Advisory Opinions - Constitutional Spelunking

Episode Date: October 5, 2020

Supreme Court oral arguments have resumed via telephone and our podcast hosts are nerding out. The court kicked off today with an interesting denial of cert from the Supreme Court on a case out of Kentucky involving Kim Davis, the county clerk who refused to certify marriage licenses to same-sex couples in 2015 for religious reasons. “This petition provides a stark reminder of the consequences of Obergefell,” Justice Thomas wrote in a statement on Monday joined by Justice Alito. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.” On today’s episode, our podcast hosts discuss the evolution of religious liberty and discrimination law, ongoing election disputes in Wisconsin and Pennsylvania, and the latest updates on the presidential campaign ad wars. Sarah and David wrap things up with a fun constitutional exercise by poking holes in the 25th Amendment and unpacking what happens when presidents die at different points in the cycle. Show Notes: -30 day free trial at The Dispatch, Divided We Fall by David French, Obergefell v. Hodges, Kim Davis v. David Ermold, “Applications and Implications of the Twenty-Fifth Amendment” by Akhil Reed Amar, “Is the Presidential Succession Law Constitutional?” by Akhil Reed Amar and Vikram David Amar. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And Sarah, the Supreme Court is back. It's back. It is back. Our reason for being, our purpose for our formation and creation has returned. I would say it's been a long summer, but it wasn't really.

It was too short. No, but we filled the interval with some pretty nice stuff, like a fantastic discussion of curling. I will tell you this, just Saturday night, I was with a bunch of guys and they said that the Legacy board game episode of Advisory Opinions was among their favorite. Wow. Yeah. So when we're not talking to some cool dudes, David. Oh, yeah. Oh, no, they're awesome. But so I'm just saying we still had good content,

even though we did not have Supreme Court content. But now we have Supreme Court content. But before we get to that, is our free trial over, Producer Caleb? Oh, two days left of the free trial for thedispatch.com. Go to thedispatch.com slash 30 days free. That's thedispatch.com slash 30 days free. And you can enjoy all of our content for free for 30 days, at which point you will just, you'll be addicted.

You'll happily, gladly pony up the $100 for a year or $10 a month. But again, that's the Dispatch.com slash 30 days free. All right, Sarah, we kicked off this Supreme Court term with something called the Long Conference. Tell the listeners about the Long Conference. So that is when they're looking at all the cert petitions that have kind of piled up and it's nicknamed the Long Conference. It's the conference right before Red Mass, if you're a West Wing fan. And the term kicks off on Monday, which is today. So a big thing out of the long conference was the Arizona case that I mentioned last week that was a pending cert petition about anti-ballot harvesting laws and whether those violated the Voting Rights Act because of the disparate impact they would

have on some communities potentially. And I also added the disclaimer that my husband filed an amicus brief in that case. So disclaimer. That was granted. So that will be coming up in January. So that was a fun, long conference moment. And then we kicked off today with an interesting denial of cert that I think we should start with, which is the Kim Davis case out of Kentucky, which frankly, I had forgotten about. But this is the county clerk who refused to certify gay marriages in Kentucky and lost her job and sued. That case has wound up. They filed for cert at the Supreme Court and it was denied, but with a, let's see, a statement respecting the denial of cert from Thomas and Alito in which they agree that this case isn't the right sort of procedural, messy fact posture that they want to do. But nevertheless, it reads like a dissent from denial.

especially around the Barrett confirmation hearing, that nobody wants to revisit Obergefell and that actually it presents a really interesting contrast to Roe, a case that has now been around for 50 years and is still very much debated all the time, versus Obergefell, which no one talks about. And then comes in Thomas and Alito. I'll just read you the last paragraph. This petition implicates important questions about the scope of our decision in Obergefell,

but it does not cleanly present them. For that reason, I concur in the denial of cert. Nevertheless, this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix. Until then, Obergefell will continue to have, quote, ruinous consequences for religious liberty, citing citing Thomas's own dissent. Yeah. So, Sarah, we were, how shall I put it, dismissive in our last,

because we went through the effect of Amy Coney Barrett on the court sort of issue by issue, and we were dismissive that there would be any sort of implication for Obergefell. And just like that, just like that, we're reminded, we need reminders every now and then that we in advisory opinions are not infallible in our assessments of the court. Now, I don't necessarily read this as Alito and Thomas are saying reverse Obergefell. Correct. They have provided you some wiggle room here, but not a lot.

But those who are longtime advisory opinions listeners will know that we referred to Justice Alito as spicy on a few occasions in his dissents in the last term. And it looks like Justice Alito remains just a tad spicy. This was very interesting. And here's where I think it really um comes where you might see there's two i have two immediate responses this response number one is this becomes an issue suddenly in amy coney barrett's nomination hearings she will get asked about not just casey now if the democrats are smart they're going to try to ask her about Obergefell, and she's not really going to be able to answer it, of course. But they will hammer this because the politics of same-sex marriage have really shifted over the last several years.

