Advisory Opinions - Common Carriers

Episode Date: April 5, 2021

It was a slow day at the Supreme Court today, but our hosts are here to give us a breakdown of the latest orders. In a concurring opinion on Monday, Justice Clarence Thomas tore into the Supreme Court’s order in Biden v. Knight First Amendment Institute at Columbia University, which involves a government official’s control of his own Twitter account. Per Sarah, the purpose of Thomas’ concurring opinion is to determine whether social media platforms are “common carriers, whether they are places of public accommodation, or nothing.” Stay tuned to hear David and Sarah discuss a lawsuit involving Thomas Jefferson High School for Science and Technology and the GOP’s legislative blowback against corporate wokeness. Show Notes: -Google v. Oracle -Supreme Court’s April 5 orders -Biden v. Knight First Amendment Institute at Columbia University -Jason Small v. Memphis Light, Gas & Water -Trans World Airlines, Inc. v. Hardison -Coalition for TJ v. Fairfax County School Board and Dr. Scott Brabrand -Revisionist History podcast Season 3 Episode 10 Learn more about your ad choices. Visit megaphone.fm/adchoices

This episode is brought to you by Peloton. Spring is a great time to start a new workout routine. With the weather warming up, it feels easier to get into the rhythm of things. Whether you have 20 minutes or an hour for a Pilates class or an outdoor guided walk, Peloton has everything you need to help you get going. Get a head start on summer with Peloton at onepeloton.ca. Nothing moves you like VIA. VIA Real Canada.

Love the way. Welcome to the Advisory Opinions Podcast. And full disclosure, listeners, would you say as recently as 23 minutes ago, Sarah, we were struggling for topics? But you know what? We were struggling because it wasn't yet 10 a.m. That is true. That is true. We were struggling because it wasn't yet 10 a.m. That is true. That is true. We were struggling because it wasn't yet 10 a.m. Then the court started to let us down, to be honest. It's true. It came out with an opinion in what Google versus Oracle that even saying the words Google versus Oracle bored

us both. Amy Howe on SCOTUS blog and her live blog where it's normally like high energy. She said, please do not ask me to explain the holding in plain English. And Gabriel Malor, who I love following on Twitter to see what he's thinking about various things going on at the appellate court level, but also the Supreme Court said, good luck. It's like his only take on the case. I was like, okay, nobody wants to read this. It's a copyright case about a specific line of code. And that's as far as I can go in describing the case. Yeah. It's about whether or not the use of many lines of code was fair use. And it was. Okay. End of analysis. Who cares? Yes. Okay. You know what? I just said, who cares? And the answer will be all these people are going to email me saying they care, but I don't is the problem.

Right. You're going to get emails from advisory opinion coder listeners saying, you have no idea how my life just changed. No doubt. No doubt. I apologize to you in advance that I don't care, but I can't force myself to care about things. But we're looking at a couple of topics of interest that we are going to talk about. A lawsuit filed against an elite high school not far from Sarah. We're going to talk about the effort to, for example, the Georgia House just voted to strip Delta of a tax break after its CEO criticized Georgia's voting law, we're going to talk about some constitutional implications there. But it wasn't feeling like the real meaty advisory opinions that our listeners had become accustomed to. and to orders list. And in that orders list,

there was some spicy, spicy stuff. Um, justice Thomas went on a tear Sarah on a tear. And it was very on Thomas like, so this, and was it that it, well,

it was okay, but, but wasn't it. Okay. But was it, so, uh, we'll, I'll, we'll set the't it? Okay. But was it? So we'll set the stage. The case was called Biden versus Knight First Amendment Institute at Columbia University. It was formerly known as Trump v. Knight First Amendment Institute.

And this was a case involving whether or not there was a constitutional violation when Trump blocked users from interacting with his Twitter account. The Second Circuit said that Trump's Twitter account, which he used for public purposes and as part of his official, in his official capacity, when he used it in that way and then blocked or limited people's access to his Twitter account, that he was acting as a public official under clothes with governmental authority, and therefore he violated the First Amendment. That's an opinion I disagreed with strongly back in the day. But they appealed. Trump appealed, but then the case was mooted out. Why was it mooted out? Because guess who's not on Twitter?

Donald Trump. And guess who's not who's not on Twitter? Donald Trump. And guess who's not part of the government anymore? Donald Trump. So cases moot. And so Justice Thomas concurs with a long opinion. And Sarah, do you want to sum up what he did? Look, he agrees that the case is moot because Twitter kicked Trump off of its platform. But his whole point is, this also deeply undermines the reasoning of the Second Circuit. Because if Twitter is actually the one in ultimate control

over whether anyone can see Donald Trump's tweets, then Donald Trump isn't in control, and therefore there's no First Amendment violation, which he's implying certainly is not why everyone else potentially thinks this case is moot. It's sort of like a dissent-y concurrence, if you will. And he goes on, I mean, the real purpose of his concurrence, why he is writing, is because he is trying to stick a flag in the ground to say we're going to have to deal with these platforms, whether they are common carriers, whether they are places of public accommodation or nothing. implications of this new world order is where very few people, as he puts it, control such large swaths of our public communication. Here's what was so interesting to me about this, Sarah. So first, I'm with him.

