. This is town of Greece in 2014. It's another 5-4 case that allows the town of Greece to open their legislative, sorry, not their legislative session, their town council, in fact. So there's councilors, you know, city council there, but also the people coming to bring their complaints and feelings to the city council to open with prayer. And in the city of Greece, it turns out they only have Christians. I just take that for what it is. Here were a couple of the prayers that were upheld. Lord, we ask you to bless us all that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen. Here's another one. Lord, God of all creation, we give you thanks and praise for

your presence and action in the world. We look with anticipation for the celebration of Holy Week and Easter. It is in these solemn events of the next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. Yada, yada, Easter. We pray for peace in the world and end to terrorism, violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. Praise and glory be yours, O Lord, now and forevermore. And again, in that case, they uphold this by saying, look, the city isn't seeing these prayers in advance. And so either you can't have these chaplains give prayers or you have to condemn them afterwards because they're too secular. We're not doing any

of that. This is fine. And that follows a long line of cases about, you know, invocations at government events. That brings us back to Kennedy v. Bremerton. And the reason that I wanted to walk through those three cases is because this is the money shot of Gorsuch's majority opinion in Kennedy v. Bremerton. And he's going to quote from all three of these cases. The court has since made plain, too, that the Establishment Clause does not include anything like a modified heckler's veto in which religious activity can be prescribed based on perceptions or discomfort. An Establishment Clause violation does not automatically follow whenever a public school

or other government entity fails to censor private religious speech, nor does the clause, quote, compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious, end quote, citing the Breyer concurrence in Van Orden. That's the Texas Ten Commandments one. Now, next paragraph. In place of limit in the endorsement test, this court has instructed the establishment clause must be interpreted, quote, by reference to historical practices and understandings, town of Greece, continuing the quote, the line that courts and governments must draw between the permissible

and the impermissible has to accord with the history and faithfully reflect the understanding of the founding fathers, town of Greece. To be sure, this court has long held that government may not, consistent with a historically sensitive understanding of the establishment clause, make a religious observance compulsory. Government may not coerce anyone to attend church, nor may it force citizens to engage in a formal religious exercise. No doubt, too, coercion along these lines was among the foremost hallmarks of religious establishment the framers sought to prohibit when they adopted the First Amendment. Members of this court have sometimes disagreed

on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause. But in this case, Mr. Kennedy's private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion. All right, David, thank you for letting me walk through all of that. And now over to you, what happens to these Texas bills go? Okay, so before we get to the go on the Texas bills, I just want to make an observation. Brother Jesus? Like that's not,

anyway, that's not the normal way. That's what you took from this? Well, it was a long explanation and an excellent explanation that I anticipated and I expected, but then I'd forgotten about the brother Jesus prayer. And it just, for some reason, it immediately stood out to me. I don't know, listeners, do y'all go to church where they say brother Jesus? That is not, anyway. Okay, that's neither here nor there. The bottom line is, and there was a tremendous, and you pointed this to me, Sarah, this tremendous essay in Bloomberg by Noah Feldman, Harvard Law professor, where he walked through a lot of this history, and he noted a couple of things that I think are really salient here. So number one, he noted the

history and tradition element brought up in Kennedy v. Bremerton and did what we've talked about a lot when we're talking about history and tradition. History and tradition can be kind of messy. It gets even a little messier when you realize that public schools, for example, were not part of American history and tradition for a pretty good bit of time in our history. They didn't really start gaining a ton of steam until later in the 19th century. So they're newer than the founding, which I think is an interesting kind of permutation in the case. But the way Professor Feldman summed it all up is he said, the bottom line is, no money, no coercion. If you're going to sum up the establishment clause, it's no money, no coercion. And I think that's a pretty good shorthand test, sort of like a pretty good shorthand test of text history and tradition around the Second Amendment is responsible, law-abiding citizen.

That would be a shorthand way of describing the way I think the history and tradition test should shake out on the Second Amendment, the way I think the history and tradition test should shake out in overall, in the establishment clause, is no money, no coercion. And so the question is really, I think, not so much. The question here, I think, is different, is going to be different from the way these questions were presented in the past. And is going to be different from the way these questions were presented in the past. And legislative prayer, for example, had been upheld for a while, and legislative prayer had been upheld, public prayer before events where adults were present, such as college graduations, college football games, all of that had been upheld. But prayer or religious activity in front of children, school prayer, had not. And so that raised a question from Feldman.

