Advisory Opinions - Camping Outside the Supreme Court

Episode Date: May 3, 2021

Today’s episode is the jackpot for Supreme Court bingo players, as our hosts play a guessing game as to which justices will write some of the court’s most anticipated forthcoming opinions. Also on today’s episode, David and Sarah chat about two cases involving racial classification in the dispensation of government relief to “socially disadvantaged” farmers and ranchers, and debate which Supreme Court cases AP U.S. history students should be required to commit to memory. Plus, Sarah shares a fun story about her experience camping outside of the Supreme Court building to hear oral arguments for D.C. v. Heller. Show Notes: -Fulton v. City of Philadelphia -Ferris v. United States -Trump v. Hawaii Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And Sarah, the Supreme Court kind of sort of let us down today. They did. They really did. Kind of sort of. I mean, I was all geared up to have a podcast about the Obamacare decision, ready for it. I mean, woke up this morning thinking, today is Obamacare decision, ready for it. I mean, woke up this morning thinking, today is Obamacare day, but no, no. We'll fill you in on what happened at the Supreme Court today.

The answer is not much, but what we can do, we'll talk about a little bit of SCOTUS stuff, including some bingo. We're gonna talk about a new lawsuit out ofOTUS stuff, including some bingo. We're going to talk about a new lawsuit out of Texas that is quite interesting and I believe it's got some merit to it. We're going to talk about a teacher lawsuit that's interesting. We're going to do a little AP history curriculum. Don't change the dial because that's going to be fun. And then Sarah's experience camping out. No, not in the Himalayas, not in the Andes, not in the Rockies, in the middle of Washington, D.C. So we've got a lot to cover. But Sarah, let's start with a little bit of bingo

and get your thoughts on this because you are our foremost practitioner of Supreme Court bingo in the Advisory Opinions podcast. So someone who also plays Supreme Court bingo in the know on this has this assessment. And I want to get your reaction. So I got this email over the weekend from somebody. You know who you are. Long time bingo player. And this is his assessment. Supreme Court handed down on Monday another decision in the November sitting,

which gives me more data on the bingo cards, supporting his tentative conclusion that Justice Alito is writing the majority opinion in Fulton v. City of Philadelphia. Again, that's the case we've talked about a bunch, which is this involves Catholic charities and same-sex foster parenting slash adoption and religious liberty. So he's of the conclusion that Alito is writing a majority opinion in Fulton v. City of Philadelphia. I'm about 80% certain on this call. Not 100%, 80%. Here's how he reaches the conclusion. There are three opinions yet to be

released in the November sitting and four justices who have not yet written an opinion in that sitting. Roberts, Breyer, Alito, and Kagan. He thinks Roberts is writing the Obamacare individual mandate case in Texas v. California. Kagan is writing the opinion in Borden v. U.S., an obscure case on whether the use of force clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness. Fascinating. Justice Wiss Breyer and Alito each wrote two opinions in the October sitting, which means one of them is probably not writing a November opinion. The chief likes to assign big religious liberty opinions to Alito. If I'm correct, that means we're going to get a strong pro-free exercise

decision in Fulton because Alito so passionately supports religious liberty. Your thoughts? Okay, so I think he's right, but I think his reasoning is pretty shaky. I think he's right because he's right. That's just a good bet. In fact, I think back at the argument, you could have guessed that Alito was going to write Fulton's. But based on his own reasoning that Breyer and Alito both wrote two opinions in October, therefore one of them won't write in October, according to his logic, Breyer is just as likely to be writing Fulton. But we know that's not true. Or rather, it is true, like as far as bingo is concerned, but I think it's unlikely because of the votes.

So in that sense, if you're left with Roberts and Alito as the only two conservatives on the court who have yet to write, and then the question is, which one's writing Fulton and which one's writing the ACA case? Yeah, I mean, I just think it's more likely that Roberts, the guy who's been obsessed with the Obamacare opinions to date and wrote Sibelius, and this is a direct attack, if you remember, on his opinion in Sibelius, which held that the individual mandate was a tax. Then Congress was like, no, it is not a tax. We are zeroing out the tax penalty. That now he gets to say, marry those two ideas together. So yes, Roberts writing the ACA makes plenty of sense. And then unless you think that Fulton's coming out the other way, in which case Kagan or Breyer, that Fulton's coming out the other way,

in which case Kagan or Breyer, I think, could be writing it. Alito is writing Fulton. And then I would use the 2-2 from Breyer, that Breyer wrote two opinions in October versus Kagan only wrote one, to be the tiebreaker between who's writing the armed career criminal opinion. So I think I would use my bingo data differently to come out with the same result.

Gotcha. Yeah, I agree with his conclusion. Again, you know, the bingo data is, you know, the bingo data has to be filtered through the alignment of the court and the likely outcome of the case. And I think it's highly likely that Roberts writes the third Obamacare decision. He wrote the first two. He wrote King vacare decision. He wrote the first two. He wrote King v. Burwell. He wrote Sibelius.

This is his return of the king. This is his return of the Jedi. I mean, this is the completion of the Obamacare trilogy. So why isn't he doing it? I mean, like Peter Jackson wasn't going to stop directing Lord of the Rings for the third movie. So I think he's writing that opinion. And then when it comes to Fulton, I would expect that's right,

that it's Alito. And if it is Alito, Sarah, could be very interesting. I'm still not convinced that they're going to reverse Smith after the oral argument. I'm not convinced that they are. Alito writing, however, would make it more likely that it is the Alito version of Smith that would remain. And the Alito version of Smith is Zombie Smith.

