Advisory Opinions - Excessive Fines and Strange Bedfellows

Episode Date: May 31, 2023

With a 9-0 frown, the Supreme Court rejects the EPA's expansive definition of "wetlands." David and Sarah also discuss the growing Jackson-Gorsuch alliance, Ken Paxton's impeachment, and the art of due diligence via ChatGPT. Show notes- -Tyler v. Hennepen County -Sackett v. Environmental Protection Agency -Eleventh Circuit Prison Case -David Last Newsletter Original Jurisdiction -Raffi Melkonian Twitter -The Appellate Wanderer -Fifth Circuit First Amendment Case -Ken Paxton Articles of Impeachment -ChatGPT Case Filing Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we have an action-packed pod. We have two Supreme Court cases, two circuit cases, an interesting impeachment coming out of Texas. And of course, I know, I know, but you're going to have to wait. Yeah, we'll talk about the Chad GPT case at the end. Fine. You got us. We'll do it. We have to. But David, let's start with the Supreme Court. Boy, it didn't take them long on Tyler v. Hennepin County, did it?

No. No, this was like the Supreme Court equivalent of ruling from the bench. It really was. So for those who don't quite remember, Geraldine Tyler is 94 years old. She bought a one-bedroom condominium in 1999. She didn't pay her $2,300 in taxes, got another $13,000 in interest and penalties. So Hennepin County seized the condo, sold it for $40,000. And what did they do with the other

$25,000 that she didn't owe them? They kept it. The Supreme Court gnawed-dogged that one pretty hard, David. Geraldine gets her $25,000 back under the takings clause. Unanimous. We're done. Yeah, we're done. It's not even super interesting because the takings analysis

is really, really straightforward, which is, you are entitled to the tax liability. You are not entitled to excess of the tax liability. That is, in fact, taking something that is not yours. I mean, this was when I say ruling from the bench, what I mean is for the non-lawyers is sometimes, rarely, sometimes you'll go in and you'll argue a motion in front of a judge. And instead of waiting for a written opinion,

he ends the argument and he says, you lose. And then explains, or maybe not, the reasons why. And it's, you know, it's not your best day when that happens. But this was very straightforward, but I'm much more interested in the budding best friends. Yes. So, okay, wait, before we get to that, real quick, there were interested in the budding best friends. Yes. So, okay, wait.

Before we get to that, real quick, there were a few interesting things to note in this opinion. One, the Chief Justice assigned it to himself. And there were some fun things in that for me. He goes back to the Magna Carta. There's very common law-y takings clause. Where did this come from? British history getting imported into the United States Constitution's taking clause.

That's always fun to see. And that it's unanimous, right? So everyone is signing on to that reasoning for the most part. Also, if you remember, when we talked about the oral argument, there was the standing argument that Neil Katyal made on behalf of Hennepin County,

arguing that actually this whole thing should be tossed because she didn't sufficiently plead an injury. I.e. sure, her condo was sold for 40. She only owed 15, but she never said that she would even get the other 25. There's liens on the house, potentially. She owes a mortgage. Maybe she wasn't financially injured. The chief definitely backhanded that argument. I was a little bit surprised he even mentioned it, considering how dismissive they were of it at the oral argument.

But he said, it's not in the record. You don't know what she owes. And let's say she does owe someone else money then you definitely owe her the money so she can pay those other people are you out of your mind um so like you said very cut and dry supreme court opinion But then there was the concurrence. And David, you know what they say, three times makes a trend. Gorsuch and Jackson together again. Now it's been Gorsuch-Jackson, Jackson-Gorsuch. This one's a Gorsuch writing concurring in the decision with Jackson joining. And they're buddying up for this cop buddy comedy, this time on noting that while this is a takings clause case, fine,

that it could also have been an excessive fines case. And just from a substantive standpoint, before we get to the what does this all mean for the romance side, the rom-com. The platonic rom-com, just to avoid any rumor mongering. Sorry, definitely that. Economic penalties imposed to deter willful noncompliance with the law are fines by any other name.

And the Constitution has something to say about them, colon, they cannot be excessive. So there, that's your lesson on the excessive fines clause, which is basically if they had been able to keep the $25,000, sorry, whatever, $25,000, that that would have then been a fine and it would have clearly been excessive compared to what she owed. So under any theory of the Constitution, she was getting this money back. to what she owed. So like under any theory of the Constitution,

she was getting this money back. Only Gorsuch and Jackson writing that. But David, do you have a theory on the Gorsuch-Jackson relationship? I don't have a theory.

It is fascinating. It's fascinating. I'm trying to draw sort of a common thread because this concurrence is sort of a classic, Sarah, shout out to the podcast name, advisory opinion. It was, and you know, we've seen this from other justices. So it's a classic advisory opinion, completely gratuitous, completely unnecessary to the resolution of this case, as was unanimous on takings clause. to the resolution of this case, as was unanimous on takings clause. It's two justices, so you can't really say, well, they've set new precedent regarding excessive fines. They've certainly

sort of raised eyebrows regarding excessive fines, but they've not really set precedent. But it does, let me just say this, Sarah, on this opinion, it does demonstrate how you can have sort of more classic progressive jurists like Justice Jackson and more classic originalist and textualist jurists like Justice Gorsuch and how both of those often combine in sort of a super friends moment when it comes to criminal law. And so that's kind of a common theme we've seen on a number of fronts outside of the Jackson Gorsuch best friends sort of analysis. So I did find that interesting.