He is basically, it's almost like he read me in 2019 in National Review when I was objecting to the Second Amendment or Second Circuit ruling. Now, I know that didn't happen, but he was channeling the same arguments I was making back then. The president of the United States was not in control of his Twitter account. He did not have the same control that you would have, for example, even if you're a government entity that leased out a space, a physical space, say in a convention center or a hotel, where for a while, thanks to your lease agreement, you have control. He had no control. Twitter could have overridden any aspect of his use of that platform and did to exclude him permanently. And so to say that the president

was exercising true governmental authority and blocking people on a platform he didn't control wasn't implicating the First Amendment. And so in that sense, I was thinking, okay, yeah, this is good stuff, Justice Thomas. But what's interesting is he then goes, and this is what I say was un-Thomas-y, and you might disagree with me about this. He then goes and this is what i say was un thomasy and you might disagree with me about this he then goes on basically a policy argument that to say hey there's some problems you have here when these private entities have a degree of control this degree of control over private speech and hey i'm going to give you a couple of suggestions as to how to regulate them using common carrier logic and public accommodation logic. That's what I thought was

un-Thomas-like. It was as if he said, wait a minute, I think I've been reading a lot of commentary about this issue. And so here's my helpful suggestion as to what one justice of the Supreme Court might says might pass muster, might overcome social media or big text First Amendment objections. Here are two ideas, common carrier provisions and public accommodation provisions. common carrier provisions, and public accommodation provisions. And that's what I thought was un-Thomas-like, Sarah, was, hey, here's some helpful ways to deal with a public policy problem that really isn't really my business in my capacity as a justice in the Supreme Court. Am I misreading this, do you think? Am I misreading this, do you think? So Justice Thomas, in these either cert denials or GVRs that happen, he is an outspoken concurrer or dissenter because I think he wants to send a signal to Amiki or even to advocates, here are the things I'm interested in for the future because this is coming back. And this is a prime example, but you know what? The qualified immunity

stuff is a good example. The second amendment stuff is a good example. He sends these signals pretty frequently where the top part, including in this one is just like, hey, I agree with why we did this. Here's why I'm writing separately. And then it kind of goes on a bit of a law review articles by Justice Thomas, where he says, we could really use some more research on this if someone wants to look into this, he's basically like sending out his assignments outside the building. So in that sense, I didn't think it was unusual. I think in general, a justice suggesting specific legislative fixes is not that common. That's not really what he did here.

He does say that this is open to legislative fixes and that those legislative changes would probably come before the court and be challenged. But it's not like he says, all the Congress has to do is pass a law with parts A, B, and C. If anything, I think we've been more likely to see Chief Justice Roberts do things like that. If you don't like our opinion today, Congress, you can overturn it by doing X, Y, and Z or an administration under the APA. Think of the DACA ruling where the chief justice said, like, look, you didn't cross your T's and dot your I's. Feel free to do so. Here's a step-by-step way that one might overturn DACA through executive action. Yeah. I think that there was a couple of things interesting about this.

First is, yeah, it's not that common as you noted. The second thing is part of this felt really shallow and wrong to me. And I'm really interested in this and your perspective on this, Sarah. It just felt shallow and wrong like he doesn't understand what these different platforms do.

So, for example, when it comes to common carrier regulation, this is something that has been talked about a lot in this space, sort of at the op-ed level, most frequently sort of at the op-ed level of analysis. most frequently sort of at the op-ed level of analysis, comparing, say, Facebook or Twitter or Reddit or whatever to places like, say, FedEx or a trucking company, that they are just moving goods from one place to another. For example, he cites this, this, uh, 1850 case in gate versus Christie from England, man, we have a lot of English law running around out there. A person who holds himself out to carry goods for everyone as a business is a common carrier. Well, if you talk to anybody in the social media space, they will tell you that no, in fact, they do not and have never really just moved info from one place to another, unless it's specific things like text messaging.

Feeds are designed, are curated. The user experience is something that is the subject of an enormous amount of corporate expression in the way that they are putting forward what that experience is. And it's very different from, say, a FedEx. It's not like FedEx overnight says, you know what? Here's what we want to do to really enhance the FedEx user experience, everyone who sends something that is letter-sized, we're going to add a pink bow to it to really make it pop. And anyone who sends anything as a book is going to have a black bow to sort of deter opening that so that we can have personal correspondence privileged. Um, it's not like that at all, but these social media companies, they very much curate the experience to have certain kinds of content leap out at you, other kinds of content minimized. Um, it is not the same thing.

It's, it, it's a very different, other than for example, say text messaging or things like that. It's a very different kind of reality. And so it was fascinating for me to see him just toss that out there when there's so many obvious arguments that, ah, we're not really dealing with the same thing here as some sort of common carrier. I disagree. I think that Justice Thomas was trying to give a lay of the land

of the types of arguments that people are making. And he even says, perhaps this is what the Second Circuit was thinking, or perhaps they were thinking this. And he's just running through some of those areas. And he's doing it briefly because this isn't meant to be either a law review article or even a Supreme Court opinion. This is a concurrence on a Munsingware mooted out case.

Munsingware vacator, people. It's such a fun thing to say. Say it with me, Munsingware vacator, people. It's such a fun thing to say. Say it with me, Munsingware vacator. So for instance, he actually goes through several definitions of common carriers because of course the court has had several definitions of common carriers. This court long ago suggested that regulations like those placed on common carriers may be justified even for industries not historically recognized as common carriers when, quote, a business by circumstances and its nature rises from private to be of public concern. A company's, quote, property is but its instrument, the means of rendering the service which has become of public interest. means of rendering the service, which has become of public interest. Now, of course, he says, this is not that helpful because anything can be described as public interest.

