Advisory Opinions - Confession by Stand-Up

Episode Date: January 4, 2023

In this first episode of the new year, Sarah and David bring a smorgasbord of topics to the table. They cut through the confusion in the legal battle over Title 42 and the question of lingering pandemic law. Also: Comedian Jeff Ross makes headlines by unwittingly getting involved in a death penalty case, and the 11th circuit court of appeals hears a heated case involving a Florida school's transgender bathroom ban. Oh and yes... David makes a bittersweet announcement. Show Notes: Supreme Court Ruling over Title 42 Texas death row Supreme Court appeal involves Jeff Ross Comedy Central roast U.S. appeals court upholds Florida high school's transgender bathroom ban Article: Supreme Court off to a slow start Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey, Sasquatch! Over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See home club for details. And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC cashback MasterCard?

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Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight-worthy with the BMO Toronto FC Cashback Mastercard. You ready? I was born ready. Welcome to Advisory Opinions. I'm David French with Sarah Isger. And welcome to the first Advisory Opinions of 2023. I hope everybody had a great holiday season.

We're back, we're rested, we're ready. And we've got SCOTUS, we've got 11th Circuit, we've got a weird case involving a comedian, Jeff Ross. We've got a lot of stuff to talk about, but we'll start off with Title 42. Supreme Court issued a ruling that is, it kind of confused an awful lot of people, I have to confess, when it first came out and we saw the commentary online, we're trying to clear up that confusion. We're going to talk a little bit about the Supreme Court term. Then we're going to dive into Jeff Ross insult comic in a prison.

And are there legal ramifications of that? And then there is a big case en banc out of the 11th Circuit involving bathrooms and transgender students. And if we have time, we're going to get to a discussion of a federal case over a MAGA hat. So that's a lot. But let's start off with Title 42, Sarah. This was a, so there was a district court opinion or district court order that essentially stayed the revocation of Title 42. And again, Title 42 is the shorthand reference to the use of the pandemic and the existence of the pandemic to tighten controls at the border. So that's the sort of the shorthand version of what Title 42 is.

And I'm just going to read it, Sarah, and if you could translate and then we'll get into the dissent. So here we go. The application for stay pending certiorari presented to the Chief Justice and by him referred to the court as granted. The November 15, 2022 order of the United States District Court for the District of Columbia is hereby stayed. Applicants suggested this court treat the application as a petition for writ of certiorari. Doing so, the petition is granted.

The parties are directed to brief and argue the following question, whether the state applicants may intervene to challenge the district court's summary judgment order. The stay precludes giving effect to the district court order setting aside and vacating the Title 42 policy. The stay itself does not prevent the federal government from taking any action with respect to that policy. The court's review on certiorari is limited to the question of intervention. While the underlying merits of the district court summary judgment order are pertinent to that analysis, the court does not grant review of those merits, which have not yet been addressed by the Court of Appeals.

What the heck, Sarah, does that all mean? Oh, this is so much fun, David. Yeah, it's the most fun. So we talked about Title 42. We talked about that administrative stay granted by the Chief Justice as the rest of the court reviewed it. So we were waiting on pins and needles

for something to come from the court. And boy, was it, uh, well, hard to understand. So let's start at the beginning. Um, one, this came up in the emergency docket because it was about a stay wanting to prevent that court's order from going into effect. But as we've seen the court do a few times now, they are going to treat that like it was a merits petition to actually take the case and put it on their regular oral argument docket. They took them up on that offer. So this moves from the emergency docket

into the merits docket. You can expect oral argument, you know, not this month, but next month, February, March, thereabouts. Two, there were a lot of different questions here. You know, and again, we've talked about some of these, but is the pandemic over? Can you still use Title 42 at the border? Right.

And if it's over at the border, is it over for student loans? I mean, you have the Biden administration, specifically the Solicitor General's office, kind of twisted into a pretzel at this point on where pandemic is still happening and where it is not. This was a case where the administration said the pandemic is over.

The Supreme Court's like, yeah, look, that's going to be somewhat relevant, maybe, but we're not actually, that's not what we care about. What we care about is the issue on who can intervene when an administration, I'm trying to think of the shorthand way, but circumvents the Administrative Procedures Act by using a court order to get what they want. And so we had this in that San Francisco case on the public charge issue, where the Biden administration doesn't want to have to go through two years of APA shenanigans to withdraw the public charge rule, even though the Trump administration had to go

through the two years to put the public charge rule into effect. And so they have friendly plaintiffs that they have is the wrong way to phrase this. Friendly plaintiffs bring a lawsuit. The government is ruled against by a court who then issues a nationwide injunction. Well, if it's the outcome you actually want, why would you appeal that? Do you appeal? So they don't. And then states want to quote unquote intervene.

They want to defend the public charge rule and appeal it. And that case did get oral argument granted, but in the end it was digged, dismissed as improvidently granted. So they are actually only taking that question on Title 42. The D.C. District Court who heard this case said that the 19 states who wanted to basically appeal this and be part of this litigation, no, they said no to those states. And so the Supreme Court

finally is going to address that. I think, as you can imagine, David, high likelihood, based just on the fact that they granted this and that limited it to that question, high likelihood the answer is going to be yes. States will have the ability to intervene, which creates all sorts of downstream shenanigans.