And one other thing, there's a key name you mentioned, Neil Kutchall. So one of the best Supreme court advocates out there and watching him lose nine zero really tells you how bad his case was. This is like taking LeBron James, putting him with four guys from the local Y rec league,

and having him swept in the first round of the playoffs. You wouldn't say, what's wrong with LeBron James? You'd say, not even LeBron could carry four guys from the Y into the NBA playoffs. That was this kind of situation. Not even Neil Kachal could make this dog of a case bark less

offensively. All right. So I have a few theories that have been floated out there that I think are worth discussing. The first one is the purely personal theory that they have bonded in a friendship way and it's allowing them to come together on some of these. And the idea behind this one is that both of them maybe came in hot on their first terms and were judged perhaps harshly by their peers. What do I mean by that? That Gorsuch for his term, was asking a lot of questions, sort of bucking tradition in some ways, moving some elbows around, and it wasn't well-liked by some of the other more senior justices. And that Justice Jackson, in this term, has

talked the most in a lot of these arguments. I'm forgetting whether that was word count or time. It might have been both, actually. And that that has annoyed some of her colleagues. And so they're bonding over their shared obnoxiousness or something. I am least persuaded by that argument. It might be that they have some core personality traits in common, but I'm not persuaded that everyone else hates them and that's why they hang out together in concurrences. No. Okay. Number two, and David, this goes a little bit to your point, which is the lenity argument, that when it comes to these criminal or criminal adjacent sort of government overreach cases, that they have found kindred spirits in each other. And that means that their conservative

to liberal ideology just isn't as relevant as how they view the government kind of skeptically in these cases or government power grabs, which is really interesting when you think about sort of conservatives in general, when they trust the government and liberals in general, when they trust the government, that maybe both of these guys are willing to chuck trusting the government and that that's been an area in which they have found common purpose. The third one, though, I think is also worth a slight exploration, which is that institutionalist axis that I've tried to explain with varying degrees of success, perhaps. Part of, perhaps, an institutional axis is a willingness to write advisory opinions, is a willingness to write advisory opinions, if you will,

to take on issues that aren't squarely presented, to offer additional thoughts. And it's interesting in three of these cases that it has just been the two of them. And it might be worth running through the three real quick. So obviously, we have this one. The case itself is on the takings clause. And they're adding in their two cents that even without the takings clause, they would have also found this violated the excessive fines clause. And here's just a few paragraphs on the excessive fine clause for those who might be looking down the future at the excessive fines clause. So that's number one. So David, then let's move to the other two. One of them fits that government overreach thesis really well. That's that Pacelli versus IRS and

what notice the IRS owes you, sort of a core government overreach one. Roberts was writing for a unanimous court, exact same as this case. And then Jackson files the concurring opinion in which Gorsuch joined. And then the last one, though, doesn't really fit this one perfectly because it was the Andy Warhol case. That's not government overreach. And that one, it was Gorsuch filing the concurring opinion in which Jackson joined. So I don't know that any of these theories fully answer the question, except that maybe horseshoe of judicial philosophy, right? Yeah, it's going to be interesting to see this play out over time if it does at all,

but still interesting. It's still interesting. I mean, this entire month, and I mean by that the month of May, has been a lot of either unanimity or strange bedfellows for these cases. That's not surprising because the cases that are going to be more likely, I think, to follow along that X-axis conservative to liberal ideology opinions are going to come later.

Those are going to be June cases. May cases are going to tend to be the weirder, quirkier. But yeah, I mean, you have the liberals splitting with each other, Jackson on one side, Sotomayor and Kagan on the other, Jackson joining Gorsuch or Thomas with Gorsuch dissenting. I mean, we'll get to the next case, of course, which has an interesting Alito versus Kavanaugh split. But overall, probably best not to make too many judgments without all the cases from the term

because it can be a little distorting when you only look at the cases that come out in May, which by definition tend to be the, quote, easier cases in the sense they were done sooner. Right. They're not random they were done sooner. Right. They're not random when they come out. Right. True. True. Absolutely. Speaking of strange bedfellows. You ready?

The EPA case. You ready for Sackett v. EPA? It was in the top cases that everyone was watching for, but it just didn't quite have the sexiness like a Harvard or a 303 Creative. But here it is. So this is the Sackets. They bought this property 10 years ago. They wanted to build their dream home on it in Idaho. And the EPA comes in and is like, JK, this is a wetland. If you do anything to mess with this wetland, it's a $40,000 fine a day. A day. Which, I mean, is just such an absurd amount of money

as to be incomprehensible in my view. Okay, so it was a unanimous decision with Alito writing that the Sacketts can build their home. This isn't a wetland. EPA, you overstepped, but that's not what makes this case interesting. No. And God, it was like a Rorschach test on Twitter. And it was so annoying because basically Chuck Schumer is like the MAGA Supreme court is at it again. And then all these people dunking on Chuck Schumer like,

ho-ho, it was unanimous opinion. Okay. Well, yeah, that part wasn't unanimous. But it actually was 5-4 on what the rule moving forward for the EPA will actually be when it comes to defining a wetland. So you had Alito writing the chief Thomas Gorsuch and Barrett on one side, and that's that the wetland needs to be adjoining, contiguous, all part of the same body of water. And then you had Kavanaugh, Sotomayor, Kagan, and Jackson saying, nope, it just has to be

adjacent to the body of water, which will often mean adjoining, but doesn't have to mean adjoining. What it doesn't mean, however, dear EPA, is that a wetland is everything that occasionally has water. Or is in the general vicinity of water. So no question there were nine votes to reign in the EPA. That by itself is really interesting. But I got really into the text,

the fight over textualism. And I'll just read you some shade by Alito. Alito, not shy about the shade. just read you some shade by Alito. Alito, not shy about the shade. So here's section five of the majority opinion. Nothing in the separate opinions filed by Justice Kavanaugh and Justice Kagan undermine our analysis. Justice Kavanaugh claims that we have, quote, rewritten the Clean Water Act and Justice Kagan level similar charges. These arguments are more than unfounded. We have analyzed the statutory language in detail, but the separate opinions pay no attention whatsoever to Section 1362-7, the key statutory provision that limits the Clean Water