Huh, interesting. Is history and tradition, are they part of history and tradition? Is that now 50, 60, 70 year practice part of history and tradition? How much is precedent part of history and tradition? All of those were interesting questions. But I'm actually wondering if you're going to go to a formula that looks something like no money, no coercion. I'm really interested in whether they're going to explore the coercion element of this or really sort of settle on the money portion of this. Because if you're requiring the state to put the Ten Commandments in every single classroom, you're actually asking them to

spend a non-de minimis sum of money in absolute sense, but de minimis in a relative sense. Except for that clause about allowing private donations. That if you don't have one, you have to accept a private donation. That was a clever clause. True. Assuming one is made available, assuming they're made,

which I think is probably a pretty safe assumption. So the no money, no coercion, I think this is going to, the money aspect is going to be very interesting to this. But Sarah, I'm interested in what the coercion analysis will be because in Kennedy v. Bremerton, it wasn't coercion that if you just saw the coach praying, that wasn't deemed coercion. wasn't deemed coercion. If you just see the Ten Commandments, is that going to be deemed coercion? And that I'm not so sure that it will be deemed coercion in the way that, say, Scalia talked about it. What are your thoughts? Woof. So there's another section in the Ten

Commandments part of the bill. Include the text of the Ten Commandments as provided by this subsection in a size and typeface that is legible to a person with average vision from anywhere in the classroom in which the poster or framed copy is displayed. Yeah, I think it's a close call. not having to read the 10 commandments, but having the 10 commandments in huge font in every public classroom in Texas sure seems like a difference in kind than a coach taking a knee at the 50-yard line. It is definitely different in kind and way different in scale. So you're putting up a display that every kid will see, whereas a coach, and again, in Kennedy v. Bremerton, what the ultimate ask ended up being was not,

can I pray in front of the team? It was, can I pray by myself on my own, even though it is visible to people, and some people might interpret me praying on the school grounds during or in the immediate aftermath of the game as me performing some sort of official duty. Yeah, this is different in kind and in scale from Kennedy v. Bremerton. And then that's where I do wonder about how much is history and tradition going to come into this, because history and tradition could be interpreted a couple of ways, Sarah. One is, what is the history and tradition of religious displays in public school, where not all public schools had religious displays, versus what is the history and tradition regarding prohibition of religious displays in public schools? So I got to kind of punt on another one of these Supreme Court issues. I'm not quite sure because what we've now seen in the history and tradition context is that when you unleash historians on these issues in the way that historians were unleashed in the Second Amendment.

Unleash the historians! Unleashed! When you unleash that ravenous pack, then you will find that American history gets really messy and often conflicting in ways that don't necessarily provide a clear path for a judiciary. So the money part of it, I think the Texas legislature may have covered its basis there with the private donations, but the coercion element is really going to be interesting. To what extent is this coercion? And is it a different analysis when it's kids who are seeing it versus when adults are seeing it? 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

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someone who was against this bill. I should have the right to introduce my daughter to the concepts of adultery and coveting one's spouse. It shouldn't be one of the first things she learns to read in her kindergarten classroom. Honestly, I know that's sort of said tongue in cheek, but I actually tend to agree with him. The Ten Commandments isn't some light stuff here. Like it's, you know, if it were just like a love thy neighbor thing, I think I would actually feel kind of differently. First of all, you know, for those who are not necessarily all that familiar with the 10 commandments, um, the first five, four, five are very religious. I am the Lord thy God, have no other gods before me, no graven images, don't take the name of the Lord in vain and keep the Sabbath, right? Like that's,

there's no sort of otherwise secular purpose there on teaching virtues. And then again, when we're teaching virtues to kindergartners, I don't know that committing adultery and, as he mentioned, coveting the neighbor's wife, I don't know that those are the virtues that need to be inculcated at five and six years old. I don't know what's going on in our kindergartners. Maybe there's a rash of marriage and adultery. Well, I know this is Texas and not Florida, Well, you know, I know this is Texas and not Florida, but I do wonder if the adultery provision would violate Florida's prohibition on teaching sexual material. Yes. Yeah.