But the problem is they're shenanigans either way. As I said, all of a sudden, you don't really have to follow the APA's Administrative Procedure Act anymore. As long as you can find one district court in the country to do it for you with a wave of a hand and an opinion, that's much shorter. So even though the outgoing administration has to spend all this time following the APA, an incoming administration can snap its fingers to change the policy. However, one more thing to note, David, is that line, this stay precludes giving effect to the district court order setting aside and vacating Title 42, i.e. Title 42 is still in place. The district court had said it had to be wound down by basically the end of December. So that's gone. It's just on hold. It's frozen.

Semicolon, the stay itself does not prevent the federal government from taking any action with respect to that policy okay so what that means is that the biden administration can still withdraw title 42 at the border except it says the stay itself does not prevent the federal government from doing that but the Fifth Circuit sure did. So you have a Fifth Circuit opinion that actually is preventing the Biden administration from withdrawing Title 42 at the border. But the Supreme Court going out of its way to say, yeah, but we're not the ones doing that. That just already happens to be going on in different litigation. Because of course, whether the implementation of Title 42 itself was arbitrary and capricious or

violated the APA or whatever else is very different legally than whether the Biden administration followed the correct APA procedures, et cetera, to withdraw Title 42. So, rescission, totally different legally than the initial implementation question. That implementation question is the vehicle by which this is headed to the Supreme Court. But David, we had some strange bedfellows in dissent. Yes, indeed. Justice Sotomayor and Justice Kagan would deny the application. Not hugely surprising. Justice Gorsuch, with whom Justice Jackson joins, dissented. Bum, bum, bum!

So this was a 5-4. Yes. And Gorsuch writes with Jackson joining. And it was really interesting. Here's a key part of the dissent. And this is Gorsuch writing again with Jackson. Reasonable minds can disagree about the merits of the DC Circuit's intervention ruling. But that case-specific decision is not of special importance in its own right and would not normally warrant expedited review.

The DC Circuit's intervention ruling takes on whatever salience it has only because of its presence in a larger underlying dispute about Title 42 orders. And on that score, it is unclear what we might accomplish. Even if at the end of it all, we find that the states were permitted to intervene, and even if the states manage on remand to demonstrate that the Title 42 orders were lawfully adopted, the emergency on which those orders were premised has long since lapsed. So he's going straight towards what we've been talking about, Sarah. The emergency on which those orders were premised has long since lapsed.

In April 22, the 2022, the federal government terminated the Title 42 orders after it determined that emergency immigration restrictions were no longer necessary or appropriate to address COVID-19. The states may question whether the government followed the right administrative steps before issuing this decision, an issue on which I express no view, but they do not seriously dispute that the public health justification undergirding the Title 42 orders has lapsed, and it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life.

He ain't wrong. He's not wrong. And so there is another line in there that was particularly salient. It says, but the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law. I think we've heard that song before. I think so.

Not policymakers of last resort. Oh, I did like that line. We are not policymakers of last resort. Yes. And I thought the line that says the current border crisis is not a COVID crisis, and courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. when you put a stay in place because it meets sort of those legal standards that you're perpetuating a policy

when, again, the question that they are taking has nothing to do with this policy. It has to do with who gets to defend the policy? When is the, who gets to like cry uncle? Yeah. And so I don't agree with that part. But at the end of the day, what's going to happen here, I think pretty clearly, is that states that align with the outgoing administration are now going to

get to defend the outgoing administration's interests against the incoming administration that wants to flip things the easy way and will concede to litigation, basically. At the same time, yeah, no, there's no pandemic interest in continuing Title 42. The CDC has said so. The 19 Republican states certainly are going to have a hard time saying that the pandemic is so bad that they're against vaccine mandates in all forms. But also, it's definitely still going on at the border. So in the end, this is actually going to look exactly like I think what Justice Gorsuch is arguing for. He just would change sort of the procedural order of this. Allow Title 42 to expire while they address the 19 state issue

or wait for a different case, I think is probably more what he would be looking for. You know, he's basically saying this isn't important. So let's let this pass. There'll be another one that comes right across the plate. Let's swing at that one instead. Not shocking that Justice Jackson joined from sort of the ends justify the means, but there's some lines in there that I was nevertheless surprised that she joined on to. Yeah. Well, and, you know, she's joining into an opinion that says the emergency's over. Now that has some relevance if you're going to be talking about the student loan case, which is predicated on the emergency, the same emergency that justifies the existence of Title 42. So there's a lot of inconsistencies going on. And I'll say it again. Courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. Feels like he's ascribing motives a little bit there.