Act's geographic reach to, quote, the waters, waters emphasized, the waters of the United States. Thus, neither separate opinion even attempts to explain how the wetlands included in their interpretation fall within a fair reading of waters. Textualist arguments that ignore the operative text cannot be taken seriously. Now, that's not the tattoo I'm going to get, but I think that would make a good tattoo for somebody. Textualist arguments that ignore the operative text cannot be taken seriously. So right, according to Alito, Kavanaugh is not a textualist. He's just running loose out there,

not caring one way or the other what the statute even says, right? Not really. It was a lot messier than that. A lot messier than that. Absolutely a lot messier than that. All right. So I'm going to walk through the actual text,

the two statutory provisions that we're going to talk about, and then I'm turning it over to you, David. All right. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this

frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off plus free shipping on their best selling frame. That's A-U-R-A Frames.com. Use code advisory at checkout to save terms and conditions apply what alito says is that states can discharge into quote waters of the united states that's category traditional navigable waters, B, that includes wetlands adjacent to those traditional navigable waters, C. So states may be permitted to discharge into A minus B, which includes C. Therefore, we know that some wetlands are waters of the United States,

says Alito. And so how do we then decide what an adjacent water of the United States is? And that's where he gets into his analysis. But he's right. He starts with waters of the United States, waters of the United States, which category B seems to tell us is traditional navigable waters. But here's where it gets weird. Clearly that included is wetlands adjacent to those traditional waters. So doesn't it really matter what the word adjacent means? Right. Justice Kavanaugh thinks so. And so Justice Kavanaugh is going to focus on the word adjacent.? Right. Justice Kavanaugh thinks so. And so Justice Kavanaugh is going to focus on the word adjacent. And he says adjacent is not the same word as adjoining. Adjoining means touching. Adjacent means often touching, but not always. It can just mean close to, adjacent, that they're different words. And so for Alito to simply

say that because Kavanaugh doesn't deal with the text of the statute, he's not a textualist, is weird. Kavanaugh is accepting as fact everything that Alito said about waters of the United States and traditional navigable waters. He's just turning to what adjacent wetlands means. What does adjacent tell us? Alito says that it has to mean adjoining. Kavanaugh says, no, adjacent that it has to mean adjoining. Kavanaugh says, no, adjacent has a different meaning than adjoining. And the statute says adjacent. And remember, that adjacent language was added by Congress, meaning Congress actually took the time

to be like, ah, these court cases aren't coming out exactly the way we want. We'll actually amend the statute to be more clear. A weird fight over the textualism david yeah and i actually found myself so i read both opinions and i thought alito's was quite persuasive from a common sense perspective in other words okay how can we make this clear and easy for everyone to understand well everything's just got to be touching. From a textual perspective, I found myself more persuaded by Kavanaugh because adjacent and adjoining are not synonyms. They're not exactly the same concept. And so Alito was essentially saying adjacent means adjoining, But does adjacent really mean adjoining? And so that I found to be a really interesting part of the conversation. And I think that

Kavanaugh and the three Democratic appointees had the better argument on the actual word adjacent. And I think that from a policy perspective, Alito had the better argument for what the rule should be. But that's not exactly the analysis we're talking about. It's not what the rule should be. It's what is the rule

and is adjacent adjoining. And that's sort of how I came out on it. Although I found from a common sense standpoint, the Alito argument to be really powerfully persuasive because what is adjacent? How far? How far? It's very difficult, except in this case.

And all nine could say, in this case, it's not adjacent. I'm adjacent to Mars if we're talking about the whole solar system. Right. But the purpose of the EPA, I'm probably not adjacent to Mars. Right. Exactly. So that's tough. Look, here was Alito's pushback to your argument, Kavanaugh's argument on adjacent when he was making it, which again, I thought that one paragraph was a lot of snark without a lot of substance, but the argument is in there. And that is, if you simply read it as adjacent wetlands, you've basically rewritten the statute

to say waters of the United States and adjacent wetlands. When in fact, it says waters of the United States, including adjacent wetlands. And his point is actually, it's not the word adjacent that you need to focus on. It's the word including because that means it's not all adjacent wetlands. It's some adjacent wetlands and therefore adjacent means adjoining. I don't know. I don't find that terribly persuasive. But, I mean, it is interesting. I found his derision towards the Kavanaugh argument to be unwarranted. But can I take off on an adjacent point? Like Mars adjacent or like my backyard neighbor adjacent?

Backyard neighbor adjacent. So there's a couple of things here that I thought were really interesting around the larger issue of administrative law and deference. Okay. Because this is a big point that we've talked about a lot is to what degree should courts defer to allegedly expert agency determinations. And there's one thing that, there are a couple of aspects to this that show why, for example, I am very hostile to the judicial deference point.

And one is, if you walked through the procedural history of this case, Sarah, you saw that there were multiple different agency interpretations of the statute that happened in relatively short order from 2015 to 2019 to 2021, which indicated the different political priorities of the different presidents who are running the agencies. They didn't demonstrate some sort of evolving technocratic disclosure of what's really truly the expert analysis of the statute. It was

how can the different politicians who are in charge with enforcing this law interpret their enforcement obligation differently according to their political priorities. And I'm sorry, I don't see the case for judicial deference there. And then the other thing that was interesting, again, this is just a tremendous quote that is so indicative of how people get frustrated with bureaucracy. So this is in the guidance about what is or is not a wetland. So this is, I'm quoting the court, even if a property appears dry, application of the guidance and a complicated manual ultimately decides whether it contains wetlands. And then in the manual, it says, it's describing as not atypical examples of wetlands that periodically lack wetlands indicators.