But telegraphs, for example, because they quote, resembled railroad companies and other common carriers were bound to serve all customers alike without discrimination. So again, he's giving sort of a very light touch on like, okay, here's sort of how common carrier went along for a while. Maybe that's what the second circuit had in mind. And then he says, or public accommodation. This concept related to common carrier law applies to companies that hold themselves out to be public, but do not carry freight passengers or communication. Now, of course, David, you and I know, but also Justice Thomas knows extremely well that public accommodation is much more complicated than that. He's just trying to give us a quick, like, okay, there's also this other thing. Now, let's dive into these a little and try to compare and contrast where these companies might

fit in. And he notes ways in which they don't fit. He notes ways in which they do fit. And his overall point is, this topic isn't going away. It's coming back. Hey, litigants, amici, law professors who are writing on this, we need more scholarship on this. And here's sort of where my head is right now, just a little off the top of the head. Now, I think that some people see that and are like, oh, how wildly unjust. I mean, it's like more than dicta or less than dicta, depending on how you want to phrase it. Like, why is a justice sharing their thoughts? I think especially from the traditional non-question asking Justice Thomas, the pre-pandemic Justice Thomas, these things were really helpful. And I wonder whether, in fact, the advocacy at the court, written or oral, would benefit from hearing more from justices on what they're thinking. There's sort of this, it's frowned upon because you don't want justices predetermining

their views on a case. Well, that's silly. We all have predetermined views of one kind or another when we hear certain words, when certain types of arguments come before us. To express those in advance and say, I don't know, like here's sort of where my head is on this, now try to persuade me. Understanding where I'm sort of coming from in first principles, could be very helpful at the court. Well, okay. So I'm just, I don't like this.

I really don't like this. A couple of reasons. One, this is different from questioning qualified immunity, for example. Why? Which, because qualified immunity was a judge justice made doctrine. Okay. This is directly related to specific Supreme court authority. This is something that is specifically in the purview of the Supreme court of the United

States is opining on its own precedent. Okay. What it is not in the purview of the Supreme Court of the United States to say, you know, we've held Obamacare, but I think it's pretty in a pretty inefficient law. And here's some other ideas. Have you considered, you know, Medicare for all? Now we're not going to say, for example, that Medicare for all would pass constitutional muster depending on how it's drafted. But we recognize that there's a real issue in trying to provide health care for all Americans. And have you considered this? That's where I think this is a difference. He's not saying, OK, here is a specific court precedent that I have a problem with, like when he did the dissent in the June medical services case, and he calls out Casey and Rowe. Again, that's a justice of the Supreme Court opining on the precedence of the court. What you have here is he's saying, well, look, when I'm opining on

the precedence of the court, I'm agreeing with the court's decision here. This case is, in fact, moot. And in fact, I think the Second Circuit got it wrong for various, you know, to the extent I'm going to express an opinion on the case, I'm going to express it with regard to our existing precedent and First Amendment jurisprudence. But oh, by the way, here is this problem that people have with big tech and dear legislatures. Here's a couple of ways that you might want to think about it. I'm not going to say they're going to be okay. But here's a couple of ways that I don't like at all. I will read some lines that I think fall more on your side

than my side to agree with you, even though I think overall, for instance, your comparison to let's try Medicare for all is silly. No, it's very good. You're very silly. It's a great comparison. Silly. If the analogy between common carriers and digital platforms is correct,

then an answer may arise for dissatisfied platform users who would appreciate not being blocked. Laws that restrict the platform's right to exclude. Skipping ahead a little, this analysis may help explain the Second Circuit's intuition that part of Mr. Trump's Twitter account was a public forum. But that intuition has problems. First, if market power is a predicate for common carriers, nothing in the record evaluates Twitter's market power. Second and more problematic, neither the Second Circuit nor respondents have identified any regulation that restricts Twitter from removing an account that would otherwise be

a, quote, government-controlled space. So David, I read you that first part because I think it is what you're talking about. But then the second part is the legal analysis of him saying, I'm using this framework in order to discuss why the Second Circuit got the opinion wrong regardless of the Munsingware vacater. And then the next section goes on to do the same thing with public accommodation that he just did with Common Carrier. Although definitions between jurisdictions vary, a company ordinarily is a place of public accommodation if it provides lodging, food, entertainment, or other services to the public in general. Twitter and other digital platforms bear resemblance to that definition. This too may explain the Second Circuit's intuition. Courts are split, however, about whether federal accommodation laws apply

to anything other than, quote, physical locations. Once again, a doctrine such as public accommodation that reduces the power of a platform to unilaterally remove a government account might strengthen the argument that an account is truly government controlled and creates a public forum. But no party has identified any public accommodation restriction that applies here. So I see what you're saying, David. He's digesting some of those online right-wing op-eds, but he's also giving the response to it. No party has identified any public accommodation restriction that applies here. Sorry, guys. You can keep talking about common carrier. You can keep talking about public accommodation. No. Right. I know. He has a portion of the opinion that is classic legal analysis.