I mean, Justice Gorsuch and Justice Kavanaugh also in their own very different jurisprudential ways have been, I mean, carrying that flag up the hill. This is the job of Congress. It's not the job of the courts to fix your problems. So I'll be very interested to see where Justice Kavanaugh is falling at oral argument. But again, I think part of what you can read into this is that there were no other questions presented except it. Just that intervention question, which is not on the merits of the emergency at the border, whether there's a pandemic at the border. None of that is interesting to at least a few of the justices in the five. I found the dissent much more interesting than the majority opinion.

Well, it's not really a majority opinion than the order. And I found the dissent interesting for the ramifications of Justice Jackson's going to sort of hold to that reasoning would be very, very interesting. And the last comment before we move on to the next topic, it feels like, and tell me

if you think I'm wrong about this, you know, we talk a lot about congressional dysfunction on this podcast and because it's the source of an awful lot of the court cases that we end up talking about that would never really exist before that congressional dysfunction. And this just seems to put an exclamation point on the assertion that nowhere is that dysfunction more profound and more profoundly felt than the sort of disastrous mess that is our current immigration system. Because remember, we just had a court case where Congress issued an edict, but then did not provide the funding to make it possible to fulfill its edict.

And that turned into Supreme Court case. And here we are on something else related to immigration. Very interesting comment from Justice Gorsuch, but it's hard for me to think of an area that is more messed up than immigration with more of a glaring need for congressional action and less of a possibility of it occurring.

Perfection. Well, that'll be a fun oral argument to listen to. It will indeed. Okay, Sarah, you've got some news about a slow term. Yes. So, 2022 did not have any published opinions

from the Supreme Court for OT 22. In fact, according to one professor, this is the first time since the court began its term on the first Monday in October in 1917 that the court has not released a slip decision

through the beginning of December. Wow. So record low output from the court. Now, of course, the overall number of cases has dropped a lot since 1917. It's more or less leveled off slash continues to go down slightly, though not as dramatically as it was. So on the one hand, you have fewer cases that they're hearing.

On the other hand, also worth noting that the first opinion of the term was usually put out there by Ruth Bader Ginsburg. She really prided herself on getting out there quick with an early opinion. She's no longer on the court. Anyway, we've gotten some incoming questions of why do we think there were no December opinions issued? Some people have said, well, it's because there were a lot of blockbuster cases argued in the beginning of this term, and those are just going to take a long time to circulate. Undoubtedly, none of those cases were ever going to come out by December. So maybe that leaves us

with slightly fewer potentials for December, but still, there were plenty of boring cases. We talked about some of them. That's how boring they were. And they still didn't come out. And so then the question is, why do we think none of the boring cases came out in December?

And David, here's my hypothesis. These nine justices don't care. Yeah. They'll all come out by June. It doesn't really matter. There's no distinction about getting out in December. So they'll just be more backloaded than they were because who cares? There's no actual

reason to hurry up. Right, right. And the interesting thing is about the Supreme Court, now this is going to vary somewhat by circuit. The Supreme Court is still fast on issuing its opinions compared to many circuits. Oh, that's fair. And state Supreme Courts too. Yeah. I have argued circuit court cases and waited a long time. Years sometimes. A long time for an opinion. So the Supreme Court, once you get it to the Supreme Court, unlike many other courts, you know you have a deadline. You know you're getting an opinion by a certain time, which is not the case in a lot of other places. Sarah, my record, I have waited two and a half years

for a summary judgment opinion. Interesting. Scott actually has you beat on that. Oh, really? Okay, okay. Even longer. Let's just say longer. Longer, okay. Much Okay. Okay. Even longer. Let's just say longer. Longer. Okay.

Much longer. Gosh. I've got to say it is frustrating to wait that long. So in that case, it was a two and a half years and we lost on summary judgment, appealed to the Fourth Circuit Court of Appeals. One at the Fourth Circuit Court of Appeals, one at the Fourth Circuit Court of Appeals came back, had a renewed motion for summary judgment that took almost another year.

So that's one reason why that particular case was a more than seven year long litigation from start to finish. Woof. Yeah, so I mean, look, everyone's going to get their opinions by June. I also think there's an interesting, at least correlation, that those early decisions have waned at, you had more emergency docket-y stuff being written than this term. Because, you know, the argument would be something like, you're only going to write so many words per week. And if those are getting moved instead of into opinion writing into emergency docket dissents, for instance, well, then you're just not going to have the opinions as early as you would have otherwise. But this term didn't have a whole lot

of writing on that compared to, for instance, COVID era, where we had all of those emergency docket opinions coming out and dissents and concurrences. So I think it's just a correlation at this point. And I think the Occam's razor is that it just doesn't really matter. But nevertheless, it was an interesting milestone worth noting. And thank you for the questions. Here come the carrots making their way upfield, followed by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time?

Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots are over the line. What a goal! How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply.

