Advisory Opinions - Awful Qualified Immunity Cases

Episode Date: July 27, 2023

Three qualified immunity cases are thoroughly analyzed in a particularly depressing AO episode, but first David and Sarah talk through an injunction on asylum seekers some are calling “Trump-Lite”, plus: -Broken immigration systems -Say it with me folks, “Congress, do your job.” -Too much too soon too fast -Courts not complying with qualified immunity statutes -Does Congress have better things to show rather than Hunter Biden revenge porn? -Advice to prospecting law students -Small town gossip and country songs -Sarah’s victory lap around Hunter Biden plea deal -Be nice to the docketing clerks This episode is sponsored by FIRE. FIRE's mission is to safeguard and uphold the right of all Americans to freedom of speech. Be a part of the front line of a growing movement by joining the FIRE Update. Show Notes: -Update: AO still has the best listeners -Ilya Somin for Reason, "Supreme Court Rules Red" -David Lat's Original Jurisdiction Substack -One Billion Americans: The Case for Thinking Bigger Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, it feels like we're getting back into the groove of a post-Supreme Court term because we've got a district court injunction coming out of the Ninth Circuit on President Biden's asylum policy, also sort of seen as a Trump light asylum policy. It's worth a quick discussion before that goes up on appeal. And then we've got and maybe this will feel the most reminiscent to longtime listeners.

We've got a lot of qualified immunity cases to talk about and they're all awful. They're terrible. But we're going to go from that depressing part of the law to the culture of law practice, which might actually be more depressing. Interesting study that I read recently. And finally, we've got presidential candidates for the GOP nomination talking about how they can do it better on judicial nominations. So I thought that was worth a brief detour here at the end, some fun conversation there. All right, David, let's start the Ninth Circuit or the border, depending on how you look at it. I'll just explain what the Biden current asylum policy is, and then we can talk about how this judge ruled on it, a judge who was ruled, by the way,

on the Trump asylum policy. So roundhog day all over the place. Okay, non-citizens other than Mexican nationals who cross the southern border are presumed ineligible for asylum unless, one, they have advanced permission to travel to the U.S. Cool. Two, they present at a port of entry for a pre-scheduled appointment. Three, they have already sought and been denied asylum in another country en route to the U.S.

This is not surprising at all. Right. And so to put this in sort of lay terms, if you're from anywhere other than Mexico and you cross illegally, for instance, through the Rio Grande, you cannot apply for asylum on the other side. If you're from anywhere other than Mexico and you traveled through a bunch of other countries to get here and did not even apply for asylum in those countries? Nope, you can't apply for asylum here. David, this is very similar to the Trump policy. This same judge and same group, frankly, went to this same judge and the judge tossed out that policy. That was upheld on appeal. This time, again, they're coming from the left to attack this Biden policy. And the judge, once again, is like, yeah, same policy, same judge, same idea, still a violation. He had a few different reasons for doing so. I agree with Ilya Soman over at Reason here on the Vala conspiracy that the strongest one appears to be just statutory. Yeah, absolutely.

And let's just read the statute. The relevant portion here is really short, Sarah. Any alien who is physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival and including an alien who's brought to the United States after having been interdicted in international or United States waters, irrespective of such alien status, may apply for asylum in accordance with this section. So the key language is any alien who is physically present, dot, dot, dot, irrespective of such alien status, may apply for asylum in accordance with this section. such alien status may apply for asylum in accordance with this section.

So this seems, Sarah, in my view, to be a straight-up statutory ruling. As you mentioned, Ilya, Ilya's got a good write-up of this that we'll put in the show notes, but I think it's correct. And again, goes back to a theme of this podcast, which is Congress has got to do its job here regarding immigration policy, because if this is not what we want, if it is no longer manageable, for example, to have a statement that says any alien physically present regardless of their status or irrespective of such alien status may apply for asylum, then if that's not tenable, that law needs to change. Now, I do think one thing is interesting about this, Sarah.

The Biden policy violates the plain text. This is what the judge says. And this is what I'm going to focus on for a moment. The Refugee Act of 1980. Now, why is that interesting? I think it does reflect a very different time of, a very different period in world history and a very different way in which we used to look at refugees.

So this is height of the Cold War, where one of the things that, and I'm old enough to remember this, Sarah, you are not. But one of the things that we were proud of at the height of the Cold War was how many people wanted to flee authoritarian countries to come here.

And so, you know, we were very, there was a strain, particularly, and I'm not just going to say it was within conservatism, but this will surprise some people considering conservatism's view towards sort of like refugees and immigration now. But there was a strong strain in conservatism that was, heck yes, look at all these people who want to come. And so we viewed in a lot of ways, the refugee problem is a flight from authoritarianism and we're the beacon of liberty. Now what you have often is not a flight from authoritarianism,

like a flight from communist regimes or communist allied regimes. You have a flight from chaos. So you have a flight from communist regimes or communist allied regimes. You have a flight from chaos. So you have a flight from gang violence. You have a flight from poverty. You have a flight from, you know, the physical danger of a decaying society. And we have a different attitude towards that. When I say we, I mean sort of the body politic, not everybody, not necessarily me, but there is a different sort of response to that and there has been a different response to that.

It's a different way and it's a different reason why people are fleeing, less a contest of two giant systems where one, the fact that people are fleeing is evidence of the superiority of our system versus functioning developed world and nations and or regions that are sliding into chaos. And that's sort of creating this crisis. And we've not responded to it well, quite frankly. We just, that goes without saying almost. Really?

Yeah. I wonder if you could expand upon that idea. Do you have disagreements with that assessment? I don't think we need to go into all the ways the immigration system is broken because what's fascinating to me is that no matter where you are on the political spectrum, it's broken.

If you're on the far left, it's obviously incredibly broken from a humanitarian's perspective. If you're somewhere in the middle, it's broken from a this is no way to run a railroad perspective. And if you're on the far right, obviously, they think it's incredibly broken as well from a sort of nationalist citizenship perspective. And yet here we are once again with the same problem that we've had in the student loan debt forgiveness or bump stocks or any of these other examples that I like to give where there actually is political pressure on Congress to do something. And then the president decides to save his side from having to take a hard vote or compromise

so they can't be challenged in primaries, gives them everything they want. And it's incredibly short term, either because that president can't stay in office forever or because a court strikes it down as they did here. And so the policy doesn't get fixed. The problems don't get fixed, God knows. And yet the pressure on Congress

never gets to build to a level that actually forces action. And this is just such a great example because I think a lot of people still see the immigration fight as one being right versus left. But this is a great one of like, nope, it's left versus left.