That what was in 2004 a constitutional change that was unpopular enough that, that state marriage amendment sort of swept through the landscape. And it's sort of the presence of these state marriage amendments on the ballots that a lot of people credited for helping put George W. Bush over the top. Now the, the, the polling and sort of the politics of it is dramatically the other way. And so this is something that I think is not what, if you're a Republican member of the Senate, this is not what you wanted to come up right now. And so this becomes an issue in the nomination hearings. And then the other thing that this does, this says, because if there's more than two justices who have some feelings like this, what this says

to me is you might see more cert grants in cases like what's it is still laying, I believe still languishing out there was Arlene's flowers dealt with in the, in the long conference. I don't believe so. I don't believe so. So you do have some more of these master's piece cake shop type cases hanging around out there. Arlene's Flowers is involving a woman who owned a flower shop who would not do a custom arrangement for a same-sex wedding and then has been subject to what is essentially a ruinous legal response from the state. And her case is still pending. I mean, in some ways, Masterpiece Cake Shop is still pending in a way. It's not pending in the Supreme Court, but it's percolating down

below. It's still not resolved. Still floating around out there. And what this could be, it could herald some interesting cases that might come up in the Title VII context, come up in the Title VII context, because Title VII protects employees from both now sexual orientation and gender identity discrimination and religious discrimination. And so you could have some interesting competing claims of discrimination coming up from employees of private corporations under Title VII. But I think it has real interesting implications. I still think they're not overturning Obergefell. That would still really surprise me. And certainly when it comes to what Thomas and Alito

are concerned about, they are concerned about that interplay between Obergefell and religious liberty First Amendment issues. Again, to read another portion of the statement on the denial of cert. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws. It would be one

thing if recognition for same-sex marriage had been debated and adopted through the democratic process with the people deciding not to provide statutory protections for religious liberty under state law. But it is quite another when the court forces that choice upon society through its creation of

atextual constitutional rights and its ungenerous interpretation of the free exercise clause, leaving those with religious objections in the lurch. There was some subtext in that portion that I read, David, that I think goes at Bostock and Gorsuch specifically. Yeah, there was some subtweeting going on. Yeah. Yeah, there was some subtweeting going on. Yeah, and this gets to what they're doing is they're essentially getting to what was, for a lot of folks, the fundamental objection to the way in which same-sex marriage was recognized as a right. same-sex marriage was recognized as a right, which was that an awful lot of folks were not saying, hey, I don't think that the state acting democratically should not expand the definition of marriage beyond, change their statutes. So the definition of marriage in state was a matter of

state law defined by the state with limits bounded by the state. A lot of people weren't saying, I don't think the state should change those definitions the state, a lot of people weren't saying, I don't think the state should change those definitions of marriage. A lot of people are saying those definitions of marriage are not defined in the Constitution, and there are second-order effects of defining marriage constitutionally that ripple outward that are much better determined by the democratic process. And this sort of goes back to some of the discussions post, after Ruth Bader Ginsburg's death, about her own reflections back in 1992 about Roe, where she said in 1992, wouldn't it have been better for this to work through the democratic process rather than a, quote, breathtaking judicial opinion. So there are echoes of that here.

But I can very easily see an emerging core of jurisprudence that says, if there is a conflict between religious liberty and this Obergefell divine marriage right, that religious liberty is going to win. And if you don't want religious liberty to win, then you're going to have to go back under state law and you're going to have to do things under state law to adjust the balance. I don't know. What do you think, Sarah? I think that's right. I mean, I think there are still large differences to try to salvage what we said before about Obergefell. There are large differences between Casey slash Roe and Obergefell in terms of even this argument. They're talking about a tension between two different sets of rights, even if they don't love the one right,

to your point, they're not actually talking about overturning Obergefell and that right. They are demeaningly, pejoratively calling it a court-created right, but nevertheless. Whereas in Roe and Casey, we are arguing over the quote right itself. Right. Casey, we are arguing over the quote right itself. Right. That is a big, big difference. And I think will continue to play out politically in that Roe and Casey will continue to be a political punching bag for the foreseeable future in a way that Obergefell will not. Instead, religious liberty will be. Yeah. Yeah, I think you're right. And I think that, you know, if you go back to the last term, what you're seeing is I honestly think this is also this is aimed at the sort of fairness for all quasi legislative compromise that Justice Roberts and Justices Roberts, Kagan and Gorsuch kind of seem to have fashioned, if not explicitly, then implicitly bordering on explicitly in the jurisprudence between Bostock and the ministerial exception cases. So it seems like if you're listening to Justice Roberts and Justice Kagan, what they're saying is, here's how we resolve the tension.

Religious organizations get to do what they want to do. get to do what they want to do. Secular organizations are going to be prohibit, secular organizations, they're going to have to prohibit sexual orientation, discrimination, gender identity discrimination. And if you want sort of the full flower of your religious liberty, that's going to be within religious institutions. And what Alito and Thomas seem to be doing is saying, raising their hands and saying, no, that doesn't quite get it. That doesn't quite get it because Kim Davis wasn't working in a religious institution. She's working for the government. And there's still going to be tensions between religious liberty and Obergefell.

Even if you've carved out this sort of zone of protection for religious institutions, what about religious individuals operating within secular institutions? Don't they have protections as well? And that was really not something dealt with in sort of this grand Bostock-Espinosa sort of one-two punch from last term. And here's what's going to happen starting the 12th, which is next Monday at Amy Coney Barrett's confirmation hearing. You're going to have Democrats coming after Obergefell and gay marriage and making that the focus. And you're going to have the in a hearing with a bunch of senators. And it's not going to be my prediction. It's not going to be particularly enlightening on the topic or on Amy Coney Barrett's thoughts

or judicial philosophy on the topic. I think it is a close call, actually, whether she will be more in the thomas alito uh side or the kavanaugh side i actually i don't think she'll be in camp gorsuch on the bostock stuff and i don't think she'll be in camp roberts on grand compromise stuff right but where where Thomas and Alito are dancing to their own tunes over here with spicy stuff, I don't know that ACB would have joined this statement on the denial of search, for instance. You know, what's really interesting is to the extent that somebody says, okay, here we figured out ACB's jurisprudence. They're calling it Scalia-like. And for people who love religious liberty,