And then he flips, he flips and says, here's, you know, the similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms. arguments for similarly regulating digital platforms. So again, this is where that flip to me is problematic. Is it really the justice's concern whether somebody is blocked on Twitter. Do we know why they've been blocked? What they've been blocked for? Are you accurately describing and comparing and contrasting different platforms while you're making your very helpful arguments?

And oh, by the way, in an environment where we're seeing state legislators just running wild with a whole lot of poorly thought out, a lot of poorly thought out proposed regulations. So I've got my story and I'm sticking to it. I thought he had a very good analysis of

the problems with the second circuit when he flipped to, oh, by the way, here are some ways that you might want, legislators might have strong arguments, it started to fall apart, in my view. And I love, you know, I love me some Justice Thomas. I mean, this is a critique made not in anger, but in regret. a critique made not in anger, but in regret. The opinion ends with, the extent to which the power to remove people from the platform matters for the purpose of the First Amendment and the extent to which that power

could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them. Well, it provided some opportunity. It did indeed. It provided him opportunity that is going, this opportunity is going to be chewed over by, this is going to be the concurrence that launches a, what's the over under 900 op-eds.

Um, but this is going to launch a lot of commentary. Let's put it this way. If a D.C. Circuit judge's dissent that Judge Silberman's that we talked about about liberal or progressive control of the media launched a huge conversation online, a Supreme Court justice proposing potential, maybe, sort of, possibly, not really saying, but kind of saying anyway, ways to regulate big tech is going to launch a lot of conversation.

So I wouldn't say buckle up because it's not going to be that exciting, but, you know, maybe hold on to the armrest. Okay, but also in the orders, there was a dissent from denial of certiorari. there was a dissent from denial of certiorari gorsuch and alito joining gorsuch had a little bit of a uh religious liberty dissent david i thought you'd be super into it so this is a case about a jason small he worked as an electrician in memphis near you not that near you but kind of near you and he got an on-the-job injury and he was moved into a new role as a dispatcher, which came with a different schedule and mandatory overtime hours. The new hours, he said, conflicted with his religious obligations like worship services on Sunday morning. This case was denied cert. Gorsuch's point is really interesting. I am surprised that they didn't have four votes to grant cert. He touches on why that is. that prohibits discrimination on the basis of race, color, religion, sex, and national origin. It literally in the text requires employers to give accommodation unless doing so would impose a quote, undue hardship. But in 1977, the Supreme Court in a case called Hardison defined undue hardship as anything,

quote, more than a de minimis cost, which is sort of not the opposite of an undue hardship, but not a synonym. Undue hardship is like a, I don't know, is it between a four and a six on the one through 10 scale burden? More than a de minimis cost is anything above a one on the hardship burden. This has been pointed out before, since 1977, obviously, but this is sort of the perfect case for it, whether small would win or lose, frankly. And so Gorsuch runs through it really persuasively, I think, again, just that the court should take this case because Hardison is that type of case from, let's call it the pre-textualist, pre-originalism, make up the law as whatever we think is fair days that this court has been particularly keen to revisit, even, frankly, the liberals on the court,

because those precedents are on such shaky ground legally, they want to shore them up or build up something new in their place. Hardison is, like, squarely in the middle of that. And as Gorsuch points out, the application of that undue hardship language to all the other parts of Title VII, race, national origin, et cetera, like undue hardship is real. It's only on religion. It's just religion where the hardest and de minimis cost has ever been applied. And so once again, as Justice Gorsuch says,

Title VII's right to religious exercise has become the odd man out. Alone among comparable statutory protected civil rights, an employer may dispense with it merely at whim. As this case illustrates, even subpar employees get more favorable treatment than highly performing employees who seek only to attend church. Under the ADA, an employer may be required to alter the snack break schedule for a diabetic employee because doing so would not impose an undue hardship. Yet, thanks to Hardison, at least one court has held that it would be an undue hardship to require an employee to shift a meal break for Muslim employees during Ramadan. That example, the diabetic versus the Muslim accommodation,

is exactly the distortion that Hardison puts on Title VII undue hardship language. And fascinating. And they couldn't get four votes, David. Yeah. And I mean, if you keep reading from that portion of the opinion, the very next paragraph after referring to the Muslim employee during Ramadan says, this is interesting. Not even Mr. Small's employer tries to defend this state of affairs. The company candidly acknowledges that Hardison, quote, very likely is not the best possible gloss on Title VII's language. Two of the three judges on the panel below agreed, writing separately to explain their view that Hardison rewrote the

statute. Yet today, this court refuses even to entertain the question. It's a struggle as to see why. So this is something that I think, so I thought Gorsuch did a fantastic job of just showing, wait a minute, in this aspect of Title VII case law, the treatment and the protection of religious liberty or the religious observance by employees is way out of line with the treatment of the protection provided by non-discrimination law in many other contexts. Way out of line. It's a distortion of the law. And so I thought he did that very effectively. He says that the most charitable explanation for the courts in action

has to do with issue preservation. Yeah, maybe. I don't know. But I'm going to tell you, this is not going to go away. I don't know, but I'm going to tell you, this is not going to go away. This goes back to something we talked about in our dispatch podcast last week, and that is the decline of membership in churches, synagogues, mosques. Now less than 50% of Americans belong to a church, synagogue, or mosque for the first time since Gallup has been tracking this number. The decline has been precipitous.