And for all this parents' rights stuff, which I'm actually very sympathetic to. Yeah. Set aside the law. I don't like this. I think it goes without saying. But, David, I do want to make sure we also talk about that other bill, the prayer before school bill. I found that one interesting because I don't think it's even necessary whatsoever. There already is prayer before school, like the rally around the flag stuff. What? This was always legal. What are you talking about? Yes. Sorry. Rally around the flag. That shows you how much I was going to those things.

That's hilarious. Rally around the flag. Call the platoon. We rally around the flag. You know what? As the hordes of historians descend, maybe rallying around the flag isn't such a bad idea. Yeah. As you were reading it out loud, I was just thinking, isn't this what Young Life does at campus after campus across the country? And it's completely legal and lawful and pervasive and it's everywhere. So there's a couple of aspects to this. Look, if you're talking about allowing people outside of school hours with parental permission to meet and pray, they can do that already.

I mean, I'm not exactly sure of the purpose of this bill at all. And so this one kind of stumps me. It feels like what you're doing is you're saying you're in essence sort of misleading your citizens into believing that this wasn't already happening. We have preserved your child's ability to pray, which is, by the way, already preserved by decades of Supreme Court case law and is occurring on your child's campus right now. campus right now. So that's a lot less. If anything, this is more restrictive because it requires a permission slip. You didn't need a permission slip to go to see you at the poll. You could just, your parents drop you off. You sneak around the corner, take off your slutty clothes, put on your good Christian clothes and go to see you at the poll. This podcast is already a lot more exciting than I thought it would be. Well, and also there's an interesting aspect about what about the kids' own religious liberty rights?

If I don't have a parental permissionship slip, can I not exercise my religious freedom rights? So it's kind of a mess, which I think makes me want to talk about kind of a larger issue here, which isn't so much of a constitutional issue as sort of a culture war slash religious issue. And Sarah, I want to introduce you to something that I think of as kind of akin to Christian superstition, for lack of a better term. And that is there is kind of this conviction you hear a lot that when we took the 10, and not as much now, but certainly when I was growing up, when we took the 10 commandments out of schools, and there was a, what, 1980 Supreme Court case that did that, that when we took

prayer out of schools, that's when this country went to hell in a handbasket, right? That this was when things turned bad. handbasket, right? That this was when things turned bad. And in essence, what you're talking about is an almost a kind of a mystical, almost a mystical belief in a sort of talismanic virtue of having the Ten Commandments, that the Ten Commandments possess, I'm not going to say an independent power in the way that the Ark of the Covenant possessed it in Raiders of the Lost Ark, but sort of an independent talismanic spiritual power that we're going to provide a degree of moral instruction and crucially moral reform in public schools. And I really question that presupposition on both spiritual theological grounds and also just quite practical grounds of, I know, Sarah, we're about to talk about how old I am. I grew up when, let's say, the various school prayer rulings had not worked their way all the way through the system. So when I grew up in one of my classes, we began the class with mandatory Bible reading.

There were classes that I had when I was in elementary school that began with prayer. Not every public school in Kentucky had gotten a memo about the Ten Commandments yet, and they were hanging there. They were certainly hanging there before the Supreme Court ruling when I was in earlier elementary school, and they did not yank them all down right away afterwards. And can I just say, Sarah, it's hardly like I attended a tent revival in public schools. And this sort of very formalistic state-dictated religious expression was not the way to reach kids' hearts for faith at all, at all. And I wrote about some of this where Nancy, and we've talked about this a bit on the podcast, my wife

did a story. She told a really amazing story about our early marriage for The Moth, a storytelling cooperative that she told the story in the Lincoln Center. She's told the story in Boston and Austin, Texas. She's had a great time doing it. And each time while she did it, she was another one of the storytellers was a woman who had been one of the very first people to integrate public schools in Arkansas.