Smith is Zombie Smith. The Alito version of Smith, as we've seen from his prior days as a circuit court judge and then in his time as a Supreme Court justice, is a very, it is a, let's just say it's something very fundamentally different from what it had been for the first few years of its existence. So it will be super interesting. Super interesting. But David, as someone who, like, this is your, not just your wheelhouse, but also your passion, if you got to pick a single justice out of the nine to write your Fulton opinion, who would you pick? Alito. So you're feeling pretty good. Alito. Yeah, I'm feeling pretty good. I just want Smith gone and I'm not feeling great about Smith being gone. Um, but we'll see. We'll see. But I do think that's a pretty interesting assessment and come on Supreme court. I mean, issue these opinions. Uh, the, the,

the suspense is killing us. All right. So what did the Supreme Court do today? Not very much at all. One of the things, the only thing of real interest to me was that Justice Thomas did one of his Justice Thomas things of dissenting from the denial of certiorari in a case called Jane Doe versus United States. And this is a person who had filed suit against the United States under the Federal Tort Claims Act, claiming that she was a victim of sexual assault at West Point and that West Point sexual assault policies were, quote,

inadequate to protect students from sexual violence. Now, there's a doctrine called the Ferris Doctrine, named after Ferris v. United States, a 1950 case, that essentially blocks members of the military from suing for injuries incident to military service. And this actually has something in common with qualified immunity in this sense. with qualified immunity in this sense, it is a judge-made doctrine that flatly contradicts the statute, just flatly contradicts it. So the Federal Tort Claims Act, quote, renders the United States liable to all persons, including servicemen injured by the negligence of government employees. This is Thomas quoting himself. So the liability in the act is all persons. Supreme Court said, not all persons.

It doesn't include the military. And so Thomas was dissenting from certiorari in the same way he sort of highlighted some other issues in cases past. And I got to say, I wasn't with Thomas on his statements about social media. I am with him on his statements about qualified immunity

and the Ferris Doctrine. Statutes mean what they say, Sarah. And if you want to give some special dispensation to the military because the military is uniquely dangerous, then do it by statute.

Don't do it by Supreme Court. I'm all for that, but that was not the most interesting part of this dissent from denial. Okay. The last paragraph, I will read to you the text, but it's really the citations that I want to get to. Okay. Perhaps the court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. would require fiddling with a 70-year-old precedent that is demonstrably wrong.

But if the Farah's doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell. There is precedent for that approach. Period. Long string sight. First one. C, comma, E, G, comma.

Trump v. Hawaii. Parentheses. Overruling Korematsu. Now, Trump v. Hawaii is the Muslim ban case. Our podcast was not in existence during this time. But if you go read that opinion, it's like they wanted Robert's writing. He wants so badly to overturn Korematsu, but the case isn't actually directly on point. So he can't overturn Korematsu, but the case isn't actually directly on point. So he can't overturn Korematsu. And the problem is then you're never going to get to overturn Korematsu because you're never going to have a case on point. So what Roberts did is some like little nifty side dicta that's like, in case anyone's curious, we're definitely overturning

Korematsu. But this dissent from denial is fascinating because it says explicitly that Trump v. Hawaii overturned Korematsu. There are some other good ones in here. If you are a law student looking for just a nice list of cases that explicitly overturned previous cases, I don't think you would do much better than this. Brown v. Board of Education is in here overruling Plessy v. Ferguson. I think that's one of the actually very few examples in Supreme Court history where you have a case saying, hey, remember that other case? We are explicitly overruling it on the same facts, and we've changed our mind. Most of the time, Justice Thomas is forgetting this, perhaps, even though he's not, because

he's one of the people who's most frustrated with it. They instead cabin these zombie precedents, as you call them, David, to their facts, but keep them alive, drifting out there, occasionally mauling people and turning them into zombies. But occasionally you have explicit overruling. And anyway, it's a fun list. If you're ever like meeting as a law student or as a practitioner, and you want to ask a court to explicitly overturn something, here you go. You have a full list of like 10 Justice Thomas's top 10 non-zombie fully dead precedents. You know, when you read that paragraph, you know what I thought you were going to say? Ooh, what?

I thought you were going to say, this is Clarence Thomas saying, we shouldn't be afraid to take on old precedents that are demonstrably wrong. Yeah, totally. And he's got one in mind. And it's not Ferris. I think he's got a few in mind in fairness but yeah none of them

are Ferris yeah yeah yeah he's got a row case he's got row Casey in his mind because he's I mean he's written about that I mean that's no reading tea leaves I mean he's specifically written about that but I mean Erie Railroad is in this how great is is that? That's amazing. It's amazing. And it's interesting to me because this came up. He wrote this again. Perhaps the court is hesitant to take up this issue at all because it would require fiddling with the 70-year-old president that is demonstrably wrong. This comes after yet another orders list

that punts on the Mississippi abortion case. So they just keep punting on that. And I fully expect them to deny cert at the very end of this, you know, at the very end of the term. But I just wonder if this is his veiled frustration, but maybe I'm reading too much into it. By the way, folks, for those who are curious, we do have opinion hand down days, basically every Monday moving forward, except this one. And remember, as we get closer to the end of the term, opinion hand down days start coming more frequently. And then on Memorial Day, it's actually always Tuesday, not the Monday. So that's all to say, we've got stuff to look forward to. Absolutely. We're going to be so busy. All right, Sarah, you ready to move on to

a lawsuit out of Texas? I am. So there's a couple of cases been filed, one in Texas, one in Wisconsin, taking on racial classifications in the dispensation of farm relief, of debt relief to, quote-unquote, socially disadvantaged farmers and ranchers. This is part of the American Rescue Plan Act of 2021. And the phrase socially disadvantaged, and this is I'm reading from paragraph two of one of the complaints, includes explicit racial classifications to be eligible for ARPA's debt relief. Farmers and ranchers must be black or African-American, American Indian or Alaskan native, Hispanic or Latino or Asian American or Pacific Islander. Any other classification of farmer, racial, ethnic classification, including white farmers, are ineligible.

a farmer, racial ethnic classification, including white farmers, are ineligible. So here you have an explicit racial classification designed to address past discrimination and social disadvantage of coming out of the Biden administration, and it's now subject to legal challenge. I think it's got a good chance. Sarah, I think it's got a good chance. Sarah, I think it's got a good chance. Right. So the issue here is that it is not explicitly a race-based classification. What the statute says is traditionally disadvantaged, and then that has been defined for specific groups that are then defined as historically disadvantaged. The problem is you have other case law, and I'm thinking here of Batson, for instance, David, about when you can challenge jurors. You can't challenge a juror because of

their race. You can't challenge a juror and then claim it's something that clearly is a way of getting at their race. Dreadlocks is a really popular one to use as an example. You can't say, I'm challenging that juror because he has dreadlocks. Well, why would that be relevant to him being a juror, except for the fact that people who have dreadlocks tend to be black or more likely to be black. On the other hand, you can challenge someone because of something that is more likely to be someone because of their race, but it is also relevant. I think that's actually a pretty good analogy for what we have here. You cannot simply use another term for race. And in that case, the argument will be socially disadvantaged farmers is just another term for saying non-white people. But if they can show that, in fact, no, it is not a racial stand in, you know, it is not pure race.

It has to be this plus race or things like that. Like they've got a fighting chance to keep the statute alive. But I agree. This is not, you know, it was sort of seen in the press as this like crazy lawsuit. And then I read it and I was like, well, it's not crazy. lawsuit and then i read it and i was like well it's not crazy yeah yeah i mean you know this is interesting because there is there has been a um as you know sort of critical race theory related ideas kind of filter their way through the government and filter their way into for example schools and workplaces etc you're going to see more explicit race-based classifications and race-based policies that are designed to, the phrase is equity versus equality.

In other words, that there's explicit race-based action taken to improve equity. race-based action taken to improve equity. And for the sake of equity, you will in some ways impair equality. Now, look, there's precedent, for example, that there are types of affirmative action that are acceptable under Title VII, for example. But if you're government and you're going to be, and even if you're in the workplace, if you're going to start to engage in explicit race-based classification, treating people differently explicitly because of their race, and I've written about this before, you're going to start to run into a wall of federal statutes and constitutional principles that don't have a huge amount of give in them. And it's interesting, there was a Real Clear Investigations piece last week that talked about how there is a wave of litigation, or a good phrase to use, a spate of lawsuits, challenging things such as the explicit condemnation of whiteness that you will see sometimes in a lot of these policies. Challenging sort of this explicit racial separation that occurs in some of these procedures. see how they come out because the law you know the law is not terribly forgiving of explicit race-based classifications especially if you can tie negative treatment of one you know a

particular racial group and reverse discrimination in other words uh discrimination of against sort of the um you know what are considered more the dominant racial groups, is a valid doctrine under Title VII. There's a copious amount of case law on this. So stay tuned. It is going to be very interesting. A lot of this sort of more radical critical race theory-inspired employment policies are very vulnerable to Title VII litigation.

Very vulnerable. What's also interesting here is that, you know, in my Batson example, for instance, what you have are race-neutral explanations. I'll keep using my dreadlock explanation. And then the question is, was it truly race-neutral? A, you know, traditionally disadvantaged community is not even race neutral on its face, thing happening at this private school or this thing happening at this corporation. And a lot of it is just sort of silly. Oh, look, during a diversity training module, they have the pyramid of oppression that is written in this weird jargony way and is really silly but every now and then something will come up and you're like whoa wait a minute where let's say this is the white person only group this is for people of color only this is the um we're

going to require our white employees to do a b c and d which is acknowledging their historic privilege acknowledging their instruments privilege, acknowledging their instruments of oppression. And anytime you're starting to specifically segregate people by race and then you are engaging in hostile conduct towards people on the basis of that race, there are red flags waving all over the place. And a lot of these HR departments have not thought this through. And I have been sort of banging the drum about Title VII in this context for months now. And it's starting to sort of, it's starting to, the Title VII issues are starting to emerge, shall we say. By the way, David, before we leave this topic, I just found a great court opinion on a Batson challenge based on dreadlocks from 2009.

Oh. This is a lower court. It's just funny because I use the dreadlock example because it's one of those like, well, it's race neutral on its face. But if you have nothing else going for you, that's not going to work. But in this case, it did work. The prosecutor said he wanted to strike this juror. Mays has his hair in a very unique design of, I'm not sure if it's called dreadlocks or, but it is a very precise and very individualistic hairstyle. And I would prefer not to have somebody who is individualistic hairstyle, and I would prefer not to have somebody who is individualistic on the jury. The defendant did not challenge or further object to that reason. They get one more bite at the apple. Do you have any objection? No, your honor. But then they

appeal saying that this was not a race neutral explanation and they lose. That was found to be plenty race neutral, which I just think is interesting. Really? I don't want somebody who is individualistic on the jury. I mean, look, that is a very race neutral explanation. It's just interesting to use his hair as the example. So anyway, just to end, look, California actually passed laws on jury challenges specifically because prosecutors were striking people because they had dreadlocks and that was still being found to be race neutral. So the dreadlocks example, folks, it's a good one because it's a fun one and it continues. Yeah. Interesting. Okay, so can we move on to an interesting case that's been filed in Florida? And this is, again, this is related to what we just talked about.

And it's related to prior conversations we've had about teachers and free speech of teachers in high schools and elementary schools, middle schools, etc. And it's very related to the statutory and legal battle over, for example, critical race theory, anti-woke legislation. And this is a teacher at Robert E. Lee High School in Jacksonville, Florida, has filed a lawsuit because she was told to take down a Black Lives Matter flag outside of her classroom to, quote, and I'm reading from an NPR story, mark it as a safe space for students to process the death of one of the former students at the school who had been killed by the Jacksonville Sheriff's Office in 2020. And so the school said, take the flag down,

saying it violated district policy on political speech by employees. She said no. So she was taken out of the classroom and reassigned to non-teaching duties. So here's a teacher wants to fly Black Lives Matter flag, is told to take it down. She says no, she's punished.

She files a lawsuit. Sarah, I think she loses. I think she loses. But I don't think this is the last we're going to hear of this issue. It is definitely not the last we're going to hear of the issue. I think she loses as well.

I think it's perhaps a shame that the school couldn't find a way to come up with a solution, a compromise, perhaps. This is a school that's 70% African American, from what I read. This student, this former student of hers that all the other students seem to know had recently been killed by the police, you know, perhaps the school could have accommodated some message in the classroom to mourn this student and send a message to other students that she was supporting them, that she was someone they could talk to if they were grappling with this issue in their own lives. But once again, David, it's sort of like the angry cheerleader case in the sense that this shouldn't be in the courts.

And back in the day, it wouldn't have been. And I have this overarching frustration. I find these cases interesting. I really do. And I'm glad we have a whole podcast because of so many of these cases. But it doesn't say good things about our society, about how litigious it has become. And in this case, I don't think she's wrong to sue. I think that the way the school handled this and the way the school handled the angry cheerleader, not great.

Yeah. Well, one of the things, and just as a refresher, we have this, under current law, we have what looks like this kind of interesting dichotomy. And the dichotomy is that if you're a teacher in a public university, you're going to enjoy some First Amendment protections for your academic freedom, meaning your actual teaching and scholarship on the job, the available precedent says you're going to enjoy some First Amendment protection for that. Now, the available precedent indicates that if you're a high school teacher and teaching high school age and younger at a public school, you don't.

That when you are speaking on the job, there is no First Amendment protection for that at all. there is no first amendment protection for that at all and so if you have this sort of this anti-woke legislation that's being um that's being proposed in a bunch of states if the anti-woke legislation applies to public schools and public universities public high schools public middle schools etc and public universities the part that applies to public universities that prohibits the teaching of what are called divisive concepts is almost certainly going to be struck down. But under current law, prohibiting teaching of divisive concepts is probably going to be upheld unless it's deemed to be unconstitutionally vague.

And a lot of that legislation is pretty vague. constitutionally vague and a lot of that legislation is pretty vague um and it's it creates this real binary that a if you're teaching college freshmen you've got some freedom if you're teaching high school seniors you've got none that you are an instrument of the state almost purely and it's the state is going to be able to tell you what your curriculum is and how you're going to approach it, including the state's going to even be able to tell you what kind of things you'll have on your desk, little personal signs or notes you have on your desk or what little things you put on a bulletin board. I mean, there's been cases like this all over the country over the years. And so it's hard for me. I see the current Supreme Court as essentially upholding that binary. I could be wrong. I could be wrong. It has the benefit in one sense of a very bright line.

So they're not involved in endless kinds of controversies over whether or not a little sign on a teacher's desk or a poster on a teacher's desk constitutes personal speech versus school speech. But this also lends itself to an awful lot of mischief and an awful lot of legislative effort to really come in and tightly control this interaction between student and teacher, which in the real world is often a lot more organic and sort of real life and relational than it is, uh, than it's easily subject to sort of this extreme top-down control. I think that's all, I think she'll lose it court. Um, and, and look, I, you know, if, if other students felt that the message was exclusionary, then yeah, I think that it is

different in a public school than it is at higher education. There's mandatory attendance at this stuff, but I wish the school had been able to work with her to find a way to get her message across that, you know, they felt was equally welcoming to all students. The speech code movement of the 80s and 90s and the anti-woke legislative movement and the anti-big tech legislative movement of the 2020s. If you go back to the 1980s and early 1990s, one of the primary justifications for the speech code was this. Current free speech doctrine actually inhibits free speech. And that by allowing the kinds of voices that intimidate other students, particularly students of color,

you actually end up that free speech doctrine suppresses free speech. So what we have to do is we have to put our thumb on the scales to allow certain voices to feel free to speak that have not traditionally felt free to speak. And so therefore, the speech code, the justification for the speech code was that this sort of viewpoint neutrality regime of the First Amendment actually suppressed speech. Now, courts did not buy that at all. They did not buy that.

They struck down speech code after speech code after speech code after speech code. But if you look at what, quote unquote, conservative, I prefer to say right wing legislators are proposing when it comes to free speech now, which protects corporate speech, for example, which is viewpoint neutral, that actually inhibits free speech because it allows some people to exercise their free speech rights in a way that either intimidates or silences other people. And so therefore, we have to do what? Put our thumb on the scales on behalf of the people that we feel are being silenced. It's an interesting almost reverse. It's the same kind of argument that viewpoint-neutral doctrines actually inhibit free speech that we had, I heard all the time in the 80s and 90s and moving into the 2000s

when I was litigating this stuff. And I think that these right-wing efforts will come to the same legal conclusion that a lot of the left-wing efforts came to, which is viewpoint neutrality is about as well established as First Amendment doctrine. And one of the better First Amendment doctrines is you're going to find, and it's just going to be an absolute, it's going to be a mess as the right tries to challenge it to privilege their voices online or try to suppress voices they don't like in universities in particular. All right, David, speaking of high school, we got an email from an AP government teacher. Yes, it's a good one.

I teach AP government. The AP government test May 3rd this year is approaching and got me thinking of a potential topic for AO. College boards list 15 SCOTUS cases that all students must know. He goes on to list them, which I will do in a moment. For basic civil knowledge, would AO recommend the same docket of cases? So let's run through these, David, in honor of our test takers today. Okay. They are in the test while we do this, David.

I remember it like it was yesterday. All right. First up, Marbury versus Madison. This is what creates the Supreme Court as we know it today. This is judicial review of the constitutionality of federal government actions. McCullough v. Maryland. This is the necessary and proper clause. U.S. federal government has implied powers in the Constitution

and that states can't mess around with the feds. This is the supremacy issue. Shank v. United States. Boo. This is the worst First Amendment case, the World War II flyer one that we talked about last week, actually, that expressions which were intended to result in the crime could pose a clear and present danger and could be criminally punished.

Brown v. Board of Education. State laws establishing racial segregation in public schools are unconstitutional. Engel v. Vitale. It's unconstitutional for state officials to compose an official school prayer for public schools. Baker v. Carr, redistricting is justiciable. It is not a political question. Tennessee, by the way, had not conducted redistricting since 1901, and Baker v. Carr was decided in 1962. And the Supreme Court was like, nah, dog, you got to do that. Right. Gideon v. Wainwright, right to counsel. Tinker v. Des Moines. Boy, if you don't know what Tinker is yet, that means you did not listen to last week's podcast. We're not going over it again. And shame on you because that was a great podcast. All right. New York Times Company v. United States. This is the Pentagon Papers.

The First Amendment trumps the executive branch's claim to keep that secret. Wisconsin v. Yoder. This struck down a Wisconsin law that required Amish children to attend public school. It was a First Amendment case. Roe v. Wade. Again, not sure we need an explanation to that one. Shaw v reno this is racial gerrymandering so redistricting based on race must be held uh must meet strict scrutiny standard under the equal protection clause and boy if you don't know what strict scrutiny is yet you've missed several podcasts in a row united states v lopez this is the striking down the 1990 gun-free school zones as overstepping, and you won't hear this one a lot, the Commerce Clause. There was a brief shining moment where

the court was like, Commerce Clause? And then they were like, never mind. McDonald v. Chicago. The right of the people to keep and bear arms applies to state and local governments. And then Citizens United v. FEC, this is that the corporate funding of independent expenditures in elections cannot be prohibited under the First Amendment. So David, those are the 15 cases, and I got beef, so I want to hear yours. Okay, so I'll start with my first beef. Shank. I booed it.

Why on earth is Shank in that list? This is so funny. We're going to disagree entirely. Shank is number one on my list. Please continue. Oh, blech. So it's defunct. It's a defunct precedent.

It has the only continuing influence it has is almost entirely malignant. Because it is the source of endless stupidity where someone compares any kind of First Amendment restriction that they want to make to falsely shouting fire in a crowded theater. Well, you can't shout fire in a crowded theater, C-E-G, shink versus United States. So therefore, it's a defunct precedent. It was a terrible precedent when it was decided. I mean, this was throwing someone in prison for peacefully distributing anti-war literature, urging people to peacefully resist the draft during World War I. I mean, this was throwing someone in prison for peacefully distributing anti-war

literature, urging people to peacefully resist the draft during World War I. I mean, come on. And there's such a better precedent hanging around. Just the next war. The next war. West Virginia v. Barnett. This is an absolutely seminal case about the limitation of the government and the limitation of the power of the government to compel your speech. It's sort of one of the seminal precedents in the history of the United States decided in a time of existential crisis to the United States that even then, even in the middle of World War II, where all of Western civilization hangs in the balance, you can't be compelled to salute the flag. And it has this incredible statement regarding the rights of conscience in the United States of America. If there's any fixed

star in our constitutional constellation, Sarah, it is that no official, high or petty, can, and then it goes on to say, compel your participation or compel your assent to the orthodoxy in law, culture, politics, religion, nationalism. It is just a phenomenal statement of individual conscience, human dignity, human rights, and it deserves its place on that list.

Get rid of Schenck. Okay, so totally disagree, but I want to redo the whole curriculum. So there's a huge problem with this list of 15 cases. They're all over the place. You're not learning anything about the history and evolution of the law. You're learning random tidbits along the way without any of the context. This is the wrong way to teach students. This is just asking them to memorize names, years, and one sentence about them without knowing anything about the case itself or what they're actually learning about. So I would chuck all 15, except Schenck and Tinker, all 15 except Schenck and Tinker,

maybe New York Times versus United States, I would create an entire 15 case curriculum on just First Amendment free speech and therefore start with Schenck, do some Abrams of the United States, maybe some Debs and Gitlo. Let's get into Brandenburg. Absolutely Tinker, obviously. Texas v. Johnson?

Barnett. Barnett, for sure. And then we're going to go right up to the angry cheerleader case. And then when they're learning about the angry cheerleader case, they can actually form opinions about why the law evolves, how it has evolved, whether the court is political or applying different jurisprudential doctrines. That is something that high school students are old enough and smart enough to grapple with.

And it would make a far more interesting AP exam than reciting, you know, McCullough v. Maryland, which is important. But then let's do a whole thing on federal jurisdiction, which maybe I'm not going to take a lot of 16, 17-year-olds along with me on the Fed courts lesson for the AP government case, but I think teaching high school students about where their First Amendment rights come from and the history, and including when we got it wrong. David, I think you're exactly wrong on Schenck, because I think showing that the Supreme Court has gotten it wrong in our history puts a whole bunch of other topics when we talk about the United States getting things wrong in our history. Yes, we've gotten everything wrong in our history before and we move towards a more

perfect union, David. And if Schenck isn't the poster child for the last hundred years of moving toward a more perfect union, my God, what is. Okay. So you took our guy's question and you just said, okay, here's what I'm going to do. I'm just going to reframe the whole curriculum. Yeah. When I took our guy's question and I'm answering his question, which is here's 15 cases, which 15 would you choose? What would you strike and what would you put in? You said, oh, here's 15 cases. I'll throw out all 15 and then put in 15 new only in one particular area of constitutional jurisprudence and then have another 15 for another one, another 15 for another one. These poor students, Sarah. I'm a big thinker, David. Think

big. These poor students. It's a problem. I don't understand how they're supposed to take anything from, I mean, truly, like why are they reading about redistricting if they're then not going to learn about redistricting, which they're clearly not learning about? Not one, but two, two cases on redistricting. Bizarre. And then only Citizens United? Okay, well, you can't do Citizens United without Buckley v. Vallejo and the cases that came before it. Otherwise, Citizens United is just, it appears randomly on the list as the last most recent case. That's weird. Well, and what you can kind of tell is, yeah, I have a lot of problems with this.

What the heck is United states v lopez doing there um why is mcdonald there instead of heller um you know so a lot of it you feel like oh well i feel like the the list makers were like here's two gun cases here's two gerrymandering cases gerrymandering is important. You know, and so, you know, United States v. Lopez gone. The actual Commerce Clause restrictions on federal legislation are really, really light, really light in the relative importance is United States v. Lopez is having that in there.

One of the few Commerce Clause cases where the Commerce Clause had any bite at all. One of the very few. Is it more important than Employment Division v. Smith, which is the defining standard right now, hopefully not for long, governing religious liberty in the United States of America? Got a problem with that. Got a problem with that, Sarah. But my issue is I remember the AP test and I remember having to learn the Supreme Court cases and I just memorized them all and couldn't have told you a second sentence about any of them. In fact, I don't even, by my memory, it was a multiple choice test, right? You don't even need to learn the whole sentence. You just kind of need to learn one word. Baker v. Carr, gerrymandering, because you know the other four options aren't

going to be gerrymandering. It misses an opportunity to actually teach students instead of teach the exam. The only question is, which topic should you follow? And I think if you're trying to reach the median AP government student, free speech is the way to go. No, I would agree with you. I would agree with you. As far as free speech is a great way to trace the evolution of American constitutional case law in an incredibly important issue

with fascinating facts time and time and time again to help people sort of understand how all of this developed. I agree with you. I just misinterpreted the assignment based on the email, which I thought was to

slide out one or two of the cases from this list of 15 and slide in some more. But I will say, our correspondent did remind me about a guest we got to bring on. And that's my friend Ken White, who tweets on Twitter as Popat, who is my law school classmate. Awesome, awesome guy. And he quotes Ken White channeling Holmes in Buck v. Bell, three generations of a hackneyed apologia for censorship are enough regarding Shank. Ken would be a great guest on this pod. We need to make that happen. David, I feel like our interpretation of that email is why I think you got good grades in school and I got bad grades in school. Because when a teacher would ask a

question, I was like, how can I make this interesting for myself? And it turns out that's not what the teacher wanted. The teacher wanted me to answer their question. Something I did not learn until embarrassingly late in life to write to the teacher, not to write your own. They're asking for your thoughts, but they don't mean it. They mean to write the teacher's thoughts. I didn't know that. And it was well after law school before I knew that. Oops. Okay. But David, speaking of Heller have i have a fun story for you that i think you'll find interesting oh please so is this your camp out story it is all right okay so have you ever seen a supreme court argument in person i never have oh my Listeners, if you are coming to DC with your kids, this is not a thing

to do probably. But if you're coming by yourself and you go to the Supreme Court calendar and just check what's going on, one of the things I love about DC as a whole is how accessible it is. You know, up until quite recently, you could just walk into the Capitol. Anyone can. You can wander around the hallways. You can knock on your congressman's door. That's how it works. I, by the way, it's something I tell all people who want to go into politics in this town, college students that I talk to, et cetera. There are going to be days when you feel incredibly cynical about the career that you've chosen. And what I do and what I encourage others to do, go to the Lincoln Memorial after

dark. And what you will see there will shock you because families in the United States are incredibly blessed. There's lots of places to go visit in our country. There's Disney World. There's the Mall of America. There are way entertaining places for children. But what you will see at the Lincoln Memorial after dark every single day, even on the awful weather days that I've been, you will see families there. And you will see parents telling their children about the history of our country and that they spent their hard-earned money to come to this city just to do that. And there is something so deeply wonderful and inspiring that you just go back to work and you're like, nope, no cynicism is penetrating

these walls for weeks. It recharges me in a way that I cannot express in words. And one of the things like that, David, is going to a Supreme Court argument. So there are four, let's call it four ways to see a Supreme Court argument. One, you are a credentialed member of the media. You have special seats. Two, you are a guest of a justice. They have a few reserved seats. Their spouses, for instance, will attend occasionally, especially at the end of the term. Three, you are a member of the Supreme Court bar. There is a special entrance for Supreme Court barred lawyers. And four, you're a member of the public. So if you are one of the first 40 or so, 40 to 50 people in line, you can sit through the whole argument. If there are more than 40 to 50 people,

each of those people rotate out in the back and they get to hear five minutes of the argument. So if you want to see the whole argument, you got to be one of the first 40 or 50. And if it's a big case and a famous case that's being argued, it's hard. It's hard to be one of the first 40 or 50. So I had a good friend who was involved in the Heller litigation. I had never, I actually, that's not true. I'd been to a couple of Supreme Court arguments, but basically like clerks had gotten me a friend of a justice seat.

You were never going to get that for Heller. And so I was like, you know what? This is gonna be really fun. Now, here's the deal though. If you're one of those first 40 or 50 and you wanna go in the whole time, you can't bring anything with you. There's like little lockers that you have to rent

and like that has to have your cell phone and everything. So there's no tent, there's no sleeping bag. You've gotta just wait in line. So David, for the Heller argument in 2008, I showed up. It was a very cold, rainy March day. And I showed up at approximately 3.50 PM, the day before the argument. And I was the seventh person in line. And that was pretty cool. I was going to get a seat. Pretty awesome. Except now I had many, many hours to kill. David, here's what is so cool about waiting in front of the Supreme Court. First, everyone there

is there for slightly different reasons. Some people are there because they just thought it would be cool. Some people are there because they deeply care about different reasons. Some people are there because they just thought it would be cool. Some people are there because they deeply care about the issue. Some people are there, I don't know, like because they saw people waiting in line and were like, I'll wait in the line. You'd be shocked, like all across the spectrum. But what was maybe more interesting is that if you're there at 4 p.m. the day before, you're going to have to go to the bathroom. You might need to get food. You might need to step out of line. So David, this is how governments are instituted among men. And you will not be surprised to hear that I formed our government that day. Nice. So I created a list and everyone on the list was assigned a number.

And here were our rules that we all agreed to. You were allowed to get out of line for up to 30 minutes for a bathroom break or food break, but we would do random spot checks of the list. If someone was found to be missing, we would check 30 minutes later. If you were not back in line, you lost your place. Love it. And so I kept everyone's name. I still have this list of everyone who camped out for the Heller argument, law professors, law students, just totally random people who are interested in the topic. law students, just totally random people who are interested in the topic. But what was really fun and interesting is that the person who was next to me in line had been one of Justice Breyer's clerks the year before.

Oh, really? He could have gotten a seat if he had wanted one. And he chose not to. He said that he thought it would be inappropriate for him to use his status as a Supreme Court clerk to cut the line in a sense. And so he wanted to camp out with everyone else. And so we camped next to each other and have become lifelong friends. Oh, that's fantastic. This great person who I never would have met but for camping out that night. So seeing a Supreme Court argument is super fun. And I think as you can tell from this podcast, even the most quote unquote boring cases are not

boring. If they have been accepted to the Supreme Court, there is something cool and nerdy and interesting about them. So you do not have to camp out. There are plenty of cases that no one cares about seeing. But when COVID restrictions are over and in-person arguments start again, you got to do it, folks. It is so neat. Footnote, however, on my situation, I was very, very cold. I did not get any sleep sitting on a sidewalk propped up against the stone wall there in front of the Supreme Court. So I get into Heller. David, I fell asleep. Not during the argument.

During the argument, I was finally in a warm place. Oh, no. And the dulcet tones of Alan Gura arguing, it was too much. I was so tired. I was supposed to go to an argument in CLS v. Martinez, and I got really sick the night before and spent the time during the argument. I was in a doctor's office. No. I know. I know. I filed multiple Supreme Court briefs. And yeah, so I was really looking forward to it. But that case turned out to be an absolute freaking disaster.

So I'm actually glad I did not see it. It was an absolute mess. So to this day, the longest. So what's the next longest you've ever waited in line for something besides the Heller argument that you slept through? I can't even think of anything else. I'm not one of those people who waited in line for something besides the Heller argument that you slept through? I can't even think of anything else. I'm not one of those people who waited in line for concert tickets or movie premieres. No, I think that's it. Oh, really?

That's good. It is a summary of who I am as a person. So my two longest in lines are, one of them won't surprise you at all, which is Return of the King. Nancy and I. Nancy dressed as Arwen, me dressed as a Nazgul. And it was fantastic because during the wait, they had a series of questions, or they had a trivia contest. A Lord of the Rings trivia contest, which, oh my gosh, did I dominate that. It was unbelievable. But I'm still to this day sad that I finally stopped answering questions correctly when I can only name two of the three Elven Rings, which was horrifying. But then the other one will surprise you because it is not exactly a classic, but waited in line. I think it was seven hours, maybe five hours for Independence Day.

Oh, great movie. Great movie. I'm a big fan. I mean, it's fun. It's like a good popcorn movie, but yeah. I've also done the Alamo Drafthouse does their own version of sort of Mystery Science Theater 3000 and they do Independence Day. And it's so great. This is back, by the way, when Alamo Drafthouse was only in Austin, like the original Alamo Drafthouse. Not your little extra Alamo Drafthouses that have come around the country now. The real thing.

Well, I think that's it. And we got in. Oh, is it not? Is it not? I've got one last thing. So this weekend, I mentioned last week that. And we got in. Oh, is it not? Is it not? I've got one last thing. So this weekend, I mentioned last week that I was taping in Dallas and I stayed in Dallas for the weekend and I attended the Texas Review of Law and Politics dinner. It was so much fun. Thank you all for having me and just big cheers to all the students graduating this year from the University of Texas, from Trulp. You guys pulled it off in COVID.

We're all so impressed. But I want to do something that we've never done on this podcast before, and I hope he doesn't mind. So many Texans will remember Greg Coleman. He was the first Solicitor General of Texas. He was a wonderful, so important mentor to so many people, including my husband. And he passed away in 2010, leaving behind three great boys. I mean, just stellar humans. And at the Tout Banquet, I learned that his youngest son, Reed, not only will be clerking

for Judge Jones next year, which, you know, welcome to the family, Reed. His father clerked for Judge Jones as well. But he is graduating as Grand Chancellor of the University of Texas, which is just so freaking hard to do, as my husband Scott will tell you, who graduated number two. So grand chancellor is number one? Number one out of his class. Oh, fantastic. He was really just feted by his fellow students for his humility and his hard work and doing just the odd jobs and the grunt work that no one else wanted to do all the time.

And Reed, we're all so proud of you, and your father is too. Well, congratulations, Reed. And I have to say that Texas has the best titles. Because what was Scott's? Oh, man. I think he's just vice chancellor, but it's the peregrine. The keeper of the peregrine. The keeper of the peregrine is really where it's at. Okay. So what is the keeper of the peregrine and how

is that different from the grand chancellor and the vice chancellor? The keeper of the peregrine? Oh gosh. That's number four. When you graduate number four in your class. Okay. The keeper of the peregrine. Okay. That's the best. Yeah. I love it okay that's the best yeah i love it it's almost it's it's almost sounds like royalty in a way oh like nobility i think i'd rather graduate four than two to be the keeper of the peregrine sorry that would be it's the peregrinus that's what i'm getting wrong it's the peregrine if i had gone to UT and been fortunate enough to graduate number four, Peregrinus would be in my Twitter bio the rest of my life. You should also see a picture of the Peregrinus. Perhaps we can put one on the website.

It's part mammal, completely imaginary, as they say. It has the head of a bird. It's wearing shoes on its two front feet. Looks like it maybe has the head of a bird. It's wearing shoes on its two front feet. Looks like it maybe has the tail of a coyote. It's awesome. He has a little hat. It's a real thing. Excellent. And you actually are the keeper of the peregrinus. You have to keep safe the peregrinus. It is the mascot. I love it. Well, that has been the leading, we are now the leading podcast in the United States of America

for Peregrinus content. No question. No question. So that should lead you to immediately stampede to Apple Podcasts and rate us very highly for our Peregrinus content. And please subscribe to us

and also check out thedispatch.com. We've got a sweep coming up this week, Sarah. Oh, yes, of course. Preview as to content or do we know yet? Oh, we've got to cover the Texas 6th election. That was the special election to replace Ron White and the top two finishers move on to the runoff. It was a lot of discussion over who would make that runoff. One was no surprise at all. His widow made the runoff. She had been endorsed by Trump as well. And a lot of what I'm going to talk about is why she made the runoff, whether Trump's endorsement mattered. My argument is no.

And then the number two guy who made the runoff, she was a Republican, obviously. The number two guy, drumroll, was another Republican. The D-trip got totally shut out of this game and only by about 300, 400 votes. So embarrassing for the D-trip. I thought for sure Sanchez, their preferred candidate, was going to make it into the runoff. I was wrong. Instead, it was a Republican state rep who had the most money in the race. So David, if 2016 had never happened, and I told you that the widow of the guy and the state rep with the most money made it to the runoff, you'd be like, yes, name ID and money

are the two things that win elections. And it would be 2012 and all would be well in the world. Right. Well, interesting. I look forward to it. And so please check out thedispatch.com and Sarah's newsletter, The Sweep, and also my newsletter, French Press, where Sunday I talked about prophecy reform, which is actually a thing. It's actually a thing. So please check that out. But in the meantime, thanks so much for listening. And we will be back on Thursday with a fun special guest.

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