It's middle versus right. It doesn't matter. Nobody likes this. Nobody thinks this is working. Yeah, exactly. Nobody thinks this is working. And also I would say, I think,

and listeners can disabuse me of this notion, but my general feeling, Sarah, is that there has been the outlines, the broad outlines of an immigration compromise kind of laying out there for a while. Oh, sure. I mean, comprehensive immigration reform going back. This is actually what starts my whole rant is the Obama pen and phone quote. You know, everyone sort of knows like pen and phone, but like when you actually hear it, I just think it's worse. quote, you know, everyone sort of knows like pen and phone, but like when you actually hear it, I just think it's worse. I am going to be working with Congress where I can to accomplish this, but I'm also going to act on my own if Congress is deadlocked. I've got a pen to take executive

action where Congress won't. And I've got a telephone to rally folks around the country on this mission. And what was this mission? It was DACA and DAPA. This was the dreamers, the children who were brought here as minors illegally through certain years, and then their parents in providing legal status of some kind. Well, here's the problem. DACA and DAPA were important trading blocks, if you will, as part of comprehensive immigration reform because one side wanted it very badly and the other side wanted different things very badly. Once Obama took this DACA and DAPA off the table, comprehensive immigration reform not only failed, obviously, it ceased to have any political pressure behind it whatsoever. The fact that DAPA then gets struck down, blame the courts for that one,

not Obama, not Congress. DACA is living in some sort of hellish limbo still to this day. And to me, again, it's not that it's a right issue or a left issue, but President Obama just summarized it so perfectly of, if you can't get this done, then I'll give my side everything they want. Well, then your side isn't willing to compromise anymore. Right. Well, you know, and think of the Trump administration. There was, for this briefest of moments in late 2017, an emerging compromise on, we'll fund more wall and you resolve the status of Dreamers. And then, which was, again, I thought quite sensible. Will, you know, more border security with the compromise

as you're going to resolve the status of dreamers and who in particular are got to be far and away the most sympathetic, one of the most sympathetic populations of people in the US. I mean, you talk about being brought here when you're children, your parents bring you. And so you're not. Your whole your whole future is up for grabs. I mean, and you don's a lot of consensus that the border needs to be more secure. I mean, heck, if the Biden administration is doing stuff to bring down

the number of people entering the country, then there's consensus that the border needs to be more secure. And we can't do this. I mean, in the Trump administration, one of the part of the faction that torpedoed that was sort of the Stephen Miller side of this that is so hostile to immigrants in toto

that it's just not going to do anything to grant any aid and comfort for immigration at all. And yet, you know, that compromise was laying out there and it's incredibly, incredibly frustrating and it's so harmful to human beings. I mean, what is the asylum system now? How do you know? And what should we do?

I mean, I do want the United States to be a beacon of hope and freedom in the world. At the same time, we can't absorb every single person fleeing chaos. And so how do we square that circle? What do we do about that? And then you've got my whole beef of the incentives are terrible. Yeah.

But even aside the individual incentives, what we've actually done is created a wonderful market for drug cartels to traffic in human beings instead of drugs. And they don't care about the lives of the human beings. And that's how you're going to end up with five-year-olds getting tossed over a wall and left in the desert. And then we all keep our fingers crossed that border patrol is looking at the camera when it happens and can go and get her. Fingers crossed. Yeah. Yeah. I mean, it's just dreadful on so many levels. And I think the bottom line is, look, I am a very pro-immigration person. I have been going way, way, way back. I think it's, I mean, my gosh, let's just put it this way.

We can't really grow as a country economically over the long term without immigration. We have a birth rate that is below replacement level right now in the United States of America. I read a book. I read Matthew Iglesias' book, One Billion Americans, and found it really persuasive. Now, I'm not in the sense of uncontrolled immigration. You can't swamp the resources of border towns. You can't swamp the resources of states or federal governments. There is such a thing as too much, too soon, too fast.

Absolutely, completely agree with that. And we might want to pick who's coming. We might want to know who's coming. If we can't pick, we should know. If we can't know, we should. I mean, it's like. It's basic stuff. This is not the immigration system anyone would pick, but it is also not up to the president to change the immigration system.

It's not up to the governors to change the immigration system. We just keep bashing our heads against this political wall where governors and presidents keep railing in their campaigns against an immigration system that they are not empowered to fix because they are not the lawmaking branch of government. And then members of Congress are over in the corner, like whistling to themselves, be like, do, do, do, do, do, do, do. Well, not exactly. I mean, they are doing such important public services as putting revenge porn of Hunter Biden on live on the air because that'll fix things. Hunter Biden on live on the air because that'll fix things. Don't even, I can't. Okay. Okay.

This is just going to be like one of the more depressing advisory opinions that we've ever done because next up we're going to do some qualified immunity. David, there's three cases that we're going to talk about two in the fifth circuit, one in the Ninth Circuit. But just setting the overall stage here, qualified immunity is, the discussion is about when you have had your rights violated by a state actor and can seek basically damages from that actor. That actor is then protected by something called qualified immunity. Unless, at the time, that constitutional right was clearly established. And there's a lot of problems with this. We've talked about them many times before. A lot of the times you can just skip step one, find that there's qualified immunity, not have to deal with the clearly established test. And so nothing ever gets clearly established. That's one problem that we've seen quite a bit. We'll talk today a little bit about who gets to establish what's clearly established.

And these questions keep coming up to the Supreme Court in cert petitions, and they keep not getting granted. So that's why today we're checking in once again on the circuit courts who seem, I mean, it's just taking up an enormous amount of the docket, it feels like. It really does feel like it. And just to give you a little bit more, to give readers or listeners a little bit more background. background. And by the way, when in the hundreds of podcast episodes, when, how many more hundreds of episodes will it take for me to begin by saying listeners instead of readers? All of them. All of them. Anyway. So we just had a case, we just talked about a case where there was clear statutory language, right? And the, we're saying, look, the statute says X. And if you want something different, Congress has to act. This is what's weird about this qualified immunity jurisprudence is you have clear statutory language.

And yet the courts for decades have just not complied with it. So here's what the statute says. Every person who under color of any statute, ordinance, regulation, custom usage of any state or territory or the usage of any state or territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law,

suit inequity, or other proper proceeding for redress. I'll again read the key language. Shall be liable. Or not. Or not. There was an implied or not there, David. There's an implied. But there was an implied or usually not there, which is what qualified immunity does.