All right, so Sarah, we've got a case where I think, I think I regret to inform us and I regret to inform you, dear listeners, that Sarah and I are in all likelihood, I'm pretty sure going to depart from the Twitter consensus on a case. And it's, it's sort of over the holidays kind of lit legal Twitter on fire. And the facts are these. I'm not going to read the extended part of this because it's kind of gets involved, but you have a guy who at this point,

pretty, it's not really questioned that he's a very vicious, he's a murderer on the murderer scale he's on the vicious side of the murderer scale it's really gruesome horrible facts about how this person killed

you know a premeditated vicious stabbing shooting awful premeditated but random yeah which's also scary yes there was no relationship there was no beef there wasn't anything particular he wanted to steal that we can discern at least from any of the record yeah premeditated random killing in very very brutal way um about to be on trial and a comedian comes to the prison.

The comedian is named Jeff Ross, and he's kind of an insult comic. And he came to a maximum obscurity prison, and the goal was to have a comedy show. I mean, this was with Comedy Central, and he was going to talk to the prisoners, and he was going to make it funny. And so he was given access to the prisoners. He comes in and he's given access to this petitioner, this or this prisoner. And he gets pretty hostile with the prisoner. I guess that's the way you

describe it. Or he's an insult comic. I mean, come on. Of course, it's going to be pretty hostile. And so he, you know, he does things like to ask their inmates to raise their hands to signify whether they were innocent or guilty. And then he barks out, how many of you guys have lied so much? You don't know the difference anymore. Ross elicited from the petitioner, that's the prisoner we're talking about the comment that the boredom is the worst part of being in here in jail for so long then there's this exchange that is sort of the key exchange

and why does this come up? It was played at his trial so here's Ross yeah what are you in for? petitioner Ross hacking somebody's computer? Petitioner. Something like that. Yes. Another inmate says tax evasion. Another inmate says hacking being the operative word. Petitioner. Yeah. Yeah. Used a machete on someone's screen.

So Ross, what's that? Petitioner. Oh, used a machete on someone's screen. So Ross, what's that? Petitioner. Oh, used a machete on someone's screen. So Ross, oh boy, Jesus. Petitioner. Yep. Stole a lot. Ross, he seems like a bleeping scary dude. I don't know what it is, man. Another inmate. He is. Petitioner. Oh, come on. I wouldn't hurt a fly. Ross, what's that? I wouldn't hurt a fly. Ross, really? What about a human petitioner? Ah, they're annoying. Again, worth noting, there's actually no dispute over whether he is guilty of the crime. Right. No dispute. Yeah. So this does not go to, did he do it? Right. So this was for penalty determinations.

Jury deliberates for what, about seven hours? Decides to, you know, sentence him to death. There is a petition before the Supreme Court. And Sarah, your thoughts on this? Look, I think it's actually an interesting case, but I think in the end, while it presents a new question of a

sort, it gets resolved in the old way, if you will. So, we've talked about how you transform a private actor into a state actor. We talked about it in the Twitter context. This is Twitter relevant.

I know, in talking about the Twitter context, we talked about Fourth Amendment, for instance. But this actually does come up a lot in jailhouse snitch cases where a prisoner has made a deal with the government and then they try to go elicit information from other prisoners. Right. Yeah, no, you're clearly an agent with the government and then they try to go elicit information from other prisoners. Yeah, no, you're clearly an agent of the government

in most of those cases where you have such a agreement. Regardless of, for instance, whether the government says, go ask this specific question or we're trying to get this specific information. No, you sort of are transformed into a government agent by the agreement itself. The direction doesn't need to be all that government driven, if you will. We don't have a lot of cases about here, for instance, where the government, but for the government, this guy isn't wandering around the prison.

So he's let in by the government, this guy isn't wandering around the prison. So he's led in by the government. The government allows him to put up posters trying to elicit participation. And in fact, they weren't getting a lot of participation. And so then he kind of gets to wander around and that's how he ends up talking to this inmate. This inmate didn't per se like volunteer to talk to Ross. So A, that's interesting and different.

The other part that is relevant to the disposition of this case is that his lawyers had put in a no contact order, meaning they said, hey, no one can talk to our client without an attorney present. Okay, so on its face with those two things, but for the government letting this guy into the prison, he wouldn't be there, so on its face with those two things, but for the government letting this guy into the prison, he wouldn't be there, so maybe he's a state actor. And the lawyers had

said no one could talk to him without a lawyer present. That's the best case scenario for the side of the prisoner here. However, it kind of falls apart the second you get into the details. A, of course, all sorts of things aren't possible without the government's help for instance you can't have visitors any visitors without the government you can't use an email system or make phone calls all of that is with government facilitation and certainly um the government well it's interesting. Certainly the government has been using incriminating information found through, for instance, phone calls that you make to the outside,

as long as you're aware that those conversations are being recorded. If you've ever watched a police procedural or any movie about prison and they make an outgoing phone call, you'll hear that little recording at the beginning. These phone calls can be monitored, et cetera, et cetera. Interestingly, David, the Supreme Court has never actually ruled on that question. But as we talked about before, the Supreme Court doesn't normally take cases if