So you're going to have a lot more situations just as a practical matter where your religious employee is kind of an outlier in the company. He might have religious observance requirements that are just not the norm. But where I'm in the South, it's pretty normal for employers to say, okay, hey, who needs to be at church on Sunday? Who doesn't? We're going to work shifts around that kind of thing. And that's normal. Lawsuits don't arise.

It's just the way business is done. But as religious employees become more outliers, particularly in specific sections of the country, the religious non-discrimination provisions of Title VII are going to become more relevant. And right in this aspect of that religious non-discrimination law is an outlier of weakened protections compared to basically all other non-discrimination doctrines. And so something's going to have to give here, and I'm with you, Sarah. It's a little surprising. Do you think it's what's your rank speculation as to why there were not four votes here?

That so in our 333 court, I have a very hard time believing that Thomas didn't vote to take this case. I'm a little surprised he didn't join the dissent, but he may just have not had the sort of time to add much to it. It was already a good dissent. Alito was on it. No big deal. The question was why they weren't able to get someone from the other three, the Kavanaugh, Barrett, Roberts three. Those three are much more interested in the posture of the case. Gorsuch hints at the issue preservation problem. And when he cites the opposition's brief that you just quoted, where they're like, look, Hardison may not be very good. They also are going to emphasize that this is simply not a good vehicle to overturn Hardison. And you quoted the opinion from the lower court

and those judges saying that Hardison rewrote the statute, that was Judge Thapar and Judge Kethledge both saying that, look, our hands are tied by Supreme Court precedent, but please, please, please, we are not in favor of this. Again, not because they necessarily thought this was a good vehicle, but because they wanted to express that they don't agree with Hardison and probably just teeing it up for later. So yeah, I mean, once again, I think this is a pretty clear, the problems with a 333 court are going to be the cert petitions, not just the opinions themselves. Now, each of the three needs someone from another pod to come join them to grant cert. And clearly,

Hardison lives another day because of our 333 court. Before we move on to a little Supreme Court bingo, I just want to throw a little shout out to Thapar and Kethledge. That's not just any two judges. Those are two that would be on a short list for the next Republican Supreme Court nominee and also two of my favorite circuit court judges. And two feeder judges, big, big feeders. A lot of their clerks are going to go on and clerk for the Supreme Court and they will take their heartless and hatred with them in the next year, two years as they get to the Supreme Court and have an

outsized influence on the cert petitions actually, because Supreme Court clerks are going to be, you know, we talked about this in a previous episode about the cert pool, where several of the justices, combined clerks, they all read all the cert petitions, you know, divvy them up. And then they're really the only ones who are going to get their hands on those and recommend which ones should even get judicial consideration from the justices. So those clerks being brought into the world under a Sapar and Kethledge and their feelings on Hardison, that will reverberate. We'll see that come back. To the Thapar and Kethledge clerks listening, I know you are. In my best Sith Lord voice, I'm going to say, give in to your hatred of Hardison. Give in to your hatred. Let it burn. Let it burn

within you so that when you are fed upwards, that you're putting those petitions to the top of the pile. So yeah, the Hardison link, it's hard for me to see what the justification is for this outlier provision in non-discrimination law. It's very hard to see. And especially, it's going to become especially salient, as I said, as religious observance becomes less common. You're going to be an outlier. There's going to be a need for an accommodation in much the same way that you have accommodations for people with disabilities. Or you have accommodations for service members. You have these kinds of things are going to become more real.

And that's why it's going to be necessary to deal with it sooner rather than later. So end rant. See yourself buying a home one day? Do future you a favor? Open a Questrade first home savings account and help that future come faster. All right, David. more time your down payment has to grow. Open an account today at questrade.com. All right, David. So as listeners from last spring will know, I'm very into Supreme Court bingo. This is where you look at how many oral arguments there were for a month and how many opinions have come out from that month. And as you get toward the end, you can look at which justices have not written because generally, and it's very general,

each justice will write one opinion from each month, assuming that there are enough arguments. Although as the number of cases go down, Supreme Court bingo is going to get a lot less fun. However, I was hoping today at 10 a.m. we might get the Obamacare case. And let me tell you why. Because there were 10 October arguments, nine of which have already come out, which means we're going to start then getting more November arguments. There were eight. We've had three. So we're going to be on Obamacare watch here for the next few opinion hand downs. It's April. I think it's coming down any time now. I will tell you, however, unfortunately for our authorship bingo, yeah, we don't have a lot of guidance there. The only

justices who have written November opinions are Thomas Sotomayor and Barrett, none of whom I expected to write the Obamacare opinion. So no thoughts on who's writing it, but definite thoughts that it's coming soon, real soon. real soon. Yeah, it's interesting. The longer it goes, the longer we wait, the more curious I am because I just thought this thing would be...

And I still think so. I still think so that this is a... Oh, please. This statute is severable. And even if we're striking down the individual mandate, the individual mandate is sort of a dead letter already anyway because it's a penalty without a penalty. And it felt to me like a kind of swat aside sort of opinion.

But the longer this waits, they wait and wait and wait on some of the bigger stuff. So I'm just growing. I'll just say I'm growing more curious about the results. So not to say that I'm changing in any way my prediction. I'm just growing steadily more curious, Sarah. And actually, I need to revise what I just said. We're done with October arguments. The Google case, the Google v. Oracle that I didn't care about, that was the 10th. So we're done with October. All of our opinions coming out now will be November or forward. This Obamacare case is, to compare to pregnancy or whatever, it's at 40 weeks. We're now just talking days.