This is a judge-made doctrine that modifies the meaning of the statute to say, in essence, shall be liable only when the rights and privileges or immunities outlined above are clearly established. That's not a language in the statute. And there's an obvious reason for this, of why this started in the first place, right? Because the idea that, especially in the Warren court, they were finding all sorts of new rights, new constitutional rights. And then what, we were going to hold all these state actors liable for violating something they couldn't possibly have known they were violating at the time. And so that's how you end up with the two-step qualified immunity process.

Did a state actor violate your rights? Number one. Two, were those rights clearly established at the time that they were violated? I mean, it's very easy to see how this judge-made doctrine comes about, regardless of the statutory language, because of what was happening with other judge-made, judge-found law at the time. But like I said, again, one, were your rights violated? Two, was it clearly established at the time? You have a lot of courts just skip one and say, well, we don't know if your rights were violated, but it doesn't matter because it obviously wasn't clearly established that it was violated. So the state actor gets qualified immunity and your suit is dismissed, but then it never gets clearly established because we never actually

established that your rights were violated. Yeah. It's in. And then what does clearly established mean? Clearly established doesn't tend to mean something like, well, we pay, you know, we have the Miranda ruling.

And so if your Miranda rights are violated, that's clearly established. It's much more. It's more like in the month of May, is it clearly established that you can't shut down someone's free speech rights off campus when they're wearing blue. I mean, there's a specificity problem as well. Yeah. Just to take one case that I've talked about before, there was a situation in the Sixth Circuit involving a dog attack on a police dog attacking a surrendered individual. And they found no qualified immunity in large part in one case because the police dog that attacked the surrendered individual, the surrendered individual wasn't lying prone. The surrendered individual was sitting up.

Okay. All right. That seems to not be what we're after here. But the Supreme Court has been, there was a three, this was early in advisory opinions history when the Supreme Court sat on qualified immunity cases without deciding whether or not to whether to grant cert or not. For a lot for week after week after week after week. And a lot of people who are really worried about qualified immunity doctrine or like rubbing our hands together. Are we finally going to get some qualified immunity, new qualified immunity jurisprudence? Because Thomas has written stuff about it. Skeptical. Sotomayor has written stuff about it. Skeptical. And I believe you were saying,

if I recall correctly, don't get your hopes up, David. And you were correct. You know, every few years or whatever, there's something that comes up where you can type into Google, you know, has X happened yet? Yeah. And like, there's just a webpage that says no. There are no results match this search. No, no, no. You just get it.

It just has the letters N-O on it. No. Has the Supreme Court fixed qualifiedimmunityyet.com? No. No. It's just going to be an evergreen website that I'm going to start with so much traffic. 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?

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plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay, but let's get into these three cases. So, I mean, and again, by definition, these qualified immunity cases aren't fun. Start with the Fifth Circuit, David. Okay, yeah, let's start with the Fifth Circuit. And let's just give a shout-out where shout-outs are due. David Latt, his newsletter, Original Jurisdiction, highlighted this case.

And this case, what this case. Well, David, you're missing, though, the other reason that we need to talk about David Latt on this podcast. They just welcomed a new baby boy. He and Zach and Harlan, their oldest son, new baby boy in the family. And it's important at this point to mention that, like, yes, he's still newslettering with a newborn baby, which is crazy. Although one does wonder, David, you mentioned in your original jurisdiction newsletter that you're continuing and that you're so sleep deprived. But like, should we actually be thinking more about Zach at this point? How sleep deprived is Zach, though? I'm guessing more sleep deprived, but maybe that can be answered in a future original

jurisdiction. But David, you know, I'm obviously watching very carefully legal eagles such as Zach and David are two boys, newborn baby boy. You know, it's it's hitting a little close to home, but they are just crushing me on the name game. So their oldest son, Harlan, is named after two Supreme Court justices, John Marshall Harlan and John Marshall Harlan II. You know how I feel about John Marshall Harlan, obviously. Yes. This baby is baby Chase. And Chase is also named after two Supreme Court justices,

Justice Samuel Chase and Chief Justice Samuel Chase. I mean, and worth mentioning, by the way, so the Chase's Justice Samuel Chase was impeached, for instance, though David is willing to go to the math that that was a witch trial of an impeachment. But Chief Justice Samuel Chase's daughter, Kate Chase Sprague, was actually the first female campaign manager. She ran her dad's presidential campaign. So I'm a big fan of hers. Well, first, congratulations to David and Zach. Second, those are super strong names, which you can only surpass with my suggestion, Little Aragorn. David, we are struggling so hard on the name front right now.

It's, I can't even, it's getting a little bit desperate. We are now like a month out roughly, and we're nowhere. We got nothing. Oh, wow. It's not good. Well, you still have time. You still have time. A month is 30 plus. I mean, you're 30 plus days. I mean, there's still time. I'm worried we're

going to be looking around the hospital room and be like, name him outlet. What about clock? Name him outlet. It's going to be like that scene from The Jerk of like, I don't need you. I don't need anything. Just this lamp. Like, I'm going to be naming my kid lamp as I look around the room. My sister at one point was like, I think people should just name their kids after cool sounding words. And like her cool sounding word was fuselage. Which I must confess is a cool sounding word. Like fuselage like does roll off the tongue. But as a name.

Yeah. Fuselage. So I'm struggling here. Yeah. So this case is I think this now might have been the last time we used the word fun. And also we should have been tracking this already because it features one of our favorite circuit judges, Don Willett. Friend of the pod. Friend of the pod.

So what this is dealing with is qualified immunity and this is going back to sort of like advisory opinion slash con law 101, is that the constitution protects you only from state actors. So for example, in the first amendment context, Twitter cannot violate your first amendment rights. Facebook cannot violate your first amendment rights because Facebook and Twitter are private companies. Only the federal government or your state or local governments can violate your first amendment rights. Agents of the government violate your rights. Now, private citizens can commit torts. They can assault you. They can harm you in ways that

civil law can provide for redress, but they can't as a general matter, violate your civil liberties because they're not, they're not state actors. So the, uh, the general rule is that of course, a private citizen is not violating your rights. They might commit a tort. They're not violating your constitutional rights, protect the rights secured by the constitution. But there's a, an exception that many jurisdictions have outlined, and that is called the state created danger doctrine, where essentially is if the state has created the danger that

you're now experiencing from private citizens, then in essence, this is treated as if the state has violated your rights, not the private citizen. And this case is an illustration of when the state created danger doctrine might be applicable. And this involves, and these facts are really grim. You have two special needs students at a middle school. really grim. You have two special needs students at a middle school. And one of the special needs students is, you know, maybe middle school age, but has the cognitive ability of a four or five year old. So it's 13 years old, but the cognitive ability of a four or five year old. And so she had a comprehensive individualized education program, IEP.