And to me, one of the most vivid aspects, vivid aspects of her story was how she talked about walking into these public schools in Arkansas, one of the only black children, the only black child in her grade, being called the N-word, students turning their back to her, students completely mistreating her in a way that just beggars the imagination, boggles the mind. But you know what, Sarah, they did? They read the Bible and they prayed every day before when class started. And just speaking as a Christian, as an evangelical Christian, the sort of idea that says, well, we need these formalistic state expressions of religion to undertake a moral reformation of our society, I think is fundamentally misguided.

When you're talking about formalistic state expressions of religion, you're not putting something powerful in a classroom so much as taking something that is powerful and draining, in many ways, the meaning and power behind it or from it. And I think that that is something that's actually happening. And also, regardless of its constitutionality, and especially in an increasingly secularizing country, and especially in an increasingly secularizing country, you are going to make certain members of your own community feel excluded from the community. Now, the question is whether that is constitutional

or makes it unconstitutional that people have a subjective feeling of exclusion. And that goes back to Kennedy v. Bremerton that the establishment clause isn't exactly establishing what he termed as sort of like a heckler's veto over religious expression. So putting aside the constitutionality, the sort of morality of this action and how it impacts the people in the classroom, I think deserves perhaps more discussion

and sort of the talismanic nature of religious symbols deserves perhaps less regard that this symbol does not have some sort of independent talismanic spiritual power that radiates into the class. Rant over. All right, we'll leave that there. And I'll just end this section

on our dive into establishment clause history. There's an interesting sort of profile of Thomas Van Orden that was at the Austin Chronicle. I'll put it in the show notes. He died in 2010. He was buried in a military cemetery over in Killeen, Texas. He had served in the show notes. He died in 2010, was buried in a military cemetery over in Killeen, Texas. He had served in the Vietnam War. And this is the end of the profile,

which is just pretty great. This is quoting him. Can you believe a guy who sleeps under a bush every night can sue the governor of Texas only in America? And that was in 2002. His case had just been decided by the district court. It hadn't yet gone to the fifth circuit. It hadn't gone to the Supreme Court. I don't know. I think the Van Orden case is pretty cool regardless of the outcome and regardless of what you think of the outcome. And I think he's right. Pretty cool that the guy who sleeps under the bush can sue the governor of Texas and get to the Supreme Court of the United States and have his case heard. All right, David, speaking of only in America, the Jones Act. So our friend Scott Lincecum, I don't know that there's a angrier bee in his

bonnet than the Jones Act. It's so true. So we're dedicating this section to him. Scott, this section to him. Scott, love you, boy. So the Merchant Marine Act of 1920 says that foreign vessels are prohibited from transporting goods between U.S. ports. This makes everything more expensive and just worse. And if you want to know why the Jones Act is so pernicious, again, check out literally anything that Scott Lincecum has written. Even if he's writing about what the weather's like, I assure you it will have a dig at the Jones Act in it. So don't even just Google his name. You don't even need to include Jones Act. You'll get to Jones Act whether you want it or not. Studies estimate that the Jones Act costs the U.S. economy more than a billion dollars annually. All right. This brings me to an op-ed

in the Wall Street Journal by Sam Heavenrick. And I apologize, Sam, if I'm mispronouncing your name. I then went ahead and Googled Sam. David, you won't be surprised to learn. Sam recently graduated from Yale Law School just but a few months ago and is now clerking at a district court in Connecticut. He's worked at the Solicitor General's office and civil appellate at the Department of Justice. This is a highly qualified young attorney out there. And I just love that during his clerkship, he decided to just go ahead and take down the Jones Act. The title of this is the Jones Act is unconstitutional. Revive the Port Preference Clause to kill this ancient and destructive special interest law. So he points out that Article 1, Section 9 of the Constitution prohibits Congress from giving preference, quote, by any regulation of commerce or revenue to the ports of one state over those of another. you know, ports in Alaska, Hawaii and Puerto Rico get particularly screwed over by the Jones Act,

whereas the ports in large, you know, high economy states don't. They get served just fine. And so it is a important and not incidental effect of the Jones Act, that it does in fact favor, for instance, New York over Hawaii. In his research on this, he cites the 1855 case Pennsylvania v. Wheeling and Belmont Bridge. The Supreme Court rejected Pennsylvania's complaint that the bridge over the Ohio River violated the port Preference Clause by impeding steamboats with their tall smokestacks from passing underneath to reach the Port of Pittsburgh. The justices, again, this is 1855, held that the disadvantage to Pennsylvania was only incidental. And if incidental disadvantages were enough to trigger the clause, Congress would be unable to

allocate money for the improvements of rivers, harbors, the erection of lighthouses, and other facilities of Congress, which was bound to affect states unequally. But the court left open the possibility that laws enacted with the intent to discriminate against a state's ports can violate the port preference clause. It's a fun little op-ed. I'll put it in the show notes. I don't think you got it because the intent part is missing for me. Even if the effect is clearly there, the intent that he points to is some legislative history, particularly from Senator Jones, which in fairness is the guy who the Jones Act is named after, who really didn't like the territories of Alaska and Hawaii, but he was from Washington state. This was all, again, 1920 before they were states.

So, oof. But I thought it was fun, David. It is fun. And so two things, one on his name, Heaven Rick, or it's also spelled Heaven Rich. I hope you're listening. Please clarify because I really like Heaven Rich. That puts you in the all-name team. It's just such a... What a name you would have to communicate that you're a source of light and truth. Heaven Rich. But then the other thing is, it seems to me that the analysis, Sarah, is going to be what governs here. Is it proof of discrimination when there's invidious port discrimination? Or is it when there's disparate port impact? And it appears that if you go with the old precedent, that you got to show invidious port discrimination

rather than disparate port impact. And if that's the case, then the Jones Act may live to fight another day. But I hope your judge is really proud of you. This was a really cool piece. I hope someone brings this case because why not, by the way? And it seems to me, in fact,

that the state could bring this case? Because why not, by the way? And it seems to me, in fact, that the state could bring this case. So go for it, man. I think you should be pitching this work. And when you summered at Sidley Austin, and he could go back to Sidley Austin and bring a bill of business with him. Good for you. Yeah, absolutely. It's phenomenal. You probably don't win in the end, but nobody's looking at that 1855 precedent and thinking it's controlling by any means. So let's let the court actually tell us what that port preference clause means. Does it mean disparate impact? I don't know. All right, David, next up, why don't you tell us what's going on with this Carroll case? Yeah. So this is interesting to me because we have the former president of the United States

who's got a lot of novel legal issues right now. He's been indicted, the first former president to be indicted. We received word from Fannie Willis's office this week that they're going to make their final indictment decisions, Sarah, between the dates of July 11th and September 1st. So what's that? About seven, six, seven weeks or so, there's going to be a window, a grand jury watch or a, I'm sorry, an indictment watch in Georgia. hanging out there looking at Mar-a-Lago and looking at January 6th and the broader election steal effort. And snuck into all of this is a civil trial, or civil case, a civil trial on charges brought by E. Jean Carroll for battery and for defamation. And so what's happening is E. Jean Carroll has sued Donald Trump in civil court. And the trial started, we are recording

this on Wednesday, the trial started on Tuesday. There were opening statements. And the case is not terribly complicated on the facts. So essentially what Carroll is saying is that in the 1990s, she ran into Donald Trump and a department store. She did not talk about this encounter, this alleged encounter, I should say, until a 2019 New York Magazine article exerting a book that was called What Do We Need Men For? A Modest Proposal. So in the article, she talks about meeting Trump at Bergdorf Goodman, that when Trump saw her, he recognized her at the time. She was, you know, an advice. She had a television show. She was known as, he called her that, what, the advice lady. She was recognizable to him. He was recognizable to her. They had an encounter that she first thought was kind of playful and funny, but he got her to go with him into a

dressing room. And again, these are Carol's allegations. Started to kiss her, pushed her against the wall, started groping her, and actually began raping her. She says that she didn't go to the police after the incident happened. She didn't go forward because she was afraid no one would believe her. She says that she told two friends contemporaneously about the incident. Both of those friends confirmed that she'd said that or testified as the wrong word, told the New York Magazine that she had said that. And then Trump, of course, exploded at the allegations, called them a hoax and a lie, called them a complete con job, said he hadn't met her, not his type, etc. And so what she did is she sued, alleging defamation that Trump lied when he reacted about the claims.

And then also there was a New York law passed in 2022 to extend the statute of limitations for pursuing legal claims of sexual assault. The law, it's called the Adult Survivors Act, it enabled people to file civil claims regarding past allegations, including those that happened beyond the state statute of limitations. It gave people a one-year window to make the claims. Lots of people have filed similar cases. So opening statements were yesterday, and the opening statements went basically how you would expect. long wait on coming forward against her. And that the long wait coming forward is not a material bit of evidence that the attack didn't occur, that there are reasonable reasons why she didn't come forward. And so what she essentially did is she set it up like this, or I'm sorry, E. Jean Carroll's counsel set it up like this, saying, look, you're going to have E. Jean Carroll's testimony. You're going to get to weigh her credibility here

live in the courtroom. There are other people who she told that this happened to. And by the way, and this is interesting, Sarah, a big part of the opening argument was, and look, this is not a classic he said, she said type situation. This is more like he said, she said, she said, she said, because we're going to bring in other witnesses who said during other times, Trump behaved in a way very similar,

very brutal physically, attacking them in essence. Also, you're going to have the Hollywood tape. And so she's saying this is not a case of somebody just coming forward later in life in an opportunistic way to put themselves in the spotlight. This really happened. Trump has a pattern of this. There's witnesses who are going to back up her claims. There's witnesses who are going to back up her sort of testimony regarding how Bergdorf

Goodman was laid out at the time, etc. Trump's attorney basically comes in and says, no, actually, we do hold this long wait against her. This is her way to put herself in the spotlight at this point in her life. Trump has denied everything. This never happened. Absolutely never happened. This is

opportunism. This is somebody who was put forward as a person to destroy Donald Trump. Very, I think, smartly in opening arguments, Trump's counsel just put it out there that a lot of the jury might not like Donald Trump, but used a line that we've used before. No one's above the law, but no one's beneath the law either. That your distaste for Donald Trump should not color, if you have it, should not color your consideration of the case and really centered it around a flat denial followed by ascribing of motives to E. Jean Carroll for bringing the lawsuit. And those motives were not to vindicate herself after all those years, according to Trump's attorney, but rather to put herself in the middle of the national conversation to make herself a topic of conversation again. conversation again. So, you know, this is going to be one of those cases that it's going to be very much worth following, but very hard to track how it's going because this is not televised. We're not, as we, as Sarah and I have said many times when evaluating trials,

if you're not on the jury and you're not sort of seeing what the jury is seeing and only what the jury is seeing, it's very difficult to evaluate a case while the case is going on. So I'm interested to see how this turns out. And this is, as I said before, this is not strictly a he said, she said case. It's a he said, she said, she corroborated, she corroborated, and she's demonstrating a pattern of behavior. But it's going to be very difficult to know how this is going in real time. And it's unlikely that Trump will testify. So we may just really, as this unfolds, be completely in the dark as to how this trial is unfolding until we get a verdict. And Sarah, I just literally have no idea how this is going to come out.

I've been in this mode lately of like, I don't know, but I don't know. I don't know. I mean, it echoes what we've said about true crime. It echoes what we've said about why we don't cover complaints that haven't already gone through their trials. Because it's hard to pretend to be the fact finder from outside. You're just not. Because you're getting things that they aren't seeing. You're not getting things that they are seeing. So thank you for the overview. We will all now feel better informed as we watch them watch the trial. Right, exactly. And there are reporters who are in the courtroom and they're

live tweeting it all. But live tweets, that is not anywhere close to approximating the jury experience. So just take everything you read about it with a grain of salt and just wait on the jury verdict because, you know, it's not that long to wait. We can all wait on the jury verdict and then make assessments accordingly. All right. We're going to close with a story about Justice Gorsuch. Nine days after Justice Gorsuch was confirmed by the Senate, a piece of

property that he co-owned under an LLC with other people, he was part member of this LLC, so he had an interest in the property, was sold to the chief executive of Greenberg Trowering, one of the nation's biggest law firms with a robust practice before the high court. Gorsuch owned the property with two other individuals. He made a lot of money on it. This was like a beautiful little Colorado River property out in the mountains. Great. This says, Gorsuch did not disclose the identity of the purchaser. That box was left blank. And then we're sort of left to believe that there is nefarious things going on. He left it blank. So he didn't list this Greenberg-Trarig partner in his financial

disclosure. And then when you go look at the cases in which Greenberg either filed amicus briefs or represented parties in the 12 cases where Gorsuch's opinion is recorded, he cited with Greenberg's clients eight times and against them four times. Dun, dun, dun. And so there you have it. Right, David? This story is just total silliness for a variety of reasons. First of all, the partner at Greenberg Trarag said he didn't know Gorsuch owned it. He's never met Gorsuch like he had no idea he was buying it from an LLC. So first of all, you can't possibly have the purpose of corruption and just go around buying every property out there in the hopes that a Supreme Court justice secretly owns it. No. So there's no intent of corruption in buying the property. Then there's the, well, Gorsuch, though, knew who bought it. Fine. And that he didn't disclose the identity of the purchaser. That box was left blank.

We have a great explanation from this lawyer as to, in fact, when you are just like Gorsuch's accountant filled out his financial disclosure form and it was filled out exactly correctly. And in fact, as this lawyer points out, he would have been lying under oath on his financial disclosure form if he had filled it out in any other way because it was an LLC. And this was the termination of the LLC. It was the sole property of the LLC. So in fact, as far as Gorsuch is concerned, this gets in sort of a silly, maybe legal fiction, but that's how you would fill out the form correctly. And then I just want to take issue with the, well, then why is Greenberg Trarig doing so well at the court? Eight wins to four losses? You have to actually put this

in context. Go find me any major law firm and their last 12 cases before the Supreme Court, any major law firm and their last 12 cases before the Supreme Court. And I promise you, their win record is better than their loss record. Why? Because big law firms get to choose which cases they take, and they tend to take cases that are gonna win. Duh. And by the way, they put enormous resources behind them and all of that. It's the same reason why these same big law firms are more likely to have their cases granted cert why these same big law firms are more likely to have their cases granted cert because they take cases that are more likely to be cert worthy. And they write briefs that are more likely to be granted cert because they know what the court's looking for. They're repeat players. They look for circuit splits and all of that.

Bingo. It's just this whole like, there's smoke, there's smoke, look at the fire. Guys, we have got to have people who know what they're talking about on these stories. This is getting really quite stupid. Yeah, you're getting to a point where the story is being told about non-disclosure without a true explanation as to whether disclosure is actually required. And so this happened with the hospitality exemption, with the Thomas story. Is it a story that Clarence Thomas has taken jet rides and all of this?

And we'll refer back to the New York Times editorial board essay that we talked about before. Yeah, this is something that happens. Is that a news story worth telling? Yes, I do think it is a news story worth telling when Supreme Court justices jet around on private jets. I think that's, is that news, is that information that is newsworthy? I think yes. It's the next step that says, and they violated ethics rules. Get that right if you're going to make the claim. For example, in the Clarence Thomas situation with the sale of his mother's property, yes, that should have been disclosed. From everything we know, that should have been disclosed. When it comes to the hospitality, sure, report on it, but make it very clear, very clear

what the rules are and whether there was compliance or not. In this case, it appears that what you actually had, the actual transaction that as a matter of law really actually implicated Gorsuch's financial, his bank account was the disillusion of the LLC and the disbursement of funds. That was the transaction that had to be reported. Right. When the partner bought the property, he bought it from the LLC. So at that point, the money's sitting in the LLC. Gorsuch still doesn't have any money. He's just a member of the LLC. What then happens is that the LLC is terminated and its assets are distributed to the members. So when Gorsuch gets the money, it's from not the sale of the property to the partner. That would be the other side of the transaction. That transaction was with the LLC.