they're all coming out the same way and the way that they think is legally correct. There's no circuit split on this question. Everyone sort of agrees. Yep. You can use that information. So for instance, and this goes to both points, A, that's not considered government actor, doesn't transform every phone call into government action, but also B, the prisoner could make that phone call regardless of the no contact order. Just because your attorneys say, we don't want anyone talking to him without his attorney present, like, well, the prisoner can make his own decision. Again, without that state actor part, the police can't come back and talk to him. We know that. So I think this is a

pretty easy case. I don't think the Supreme Court grants it, but I think that's a little bit of a closer call just because it's novel. But there's no actual circuit split. The novelty does kind of fall apart pretty quickly here. So I think this is a lean's no for me on the cert grant. And even if they grant cert, this was a death penalty case um i i think that a found not to be a state actor b doesn't violate the no contact order and c we haven't even talked

about the harmless error standard that even with all of these things did it matter in the sentencing? You know, what you just read while, you know, they used it at his sentencing, if it didn't matter in the sentencing, they're not going to overturn the sentencing. And so, you know, at no point was the guy like, yeah, I did it and I would do it again or something like that. Something the jury couldn't possibly

have not considered in weighing their decision. There was plenty of evidence. As you said, David, this was a ruthless, premeditated, random murder of a disabled veteran, stabbed the wife who actually survived several times in the throat. So there's at least enough there to say it was harmless error. So for all those reasons, I think the Supreme Court says no on granting. And I think even if they did grant

that everything about this is going to stand, what did you think, David? Much the same. And I realized that as I was sort of introducing the case, I didn't say what the actual legal claim was, was that his right to counsel was violated, his Sixth Amendment right to counsel. He was, in other words, this was being treated as if, or they're trying to treat it as if he was being questioned without his attorney

present in violation of his Sixth Amendment right to counsel. And Sarah, I'm with you. I don't think there's any argument here that Jeff Ross was brought in as an agent of the government. He was guaranteed access by the government. But entertainers come into prisons not infrequently. You know, one of the most famous albums out there is Johnny Cash performing, what, in Folsom Prison in California. You know, entertainers come in, they talk to prisoners, they have camera crews with them often when they talk to prisoners.

If somebody confesses to a crime to an entertainer on camera, well, that's just kind of too bad for the prisoner. I mean, nobody's making you talk to the entertainer. But I really want to zero in on the harmless error part of this because I had, when I saw this first sort of tease, you know, you see the Twitter tease, like, oh my goodness, what, the thought was, well, what did he say?

If you're filing a SCOTUS appeal, that must have been awful. And I look at it and it's just, the way they describe it is he just comes across as somewhat cold and indifferent, especially that sort of clincher there at the end where he says about, what about people? And he says, ah, they're annoying.

And that's all cold. But look, the facts of the case are so much more brutal than any sort of impression you would gain from this quick interview with Jeff Ross. I mean, that's where I zeroed in here was, number one, it really seems really tough to sort of say that Jeff Ross was acting as an agent of the government just by being an entertainer granted access.

And number two, even if he was, even if he was, what the petitioner said versus what's the evidence of what he did is such a huge, I mean, the idea that that interview is the thing that tips it over, you know, it sort of seems to define harmless error to me in context, but. In the petition, by the way, from the prisoner's counsel, some statements on the video lack context,

but nevertheless do not present Petitioner in a favorable light, if only because he comes off as a self-centered oddball. For example, there are two opaque and confusing references to Petitioner's not wanting or liking to be touched. Petitioner made a couple of weird comments referencing his own Asian heritage. Okay.

That's almost, if you wanted to describe harmless error, being a self-centered oddball probably is not enough to overcome a harmless error thing. And I think that's also a really weird way to say that this hurt your client. And I think I would have come up with a different way to say that instead of saying weird comments or self-centered oddball. Like the whole point is,

you're trying to say this actually affected the jury's deliberations and that they thought his potential dangerousness, if he were ever to be let out or even to stay in prison, was so large that they in in fact, imposed the death penalty. It's not particularly persuasive on that point. Yeah, I agree with you.

I agree with you. And yeah, and it got less persuasive the more I read about it. So, you know, the initial teaser on it, I was sort of a little bit taken aback wait they braletted an entertainer somebody incriminates himself to an entertainer and might be put to death as a result um then you look at it in the whole totality of the context and it sort of starts to feel like the state has a pretty darn good case against this kid and that you're looking for some sort of way in which there is some error.

And this is the best they got is more of what it looks like, as opposed to the state did something nefarious. The state did something nefarious and as a result of this nefarious action by the state, this kid is going to face the death penalty. Doesn't seem to be that case, although I'm going to be very interested. We'll put, of course, we'll put the petition in the show notes and would love to get commenters,

love to get y'all's comments on it. Who disagrees with us and why? There's also, again, a problem in terms of the Supreme Court granting cert. There's not a circuit split here. The attempts by petitioner to say why Supreme Court precedent, they win under current Supreme Court precedent,

is pretty unpersuasive. In one case, for instance, they're needing to make the argument that there's an agency by accident theory, right? And one of the cases that they cite for that is that the court ruled that a state violates the Sixth Amendment by creating a situation that encourages a defendant

to make incriminating statements to an undisclosed undercover agent, even though the agent was told not to elicit information. So this is that jailhouse snitch. He's in the employ of the government. He is an agent of the government. However, they tell him, don't elicit any statements from that guy.