So there's another student who also has a history of problems, but these problems are of severe violence, of severe behavior problems. Among the many infractions were hitting students in the head with rocks, poking the student in the eye, hitting another student with a belt, threatening to burn a teacher to death, biting, kicking, spitting on other students. There was, according to the complaint, evidence that the student posed

an especially serious risk to female students, whom he frequently taunted with obscene remarks. He told school staff he was, quote, going to be a rapist when he grows up. And this misconduct was not limited to verbal abuse. He entered the girls' restroom at school. He groped a female classmate. He exposed himself. I mean, bad stuff. So in 2019, notwithstanding the IEP requirements that applied to both students, which were they were not allowed to be to wander out of their classrooms, they were not allowed to be outside of their classrooms without supervision. where the female student was sexually assaulted. The school learned about it, found out about it, and then allowed it to happen again two months later in November. So September, November, there was another bathroom assault. A suit brought claiming that this was a state-created danger.

And the ultimate result of the case was, a minute from the fifth circuit not only is this not clearly established but the state created danger doctrine doesn't really he exists here in the fifth circuit and that we're not going to extend ourselves to make it exist in the fifth circuit because the supreme court is tapping the brakes on substantive due process doctrine. And so therefore, we don't know if the state-created danger doctrine is really going to exist. The Supreme Court is putting the brakes on substantive due process jurisprudence, so we are not going to grant relief on this basis. Now, there are some Title IX relief that might be available for student-on-student harassment,

but not on this basis. Interested in all your thoughts on all the branching roots of that particular tree. It is hard. I wish the case had different facts. Right. Like even for us here, people who, you know, read cases all day long, it is just hard to separate the facts. Right. Like even for us here, people who, you know, read cases all day long, it is just hard to separate the facts. Yeah. It's so the legal doctrine that you think should exist behind the veil of ignorance, um, in part, because what this leaves you with is that the school or

rather the school officials, um, there's no limiting factor. And then it happened the next week and it happened the next day. And then a month later, like this wasn't about frequency. This is about whether anything they did was a problem, could ever be a problem. That's a problem for me. So that's not great. But on the flip side, let me just mention briefly the facts of this Ninth Circuit case. The Ninth Circuit, of course, does have a state created danger doctrine. And again, I'm going to keep this pretty high level. Believe it or not, David just kept those facts pretty high level. voices. The father of the children calls the police to get help removing her from the home. When the police show up, they remove him from the home. A neighbor comes over to help. It's very clear that she's hearing voices. She's yelling things that don't make sense. The police prevent him from going back into the home. A series of events happen next. Um, the neighbor suggests that the neighbor calls 911, by the way,

again, like they suggest taking her to a hospital. They don't take her to a hospital. They take her to a shelter with the kids instead. They tell the shelter that they did take her to a hospital, even though they didn't. Then she doesn't end up in the shelter. She ends up in a hotel room. Again, the father is trying to get to the kids, but also is under pretty reasonable fear that he's going to get arrested if he tries to actually physically get to the kids. This ends with two twin baby boys being drowned in the bathtub in the hotel room. So same idea, right? Like the police are what prevents saving these baby boys, both refusing to allow the father to get to them, lying about the mental evaluation at the hospital,

which didn't happen. And so again, you end up with this state-created danger doctrine. But David, it is hard to find the limiting principle when on the other side of the spectrum, we've talked about this case before because it's sort of the paradigmatic case. You call 911 for help. They don't arrive in time or they don't arrive at all, can you sue them for not coming to help you? And the answer is no. You basically don't have a right to police protection, which I think surprises some people. But when you sort of think it through, it would be very hard to live in a world of the opposite from a legal liability standpoint. You know, what if it took them 30 minutes to respond? What if they have enough police officers

to respond to five calls and you're the sixth call and your call isn't as bad as the other calls? I mean, and again, the facts can get pretty egregious where like, nope, they just ignored your call. Um, they went for donuts on the way, you know, whatever it may be, but that is clearly not a state-created danger. And so then what is the state-created danger doctrine? And you want to talk about judge-made, David. Go back to that statute. It just says, shall be held liable. That's it.

Yeah. So we've had to create this world upon worlds because of qualified immunity that I think in the end is really unhelpful regardless. And I want your thoughts on this, Sarah, because as I was reading this, I was a little bit stumped by something. So I need you to help me. So here's what I was a little bit stumped by. Why is the state-created danger doctrine rooted in substantive due process and not in just the text? Okay, so let's go to the text of the 14th Amendment. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. I don't know why I read that. Totally irrelevant. It's just a little 14th Amendment refresher.

Just, okay, here we go. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person, here's, nor shall any state deprive any person of life, liberty, or property without due process of law, nor denied to any person within its jurisdiction the equal protection of the laws. So what substantive due process is, is, as the name would indicate, it is not due process, it is substance. It is sort of saying, okay, wait a minute. What are the unenumerated rights that we possess? And because we know there are unenumerated rights, the Constitution says there are unenumerated rights. The right to travel, always the easy go-to. parents to raise your children. Unenumerated right, but absolutely accepted as one of our unenumerated rights. So what substantive due process was, was a judge-made creation that says,

well, there are unenumerated rights. We're going to analyze them through a framework. We're going to call substantive due process. And a lot of conservatives have objected to that over the years and says, wait a minute, we know there's unenumerated rights, but what is substantive due process? I mean, what is substantive process? Like, that doesn't even make sense. What you have here is actually in the 14th Amendment, a concept called privileges or immunities. Why not analyze under that? So you get into this kind of esoteric argument. And the Dobbs case indicated pretty clearly that if you want to expand substantive due process jurisprudence, good luck with that. Like, good luck with that. danger in the true sense of state creation, isn't the state depriving us of life, liberty, or property? Why do we have to go to the substantive due process analysis at all? That's my question. Why is it that we're doing that substantive due process analysis rather than

doing a straight up textual analysis that says, hey, if I'm in the custody or control of the state as I am if I'm a minor child at school and the state by its clear, clear failure to exercise anything remotely approximating due care puts me in danger of sexual assault. No, I mean, this isn't close as to whether this person me in danger of sexual assault. No, I mean, this isn't close as to whether this person was in danger. Isn't the state doing this? If the state, to go to the Ninth Circuit, if the state tells a falsehood, lies, if the state prevents me from having access to my own children, um, is then the state in many ways doing this. Now it's not the sole cause. It's not the sole entity depriving a person of life, liberty,

or property, but isn't it an, an entity that is depriving a person of life, liberty, or property? What do you think about that, Sarah? I think that's why the state created danger doctrine is a hot mess, as the kids say.