The reportable income to Gorsuch was from the termination of the LLC. It ceased to exist and its assets were distributed to Gorsuch. So the other side of the transaction doesn't exist. It is the, you know, as this lawyer put it, the suicide of the LLC itself that Gorsuch was a member of. So the partner can't be disclosed on the financial disclosure form. If you want to change that or and I actually do understand that by allowing justices to have these LLCs, they could use that to hide transactions. I see that problem, but that's not what the Politico story writes about, about how there's this loophole then in the financial disclosure forms. Instead, it says that he didn't fill out his financial disclosure form correctly and hid the buyer of his property. That's not correct because it's not the way that the property transfer actually worked when the property is co-owned through an LLC. Come on. The details matter. property is co-owned through an LLC. Come on. The details matter. And if you're going to tag them for not getting the details right on their financial disclosure forms, then you need to get

the details right about how property is purchased from an LLC, and then the assets are distributed to the partners in the LLC. Yes. Amen. Technical compliance with the law is technical is compliance. Technical compliance is compliance is another way of putting it. So I'm just I'm getting very frustrated with these stories because that isn't that hard to understand. And if you just ask someone, why is this part of the form left blank? Any real estate attorney would have been able to walk you through that.

blank, any real estate attorney would have been able to walk you through that. And I'm not expecting every reporter to be a real estate legal expert, but I am expecting them to ask the questions and to, and maybe this is the part where the gap is. Presume for a second that it was filled out correctly. Why was it filled out correctly, even though there's this blank on the form? Go with that question and try to track that down. And you may find that then the answer is it wasn't filled out correctly. But instead, you just presume that if there's a blank on the form, it must be wrong. Even though, again, this was clearly filled out by his accountant. And probably the accountant knew what they were talking about and wasn't trying to conceal some secret, horrible transaction where Greenberg Trarig is. Oh, and did I mention, by the way,

that the partner that bought this is also a huge Democratic donor, gave to Hillary Clinton, yada, yada. This isn't a conservative. He didn't know he was buying it from Gorsuch, and he's a Democrat. So what? Your narrative doesn't even hold together. Yeah. There's an aspect to this that really frustrates me, which is there's been a series of stories that, again, is some of this newsworthy? Yes. Is it what the story said it was? No. And then people will turn around and say, well, what do you think of the declining legitimacy of the courts? Okay, well, why is there, quote unquote, declining legitimacy?

If you're going to point me to something that is an actual problem, like the Dobbs leak, which was an actual problem indicating a real issue, well, we'll talk about that. But then if the other thing is, well, what's the source of the declining legitimacy? Well, the justices have only been engaged in technical compliance with the rules of ethics. Well, wait a minute. Is that, and did you make

it clear that they were engaged in compliance? Perhaps some of the declining legitimacy is the responsibility of just poorly reported media accounts. And that's not something the court can really do an awful lot about. That's not in the court's court, so to speak. Right. You asked them to fill out this form and they filled it out correctly. And now you don't know how to read the form. And now that's undermining the legitimacy of the court when the whole point of having the form was to help increase confidence in the legitimacy of the court. And again, I'm with you. I want to totally separate this from the conversation around the purchase of Justice Thomas's mother's house. That's a totally different issue. Thomas's mother's house. That's a totally different issue. But this, this is sloppy reporting.

Also, I feel kind of bad for this lawyer who bought the property, who now has this whole piece that walks through his bio on the firm website, a true working CEO, and that he was, his family has long resided in Colorado. He attended the University of Colorado Law School, and he was the recipient of the Most Admired CEO Award by the Denver Business Journal. He is an avid fly fisherman. I mean, I wonder why he might have wanted to buy this property aside from, of course, buying a vote on the Supreme Court.

And look at this quote. This is exactly the type of situation that an ethics code that included vetting of transactions and full disclosure would clear up, said the president of Accountable USA, a progressive research organization. Without decisive action, the conservatives on the Supreme Court will forever tarnish its reputation in our public life. Yeah. Yeah. It's amazing. So anyway, and again, we're not saying there are no problems. We're just saying, please get the problems right. Only the conservatives, by the way. And also, you'll notice there he doesn't say that he violated any of the disclosure form rules,

just says that they need to change the disclosure form rules and that that would, I don't know. All right. Enough of that rant. David, it's been a treat. And now we shall go get to listen to what I am already seeing was a hot bench for that takings clause case for the grandma case. Next time, we'll talk all about how the government is trying to steal the property of your 93-year-old grandmother. Thanks for joining us. You go, Grandma.