Interesting. Okay. So let me ask you this on the case. I'm very super, super mega, super interested in the Fulton case. Is that one you're expecting like last day of the term or so? Yeah, I think that one's going to wait. Yeah. Darn it.

Okay. Anyway. All right. Shall we move on? Yes. Now we're going to get to the substance of the podcast. We're going to talk about before Clarence Thomas and Justice Gorsuch really lit this podcast on fire. We're going to get to an interesting new lawsuit over an issue that we've talked about a few times before.

And it involves Thomas Jefferson High School, which Sarah calls in the lingo of the Nova residents, just TJ. That's right. TJ High School, best overall high school in the US, but about, I don't say but, and about 70% of its students are asian american many of them children of immigrants and then what happened is the school adopted a quote-unquote holistic admission system um watch out whenever a school says their admission system is becoming more holistic, a holistic system, that the long and the short of it, it's going to absolutely, has the probability of absolutely eviscerating the Asian American student population. And the population that will likely benefit the most from this quote-unquote more holistic system, white students, Sarah, white students. Now,

we've talked about this before, but a lawsuit was just filed last month that was challenging this. And this is going to be another one of these cases. And even if the Harvard case is not necessarily the case that the Supreme Court takes on this issue, I think the court's going to just get volleyed with these complaints over time, just volleyed with them, because the actual effect of this change is going to be pretty dramatic, and it's going to be pretty dramatic in its impact on one specific ethnic minority in the United States. That's obviously true. So let's go through some numbers. 73% Asian American, 1% Black, 3% Hispanic or Latino, 6% other, and 17.7% white.

The plaintiff's analysis of the new admissions criteria will be that it will go from 73% Asian American down to 31% Asian American, so less than half. It will go from 1% Black to 5% Black, 3% Hispanic or Latino to 8% Hispanic or Latino, and wait for it, 17% White to 48% White. So a huge increase in white students. But I also want to read what their new criteria is because, David, the plaintiffs are going to have to show discriminatory intent for some reasons that we'll get to in a minute. Let me read you the criteria. Fairfax will identify all eighth graders who meet certain academic criteria, those who achieve an unweighted GPA of at least 3.5 while taking Algebra 1 or a higher level math class,

in addition to math and science honors courses, and either an English or social studies honors course. They will also complete a math or science problem-solving essay, as well as a student portrait sheet. And then they will take into account experience factors, including whether they are low income, have special needs, or come from households that do not speak English. 550 middle schoolers will get the offer to attend the school, and a certain number of seats will be allotted to every middle school, which means that certain middle schools that are not, for instance, particularly diverse racially or everyone's super smart are still limited. So for instance, there are three middle schools that are predominantly

Asian American that feed to TJ. TJ, by the way, in case y'all haven't figured this out, is this charter STEM school. While those three predominantly Asian American middle schools are going to be capped in the number of students they can send. So even if tons of their students have at least a 3.5 GPA and are taking Algebra 1 and all of this stuff, they don't get to even enter that lottery, if you will. So speaking of lotteries, I don't know if you listen to Revisionist History by Malcolm Gladwell.

It's another podcast. I do indeed. I have not listened to every one of them. So last season, he did an episode on doing elections and he was looking at student government, either at the high school level or college level. Instead of having people run for student government, instead have all the students who are interested in running for student government, put their name in a hat and it's just picked by lottery. And the benefit that that has been to the schools who have tried it in terms of people's ability to work together, you sort of get rid of some of the showboaters, people who would never be willing to

run a campaign but are interested in solving problems are more likely to be attracted to that sort of system. I wish that if TJ wanted to redo how they're letting people in, that they simply had that first part that I talked about. You still have to meet these criteria, the 3.5 GPA and the math and science courses, because that determines whether you'll succeed at TJ. Once we've picked all the students who will succeed at TJ, then it should be a lottery. That's what would make this fair. And that's, I think, what would have no discriminatory intent. And TJ would win that lawsuit in a heartbeat. It's fine if you want to redo your admissions criteria because you've realized through all sorts of social science that's out there that the idea that these schools can look

at a student on a piece of paper and determine who's going to be the most successful, they're not very good at it. And Malcolm Gladwell, again, points to in grants, the NIH grants. So, I mean, the government gives away whatever it is, a billion dollars in these grants. They are first, they weed out, you know, the ones that are even remotely qualified, same as this, right? But then they have a peer review where those peers, the other doctors and researchers, PhDs, give them a score. And they looked at the correlation between the success of the research, meaning how many times it is cited in future journals, compared to the score. And it's unrelated.