But then he puts himself in a situation and does in fact elicit statements from that guy. They said that violated the Sixth Amendment. Fair enough. That's not the situation here right right exactly exactly so yeah i i think the petitioner loses um i'm with you sarah whether scotus takes it is a closer case i'm i tend to think it it won think it won't take the case. Could be wrong about that. But yeah, it was a very well done social media tease

that led to a case that was not as interesting as the social media tease, to be honest, just because sort of, do you pronounce it banal or banal? I pronounce it banal. Banal. Okay. So that's a third way to do it. Banal. You say banal? Yeah. Okay. I definitely don't say banal. That sounds creepy. Well, that sounds creepy well um well david's giggling i know banal banal it's held the way i've always pronounced it um but it was banal i mean well anyway the interaction was banal whatever it was

that's what it was all right shall, shall we talk transgender on bunk? David would like to leave this conversation immediately. Yeah, the only other thing worth noting is just, you know, these have to be, for the Supreme Court to take it, you're looking for a circuit split. You're looking for something so unique that it needs to be addressed by the court,

you know, such an egregious lower court opinion, or that it's, you know, a good vehicle in some ways procedurally. This just doesn't meet any of those. However, given all of that, given what a poor vehicle it is, procedurally, no circuit split, not a particularly crazy underlying decision, particularly crazy underlying decision, I will give kudos to petitioners' lawyers for acting absolutely in their clients' best interest, ginning up a lot of interest on this case that otherwise would have flown under the radar. So special shout out to Mackenzie Edwards from Cleveland Christ. I hope that the other partners, etc. at her law firm take notice of the big favor that she did for their client here

yes, no this was there is absolutely no question that his counsel has generated an enormous amount of sympathy for their client good on them.

That's their job. Yeah, that's their job. Zealous representation. And I like it and I applaud it, even if I think they lose this one. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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Terms and conditions apply. All right, shall we go on to bathrooms? Oh, David, I hate this case. I know. I did not enjoy this case. No. All right, you introduce it. Yeah, so this is a case involving a transgender boy who, in other words, biologically female trans boy who wants to use the male bathroom in a school in the St. John's County School District in Florida. And essentially the issue is, does Title IX, this is the statute that prohibits discrimination on the basis of sex and

federally funded educational programs, require the school district to permit a transgender boy to use the male bathroom. The current policy is that if you are transgender, that you are provided, the current policy was that if you're transgender, you're provided access to a gender neutral space. They did not say if you're a transgender boy that you have to use the girl's bathroom

and they did not allow you to use the boy's bathroom. There was a gender neutral, sex neutral space. Um, now during the course of this plaintiff's, um, during the course of this plaintiff's, uh, enrollment at the school, apparently there was some top surgery. There was because because the plaintiff had not reached the age of 18, there was no bottom surgery. So at all times, there was a genitalia of female. There was female genitalia. Man, you just get so uncomfortable talking through all the facts of these cases.

Anyway, so... Yes, underage children's genitalia. What are you talking about, David? You're not super cozy here? Yeah, this is... Anyway, so to make a long story short, there's a bench trial. Court rules for the plaintiff. The 11th Circuit takes the case.

And then the case goes en banc and en banc. In other words, the full panel of the 11th Circuit takes the case, and then the case goes en banc and en banc. In other words, the full panel of the 11th Circuit rules for the school district that no, Title IX does not require the school to accommodate the student by granting access to the boy's bathroom to make long. Now this is, this is different from the athlete case where we talked about, where the question was, does title nine in the athlete case, does title nine require the athletic association?

Does the title nine require the state of Connecticut to maintain sex distinctions in athletics, even when there has been transition. In other words, biological sex would govern gender identity when it comes to athletic eligibility. That was at issue in the Connecticut case. That was at issue in the Connecticut case. And there the argument was that Title IX requires the state to maintain the sex distinction. Okay. Here is, does Title IX require the school to erase the sex distinction in favor of gender identity? Is that clear as mud, Sarah? Pretty good. Okay. And the court said no, that Title IX does not require the state to recognize gender identity over biological sex when it comes to access to bathrooms. I don't think it's a terribly surprising result, to be honest. Especially given you're dealing with a minor child and again, getting into all of the nitty gritty of it, you're talking about a person with female genitalia in a male restroom. And does the law require the school to open access to a male restroom to a person

with female in genitalia? That would be a big move on Title IX if that was held to require the school to open access of person who has genitalia of one sex to gain access to the bathroom of the opposite sex. It's hard for me to see when you're talking about in that Title IX context, when you broaden it out, how they could have found that Title IX would require the school to offer that access. But I'm really interested in your thoughts, Sarah, and before we went to almost sprint to the MAGA hat case. Here's what I didn't like about this case. It fell directly along appointment, partisan appointment lines.