So what's a wetland? Well, it's sometimes a wetland, but not always a wetland. Sometimes it lacks wetland indication. And you're just like, what? What? And now I'm sure there are listeners who will say, well, I'm jumping up and down and raising my hand and I'm yelling and I'm screaming. What that means is sometimes wetlands are actually dry,

but they're still wetlands. Got it? Okay, I understand. But if we're going to talk about levying fines of $40,000 a day against average homeowners, let's talk about excessive fines, Justices Gorsuch and Jackson, $40,000 a day to normal homeowners, shouldn't your guidance be understandable by normal homeowners? Would be my novel assessment here, Sarah.

Not to mention, by the way, that then they're like, well, you should reach out to the EPA in advance and ask us for our jurisdictional assessment, except that they also reserve the right to change their mind on their own jurisdictional assessment. So that doesn't do you any good. Literally, you can't read the regulation yourself and come up with what it could mean. And you also can't ask the EPA. They may not tell you. And if they do, they reserve the right to change their mind under a different administration. That's a joke.

It's nuts. So I totally see why the EPA lost here 9-0. lost here nine zero like if you look at the actual facts here you had they were they were filling they were filling a property that was a quote-unquote wetland close to a ditch that drained into a creek that drained it was like so attenuated it was easy to see the nine zero the only thing that the epa was willing to say were not, they were not able to regulate. This is not a joke. This is like actually

written into the regulation. It was two categories. Swimming pools. Yeah. And puddles. That's it. They acknowledge that they can't regulate

swimming pools and puddles. Though, I will note, puddle was not defined anywhere that I found. The difference between a puddle and a wetland, by their definition, may actually be more adjacent than one would otherwise think. The fact that they have to say they can't regulate swimming pools is outrageous in some sense. That's the outer boundary? Uh-oh. And when does a recurring puddle, Sarah, become a wetland? I've got one in my driveway. Yeah, I've got one in my front yard. It's every single time it rains even more than a little, there's some pooling in my front yard. Uh-oh. I wouldn't call it pooling, David. I would really stick with the word puddle.

Although now you have this opinion. That's true. Well, it's not swimming pooling though. So I'm in real trouble. That's right. That sounds pooling. It's just pooling. Puddle to pooling to wetland feels like a pretty straight line. Slippery slope.

Look, there's a few things here. One, no question. You have nine justices agreeing this is massive regulatory overreach by the EPA. Not a close call. No one is defending what the EPA not only did here with the Sackets, but has been doing when it comes to trying to regulate WOTUS, Waters of the United States. Number two, this has been a huge fight over WOTUS for years

back and forth in administrations. As you noted, as you noted, like the WOTUS fights during the Trump administration were lit, y'all. And then it's subject to nationwide injunctions. And this was all part of this other administrative fight. So you got to know that backstory. And three, and this is maybe the story that I'm more interested, big picture. maybe the story that I'm more interested, big picture. This is another case where actually Congress could resolve this. But I did find it interesting that nobody seemed to suggest that in this opinion, whereas they have in other iterations of regulatory overreach. We don't think you have the power, but hey, Congress, if you want to give them the power, feel free to do so. There were a few glances in that direction. Certainly Justice Alito saying that Congress doesn't hide elephants in mouse holes, quoting Justice Scalia, is a nod to that idea, right? Congress, if you want to hide an elephant in this mouse hole, feel free to do so, but we're not going to assume you meant to do so. to do so, but we're not going to assume you meant to do so. And then you have this Kagan paragraph.

I just have to agree with David Latt. She is the best writer on the court. So this is her concurrence. It's separate from the Kavanaugh concurrence. Kavanaugh does not join this. So it's only the three justices. So I'll conclude, sadly, by repeating what I wrote last year with the replacement of only a single word. The court substitutes its own ideas about policymaking for Congresses. The court will not allow the Clean Water Act, that's the only word she had to change, the Clean Water Act, to work as Congress instructed. The court, rather than Congress, will decide how much regulation is too much. Because that is not how I think our government should work. More, because it is not how the Constitution

thinks our government should work. I respectfully concur in the judgment only. Fair enough, but no matter which side of this debate you fall on, Congress could fix this. You think the court's doing too much? Congress can rein it fix this you think the court's doing too much congress can rein it in you think the court's doing not enough congress can say do more um so losing this case isn't really losing in a traditional sense if you actually believe that congress has the ability to do this the The political ability, I mean. They obviously have the constitutional ability. Yeah, this is a statutory construction case.

Congress can change the statute. And if they don't like, if they think that the EPA was too restricted, although I have a feeling that it might be sometime before Congress does anything about this. Congress is not going to be interested in touching modus. And to the extent they are, and this is political prognostication or whatever, but if you wanted to take a little straw poll right now of members of Congress and how they'd vote on WOTUS, Alito

is actually going to be much closer to where the body of Congress is than Kagan or probably even than Kavanaugh in the sense that there's not a whole lot of political will to tell homeowners that even more of their land can be regulated by the EPA. Yes. I agree with that completely. Okay, David, two circuit decisions that I want to talk about. The first comes out of the 11th Circuit and shout out to David Latt for highlighting this in his newsletter and original jurisdiction. But boy, it has like sat there and I've been thinking about it and thinking about it and word vomiting to poor husband of the pod about it. All right. So Guy is in prison.

And while he is in prison, he has seizures. They diagnose him with a seizure disorder. They prescribed him Dilantin. He gets Dilantin every day. And then for four days in a row, they don't give him his Dilantin. On the fourth day, he has two catastrophic seizures in which he suffers brain damage. Unrelatedly, he dies later, and this is brought by his estate, arguing an Eighth Amendment violation. So this comes up to the court as qualified immunity.