And, you know, there was a Twitter thread by legal journalist Mike Sachs about this. And I think he actually got it exactly right when he said that, like, the reason this was all created in the first place is basically a humanitarian choice by judges who understand that the governing precedent was deeply unhumanitarian. But that's, you end up with all these unintended consequences is the problem. Whenever you do something like that, where you think, you know, it's bad facts make bad law. Well, qualified immunity cases, a lot of them have really bad facts. And unfortunately, I think some of them are making really bad law on the other side, just like qualified immunity has made bad law, again, from good intentions of this idea of not holding police officers or school officials responsible for these newly found, newly created

constitutional rights when it started. Well, now you're on the other end of trying to create liability because the facts are so horrible. You just can't help but feel that this person should be able to continue with their lawsuit. The Fifth Circuit, in the end, ends up in an interesting place. So you mentioned Judge Willett writing the majority opinion saying the Fifth Circuit does not recognize a state-created danger doctrine. It's one of the few that doesn't, by the way. Ten other circuits do. It goes for an en banc vote, which is really interesting. And Judge Willett votes to take

his own case en banc, which is really unusual. So why would he do that? Because it's the only way you can revisit circuit precedent. Right. It was a pretty tight vote, actually, but it's denied. So that case will not be going en banc. Similar thing happens with this Ninth Circuit case on the other side, the one with the two dead children at the end of it. And there you have a couple dissents worth mentioning. One, Judge Sandra Okuda was on the panel and dissented. But then on the en banc vote, that also failed to be

reconsidered en banc. You have Judge Patrick Boumete, again, worth mentioning, not just friend of the pod, like friend of me, good friend of me. Anytime there's a Boumete dissent, like I'm all over it. His dissents are becoming must read material at the circuit level. It's not just because he's on the Ninth Circuit, it's because he's such a reasonable, smart human being. Anyway, so he descends from denial en banque, quote, it's long past due that we revisit the state created danger doctrine. This case presented us with a prime opportunity to reconcile our state created danger jurisprudence with the Supreme Court precedent and our constitution. Regrettably, our court has passed it up. So you have here two en banc votes. The Fifth Circuit one was quite tight. The Ninth Circuit one wasn't actually a tight vote,

but you've got that Boumete dissent, which again, I think is must read, not just for those who follow circuit courts, but also at the Supreme Court, I assure you they've noticed. So it's these flares, as David Latt put it, going up to the Supreme Court. The circuit courts need help with this. There's a circuit split. You've got smart judges wringing their hands, not knowing quite what to do and being bound by their own circuit precedent, trying to interpret Supreme Court precedent. And clearly, they're disagreeing over what that is. Come help them.

And David, I would refer you to my website. Has the Supreme Court cleaned up qualified immunity yet? Dot com. It's just a two-letter website. That's right. In and out. That's right. So can I try a theory on?

Yes. So here's what I think is interesting. If I'm looking back at this, because I'm just stuck on this, that I'm just stuck on the idea that state-created danger came through, that the whole doctrine is rooted, at least in large part,

in substantive due process. And I wonder if this is an artifact of, if you go back 20, 30, 40 years, substantive due process was a, that was a really viable way of articulating rights and a really viable way of vindicating liberty in the Supreme Court, in the pre-originalist court. So if you were a litigant and you were trying to articulate a theory of constitutional liability,

substantive due process was sort of like the wide open gate. And then all of a sudden, not all of a sudden, but over time, the composition of the court changes and it isn't any longer the kind of court that existed that expands substantive due process. Instead, it's a more originalist slash textualist court. actual text as opposed to substantive due process. But there was no reason for 20, 30, 40 years to make that kind of textual argument. And so, you know, it's an interesting question, I think, as far as what ends up happening when sort of the judicial philosophy of the court changes and what you're going to end up seeing in some ways is you're going to see, maybe not here, up happening when sort of the judicial philosophy of the court changes. And what you're going to end up seeing in some ways is you're going to see, maybe not here, but you're going to see continuity in some legal doctrines, but rooted in different reasoning. And so it isn't that necessarily the state-created danger doctrine can only exist through substantive

due process. It was just that that was the most expedient way for it to exist at the time. Does that make sense? I think that makes a lot of sense. All right, one more qualified immunity case before we leave this. This is not a state-created danger doctrine case, but rather on that clearly established. Who gets to establish clearly established? Another case out of the Fifth Circuit and Professor Oren Kerr, Berkeley professor, also friend of the pod. If you're not

following him on Twitter, you are just missing out on both the profound and the deeply fun Fourth Amendment cases going on around the country. There's some weird ones. Anyway, this involves the facts here are actually quite a bit less important, but someone being held in custody who is then tased. And the question is whether the law was clearly established at the time, like we've talked about. You have this paragraph from Judge Oldham in which he says, With deepest respect and admiration for my learned and esteemed colleagues, I think it is unwise to give a panel of three judges the power to set clearly established law and thereby bind every law enforcement officer in three states. This is the Fifth Circuit, so Mississippi, Louisiana, Texas.

in three states. This is the Fifth Circuit, so Mississippi, Louisiana, Texas, governing every conceivable emergency situation in every community from El Paso to Pascagoula. And I think it is particularly unwise when the underlying legal standard is so open-ended and our precedents are so contradictory. If the Supreme Court wants to vest this power in us, so be it. But unless and until the Supreme Court does, I would not assert it. This is kind of a big deal. Why? So let me read a little bit what Professor Kerr said. I would have thought it common ground that circuit court judges are bound by circuit precedent. But am I right in reading this dissent by Judge Oldham as saying he doesn't and won't unless he thinks the panel opinion is wise or the Supreme Court requires it. So I think I slightly disagree with Professor Kerr on this,

David, and I'm curious what you think. And it's a little nuanced. So let me run through how circuit precedent works. So panels are bound by other panels at the circuit level by previous panels, unless it goes en banc. So en banc wins, then the panel, and then your panel if you're doing something totally new and no other panel has ever seen it before. Now, of course, the Supreme Court can take it and reverse it as well. But within the circuit, you're bound by the precedent of previous panels. Okay. But the question here is a little different, which is for that second prong, was the right clearly established at the time for purposes of qualified immunity? Is it that every circuit gets to set what these rights are that are clearly established or that only the Supreme Court gets to decide what rights are clearly established?

And then you are simply applying those clearly established rights to the facts at issue, et cetera, et cetera. As in who gets to decide what the rights are that are clearly established. I don't think that's quite the same as saying I'm going to ignore circuit precedent. It's more about who gets to decide, because otherwise you have dueling, clearly established rights that are different in Mississippi than they are in Oklahoma. Um, now again, what's also interesting about this though, is that pretty much every other circuit has decided that, yeah, no, the circuits get to decide what the clearly established rights are. Yeah. And judge Oldham is sort of staking out a new question here, but one that I think is

different and interesting. He's not saying that he'll just follow panel opinions when he agrees with them. He's talking about specifically in the qualified immunity context and specifically if the Supreme Court has never said that a right is clearly established. We don't need to look at past circuit precedent. That's not up to us. But there is one huge problem with this, David. It might be theoretically persuasive. It might be legally right. But then you need the Supreme Court to take any qualified immunity cases whatsoever. Otherwise, there are no clearly established rights.

Bingo. See, that's the problem here. So if you have... But it's a practical problem. It's not a legal problem. No, right. So here's the deal. The way that clearly established, the phrase clearly established works now is it's not that you say, well, he violated my free speech rights and my free and look at the constitution. It's it's clearly established. I have free speech rights. No, no, no.

The way clearly established works now is he deprived me of my free speech rights in this very specific way as articulated by a previous panel of the circuit in which I'm litigating. That's the way it works. So if you retain the high degree of specificity that is the normal practice in clearly established case law, then essentially what you're doing by punting that up to the Supreme Court is saying there are basically or almost no clearly established rights. But what if you chucked the specificity and said the Supreme Court has recognized a right

to free speech that is clearly established and we're going to stop doing free speech on a Wednesday when you're wearing a blue hat? Right. Or the Supreme Court has clearly established that students enjoy a free speech right. Or that, you know, something even if you get a little bit more specific than there's a First Amendment, at that higher degree or that lower degree of specificity, you actually, if you change the way you think of clearly established, that would diminish qualified immunity and expand the ability of plaintiffs to secure compensation. But if you retain the highly specific view of qualified immunity and you kick up the definition of the highly specific view of qualified immunity and you

kick up the definition of the Supreme Court, then qualified immunity just starts to absolutely swallow the statute almost entirely. So it is a very interesting question on two axes. One axis is who decides, and the other one is to what degree of specificity. And if it is the Supreme Court decides and it has to be a what degree of specificity. And if it is the Supreme Court decides, and it has to be a high degree of specificity, well, qualified immunity is the kraken that devours the Constitution. But if it is the Supreme Court decides

at a low degree of specificity and a high degree of generality, then qualified immunity diminishes. I hope that makes sense. I said it with such authority. This was a concurring in part dissenting in part from Judge Oldham. And, you know, the first part is the majority relies exclusively on circuit precedent to clearly establish the law, but the Supreme Court has never authorized this approach. That's what we've talked about.

The second part is also funny, nevertheless. Second, I am increasingly concerned that our excessive force cases are governed by Justice Stewart's unsatisfying standard of, I know it when I see it. Justice Stewart regretted that statement later in life. And that regret is understandable because the statement suggests that constitutional questions hinge on in-chambers video viewings and intuition.

He's talking about porn there for those who are curious. Yeah, yeah. On the in-chambers viewing and intuition. But actually it comes up in excessive force cases, similarly viewings and intuition. Yep, qualified immunity remains a mess, like standing doctrine. Standing doctrine I think is a bit of a broader problem,

but nevertheless, qualified immunity is a deeper problem, I would argue. Speaking of deep problems, do we want to talk about the culture of the law? I do. So I was giving a speech yesterday, and there was a young man in the audience who just graduated from college and is looking at going to law school. And David, we've had this debate many times on this podcast. What do you tell people who are thinking about going to law school? And your advice, I'm going to be really fair in summarizing it, is go have fun. Yeah. Pew, pew, pew. And my advice is don't go. Yeah. I think that's a fair assessment of the debate.

Yeah. And again, I think my advice is actually a presumption that is overcomable. So if you tell me that you want to practice law, you understand what the practice of law is, and you understand sort of how the law school conveyor belt pushes you into that practice of law, then I'm all for it. You know, the starting salary for an associate at Big Law right now, I think is $215,000. As long as you understand that they're paying, they're not doing that because you're so smart and special and they just really like paying you money. They're paying you for all of your waking hours

and then some additional hours that you should not be awake. Yes. Also as a lawyer, you are in the service industry. So that iBanker, he looks at his watch and is like, oh, 5 p.m., I got to get to the Little League game. Well, I'm going to call it a day and send this over to the lawyers now to start working on it at 530 p.m. They'll crank until 3, 4 in the morning and then send it back as I'm just about to wake up with my cup of coffee and my beautiful family who gets to see me during hours of daylight. Yeah.

As long as you understand all of that and are like, yes, but, you know, this is what I want to do. And you don't need to be high-minded about it. You don't need to say, this is what I do want to want to do because I'm passionate about doc review. It's fine if you're like,

this is what I want to do because I want to buy my mother a house and I understand the sacrifice that, you know, that's going to take. That's fine with me. It doesn't need to be high-minded. But the, I want to be a lawyer because I can do anything with a JD degree? No, dude. No. So, David, with all of that background, I read this fascinating paragraph. Yes. It turns out that neither farmers nor traveling salespeople are on the list of the

loneliest jobs. The top two loneliest professions, according to the Harvard Business Review, are, drumroll, lawyers and doctors. Both of these are high skill, high pay, high prestige professions. This is from Arthur Brooks' From Strength to Strength, which, by the way, is a book I highly recommend if you are, let's say, 35 or older. If you're under the age of 35, I actually also think you should read it, but more so that you understand the people around you. Get to know the old people in your life. But it's on sort of finding happiness in the second half of your life or finding purpose in the second half of your life is maybe a better way to put it. Arthur Brooks,

he's one of the great thinkers of our time and doesn't really get, I think, viewed that way or on those lists. And he is, and it's great, and it's a short read. I thought the book was great from strength to strength. That was the name of it. But David, the sentence popped out at me, and I immediately, I was going to say, screenshot it. No, I didn't. I took an old school picture of a book page, page 120, and I sent it to you. Yes. Does that ring true to you on the loneliest professions? You know, I'm actually, I'm not surprised by doctors as much because doctors, it does feel like the profession lends itself to loneliness in some ways and that you, in many ways, a doctor is sort of a soul decider.

and that you, in many ways, a doctor is sort of a sole decider. And whether you're a surgeon, whether you're a family practitioner, often you kind of are like the very tip of the spear, so to speak, and that's a lonely position to be in. Lawyers, that's interesting to me. Now, I think, I wonder if this is historically true or more recently true, but my experience of being a lawyer is the opposite of loneliness. It's a law firm environment with a lot of collegiality and fellowship. Yeah, there are moments when you're a senior lawyer where you're a very lonely decision

maker, but my experience of the legal profession is one of fellowship, not isolation. In fact, I was talking to somebody, somebody was asking, well, what's the difference between being a journalist and being a lawyer? And I said, well, let me put it this way. When I want fellowship and friendliness, I go to a bar association meeting

more than I'll go to a journalist convention. It strikes me as a more collegial profession. So I was actually a little bit surprised by that. But, but, but, but I will say this. I've long known that lawyers suffer disproportionately from anxiety. Lawyers suffer disproportionately from depression, substance abuse, alcohol, drugs. And so I wonder if loneliness is just a proxy for unhappiness in general. But I've written about this problem that lawyers have with depression and anxiety. And one of the things that I have long thought is that especially the way in which the legal profession is portrayed

and also the way in which both in popular media and then also in sort of when you're in law school, because I can remember when I was in law school, the legal profession seemed really interesting and exciting. You know, one of my most memorable classes was the ethics of the criminal defense lawyer with Alan Dershowitz, where he, he brought in like John Gotti's lawyer who talked to us about being paid in sacks, like grocery bags full of cash, you know, and you're having all of this coming, you're mainlining all of this really exciting practice of law. You are the tip of the spear for American justice, et cetera, et cetera. And then you, you get your super high paying job and you spend six months in a basement doing document

review. And that gap between expectation and reality is so big. I know I struggled with it initially. I was like, what the heck is this? And I do think that there's this huge gap between expectation and reality, which is a little bit different than say, nobody's making movies about being an insurance actuary. But you get movies made about being a lawyer. But the reality of being a lawyer is often much closer to being an insurance actuary than it is to being, you know, like the glamorous lead in the most glamorous trial in America. And so I think that gap between expectation and reality is a big part of the mental health burden that lawyers face. In addition to the fact that they, especially as they get older, when that gap between expectation and

reality starts to narrow, you actually do start to make really consequential decisions. And you do actually end up, if you're a litigator, with some pretty interesting cases, then the burden of decision-making and the weight of responsibility can really bear down on you. So I think that those two factors kind of work hand in hand. But I'm really interested that it is manifesting itself in loneliness, which was not my, like, that would be the thing I would not say that lawyers deal with, but shows how much I know. But I think this goes to the definition of loneliness. I would actually argue that most people who are lonely aren't so because they're alone.

They tend to be lonely, surrounded by people, and they tend to be lonely even when other people are experiencing the same thing they are. Loneliness is instead that sense that you're the only one experiencing this. It's a self-isolation feeling. Right. Yeah. That makes it that you're present, but you're not seen. Yes. Yeah. And I think that things that are going to contribute to that, again, not necessarily cause it, but exacerbate it at least, are for instance, not getting enough sleep. Yeah. Gosh, yes. True. Not being with your family during waking hours, not feeling a sense of purpose because document review sort of can feel like it lacks a sense of purpose.

You know, big company suing big company and you're a cog in the wheel and you're not even in charge of any decisions. Anyway, I think that's all going to contribute to it. And I highlight this again, not actually because I'm trying to discourage people from going into the practice of law at all, but I want happy lawyers. And there's so much data out there showing unhappy lawyers. And my diagnosis for why there are so many unhappy lawyers is because people are sort of just put on a conveyor belt to law school being told you can do anything with a JD. And nobody's having this very honest conversation with them of, hey, there's a lot of unhappy lawyers out there. Let's make sure you're not one of them. Either because you're going to really think about why you're going to law school and feel

a sense of ownership over your decision in advance, or because you then decide not to go to law school. So we do revisit this conversation from time to time because we don't want everyone to feel like they need to go back and listen to every episode. Apologies for those of which this is repetitive. Law school is not the same as undergrad. How you choose what law school to go to is not the same as undergrad. By the way, another thing this kid, kid, I mean, he's an adult, sorry. undergrad. By the way, another thing this kid, kid, I mean, he's an adult, sorry. This person mentioned was that he doesn't need to worry about it as much because he's going to get a big scholarship. And I was like, yeah, see, but this is an undergrad. And that entire delta of your

scholarship disappears depending on the school you turned down that was higher ranked compared to the school you go to. Because again, imagine that $215,000 salary versus the median lawyer salary, which I think is $65,000 or $70,000, which by the way, is the median income for a family of four in the country. So I'm by no means poo-pooing that as a good living. Of course it is. But if you accepted all this money in scholarship, but then your lifetime earnings or even your first five-year earnings undercut that, you're making a very different decision than your undergraduate decision, which I do think should be based on happiness, maybe on weather. which I do think should be based on happiness, maybe on weather.

Yeah. That's an interesting point about the loneliness piece of this not being that you're not around other human beings. It's just that you're not around the human beings you want to be around or the people who really know you and understand you and care about you at a deep and profound level. I had a kind of felt like I had a version of like foxhole fellowship with a lot of my fellow associates. Which makes sense too. I can see that happening very easily, but I can see it not happening. I can, I'm totally with you. I, you, you've, you've absolutely convinced me that why loneliness can be an absolutely salient condition, even if you're surrounded by a swarm of lawyers enduring a similar experience, it's just going to hit different people in different ways.

And you start down that loneliness path. You're not getting sleep in a regular and enough and at the time that your body actually needs it. And so then you're turning to stimulants and depressants, alcohol, caffeine, maybe harder stuff. That's going to create its own patterns, both in your life, but also in your brain. Anyway, like this is, you know, it's going to head in a not great direction. And for what? Again, if your family needs the money, that's great. But if you look at happiness studies and the difference of what that money is buying your family in terms of happiness, everyone has a unique situation.

So again, it's not that I'm judging, you know, no, your family has your daughter has a health problem, whatever that may be like. Absolutely. Money makes a difference. But make sure it's making a difference and you're not just a 23 year old who doesn't need all that money. You know, it's interesting. I'm going to make me stretch a little bit and connected to something I'm writing about right now. I'm writing about small towns inspired by all the nonsense over the Jason Aldean song, which I'm not dealing with. Jason Aldean was,

you know, whatever I'm talking about. What I'm writing about is the lionization of small town life and sort of this idea of idealization of small town life. And I'm writing from the standpoint of it can be the most warm community that we've kind of been able to devise in this fallen world. And it can also be one of the most isolating. Deeply alienating. If you're not in the in-group or if you're tossed out of the in-group for whatever reason. Yep. And it's not just alienating, it's alienating in a way where you see no way out of it. Because what ends up happening in a small town is that you become defined early. And you're often, say, defined in high school or you're defined in your young adult life. And then, by golly, that is who you are. And when you've been isolated or when you've been cast out,

by golly, that's where you are. You are isolated and you are cast out. And unless you've been in that isolation experience, um, you can't fathom how kind of bad it is. And cause I grew up in small towns. I was born in a small town. I was raised in a small town, raised my kids in a small town, mainly. And for most of that, we were in group people. And then the instant that we became out group people, holy cow. Different vibes. Yep. Whole different vibes. All right. We're going to end on a happy note because we're going to end on the Sam Hunt lyrics

to break up in a small town. Are you aware of this one, David? Oh, no, I'm not. I'm not aware of it. Oh, you need this for your for your writing then, because I'm a Texas country, red dirt country girl when it comes to what I actually listen to. Yeah. But, you know, look, the Nashville hip hop country scene, like there's some catchy songs and basically everything by Sam Hunt is an awesome, catchy song. This one's particularly good. I knew I'd see her around.

I'd be at some party. She'd show up and I'd be walking out or across some parking lot, hiding behind her sister. I'd look up. She'd be at the red light beside me and that white Maxima with the sticker on the back. I'd act like I didn't see her. We'd pay at the same pumps, flip through the same stations and slow down for the same curves, run around with the same crowds. We just needed some time.

She could go on with her life and I'd get on with mine. Thought I would be fine, but maybe not. I knew she'd find a way to get over me, but I never thought she'd get down with somebody I know. That's just the way it goes when you break up in a small town. I'm going to fast forward a little bit because this part, I don't know, it like hit me. For a while, I guess they were keeping it low key, but now it's like these country lines, sorry, now it's like these county lines are closing in on me. I see them everywhere together and it's hitting a little too close to home. She's so far gone. She didn't go far. She was over me before the grass grew back where she used to park her car. She's leaving those same marks in someone else's yard, in someone else's arms, right down the road.

And I never thought she would get down with somebody I know. It's such a good song. Yeah, that is awesome. It really is evocative of that sort of... The grass growing back in the spot you park your car. Yeah. Oh, my God. Yeah, it is.

Oh, that's good. That's good. And can I go ahead and tease maybe, maybe possibly are some content on our next podcast? Yes. Wilmington, Delaware, Associated Press. Hunter Biden's plea deal on tax charges falls apart after judge expresses concern about terms of the agreement. You know, you've been taking a lot of victory laps on this pod of late on predictions that you made. My turn. Remember I said that it appeared that there was not a

meeting of the minds about whether the investigation was actually closed and that no defense attorney in their right mind would ever agree to a plea deal while there is still investigation into your client. Lo and behold, there was not a meeting of the minds. The defense thought that this would cover all future charges. No, that doesn't even work for the pardon power definitely doesn't work for this plea deal uh so that looks like it's falling apart in real time as we record this podcast also david i want to learn more about the latham lawyer who is uh is under a show cause order for why they should not be sanctioned the judge believes that they misrepresented when they called the clerk's office and said that they in fact, uh, represented the other side and persuaded the clerk to take down an amicus brief. Uh, these are also Hunter Biden's

lawyers at Latham and Watkins. Now I, there's a reason I want to wait, which is I actually do want to see their response to the show cause order and it's also worth clarifying because I realize we've never done this on this podcast and this is going to be so confusing and I'm so sorry there are law clerks for judges and then

there's the clerk's office in a courtroom and they are totally unrelated to one another and they're the exact same title and there's nothing i can do about that here we're talking about the clerk that files briefs and documents and dockets things law clerks are assistants to the judge don't know but i would say young lawyers who are listening to this and law students, be nice to both. Definitely. But I actually, if you can only muster the courage to

be nice to one, be nice to the docketing clerk. Yes. Oh, my gosh. In terms of who the judge is going to tolerate your unprofessionalism to, depending, again, a little bit on the situation. But her law clerks, the judge's law clerks, you know, the four, three or four people, you know, they're highly educated. They're going into prestigious jobs. If you say something snarky to one of them, again, in the right context, the judge is going to be like, eh, roll off the back. If you ever are disrespectful to a career employee in the courthouse and the one that does the very thankless task of docketing everything for the judge, doing their schedule,

making sure these trials actually run the way they're supposed to run, that's where you end up with dead horse heads in your bed, judicially speaking. their schedule, making sure these trials actually run the way they're supposed to run. That's where you end up with dead horse heads in your bed, judicially speaking. I have seen the only thing I've ever seen judges, regardless of where they stand on the political spectrum, philosophical spectrum, regardless of their own temperament, regardless of their age, they are all united as one that you treat court personnel respectfully. And one of the top four angriest moments I've ever seen in my entire legal career was when a senior attorney where I worked was mean and snarky to a Supreme Court clerk, not one of the law clerks, but court personnel. And if Vesuvius was a person, it was the senior partner or the senior lawyer in that firm.

He erupted at this more junior attorney being snarky. Oh my gosh. Yeah. Cause I mean, the clerks that we're talking about here are highly experienced. This is their career. They're also, this is not a prestige job.

No, just no. And also for your own benefit, it's sort of, you know, in TV, you should always be nice to the camera guy. A, because don't be a D.

But B. A, don't be a D. Yeah, A, don't be a D. But B, they're the ones who actually are the last people, the last line of defense you have against, you know, having a cow lick. Like, why would you not be nice to the person who can tell you, hey, your hair's sticking up? Why? And yet you see it all the time. So

waiting to hear their response on the show cause order. I assume they're going to say like, no, we never represented that. We were representing the not Hunter Biden side, but the clerk, it looks like, took notes. This is going to be messy. So a lot of Hunter Biden drama coming up in the next episode. Still waiting for that indictment, David. Still waiting. Are you going to take a public victory lap

on predicting the Hunter Biden plea deal problems? No, I'm not. Well, you just kind of did. Sorry, yes, definitely on this podcast. Yeah, but if you mean on social media, no. That doesn't meet well with social this podcast. Yeah. But if you meet on social media, no. Okay. That doesn't meet well with social media trolls. Okay.

But what if I took a public victory lap for you? Oh, I'd love that. Yeah, thank you. Okay, I'll do that. I'll do that. Yeah. On threads and the bad place. Oh, yay.

In the meantime, we'll just be listening to Sam Hunt today. A lot of Sam Hunt in the car. Yeah. That those lyrics. Amazing. All right, listeners. Thanks for joining us. Uh, and definitely hop in the comment section.

Tell us what you think about the loneliness conversation. Um, what you think about clearly established law, who should get to establish it. And we'll talk to you, uh, you know, either next episode or could be an emergency episode coming. Who knows? It's all up in the air at this point. Bye.