Yeah. So all of the Republican appointees were in the majority and all of the Democratic appointees uh were in the majority and all of the democratic appointees were in the dissent i have generally found that i think that in the circuit courts especially doesn't lead to the best opinion writing frankly and so i found both the majority and dissent um unpersuasive in a lot of ways, I guess is the best way to put it. Not particularly well organized. And so I wasn't particularly convinced by either. You know, for instance, in the majority opinion, there was this line. Indeed, the universality of that practice,

the practice of sex distinctions for bathrooms, is precisely what made Justice Thurgood Marshall's statement, quote, a sign that says men only looks very different on a bathroom door than a courthouse door. So piffy. Sure, but that case is a long time ago and before this was really an issue. And we're talking about how you define intermediate scrutiny as opposed to strict scrutiny or rational basis review. And the idea of basically where gender should matter versus where it shouldn't. And the point is, it should matter in a bathroom door, said Thurgood Marshall, but it shouldn't matter in a courthouse door.

And that was his pithy, quote unquote, way of distinguishing intermediate scrutiny. Well, A, intermediate scrutiny has, it's a notable mess. Everyone agrees that it's whatever you want it to be, right? Like it was, I'm going to get the adage slightly wrong, but it goes something like, in rational basis review, the government always wins. In strict scrutiny, the the government always wins. In strict scrutiny,

the plaintiff always wins. And in intermediate scrutiny, the judge always wins. Yeah, that's perfect. There's a whole lot here that is difficult and that both sides seem uninterested in grappling with because they kind of already know who their sympathies lie with. And let me give one example of that. The school's actual policy is not about the bathrooms. I mean, it is, but it's actually the way that they determine which bathroom you have to use is whatever birth certificate you filed at the time of enrollment. So in this case, the student in question originally enrolled in fourth grade with a female assigned birth certificate. But the school in depositions acknowledges that if this student had enrolled in ninth grade with his corrected birth certificate,

which now says that he is male, they would have assigned him male and he'd be welcome to use the male bathrooms. Well, this whole thing's a mess then. So really all that mattered was whether he transferred schools at the right time. Surely the law doesn't turn on such fineries. And while both sides try to engage with that, again, I just, I found neither persuasive. There will be a case like this that goes to the Supreme Court. I think that the first case, we've talked about this a little, David,

will be athletics and not bathroom policy. But nevertheless, this is teed up timing-wise to be pretty meaningful. Again, I'm a slight no on a cert grant here but it's a much closer call than the insult comic yeah no i i agree with you the policy was a bit of a mess and that's why i really emphasized that what was at issue here is what does title Title IX require, as opposed to sort of that, what is this Title IX requiring a particular kind of bathroom policy? And that I think is going to be the question that's going to be very difficult to ultimately tease out here. Because on the one hand, I guess the better question is what kind of zone of discretion exists with Title IX? So in other words, can you say, okay, it's a birth certificate policy, or it's a sex assigned at birth policy, or it is a gender identity policy. Are any of those

Title IX required versus within the zone of discretion that exists under Title IX, you have that discretion to enact that policy. And when you're talking about Title IX, which is a extremely short statute in relevant part, it just prohibits sex discrimination in educational activities that receive federal funding. I mean, it's a very short statute that has lots of knock-on

ramifications that get very, very complicated. But finding in that very short statute that there's going to be a very, a quite specific way in which schools are going to be required to respond to questions about sex and gender identity and access to intimate spaces, everything from bathrooms to sleeping arrangements and overnight trips to athletics. That's where, Sarah, I don't know if we're going to end up with either A, here's what Title IX tells school districts they have to do, or B, here are the range of options that school districts and states, for example, here are the range of options available to them without violating Title IX. And that to me is going to be one of the really interesting questions as to whether or not you're going to end up with, after several more years of litigation, to be quite frank, that there is a specific Title IX defined way of dealing with sex and gender identity versus a series of Title IX available options

on dealing with sex and gender identity. And that's where I just don't know where we're going to end up on that. Setting aside the law here, I think I'll speak on behalf of all junior high and early high school students when I say, you know, it'd be great just everyone gets their own single stall bathroom

for changing. Is anyone, I mean, isn't that like one of the most traumatic things is having to change in front of your peers, same sex or otherwise? Again, I will speak from the girls' locker room perspective. Not great, Bob.

Wasn't great then. No. And speaking from the guys' perspective, the locker room, not the greatest place in high school. Yeah. Not the greatest place in high school. Yeah. Not the greatest place in high school. And it could be, you know, the one, the positive that could come from this is greater privacy overall. Yeah. Yeah. We had no privacy. Yeah. The greater privacy overall, to me, this seems to be a better outcome, ultimately here than sort of saying, into which exceedingly not private circumstance are you going to be shoved? But when privacy is an option, it seems to me a superior policy to, even if not mandated by the Title IX, just a superior policy for the mental health of everyone involved.

Junior high sucks, man. So for all you junior high students listening out there, it actually does get better. And it is worth noting that I have found that every decade of my life has been better than the one that preceded it, despite what the movies tell you, right? They tell you that like high school is like amazing. And then like college is supposed to be the most magical time of your life. Like I just found that every stage that has come after has been just a little bit better. And this stage included. So, you know. I would, I would agree with that. I remember when I was younger and as we're getting older, my dad would always say to us, these are the best times. And every like, yeah, I think that's kind of a dangerous thing to say to kids because if you're not having the best

time, you can feel, it can be very isolating. No, his point was for him, in other words, for him, the older we got, the more he enjoyed being with us. Oh, yeah, fair. Yeah, yeah. So he was like, and I was, you know, and he would say, what I mean is, I get to know you as a person and we get to, you know, and sort of, and I found that from a parenting standpoint,

that it's super awesome when they're toddlers. It's even better when they're early elementary. It's even, as you watch your kids get to grow and develop. I don't know, David, there was a little, there were tiny little hands that crawled into my bed at 4 a.m. this morning and came up to me and put those little hands over to my ears and said, I want chicken nuggets.

The best times. The best times. 4 a.m. I was like, this isn't a frat house, son. Like, there's no chicken. There's no 4 a.m. chicken nugget service. Well, Lila has developed a catchphrase. Oh, yeah.

Which is anytime she's in a situation where she doesn't know what to say or she's meeting somebody for the first time or there's a bunch of people around and she kind of wants to participate she says, babies say wah It's a good icebreaker It's a great icebreaker

and it's indisputably true so yeah It's the catchphrase Well, I don't think we have time for the MAGA hat case And it's indisputably true. So, yeah. That's great. It's the catchphrase. Well, I don't think we have time for the MAGA hat case. Good, we're going to save it. It's a good First Amendment-y case. But we do have time for an announcement.

Yes. So, you might have already known this if you're reading the dispatch, which you should be reading the dispatch. But you might already know this if you're reading the dispatch, which you should be reading the dispatch, but you might already know this if you read the dispatch or if you follow announcements and things like that on Twitter. But by the end of January, I am going to be a New York Times columnist. So what does that mean for advisory opinions?

Well, one thing it means is Sarah is going to be sliding over into the host role of advisory opinions. Um, I am going to be, we're still doing it. We're still, we're still doing advisory opinions, but the only change you'll notice is Sarah's going to slide over into the host and conductor role of the podcast. But as far as my writing, um, my writing is moving over exclusively to the Times. So no more dispatch newsletters and no more newsletter from the Atlantic. So this is something that came up kind of like out of the blue over the holiday. And so yeah, so that is happening. And for advisory opinions listeners, very little change for you guys. But if you're a dispatch member, you'll be seeing less of me, but not none of me because advisory opinions. I still want to jump on dispatch lives when I can

and do things like that. But so I'm wanting to maintain as much of a toehold as I can in the Dispatch because I love the Dispatch and what we have been building here. And it's succeeded beyond our projections. And, you know, as I wrote in a subscription sort of plug at the end of last year, you know, what Steve and Jonah and everybody did, rather than sort of just cursing the darkness of what a lot of right-wing media has become, they decided to light a candle to try to do a better job of it. And I'm really proud of what we've been able to accomplish at the dispatch. And so this is all pretty bittersweet for me, to be honest. It's a great honor and opportunity to be able to move over to the times. But I'm super happy that host Sarah is going to permit us to continue the advisory opinions,

flagship sailing, steaming full speed into the treacherous ocean of legal waters. That was a terrible metaphor. Yeah, it was pretty bad. Pretty bad. Don't use that at the New York Times. Your colleagues are not going to be impressed. That's what good editing is for, Sarah.

Oh, okay. Yeah, yeah, absolutely. So that's the announcement. Big announcement. Congrats, David. Yeah, thank you. All's the announcement. Big announcement. Congrats, David. Yeah, thank you. All right. Well, we will be back.

We're only having one podcast this week because New Year's Day fell on our traditional recording day and we thought we'd still take a vacation day this week. So we're only going to have one podcast and then we'll be back this week. So we're only going to have one podcast. And then we'll be back next week. We're no doubt going to have some more legal developments. We've got a MAGA hat case to talk about.

And I've mentioned it several times. And I find it more interesting from the standpoint of manners, Sarah, than the law. Ooh, okay. Now I'm intrigued because I actually knowing the case I don't know whose manners you think were

poor it's going to be a fun conversation then I won't tease the answer but it well it could be everybody's but anyway didn't look great in this so that makes more sense

but I do think there's an interesting manners point Yeah, I was going to say, everyone to me didn't look great in this. So, okay, that makes more sense. But I do think there's an interesting manners point to be made in this, as well as interesting legal points. So, tune in next week for the MAGA hat case and many other things. In the meantime, please rate us. Please subscribe wherever you get your podcasts. And please check out thedispatch.com. The application for stay, it needs a sure...

Let me redo that. That's not a word you really need to know how to pronounce on this podcast. Tertiary or R-E. Tertiary.