Do those prison officials have qualified immunity against this case alleging an Eighth Amendment violation? All of that's fun and games. The 11th Circuit holds, yes, they have qualified immunity. There is no road to recovery here. But Judge Newsom, famous for his concurring with Judge Newsom opinions, concurs with himself to note that he thinks the whole creation of sort of this indifference law within the Eighth Amendment, this is when your prison conditions show an indifference that that can somehow raise a

constitutional claim to cruel and unusual punishment, is all wrong. His argument is, wrong. His argument is the Eighth Amendment says inflict punishment. And both of those words imply intentionality. You can't negligently punish someone or negligently inflict a punishment on someone. And so the whole 11th Circuit debate over whether you have to show mere negligence or gross negligence by prison officials to get to your qualified immunity, Eighth Amendment claim, look, that's the circuit precedent. He's going to apply it. And by the way, the answer has to be more than gross negligence. That's a whole lot of negligence piled on negligence. He's like, but it shouldn't be anything. In order to have a constitutional violation, it has to be intentional. I find that textually to be really intriguing. And I'll tell you why, David, because I think he is right that the words punishment and inflict imply intentionality, but they don't answer the full question for me because the intentional punishment is putting

you in jail. And so then if they don't give you your medication, that is part of the punishment because you don't have any other ability to do otherwise. You can't go to CVS, Walgreens, and pick up your medication. And so maybe it doesn't do much good, but I think the pushback to that is, no, think of it more like a pattern and practice problem that we have with police departments, that the punishment was putting you in jail with adequate medical care. The fact that then for four days you didn't get adequate medical care because these people are dum-dums is not intentional. Now, if you were sentenced to prison in a place with no nurses or doctors, then of course, that would be so foreseeable as to rise to the level of intentionality. If there's no doctors

or nurses, then obviously you're not getting your medication. That is therefore part of the punishment. I don't know. I'm kind of persuaded by Newsom here, even though, by the way, I think it's a big problem incentive structure-wise that you would basically allow anything short of pervasive pattern and practice, intentional lack of training, for instance, anything short of that, and you have no rights as an inmate after your liberties have been taken away. So I used the example of at this prison, rats nibble on your toes at night. Well, we didn't mean to have rats in your prison. We didn't not feed the rats so they prison. We didn't like not feed the rats so they would nibble on your toes. But yeah, sometimes there's rats.

Yikes. Yeah, I didn't find it that persuasive, to be honest. So his reasoning would essentially be something like this. If I, the punishment that I'm inflicting is the prison, as you were saying, it's five years in prison. If there are poor conditions in prison, okay, that might be an issue that you would bring up with the state under state law, but it's not punishment. It's not an Eighth Amendment violation because it's not punishment. Punishment means intention. Okay, let's take an issue that has been extremely important

but does not get enough attention, quite frankly. And actually, it's the subject of a lot of horrible jokes. Prison rape. Okay, so if you have a situation where you're sentencing someone to prison, but because of the total negligence of prison authorities, it's not just that you have five years in prison. The actual punishment is this, five years of prison and five years of vulnerability to sexual assault. In the real world, that's what the actual thing that you're experiencing is to say that that's not an eighth amendment violation when that is the reality of what the punishment is in the real world to me strikes me as a a reading of the word punishment that is extremely constricted um extremely constricted

uh the fact that someone wasn't sentenced to formally sentenced to imprisonment with a random chance of rape does not mean that imprisonment with a random chance of rape wasn't the punishment because it was it was the actual punishment that they received. And that's where I am. I'm departing. I thought it was interesting. I'm glad you highlighted it. I'm glad David Ladd highlighted it, but I found it unpersuasive sort of as a matter of practical fact. So here would be my Newsom-esque pushback to your example. And again, in the end, we may end up kind of back where we currently are just under a different rubric, if you will, which is currently it would

have to be more than gross negligence as to why you were the victim of sexual assault in prison. Under the Newsome rubric, and I'm putting words in his mouth here because it was a relatively short concurrence. It was just thought provoking. But under my version of the Newsom rubric, and I'm putting words in his mouth here because it was a relatively short concurrence. It was just thought-provoking. But under my version of the Newsom rubric, instead of more than gross negligence, what you'd have is to prove that, in fact, they had intentionally chosen not to train anyone on how to stop prison rape, not put any resources into stopping prison rape, even though they knew it was a pervasive problem. And that that sort of pattern and practice rises to the level of intentionality. And then you get the intentional punishment of

prison rape because it is so not protected against as to be assumed to be part of your punishment. But this is another interesting problem with the Eighth Amendment analysis in general. The person who actually is doing the intentional act of sentencing you to jail, prison, is in the judicial branch. The person executing that punishment is in the executive branch. Whose intentionality matters there? Because the infliction is in a different branch than the executor of the infliction. Obviously, you can't prove an intentionality on the judicial side, right? You can't expect judges to know what's going on in the prison. That would have to be on the executive side, but it's a little bit messy for me he would

probably say if you can prove intentionality in withholding the medication even that's that's infliction but going back to your point the law has long recognized that there's a degree of culpability that is so a degree of recklessness or gross negligence that's so extreme that it's functionally intentioned and maybe that's what more than gross negligence actually rises to anyway so we're it's different sides of the exact same coin not a lot of cases are going to come out differently and this one it definitely isn't coming out differently you know they missed his medication for four days. Right. And I'm reminded of, for example, when we talk about very different area of law, defamation and the actual malice standard

for public figures. Well, it turns out that actual malice doesn't just mean intentional malice. It can also mean a level of recklessness so great as to be functionally malicious. And so, you know, this is a long, a concept long encompassed by common law. And I think rightfully so. But yeah, I'm glad you highlighted it. Very interesting, but not as interesting as the next one. The next one, we need to give a shout out to uh raffy melconian and raffy is wonderful to follow on twitter rm fifth circuit is where you can find him he also has a new podcast congrats raffy welcome um so here's how the twitter thread starts and r Rafi is just great at covering some of this appellate court stuff.

Okay, quick appellate Twitter story. A while ago, I was attending an oral argument session at the Fifth Circuit. A lawyer was arguing that COVID church closures violated his client church's First Amendment rights. All right, I've heard that claim. But his theory was that the secular government had no authority to order a church to do anything at all. He was waving a Bible around while he said it. Odd, I thought. The panel asked him whether he was actually making the argument that the government can't close churches while opening other things. Oh no, he said. There's a categorical bar. I'm not making that argument at all.

The panel tried a few more times to see if he really meant it, but he did. I sort of laughed internally because the guy had obviously waived his only argument. Whatever. I left to get lunch with a friend. The friend said, you know who that guy was, right? Me. No. Him. Roy Moore, like the Alabama Chief Justice, mall fancier Roy Moore. I added the description. Anyway, here's the decision. This came out in February of this year, David. We just missed it. But yeah, the general argument is that, well, the general argument that we've talked about under pandemic law is that a state closed churches while allowing casinos or dry cleaners or nail salons to stay open and that that's a violation of the First Amendment. And he was like, no, no, that's not what I want to argue. I'm not arguing that.

I don't want to argue that. I'm not arguing that. I don't want to argue that. And in fact, argued that. And it was really something, David. Judge Oldham, joined by Judge Elrod, concurring in the decision to toss this case, said, had Pastor Spell's counsel not affirmatively waived his best argument, his victory was all but assured. But oddly, Pastor Spell's counsel insisted on taking a loss.

I was so intrigued by this, Sarah, that I went back and I listened to big chunks of the oral argument and it was spectacularly dumb. I mean, just spectacularly dumb because here you had, and the footnotes don't quite convey the puzzlement that one hears

from the judges combined with the decisiveness that one hears from Judge Roy Moore. So it's quite obvious they're saying, you know, you can win this case. I mean, they're not saying it exactly like this, but the curiosity, wait a minute, you're not making the constitutional claim under Lukumi. You're not making the constitutional claim under Lukumi. And he keeps saying, no, I'm making the constitutional claim.

I'm not arguing Lukumi because I'm arguing the constitution, which doesn't make any sense because Lukumi was decided on first amendment grounds, right? So they're saying, wait a minute. No, you have a constitutional argument that you can't discriminate against churches. And he goes, I don't want to make that argument because I want to make the constitutional argument. And like, well, wait a minute. Lukumi is a constitutional argument. He goes, but nay, nay, there is a constitution. It goes like this, that you're thinking, what is going on? And then you realize there is only one argument that he thinks is actually the constitutional argument. And it is the absurd, fever swamp, weirdo argument that there is no state jurisdiction over churches at all, period. I could imagine making that as an argument where you want to try to set precedent.

And then with a fallback of, and if you don't adopt my crazy theory, I have a sane one and we can win. Nope. So this would be like your church doesn't have to match building codes to prevent it falling down during earthquakes or fire hazards because the government has no authority over the church. Human sacrifice, Sarah. There is no government authority over the church. So I want to read the Elrod more back and forth. Elrod, perhaps I misunderstood your briefs, but I thought your briefs argued that other entities were allowed to remain open.

argued that other entities were allowed to remain open. Council. We argued throughout the brief that that's what happened. Yes. Elrod. And that's what makes it wrong under Lukumi. Council. No, that's what makes it wrong under Everson. The argument that we're talking about. Elrod. If you can win under Lukumi and you can't win under Everson, are you going to pass on a win? If the case law is not such that there is this impregnable barrier between church and state such that there can be no regulation among all kinds of entities, but the law is instead that you can't treat religious entities different than other entities, if that is the law in the united states are you saying that you don't wish to argue that theory even if you could prevail on it

more we can't win on any other argument it's a loss because it violates the united states constitution that's what I'm talking about. What is he saying? You are poorly representing your clients, sir. Oh my gosh. And then the opinion itself. I love this. Pastor Mark Anthony Spell and his church appealed the dismissal of their 42 USC section 1983

claims alleging that state officials violated their rights under the religion clauses of the First Amendment. Because Pastor Spell cannot prevail on the legal theory he advances, we affirm. This was an unpublished per curiam opinion. The Fifth Circuit was very annoyed with this. Yes. opinion the fifth circuit was very annoyed with this yes pastor spell explicitly waived the argument the defendant's actions violated his constitutional rights under current free exercise jurisprudence so we do not address that argument in his briefing for the case pastor spell instead advanced an absolute categorical categorical theory of the religion clause is arguing that church assembly is, quote, beyond the jurisdiction of the government, unquote. Wow.

And to think he could have been a U.S. senator. He came so close, Sarah, so close to being a U.S. senator. And this is a fun little story I want to share. In 2017, I wrote that I was against Roy Moore becoming a U.S. Senator. And there was an explosion of rage on the right that I argued that his corroborated, the corroborated claims that he had engaged in sexually inappropriate behavior with underage girls disqualified him from becoming a U.S. senator, was so enraging to some members of my own congregation of church that I attended that when, after I wrote about it and made that argument in the pages of National Review, I walk into a basketball game, my son's playing for his Christian high school,

game. My son's playing for his Christian high school and two families turn their backs to us rather than even look at us because I did not want this man to be a United States Senator. I feel vindicated, Sarah. All right. Next up, there's been an impeachment, David, not at the federal level, but in the state of Texas, the Republican controlled state house brought 20 impeachment counts against attorney general Ken Paxton. The vote was overwhelming, uh, roughly one 20 to 23 might've been one 21 to to 23. Might have been 121 to 123. So 60 plus Republicans voted to impeach the Republican attorney general. You have Donald Trump, Kari Lake, Ted Cruz, all coming out to defend Paxton. Interesting difference, by the way, between Texas impeachment law and federal impeachment law. In the federal system, when you impeach someone, as we all now know, that's all interesting that

the House does that. It goes to trial in the Senate. Unless you are convicted, nothing changes in your life. Not true in Texas. Once you are impeached by the House, you are removed from your official duties pending trial in the Senate. So Ken Paxton is not acting as attorney general in the state of Texas until the conclusion of that trial in the Senate, which they have now said must happen by roughly mid August. I think it was August 23rd. But there's some fun facts in there, David. One is that his wife is a sitting Texas senator, but maybe also interesting is that one of the 20 counts is that part of the corruption was that the dude hired his mistress to pay her off, basically. Look, there's 20 counts. They're all pretty crazy. If you

have followed this at all, you'll know that a lot of the senior staff in the Texas Attorney General's office turned whistleblowers. They then were fired. They claimed retaliation. Ken Paxton then settled with most of them for $3.5 roughly million and then asked the Texas Treasury through the Texas House to please pay that for him out of public funds. That's where the Texas House then was like, say what now? Started doing their own investigation, got testimony from the whistleblowers. But there is another piece to this, David, that I find baffling. department of justice has been investigating ken paxton for five years has not brought indictments what because some of these charges are really easy you know in most

bribery or public corruption cases you've got a quid pro quo problem uh or what we'll call the bob mcdonald problem where the quid has to be for the quo, or actually the quo for the quid, if you will. That's not what the allegations are in Texas. In some of these allegations, sure, there's a lot of quid pro quo bribery stuff being alleged, but it's actually that the quid itself is illegal. So you don't need to prove the quo, i.e. that Ken Paxton accessed unredacted investigative files, including potentially grand jury reports, and handed it over to this dude who then, of course, was also paying him, putting his mistress on payroll, paying for his condos, refurbishment, whatever. But you don't need to prove any of that

because if he handed over unredacted grand jury testimony to a random citizen, that breaks the law anyway. No need for money to have changed hands in exchange for that. Weird that DOJ is still sitting on this. There were some reasons. They didn't have a confirmed US attorney for some amount of time at the change in the administration. Okay. But we're well past any of that, David. And I do find it odd. And it's not that it's necessarily exculpatory, but I think this would all be a lot easier if DOJ had charged him and gone to trial. 100% disagree if the DOJ had charged him and gone to trial. I mean, 100% agree.

Okay, I was like, what? Sorry. 100% agree that if the DOJ had charged him and gone to trial, this would be easier. Don't know if it would have changed Ted Cruz or Donald Trump at all or Carrie Lake at all in their assessment, but in many people's eyes, this would be easier.

Totally agree with that. But it is important to outline that we have a difference between a criminal proceeding versus a civil political impeachment proceeding that is related to not just the criminal claims, but also the guy was sued in civil court and was going to have to pay a, was asking the state of Texas to pay a multimillion dollar civil settlement. It does. There's nothing at all wrong with the Texas house of representatives, then lifting up the hood and looking at why are we paying $3.3 million?

Because that's a lot more than nuisance money. That's not what you would call a nuisance settlement. Is there something there? Is there a reason why we're asked to pay $3.3 million? And it is entirely within their purview to say, you know what? We now know why he was wanting that seven figure check to be written because there's a problem with the way he has conducted himself in office. And I think that's entirely defensible. And one other non-legal point here,

I'm going to applaud every time I see self-policing because I do not think that our dysfunctional politics will be cured by left beating right or right beating left. Our dysfunction is only going to be really truly cured when right reforms right and left reforms left. And so when I see examples of Republicans holding other Republicans accountable, I'm going to like that. I mean, with the, of course, caveat that only when it's appropriate. But when it's appropriate, when there is evidence sufficient to support an impeachment verdict, then yeah, good. Well, let's be real. We haven't had an over-enforcement problem within either of the two parties.

When that happens, then you can say, oh, no, it needs to be appropriate. Until then, we can probably leave out the when appropriate exactly uh addendum caveat yeah right yeah exactly all right david last thing um well this case has been making the rounds so a man named roberto mata was sitting on an airplane like any other day the aisle seat as so many men are wont to do, and a metal serving cart struck his knee during a flight to Kennedy International Airport in New York. He was grievously injured by this and filed a personal injury lawsuit. Unfortunately, he had filed it out of time. The statute had already run, but his lawyers nevertheless submitted a 10-page brief citing more than half a dozen cases that

said that it was okay that they had missed the statute of limitations, that there was nevertheless personal and subject matter jurisdiction over this claim. There was a problem, however, in the filing, which is that none of the cases were real. It turns out that the lawyer in question asked ChatGPT to help him with his legal research. asked chat gpt to help him with his legal research chat gpt came up with these six seven cases and then the lawyer did his due diligence he asked chat gpt if they were in fact real cases and chat gpt said yes bar he's the china southern Company Limited 925 F3rd 1339 from the 11th Circuit 2019 is a real case and can be found on legal research databases such as Westlaw and LexisNexis. The lawyer took ChatGPT at its word and filed the brief. When opposing counsel was like, we can't find any of these cases

and the judge was like i also cannot find any of these cases and they asked him to please submit the cases he asked chat gpt for the case itself and chat gpt gave him the full case. So it even has like, it's a PDF that has the stuff at the top. The judge ended up having to follow up, called the 11th circuit and was like, hi, can you confirm that this case number order docket number does not match this. And yeah, they had to go through all this stuff. So that judge has now issued a show cause order to both the lawyer who

did the research who was not actually licensed to practice in federal court and his fellow attorney who signed it because he was licensed to practice in federal court of why they shouldn't be sanctioned. And David, there's a few thoughts on this. A, there's simply the dunking. Everyone's enjoying the dunking. Yeah. Two, does this actually rise to a sanctionable level? And if so, what are appropriate sanctions and how serious should they be? And three, didn't these guys kind of do everyone a favor in highlighting in such stark relief that lawyers should not be using chat GPT for legal research, looking at you associates and frankly, looking at you partners that when you now get research from an associate,

don't go to chat GPT to check whether it's a real case citation. Why would you ever do that? That's why Lexis and Westlaw are there. They absolutely deserve sanction. I love the phrase when you said they did their due diligence and asked ChatGBT to double check ChatGBT.

Remember, this is the same thing that said Ruth Bader Ginsburg was in the dissent in the gay marriage case in Obergefell. And then when you followed up, it was like, are you sure she was in the dissent in the gay marriage case in Obergefell. And then when you followed up, it was like, are you sure she was in the dissent? It was like, yes, definitely. Wow. Yeah, that's crazy to use chat GBT like that. And then to use chat GBT to check when there is something called Westlaw,

there is something called Lexis. There's even something called Google. You can put in a case citation and it will come up on case text. It'll come up on find law. I mean, it is not hard to do this. So sanction, yes. Did they perform a public service in their sanctionable conduct? Yes, also. Absolutely. But how sanctioned should they be here pretty sanctioned like not disbarred no no okay i would say like can't appear in front of that judge for a year two years definitely can't appear in front of the judge i think some financial

uh compensation into the victim's compensation front is warranted here they wasted the time of opposing counsel and they wasted the court's time by having to call the 11th circuit. So like just that alone is worthy of some financial sanction. Um, but you know, David, I did have a run-in like this recently. Like we're all trying to figure out what this product is good for and what it's not good for. And I was trying to find a specific quote from the Anti-Federalist Papers without having to actually go back through and reread my Anti-Federalist Papers, let's be honest. So I asked ChatGPT, I'm looking for a quote that's about this and this from the Anti-Federalist Papers. What's the quote? And ChatGPT gave me

the full quote. And it was totally made up because that's not what ChatGPT does. It actually doesn't quote things. What it's using is word proximity, and so it would almost be impossible for ChatGPT to correctly quote something to you based on how it functions, but I felt it was a really good learning experience because it actually weirdly was helpful and that it got me close enough that I could then get the quote for myself. I compare ChatGPT now to a sloppier version of Wikipedia 15 years ago.

So do you remember early Wikipedia was interesting, but unbelievably unreliable to the point where it was so unreliable that the idea of even using Wikipedia to cite anything was considered a ridiculous joke. in the last 15 years, but the overhang of how poor Wikipedia was still persists so that you still don't cite Wikipedia. When I link to something, when I try to provide a substantiation for a claim, I never link to Wikipedia. But Wikipedia is good enough to where I can

go and get what I need to start some real research. Yes. A good starting point. It's a good starting point. I look at ChatGBT as worse than Wikipedia, early Wikipedia, because early Wikipedia still wasn't, it wasn't that common.

It would just tell you stuff that's completely, totally false. It was much more just grotesquely incomplete. And it wouldn't tell you with such confidence in itself. The battle of the Confederates won the battle of Gettysburg. Are you sure, Wikipedia? Yes. Very sure.

Totally sure. All right. Well, with that, I would ask you about succession, but I kind of want to wait for people who are catching up. Let's give them a couple more days. This will be our only episode this week because of the Memorial Day holiday. We taped a day late.

I have a question for you about to ponder in those days. Okay. So, as a feminist watching it, were you mad for feminist reasons about the ending? So, I'm really annoyed at you because that's exactly what I want to talk about. And how dare you anticipate exactly my biggest takeaway from the series finale, which is in two sentences, it illuminates the feminist dilemma in third wave feminism.

I cannot wait to have that conversation because Nancy and I have been talking about it nonstop since the end of the show. And I ended it. All I'll say is just to wet the appetite, I'll end it. And I said, I thought they stuck the landing, which Nancy and I had been totally united

that this is a great show, which triggered an interestingly and not mad at me, but annoyed at the show conversation from Nancy. And so I cannot wait. So we've hashed this out, Sarah. We've hashed this out. So you're ready. I'm ready. I'm ready for this conversation. I also really enjoyed the fact that the characters' names, it turns out, told you everything you needed to know about the entire show. Look, this was like the tongue-in-cheek one. Okay, there's three main characters, Kendall, Roman, and Shiv, and you'll never guess which one of them figuratively stabbed another in the back.

But that's, of course, not the character's name who tells you the most about how the show is going to end. Tom Wamsgans. Tom Wamsgans. It turns out it was all in the name. All right, we're leaving it there. This is our only episode for this week. We are expecting more opinions

and we'll be back to you next week. We're in June. It's the final countdown. We can also start playing SCOTUS Bingo now. If you don't remember what that is, or you're just now tuning into this podcast, we'll start with it next week. And can I just say,

this is when this podcast gets lit. SCOTUS Bingo is when it takes off. This is the difference between regular season NBA and playoffs NBA. When the big SCOTUS decisions come down, this is when we're slapping the floor on defense. This is when we're hitting the big threes. This is when this podcast goes off.

We'll talk to you next week.