So even experts are not good at these sort of peer evaluations based on prediction, based on future performance. They should go to a lottery. It would be far more fair. And it was past constitutional muster. So given that, let's talk about the lawsuit. Pacific Legal Foundation brought this lawsuit on behalf of several parents, including, by the way, a parent of a black student who is currently at TJ, which I found interesting. Very interesting. Yeah. claiming paragraph 49 of the complaint. A facially neutral state action violates the equal protection law when it is enacted with a racially discriminatory purpose. A racially discriminatory purpose does not imply any animus on the part of the decision maker towards a particular racial group, nor does it require showing that race was the predominant

consideration of the decision makers. A racially discriminatory purpose simply implies that the decision makers acted at least in part because of, not merely in spite of, the policy's adverse effects upon an identifiable group. So they acknowledge that this is a race neutral policy change on its face. What they're arguing is that the purpose of the policy is at least in part to limit the number of Asian students and make the school's racial balance look more like the racial balance of the area that it draws from as a whole, which frankly isn't really in dispute. They've said that they want it to look more like the community as a whole. The question is whether the court will continue drawing sort of this line around like, well, diversity in and of itself is an admirable skill, or goal rather, even if

it has a discriminatory effect. But here where they're changing an admission policy and it's public, unlike Harvard and Yale, you get to look at the discriminatory purpose. And that's what's going to be interesting about the TJ case. consistently interesting to me about these discriminatory practices or these practices that result in disproportionate burden being borne by Asian American applicants is that, yeah, in the diversity metrics that are used, often when Asian American applicants bear this burden, you will see some benefits, some slight benefits to black students or to Hispanic students. But time and again, time and again, what are you seeing? You're seeing a really substantial benefit as a result of these disproportionate burdens on Asian Americans on that much oppressed American community of upper middle class and wealthy white people.

community of upper middle class and wealthy white people. That's who's largely benefiting from a lot of these disproportionate burdens placed on Asian Americans. It is not the case that, it's not simply the case that, oh, wait a minute, we're going to impose some additional burdens. And what that's going to do is for some historically, other historically disadvantaged minority groups in the US that we're going to give,.S. They're going to have some extra opportunities. When all the numbers shake out, what ends up happening is, and at scale much more, is that you're going to disadvantage high-achieving Asian American students, and you're going to advantage an awful lot of to be fair, high-achieving

white students, but not quite as high-achieving. And that's one of the interesting subtexts of all of this that has not, I think, been fully digested in the public debate. It's often seen as, well, this is a sacrifice that some families bear to make sure that other historically disadvantaged communities get additional benefit, not working out fully like that in these circumstances. And I think that that's one thing that needs to be understood and known. By the way, for those of you who are curious what the former admissions policy was, it was a standardized test considering of ACT-inspired reading and science components. It is, quote, famously rigorous and competitive. Many students spend months, if not years,

studying for the three-part test. Test preparation was awfully a family affair, with families joining in to help quiz and cheer on their students, student applicants scoring highly enough to become semi-finalists advanced to part two of the admissions process, which required two teacher recommendations, a student information sheet in which applicants respond to three writing prompts, and a problem-solving essay. Again, David, this actually would be all better off if they set the requirements needed to succeed at TJ and then did a lottery instead of trying to rank these students by standardized tests that are at best a rough measure of how prepared they'll be to come to TJ and try to rank them, or this super

holistic approach where they're now going to try to rank them based on even less quantitative information, and they're still going to try to rank them based on very, very qualitative information. This is my point about the Marine Corps. Either you need to be able to do 20 pull-ups in a minute to be a Marine, or you don't. If you do, set that as the standard for men and women. If you don't, then set it as what you need to be a Marine. don't, then set it as what you need to be a Marine. And here, to succeed at TJ, what they now clearly mean is that you need a 3.5 GPA and some higher level math and science courses. Great. Then there's going to be a big group of students who could all succeed at TJ. Make it actually fair. And by the way, that big group may not be racially proportional to the community as a whole. I kind of doubt it would be. That's okay because those are the students who could succeed and they should be picked

in some ways based more on their individuality, which is what that lottery would do. You would all have an equal chance. And yes, there would be some luck involved, but at least it wouldn't be based on your race. Right, right. Nope. I'm with you. We might have departed. You might have been in error about elements of Justice Thomas's concurrence, but we are reunited when it comes to this issue, Sarah. Reunited. It's also interesting, of course, in terms of their ability to prove the discriminatory purpose that the percentage of Asian students at TJ has gone up substantially in the last few

decades. And they are changing this policy as that number has now hit three quarters. That was not the percentage when, for instance, I was in high school or even close to it. They're going to have a lot of evidence on the discriminatory purpose side. Now, they're going to lose at the lower court and almost certainly the appellate court as well because there is Supreme Court precedent on this. But to your point, either the Supreme Court's going to take the Harvard and Yale cases or they won't, in which case this will be teed up really nicely. And I think in some ways better. It's public. The admissions process from previously was stated. You have the change in racial makeup of the school. Then they change the admission process. I wish this were the case

that were teed up first. Yeah. No, I agree with you. I agree with you completely. I can't improve on that. I agree with you. This is a better case to tee up. The facts are clean. It's a public school. It's not a private school.

No, I'm with you. I'm with you. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving.