hmm. Hmm. You know, I love Justice Scalia. I love Justice Scalia. But man, Employment Division v. Smith. I mean, you've heard me talk about this, Sarah. And, you know, there's still some Scalia stands out there. Is that a proper use of the term stands? Okay, thank you. Still some Scalia stands out there who defend Employment Division v. Smith as an actual proper understanding of the free exercise clause and a

superior understanding to the more traditional understanding of it. And, you know, so I keep saying this, we keep harrowing this, you're nominating a human being and these human beings have, and, you know, I thought one thing I thought that was a really, one of the best parts of our podcast with Ilya Shapiro last week was he sort of went through very briefly and described the distinctions and the various Republican-nominated judges, justices, that they have different philosophies. And so you're nominating a human being, and if somebody is of Scalia orientation, that is not the same thing as Thomas orientation. It's not the same thing as Alito orientation. And these distinctions matter in these hot button issues

um you know there's reasons why there were only two that have signed on despite there were five republican two signed on to that denial of cert uh dissent well not really dissent but effectively dissent from denial of cert two of the five republican nominated justices signed on i i'm with you i think i think when push to shove, where I think people will be disappointed is on the Casey side of things with Amy Coney Barrett, not the religious liberty side of things. Interesting. I mean, I think that the largest issues looming over the court versus single case issues, but like these ongoing issues are going to be the unknowns around religious liberty interacting with these types of issues, like we saw last term. It doesn't have to be gay marriage.

It can be the ministerial exception stuff or these scholarships. But religious liberty is going to keep popping up in the next two, three terms, and she's going to be an important vote on those. and she's going to be an important vote on those. The other one that's undecided, but I think has far less day-to-day impact on most people's lives is the Second Amendment stuff, which is also sort of looming and an empty vessel out there right now to a large extent. And sorry for all you Second Amendment fans out there.

I just don't think that that will have the sort of national consequence in most people's lives that the religious liberty parts will because it will affect employers. It will affect employees, the religious liberty parts will because it will affect employers it will affect employees the religious the not religious the the gay and the not gay so um that would be these if you were actually trying to have a good confirmation hearing those are the issues that you'd actually want to talk about instead of individual cases and political words like gay marriage and abortion. Yeah.

But that's not what we're going to have. No, it's not. Are you saying it's not going to be like a FedSoc debate at a law school? It's not going to be a FedSoc debate. Yeah. Well, I think so. I mean, you're going to have cases coming up through RFRA, Religious Freedom Restoration Act, and you're going to have cases coming up through Title VII. You know, one of the interesting things, this is one thing that I think is really interesting, and let me jump on a hobby horse for just a moment.

There is an awful lot of concern amongst conservative Christians about your ability to still be a Christian and work in the workplace, in the modern workplace. I hear a lot of concern about that. But you know what you do not see, Sarah, very much at all, is Title VII litigation, employment discrimination litigation brought by Christians against secular employers for discrimination against Christians in the workplace. And that's an interesting dichotomy to me. On the one hand, you have this extremely widespread sort of almost consensus view that I can't be a Christian, really, and work for Bank X or Airline Y or whatever, but you don't see very much employment litigation arising up out of that. And so, you know, it really sort of, it's an interesting question to me.

Is what we're operating with is a sense of fear that is completely overwhelmed the facts? Or is the fear grounded in facts and the plaintiff's bar hasn't found the market yet? And I tend to be skeptical that the plaintiff's bar has not found the market yet. That would be unusual. That would be very, very unusual. But I do think if these fears are grounded in fact, and I get it, I know there are very certain high-profile examples of individuals who faced adverse job action because of their views on marriage. For example, Brendan Eich at Mozilla. But that was a long, long time ago. You can't keep going back to the same example from more than a decade ago to say, here's what the present circumstances are. I'm going to be very interested to see if in the next five years we start to see an actual Title VII practice involving employment discrimination against Christians,

trying to rectify employment discrimination against Christians on the basis of their faith. And until we start to see those cases percolating up, it feels to me like we're operating more with fear and then facts. But that's just my, that's how I'm looking at it right now. Well, looking forward to the rest of the term, there's four cases that are really capturing everyone's attention right now. Obviously, the Affordable Care Act case getting argued right after the election. You and I talked about that, made our predictions. The mandate will be struck down as unconstitutional, but entirely severable, and no one will be affected by that outcome whatsoever. There's some wiggle room around

the margins, a little on severability um a little on whether it's unconstitutional or they kick it on standing is still a possibility but all in all the likelihood of that affecting anyone's life is low we have the philadelphia adoption case yep coming up that's a big religious liberty case that you and i have discussed before. This is whether the Catholic adoption agencies of Philadelphia can be barred by the city from taking place, like being able to place adoptive parents, recommending adoptive parents because they will not recommend same-sex parents. They will refer them elsewhere. The Mueller grand jury proceedings. The Department of Justice refuses to turn over the grand jury proceedings to Congress, citing 5E secrecy, etc. And the Supreme Court has accepted that case. And then that Arizona case that I mentioned, which will come up in January about the Voting Rights

Act. So those are the four big ones. However, arguments have started, David, and they're back on the telephone. And I really enjoyed the telephone arguments. So what are you looking forward to this month? Any, let's call them not the hit parade cases, but the small dance party cases? Yeah. So there's a couple of cases that I'm actually keeping an eye on. One is called Tanzin versus Tanvir. It is going to be argued tomorrow. And it's really interesting, Sarah, to me how cases kind of pop up on the radar screen or not, especially religious liberty cases. Because if you're going to say, hey, list the religious liberty cases before the court over the last few years, you'll have some big ones

like Masterpiece Cake Shop or Espinoza, but there are a lot more than just the ones that implicate sort of the rights of conservative Christians, which are the ones that get all the play. Here you have some Muslim men, lawful immigrants to the U.S., and they're either now U.S. citizens or lawful permanent residents. And their allegation is that agents of the FBI asked them to serve as informants for the government in terrorism-related investigations. They refused, and this is going by their cert petition. They refused, based their refusal in part on their religious beliefs, refused uh based their refusal in part on their religious beliefs and then uh they claim that the fbi retaliated against them by improperly putting them on no-fly lists and uh they put them on they specifically put them on the no-fly list but out of because of their decision not to resist the fbi

or assist the fbi and so they're claiming damages under the Religious Freedom Restoration Act. And so the question is, does the Religious Freedom Restoration Act allow a plaintiff to collect damages? And the question is presented as whether the provision in the RFRA allowing litigants to quote, obtain appropriate relief against the government, unquote, authorizes an award of money damages. Now, why do I care so much about this? Sarah, speaking as somebody who has filed his share of religious liberty claims, the inability to collect money damages as a general rule, the the yes in certain circumstances i could collect damages but it is often quite difficult to quantify or have access to um an ability to collect money

damages for a violation of a constitutional right unless you can tie it directly to something like a lost job, for example. And so anything that starts to put the focus on financial compensation for deprivation of liberty interests, I'm very interested in. So I'm watching that one. Good. The next one we talked about a little bit in the green room, and this case is called, scrolling now, Torres v. Madrid. And this is a police use of force case. But for those of you who wonder why it hadn't gotten more headlines since police use of force has gotten a lot of headlines around the United States. It's kind of an obscure issue, but it's an interesting issue. And so here I'm going to give you the basic facts according to the cert petition. Police officer shot Roxanne Torres twice as she sat in her car.

Ms. Torres drove away and checked herself into a hospital. Now, had Ms. Torres been shot in Alabama or Arkansas instead of Albuquerque or even just across the street in New Mexico State Court, that shooting would have been deemed a seizure and she would have had the chance to show in a civil damages action that the shooting was unreasonable. Instead, she was foreclosed from even trying to make the case before the 10th Circuit because they held that no seizure occurred in the first place such that the Fourth Amendment had nothing to say about her case

because even though she was shot, she continued driving away from the police officers before she was ultimately taken into custody. So this is a really, this is how constitutional law is often head-scratching and interesting and obscure. And so the question is whether an unsuccessful attempt to detain a suspect by use of physical force is still a seizure. In other words, she was shot and she escaped. Is that a seizure?

Yes. Because if it's not a seizure, she can't recover. So Sarah, you've answered yes. Yes. That's a seizure. I tend to agree with you, but that still reminds me of my favorite quote from law school. And I've shared it before. Mr. Zittrain says yes.

Does anyone have a different, wait, Mr. Zittrain says yes. Does anyone have a shorter and perhaps more accurate answer? Yeah. But I agree with you. I agree with you. I agree with you. That is a seizure.

Especially, and the reason we partly know it's a seizure is because the 10th Circuit said it wasn't and cert was granted. Right. So we have four votes that it's a seizure. All I need to do is find a fifth vote. I got that. So I'm going to go ahead.

We had a really good track record on case outcomes. I'm going, in the last term, I'm just going to already start pushing that, pushing our luck. So I'm going to agree with you. Yes, it's a seizure. And then I'm going to say that yes, RFRA contains a claim, RFRA implies a right to seek money damages. That one I'm less sure about. We'll see. So last thing that we haven't discussed that the Supreme Court will be doing, no doubt, are all these election cases.

And there's a lot of them. So right now, we have, at least by one count here, Loyola Law School professor Justin Levitt has tallied some 260 lawsuits arising from coronavirus. And the Republican National Committee says it's involved in more than 40 cases related to the election, about 15 of which have been flagged as, quote, worth watching by on a this is a lawyer's list of a Democratic lawyer. I'm going to narrow that 15 down.

They've already weighed in, by the way, in Wisconsin, Alabama, Rhode Island, Florida, and Texas at one point or another through the primaries, et cetera. Now we have Iowa percolating. This is a law passed by the Iowa legislature that prohibits county election commissioners from filing missing information on absentee ballots prior to elections. Instead, you have to go contact the voter by phone, email, et cetera, and get them to fill in the information themselves. North Carolina, that state board of elections issued new guidance that ballots with missing information would need only an affidavit from the voter stating they in fact submitted the

original ballot versus being required to submit a whole new ballot. South Carolina, Republicans are asking the Supreme Court to reinstate the witness requirement for mail-in ballots. Texas is getting sued because Governor Abbott, inexplicably in my view, said that they would only allow one drop-off box per county. Someone like me from Harris County will tell you that is a large county that can take well over an hour to cross the county. It can take you an hour just to get from one side of the county into downtown, into the center of the county. That's a long way. I'm glad you brought that up because as a Texan, I thought you would be able to provide some context in,

because I saw this and I thought, what the heck? And I thought, is Sarah going to be able to provide me with a take other than what the heck? So is there a take other than what the heck? So is there a take other than what the heck? Sure. No, I don't really have one. So it was an executive order. And I'm sure some of this is that it's easier.

Like if you're going to secure the ballot drop off location, you don't want to secure 27 ballot drop off locations. It's much easier to secure one of them. I just think that that's an odd do better moment. Yeah. So like, what does it say about what your ability is as the governor? If you can't secure,

let's call it three drop off-off locations in a county? Yeah, and we're talking about counties that, look, we know that people are strapped because of the coronavirus that these counties do not have. They're not flush with cash, but we're not talking about a high dollar investment here. And just to put this in perspective, so I just did a quick little search on the population of Harris County, Texas. Sarah, do you know the number off the top of your head?

Population of Harris County, Texas. 10 million? 8 million? No, no, not quite. 4.7 million. Wait, that can't be right. Well, I mean, maybe the overall urban area is larger than Harris County. Well, that's true. So yeah, okay, so they're counting. I guess Houston has annexed parts of

some of those other counties. Okay, 4 million in Harris County. Good to know. 4.7 million. One drop box. One drop box. 4.7 million, one drop box. One drop box, $4.7 million. Dallas County, $2.636 million, one drop box. For a long time, I kind of rolled my eyes at some of the voter suppression stuff that I'd read. A lot of it, truth be told, a lot of allegations of voter suppression

have been somewhat overblown. But this, man, it's hard for me to think of a reasonable reason for one dropbox for 4.7 million people. I'm sorry, it's just one dropbox, 4.7 million. And it just so happens when Texas might actually be competitive. box 4.7 million and just so happens when texas might actually be competitive um but i interrupted you sarah on your you're walking through some of the other election issues fair i just scanning over this press release and the governor's proclamation i mean yeah i don't i i don't have a great way to defend that uh By the way, perhaps for another day, but there's some weird stuff going on at the Texas Attorney General's office. Did you see any of these little press releases over the weekend?

No, I was spending a lot of the weekend trying to separate the wheat from the chaff on all of the speculation regarding the president's health. So no, please fill me in on the president's health. So no, please fill me in on the Texas attorney general. We don't know a ton. So let me, again,

we'll, we'll deal with this in a later podcast and we have more information, but, uh, on Friday night, seven Saturday, Saturday night, seven members of the Texas attorney general,

senior staff, like really senior people sent out a statement basically that said, we've turned state's evidence against the attorney general related to bribery and abusive office. They did not resign and basically were like, just wanted to let you know, Texas. And then the attorney general put out a statement that said, I am conducting valid criminal investigations with nothing more. And it...

Well... Yes, it appears like perhaps a donor to the attorney general, you know, with these alleged bribery. Like let's we're having to make some leaps and jumps here. But a donor bribed the attorney general to to instigate a criminal investigation against one of his competitors, perhaps is one of the speculations out there at least, but to have seven members of your senior staff, um, say that they have contacted authorities. It was, it was a weird, weird weekend in Texas. Well, you know, Texas has a history of weird criminal investigations and prosecutions related to politics. Well, this will be the second time that the Texas attorney general has been indicted for what that's worth

if he's indicted over this. I did a deep dive several years ago into that first indictment. Yeah. And it sort of reeked of the Tom DeLay style. It looked pretty penny-inny,

like sort of a failure to fill out a form properly type thing. And so everyone dismissed it because it was brought by a political enemy, etc. But this will now be backed up by seven members of his staff. I did not follow that. So listeners, that's very interesting. We may need to dig in. We'll dig in on that one later. The other two cases, by the way, Wisconsin and Pennsylvania, two we talked about last week in terms of election disputes ongoing.

Wisconsin has pinged back to the Wisconsin Supreme Court to clarify their own interpretation of their laws because federal courts defer to state Supreme Courts when you're interpreting a state law. state Supreme Courts when you're interpreting a state law. So when the Seventh Circuit ruled, and again, disclaimer, my husband is involved. He represents the Republican Wisconsin legislature. When the Seventh Circuit said that the legislature did not have standing to bring this case, they said, well, either we're going to the Supreme Court or you can certify the question to the state Supreme Court to clarify whether the legislature has standing. They have so certified. So that's percolating, but it's still going to go to the Supreme Court, surely. And then Pennsylvania is also sitting around waiting for some Supreme Court love.

Yeah. Oh, man. So if it weren't for this election, this would be only a moderately interesting term. But all of these election cases could make this very interesting, very, very fast. And this is a pretty good segue, David, to my nerd topic for today. Oh, your nerd. But wait, wait, before we get to the nerd topic. Okay.

I want to talk Texas for a minute. One more Texas thing. You're right. We got it. One more Texas. So it looks like Biden is actually putting money into Texas now. Um, my just quick take on this is he's got a giant pile of money at this moment, like a giant pile of money. And he's not in a circumstance where a lot of candidates are in the late stages where they're husbanding resources. And we talked earlier about his big haul of money that it's not necessarily going to help him that much because where do you put it? And maybe the question is, or maybe the issue is he said, or the answer to that question is that he says, I'm just going to go for it, man. I'm just going to go for it. I'm going to spend money where a

Democrat normally wouldn't spend money because you know what? I've got it to burn and burn it, I shall. Your thoughts. So what's interesting is that what you sent me was that he had gone up with ads in the San Antonio and El Paso media markets. And what's interesting about those, of course, is that they are part of the Texas 23rd district. If you were a candidate just trying to rack up your vote in Texas, you'd go for the biggest media markets with the highest concentration of Democrats. That's going to be Dallas and Houston. So the only reason, to me at least, to go for San Antonio and El Paso is, in fact, you know that that's the House race that has now pulled up within the margin. That's the Chip Roy versus Wendy Davis race. For those who are into my newsletter, The Sweep, we did a midweek mop-up on this race and how strange it is.

And you and I have talked about it, where for a purple district, it's not purple because people are really moderate and close to the center. It's purple and you have two candidates who are on relatively the extremes of their party. Wendy Davis became famous over her abortion stance when she was in the Texas legislature. And Chip Roy was chief of staff to Ted Cruz, worked for Rick Perry. I mean, he's a conservative. But I think you might have an overall point because if you look at the state by state spending Republicans versus Democrats in the Senate races, for instance, which won't include Texas, even though MJ Hager is relatively close to Cornyn. That's a pretty solid lock for Cornyn, barring something crazy happening. Democrats, though, in the 10

swingiest Senate races are outspending Republicans in nine of them on the airwaves. Wow. That's wild. Total party spending in those states, Republicans, 259 million, Democrats, 327 million. That's a big, big jump. Now, the question, David, though, is, so yes, Democrats have more money, they're spending more money, and they're spending it on TV ads because we know they're not particularly spending it on a ground game. Will it matter? So we have this awesome experiment being

set up. So the Biden campaign is going to launch ground game, sort of a small footprint ground game in four states starting this past weekend, running through this week for voters that they have not been able to reach by phone in those four states, Nevada, New Hampshire, Michigan, one other. Um, but overall we have this experiment on ground game versus television advertising and especially because the biden campaign is now going to go into those four states i really hope for my political science experiment they only do those four states so we can do some head-to-head comparison of no ground game versus ground game for the biden team and ad spending versus ground

game in some of those states but this this is better than... It's not a perfectly controlled experiment, obviously. But for a real-world experiment in presidential politics, you're never going to find something like this. Because this is what people say to me all the time when I point to a 1% increase on ads or ground game. They're like, yeah, but what we don't know is they're both going to chase each other. So they're both spending and doing ads. And so you can't really tell whether the ads make any difference at all. What would be interesting is if there's a huge disparity or no ground game. And finally, finally, we may well have it with 20 some odd days to go.

we may well have it with 20 some odd days to go. It will be fascinating. It will be fascinating. I remember, what was the, I can't remember his name. I think he's been banned from Twitter. Oh, Bill Mitchell. Bill Mitchell was this talk show host, radio talk show host.

He's become somewhat of a super, he's super, super MAGA. Like MAGA, almost sort of like the platonic form of MAGA. And in 2016, he did this tweet that everyone mocked because there wasn't a huge Trump ground game. And he said, the ground game is in our hearts. And everyone mocked it. And then Trump won. Yep.

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are hiding in your neighborhood. It's a great way to get engaged on issues where you can make the biggest difference locally. At Caucus Room, you can participate in live virtual meetings that are so secure the platform played host to over a dozen virtual Republican Party conventions this year. You can also share news, jokes, and find ways to get involved with causes near you, all without fear of Silicon Valley overlords stepping on you. Caucus Room is made by conservatives for conservatives to get organized and make a difference. That's caucusroom.com. C-A-U-C-U-S room dot com. Okay, nerd topic. Okay, so David, according to the president's doctors, he is steadily improving. He may even go back to the White House today, leaving Walter Reed. So I just want to be very clear, this has

nothing to do with the current situation. But I did spend a lot of time this weekend looking at what happens when a president or presidential candidate dies at various points in a cycle. This is a really fun, interesting constitutional topic. a really fun, interesting constitutional topic. And I mean, look, the punchline is, of course, this would all just end up in the Supreme Court like 10 different ways. But nevertheless, let's pretend like we actually just had to resolve it politically on our own and look at what some of the Constitution says about this. Okay. So for instance, president dies, just a regular president sitting in office. So we've got the 25th Amendment, right? No big deal. Wrong, David, you're wrong. The 25th Amendment has all sorts of problems and holes and everything else. And Akeel Amar has

written extensively on this. This is like his little pet project. So I'm going to put it in the show notes in case you want to go through his highly readable thing. But let's start with this. This is like his little pet project. So I'm going to put it in the show notes in case you want to go through his highly readable thing. But let's start with this. Most of it turns around the vice president, by the way, most of the problems. So if the president and vice president both die, who becomes president, David? Speaker of the house. speaker of the house or is it so article two says in the case of the removal of the president from office or of his death resignation or inability to discharge the powers and duties of the said office the same shall devolve on the vice president and the congress may by law provide for the case of removal death death, resignation, or inability, both of the president and vice president declaring what officer shall then act as president.

And such officers shall act accordingly until the disability be removed or a president shall be elected. David, an officer may only be what we would call a cabinet member and not a member of the legislative branch. And Amar makes a great argument for this. Basically, there's a separation of powers argument that there's no way that they meant for a member of the legislature to also serve in the executive. And you'd have to, and also the constitution, by the way, bars a member of the legislature

from serving in the executive. So they'd have to resign a la the West Wing episode where the vice president is kicked out for spilling classified information over NASA. And so there is no vice president. Then the president's daughter gets kidnapped and another country can then

like basically hold us hostage because it's the president's daughter. So and another country can then like basically hold us hostage because it's the president's daughter. So he temporarily turns over power to the Republican speaker of the house and he has to resign his office. And so when he hands back power to the president, sorry, spoiler alert there, um, for a 20 year old show, uh, when he hands back power to the president, he just goes home because he no longer has a job. So Akhil Amar says that's pretty ridiculous. There's also some historical note for it. In James Madison was very clear that this was not the way to do it. That an officer meant an officer of the United States. It was even scratched in

his little notes. It said officer of the U.S. But then that was scratched out, although there's no indication that that was intentionally scratched out to expand it. However, there's some evidence against Akeel Amar. Evidence piece number one. In 1792, when Congress first did a line of succession, it put the pro tem after the vice president and then the speaker. We've switched those in 1947. By the way, well, we'll get to this in a second. Another weird historical fun fact. So like, but if they did in 1792, that's pretty close. So if, you know, that's found, that's founding generation kind of stuff. That's founding generation stuff. Also article one says the house of representatives shall choose their speaker and other officers.

So they do use the term officers when referring to members of the legislature. But you run into this historical problem, which seemed highly unlikely, but there we are, 1868, when Andrew Johnson was impeached. Remember, he takes over from President Lincoln when he is killed, So there is no vice president during this time. Senate leader Ben Wade stood at the top of the succession list per that 1792 law where pro tem was first. So as Wade sat as a voting member over the impeachment, he also stood to become president and in fact was making plans to do so. So that's kind of awkward. Yeah. So then in 1886, they removed all legislative leaders from the line of succession. But then in 1947, I guess they, I don't know, they were just like, nah. And then the speaker went first and then pro tem, which is what we have today. So the 25th amendment though has big problems.

Basically, if anything happens to the vice president, because the whole 25th amendment turns on this idea that you need the majority of the principal officers and the vice president to invoke the 25th amendment, if the president doesn't voluntarily want to hand over power so if you don't have a vice president you've got a big problem because you can't do it with just a majority of the principal officers two what about determining the vice president's disability it does not speak to that right and those are pretty big problems, actually. You know, it's just as a historical interjection, it is interesting that this is not provided for more explicitly in the Constitution, because pandemics that would sweep through entire cities were not uncommon. I mean, you know, it wasn't until later in the 20th century

that when you had an army that a majority of casualties were due to wounds and combat as opposed to sickness in camp. And, you know, it really is interesting to me because it would have not been unknown, it would have not been unusual for a infectious disease to wipe out a large number of people in any given subset, any given group, especially a group that's working closely together. So that is just sort of a fascinating little historical oversight. Indeed. So let's move forward to running for office. So we're now post-nominating convention, but pre-election, where we are right now, actually. And the candidate dies. I'm only going to do Republican candidate because I know the RNC rules and I don't know how the DNC works. So it has to be a Republican candidate who dies. First of all, RNC rule nine, the RNC members, and there's three per state,

vote on a new nominee. That's all well and good if it happens, for instance, right after the nominating convention. That gets a little trickier. Like, what if it happens the day before the election? There's no way for them to nominate someone new. Another problem with this, votes are already being cast, for instance, right now because of early voting. And relatedly, the ballots have already been printed. So even if the RNC, for instance, next week voted on a new nominee, that's very unclear. And each state would have state laws dictating whether they would print new ballots, whether your vote would count for the person on the ballot or the new person. And mind you, they don't have to pick Pence. They could pick anyone in theory, though there's sort of this assumption that you would at this late in the game pick the vice presidential candidate.

the game, pick the vice presidential candidate, but they don't have to. So that's kind of an interesting mess that would go state by state. But let's assume it happens the day before the election. So we don't have any of this. There's nothing to fix. It just, things move on. The 12th Amendment says, the person having the greatest number of votes for president shall be the president, if such number be a majority of the whole number of electors appointed. But in this scenario, the candidate with the most votes is dead, David. So are they still a person under the 12th Amendment? This has never been resolved. Yeah, I was going to say, I bet the case law is thin on the ground on that point. I think that they are not a person if they are dead. But some people have argued with me that maybe they are a person.

There's also the very interesting example of Horace Greeley in 1872. I'm sure you're deeply familiar with this, David. I was just wondering when you were going to bring this up, personally. So Horace Greeley ran against Grant and got trounced, by the way. Horace Greeley very much lost and upon losing, promptly died. Really? Like you do. I'd forgotten that.

But before the Electoral College met and it was determined that those votes for were void but this raises another interesting problem pre-electoral college what is the denominator for the electoral college is it all of the potential electoral college electors or only the ones that voted that had a vote this can come up in a few contexts one is the horus really voided problem if they're void then they're not in the denominator or the numerator or the numerator um but for instance if there's an ongoing state election contest by the time the electoral college meets, it is not resolved. Or let's say multiple state election contests. You could have an issue where the quote unquote winner doesn't have a majority if the denominator is all of the votes.

Right. Interesting. Also thin, thin case law, David. Well, and then you throw into this mix the faithless elector statutes. Yes, you do. It is a huge issue also. Yeah. Like what you would then imagine, can you even imagine the nightmare of you've got these electors now locked in by law thank you supreme court some but not all some but not all so you have some perhaps the decisive a number that would constitute the decisive number locked in by law you have a candidate that they're locked into support who's passed away. And then the legislatures of the states may then be,

you know, there's a simple answer. It's like if the legislature of the state, composition of the legislature matches the party of the person that they would want the electorate to vote for, there would be this really fast scramble to change the law. Right, we'd get rid of faithless electors real quick. So fast. But what if the legislature is of the opposing party? So the 12th Amendment says if no person having such a majority, then from the persons having the highest number, not exceeding three on the list of those voted

for as president, the House of Representatives shall exceeding three on the list of those voted for as president. The House of Representatives shall choose immediately by ballot the president by state delegation from those three. So we get, first of all, back to the person problem. Is the dead guy a person? If not, you've got the actual faithless electors who switched their vote. You've got the actual faithless electors who switched their vote. So presumably the loser, the faithless. And then you'd have like a random Green Party candidate. And the House by state delegation would get to pick from among those. Currently, by the way, the Republicans have 26 of the state delegations in the House. But another fun question, David, is it the current House or the House that is sworn in on January 3rd? Well, well, well,

we don't know the answer to that because all the 12th Amendment says is that it goes to the House, quote, whenever the right of choice shall devolve upon them before inauguration day. because all the 12th Amendment says is that it goes to the House, whenever the right of choice shall devolve upon them before Inauguration Day. So in theory, that's sometime after the Electoral College meets and before January 20th, 2021.

So here's what I'm hearing, Sarah. Number one, please everybody stay healthy and President Trump get better, not just because you should seek that fervently as a decent human being, but also as an avoidance of potential total constitutional chaos, which our country does not need in any way, shape, or form. So everybody get better and everybody stay better. Two footnotes on this conversation, by the way. What if they die? Sorry, what if there's a tie in the electoral college, just generally speaking, for vice president? It also does not speak to whether the vice president gets a vote

in the Senate in the case of a tie in the Senate. So there's a tie in the electoral college for vice president. Unlike where the president, if no one gets a majority, it goes to the House state delegation. For vice president, it goes to the Senate. It's the same mechanism, but it goes to the Senate. But if there's a tie in the Senate, let's say after January 3rd this year, then does Pence in between January 3rd and January 20th get to vote on who the next vice president is? Because I think I know who he'd vote for. It's a mystery. I don't know. Next footnote, let's assume that our candidate dies post-electoral college. So he is now president-elect but has not been inaugurated.

So it's actually quite clear in the case of the removal of the president from office or his death, resignation, or inability, the same shall devolve on the vice president. What does same mean? Does it mean the office itself or merely the powers and duties of the office? So this was a question back in the day before the 25th amendment. And this is pretty important because if it's just the duties of the office and not the office itself, then in theory, the vice president could be the president and break ties in the Senate. So two questions. Well, a question and an observation. Question one,

how many hours did you spend figuring out all of this over the weekend? Nothing has brought me more joy in so long, David. Academically speaking, I guess the brisket has brought me more joy in some other sense, but it's a close call, frankly. This was a lot of fun. Goodness gracious. And number two, again, I'm just reaffirming here, not just as a decent human being, but as a matter of

constitutional imperative, everybody get better, everybody stay healthy, wear your masks, social distance, please. Because, Sarah, this is not a population of people in the real world that we're talking about who are, shall we say, in a position to feel invulnerable. So, you know, the president's had obvious problems over the weekend, and we hope he can be discharged and be healthy today and be on the path to recovery. But of the group right now, I mean, Pence is the youngest, probably most, you know, what is it? He's in his fifties. Uh, Nancy Pelosi, um, pretty not, not so young and then fighting Chuck Grassley. Uh, that pigeon, I mean, he's, you know, the deer presumed dead, the pigeon confirmed dead

by a Twitter. Yeah. Yeah. So yeah, I mean, this is, this is, I've never in my life been in a situation where you sit there and worry that the news is going to pop up any moment that, you know, senior leaders of the U.S. government have tested positive for an infectious disease. And you're used to possibility of heart disease, possibility of cancer, things like that. But infectious disease with a completely unpredictable course, and almost all of them are in the absolute zone

of vulnerability. So that's... Well, here's what I know for sure, David. That while the Horace Greeley voided votes were pretty non-controversial at the time, voiding votes in 2020 will not be non-controversial.

Oh, my goodness. But it makes that faithless elector case way more interesting. Oh, I know. It's kind of funny how, you know, a lot of us just looked at that as an interesting academic constitutional exercise. And now all of a sudden it feels like, oh, this really,

really could matter. But we hope and pray it doesn't matter at all. But thanks for the research, doesn't matter at all. But thanks for the research, Sarah. Now that you've, you know, thoroughly freaked out all the listeners of the constitutional chaos that occur and if the worst happens. But that was some fascinating research. I feel like 2020 and this podcast have provided me the opportunity to delve into parts of the constitution that I had been too long ignored. I would. Yes. I, you know, is it fair to call you a constitutional spelunker? I like that. Yeah. Yeah. Yeah. Constitutional spelunking producer, Caleb, that could be a good title for this podcast. Um, all right. Well, this is, um all right well this is man this has been interesting everybody stay healthy everybody get well uh while we were um while we were recording the podcast the word came that kaylee mcinerney

has tested positive for covid so everybody take care of yourselves uh I know that it's impossible to be sure that you're not going to get COVID. I mean, it's out there. It is all over our country, and you can be completely careful and still get it. But still, be careful. And God bless Kaylee and all those

who are ill at the White House, and we hope and pray that they recover as quickly as possible. Anything else, Sarah? No, sir. All righty. Well, this has been the Advisory Opinions Podcast, and please do go rate us. Five stars at Apple Podcasts. We do deeply appreciate it. And also check out thedispatch.com slash 30 days free. And also don't forget, I have a book out called Divided We Fall.

And please check that out on amazon.com or wherever books are sold. Thank you guys for listening. Bye.