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headlines. One from ABC 7 News in the Bay Area, March 13th, 2018. Bill would punish California companies that help build a border wall. Beginning paragraphs, California Assemblyman Phil Ting says the state should build bridges, not walls. If a California company opts to subcontract or contract a wall along the U.S.-Mexico border, the San Francisco Democrat wants to deny them state tax breaks. He has introduced legislation. So that's one. April 1, 2021. The Georgia House of Representatives voted Wednesday to strip Delta Airlines of a multi-million dollar tax break in a symbolic one case in Georgia, it was essentially, it looks like just sort of the pure speech of the CEO in California is for actions that they deem to be discriminatory or that contradict the ideological emphasis and ideological priorities of the legislature. And I'm seeing an awful lot of wish-casting on the right that the right needs to start using the political power that it has to impose punishments on the private corporations that are now engaged in things like, for example, Major League Baseball moving its all-star game from Atlanta or these private corporations that are boycotting a state or maybe condemning

legislation, that this is the time when governments, state governments, should use their power to punish these corporations, whether it's get rid of a tax break, whether it is, I mean, there's any number of ways, denying state contracts, et cetera, there are any number of ways denying state contracts, etc. There are any number of ways to punish them. And I have constitutional alarm bells ringing here. I'll just tell you where I am on this. I mean, look, we've talked about this before. There is a doctrine called retaliation, where the First Amendment, and there's an abundance of case law holding that if I retaliate against a, if I'm a state actor and I retaliate against a private actor for the exercise of the private actor's First Amendment rights, I'm violating the First Amendment. So even if, so for example,

even if somebody is seeking something that they don't necessarily have a right to, whether it's a promotion at a job or a job in the first place or maybe a grant from a public agency, if I deny them that promotion or that grant or the job in the first place because of their First Amendment protected speech, that's considered retaliation and it's unlawful. And what we're getting at here are some interesting examples of where the legislative process is people are urging that the legislative process be used in an explicitly retaliatory way against corporations that are engaging in corporate speech activities that you don't like

or political activities that you don't like. And I'm getting constitutional alarm bells ringing there, Sarah. What are your thoughts? Yeah, I mean, Hobby Lobby specifically set this all up and people were complaining that the Supreme Court just found

that corporations are people and how outrageous that is. Citizens United set this up. Mitt Romney, to some extent, set this up. Corporations are people, my friend. But this is why those cases happened and came out the way that they did. And so I hope that those on all sides of the political spectrum may take a step back from their partisan positions and say like, oh, there actually is a reason to have the law this way. It's not just because it benefits one side or another in a specific campaign or on a specific issue. But in fact, you want the law this way behind the veil, if you will. I think it's a great example. I think it's just annoying what's going on,

frankly. I'm just annoyed. That's all. You're just annoyed. Yeah. It's one of these things where what we're beginning to see happen, and it's happening both on the left and the right, but it's particularly prominent on the right right now because of the power of progressive corporations, is that we're increasingly seeing a situation where something is happening we don't like. People are using liberties that they have in a way that doesn't necessarily violate our pre-existing legal rights in any sort of way, but we really don't like it. It is very angry. It is very irritating. And it might have some real-world consequences, like when MLB moves from the Atlanta All-Star Game, there are some real economic consequences and costs that are imposed there.

Now, ordinarily in a situation where a private company cancels an event, there's going to be perhaps some contract law remedies involved, where you might be able to sue and recover damages for breaches of contract, etc. But what we're beginning to see now is a movement that says, if powerful people do something that I don't like, even if they have a pre-existing legal right to do it, I'm going to try to figure out ways to restrict their liberty. I'm going to try to figure out ways to make them do what I want them to do. And this is something that is, particularly somebody who's been a conservative a very

long time, I'm very, and especially as a civil libertarian, I'm very suspicious that this is going to, A, that this is something under the principles of the American Constitution that should be endorsed in any way, shape, or form, but also the pragmatism of it. Do we really want sort of to say, okay, here's the deal now. What we can do is all these state legislatures across the country, and let's just paint the picture. About 80% of Americans live in states where one party controls the legislature and the governor's mansion. That all of a sudden you're going to start punishing corporations that don't do what you want and reward those't do what you want, and reward those that do what you, that do with the things that you like, I don't know how well that's going to work out for the right, especially considering the overwhelming economic power of the blue states.

I mean, you're talking about some of these states that the vast majority of the economic power in this country resides in those areas that vote blue. And then you're going to say, hey, y'all, here's our new idea. Let's let legislatures punish corporations that don't behave politically the way we like. It's another one of these issues where the right has taken sort of an authoritarian turn that isn't just principally wrong in my view it seems pragmatically foolish um but it's all over the place punish delta you know punish the ncaa punish major league baseball punish these people and i i've i've got some problems with it see and we thought we'd have nothing to talk about today, and it was an action-packed

pod. It was an action-packed pod. So action-packed, I don't think we really have time for our last topic, that we just keep punting and punting and punting for reasons I can't even imagine. We've been asked to discuss our worst failures, and I can't imagine why we keep punting that conversation, Sarah. Yeah, maybe next time. But can I end with a cultural recommendation that you will not regret? Okay. Now this is, have you listened to the Parapraxis, the Parapraxis episode of Revisionist History?

I have, it's one of the best listeners. I'm not going to say one darn thing about this other than please we'll put it in the show notes. Please listen to the revisionist history season three, episode 10, uh, parapraxis analysis, parapraxis Elvis season three, Episode 10 of Revisionist History

Listen Listen to the whole thing all the way through, including to the last syllables My goodness And we still haven't talked about Varsity Blues We're going to have to save that for next time too Bah! Too much

So many things Well, as always, thank you so much for listening. Please go to Apple Podcasts and rate us and subscribe. Please check out thedispatch.com and subscribe to Sierra's Sweet Newsletter. Subscribe to my French Press Newsletter. And we will be back on Thursday. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken.

He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. his fried chicken. He loved it so much, he opened Prince's Hot Chicken. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect.