Advisory Opinions - Flip It and Reverse It: Squirrel Edition

Episode Date: July 30, 2020

The D.C. Circuit has decided to hear the Michael Flynn debacle en banc. For the meantime, as Sarah reminds us on today’s episode, “Michael Flynn seems to be getting some extra justice that a lot of criminal defendants would be really happy to get.” If it goes back to the district court, would Trump pardon him? Our podcasters weigh in. On Thursday morning, President Trump tweeted that we should consider delaying the election over mail in ballot concerns, which of course he can’t do without congressional approval. Based on data collected from states that regularly use mail-in voting in elections, election fraud isn’t a real concern. But it’s also worth noting that these states were able to plan for their elections years in advance, whereas the pandemic is forcing states into preparing for mail-in voting on a mass scale on very short notice. Are states ready for the legal discrepancies and inevitable ballot invalidations that will ensue? Beyond some election punditry, our podcast hosts also touch on the Supreme Court conference leaks to CNN legal analyst Joan Biskupic, the latest updates with DACA, and some hot takes on the importance of the bar exam. Show Notes: -Trump tweet about delaying the election. -Inside scoop on conservative justices from CNN’s Joan Biskupic. Learn more about your ad choices. Visit megaphone.fm/adchoices

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It's through their Uber Teen account. It's an Uber account that allows your teen to request a ride under your supervision with live trip tracking and highly rated drivers. Add your teen to your Uber account today. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. We are part of thedispatch.com.

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today will be further evidence, Sarah, that we're always right. It's true. Yes. So how are we right today? Well, the DC Circuit has decided to hear the Michael Flynn debacle on Bonk, which, look, I'm going to give us like 97%

because we obviously said that they were going to take it on Bonk in part because it was sort of panel roulette to get Rao and Henderson on the same panel. And that was not representative of the makeup of the D.C. Circuit. And just in general, those things can often go on Bonk. But I'll tell you what we got wrong. I thought it would happen much faster than this. They did take a while.

Right. Yeah, they did take a while but uh as many of our listeners will know once a circuit court decides to take a panel decision on bonk it's as if the panel decision never happened it doesn't even matter what the en banc court does it has now wiped that panel decision off the face of the earth so that if for instance the dc circuit the en banc court now found something wrong or they couldn't decide it or who knows what are they split half and half, the district opinion is now what is controlling the district court opinion, not the circuit panel. So that's kind of a fun little en banc trivia matter for our non-lawyers out there. So what's going to happen? I quote the great Missy Elliott. Flip it and reverse it.

Yeah. Could you do that again? Because I'm not sure I caught that. No, I can't. It was a one-time performance. Yeah. So if you remember, the panel basically said that Sullivan was over his skis and that DOJ absolutely could, you know, withdraw the case and Flynn can go about his life and Sullivan should not have appointed this amicus to make the case, yada yada. That's all going to be gone now. The en banc court is going to say, absolutely, Sullivan is within his jurisdiction to do this, and Flynn's case will not be dismissed anytime particularly soon now. Yeah, I mean, I thought the majority opinion

that has now been wiped clean essentially rewrote the federal rules of criminal procedure to eliminate the by leave of court uh language uh i when i read it i thought wow that's too far but we'll see we'll see on the flip side what sullivan's doing is unprecedented as well in appointing someone to look into this which has been awkward and weird uh and now of course he has a lawyer representing him at the D.C. Circuit and at the panel for the en banc. So like it's a lot of it's a lot of weird stuff going on for a single criminal case. And as we've sort of noted before, Michael Flynn seems to be getting some

extra justice that a lot of criminal defendants would be really happy to get. Yeah. This case has broken my holy crap record for the number of times while watching a case unfold, did you go, holy crap, I've never seen anything like that before. And going all the way back to this really unusual situation where he, so he pled guilty. And then in his response to the sentencing memoranda, he tries to sort of cast aspersions on his own guilty plea. And then the judge swears him in to get him to reaffirm, to make sure that he's going to reaffirm his guilty plea, which he then reaffirms.

And then we don't need to go back into all of the holy crap moments, but it is a remarkable case. Well, and this whole thing, of course, comes up on a writ of mandamus, which is highly unusual. This was not a normal appeal that Flynn had about Judge Sullivan's ruling.

This was like a writ of mandamus, which is something horrific is going on. We need justice immediately, which I think is part of, you know, this is why we knew it was going on, because the whole thing has just gotten so squirrely and spun out of control. I don't know that there's much hope at this point

to get it back on the rails. No, I think the rails, it has gone off the rails. It has driven across the countryside. It has lost its GPS, and there is no way to get back off the rails it is driven across the countryside it has lost its gps and there is no way to get back on the rails i mean the only thing the en banc court could do is just write a very short uh this did not warrant you know the writ of mandamus issued the end but i don't think they're going to do that i think we're going to get a full opinion. We're going to get pages and pages about the merits,

and we're going to be back in this thing. So how many different opinions will there be? Minimum four. Yeah. I think then the question is, if it goes back to the district court for the court's own determination, does Trump step in at any point? And just pardon him?

And just pardon him. That's going to be a very interesting question. We'll see as we're running out of time. You know, assume Trump loses in November. I don't, I mean, you have to hear the argument by the en banc court.

Then they have to issue their opinion. I'm not saying that's going to take until even November, but, you know, we've got some time to go. Then Sullivan is going to get to have his say again. You could get up to January pretty quickly. Yeah. Yeah.

No. I mean, in judicial time, to get this all decided would require a rocket docket. Yeah. Certainly, he will not have time to appeal. Right. Right. You'll get the en banc.

You'll get it back to Sullivan. I think you will get a decision from Sullivan in time. But that's going to be about when time runs out. Yeah. Okay. Well, stay tuned.

So what else are we going to talk about today, Sarah? We've got so much. It's so funny how this works that the night before we'll often ping back and forth. What are we going to talk about today, Sarah? We've got so much. It's so funny how this works that the night before we'll often ping back and forth, what are we going to talk about? And sometimes we'll say, well, we've got this one thing, we need more. And then by the time recording happens, two or three things have popped up. Well, we had one thing pop up this morning on Twitter.

Oh, yes. And that's our next topic. So we've already talked about Flynn. We're also going to talk about Squirrel, and then we're going to define what that means. We're also going to talk about this incredible series of leaks to CNN about the internal workings of the Supreme Court. And so we're going to talk about what the leaks mean. Just what does it mean that somebody, possibly even a Supreme Court justice, is leaking news about internal Supreme Court deliberations to CNN. So we'll talk about what that means. We'll also talk about what we've learned about the Supreme Court through the leaks. And then I've got an album side on the bar exam. And this is in response to reader mail and to news. So this morning, here's the tweet.

Everyone who's listening to this will have already seen the tweet, but we're going to read it nevertheless. With universal mail-in voting, not absentee voting, which is good, 2020 will be the most inaccurate and fraudulent election in history. It will be a great embarrassment to the USA. inaccurate, and fraudulent election in history. It will be a great embarrassment to the USA. Delay the election until people can properly, securely, and safely vote? Okay, a couple things here, David. One.

Yes, and just note, he's very proud of this tweet because it is now his pinned tweet. One, there was some other news that came out today. Yeah. And it was about the GDP. And it was not good news about the GDP. It dropped 9.5% for the quarter, which if you annualized it would be 30-ish percent.

That's the most ever in the history of the United States. So not shocking that we got a tweet like this. So A, this is the squirrel. And for those who have not seen the movie Up, first of all, it's a wonderful movie. Prepare to cry.

I'm not a movie crier. Boy, this gets me. But there's a wonderful golden retriever in it. Cartoon golden retriever, of course. And every time he's making a serious point

or they're having a conversation, he'll go, Squirrel! So that's what this is. The media was reporting on GDP. They were off on the bill pending in the Senate for coronavirus relief, many other things, the poll numbers, the election. And the president tosses this tweet out there and every single reporter went, squirrel! Yeah.

And now is obsessed with tracking down every single Republican member to ask whether they support delaying the election, every single Democratic member to ask what they're going to do about this. And nobody remembers the coronavirus relief bill or the GDP numbers. Okay.

So I want to address the delaying the election part, but I also do want to address the mail-in ballot part. Which do you want to do first? Let me, can I do the shortest legal explainer in the history of legal explainers? Yes. Okay. So we'll do the legal part of it first.

So article two, section one of the United States constitution, the Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. Um. The most notable thing about this is it says Congress decides when the presidential election is. That's what that means in plain English. The second most notable thing about this is linguistic,

about the difference of language now and spelling. Choosing is spelled how, Sarah? With a U. With a U. C-H-U-S-I-N-G. It's great. And also the way

that there used to be very different rules for capitalization. I mean, it's really fascinating. But that's a whole other, like about half the days, I mean, half the words in that are capitalized.

Which actually, you know, brings us to like, it does annoy me when people think that they're owning the president by noting his capitalization and or whatever. Like, you know, brings us to like, it does annoy me when people think that they're owning the president by noting his capitalization and or whatever. Like, you know, get over yourself. Section 1, Time of Appointing Electors. And it says,

The electors of president and vice president shall be appointed in each state on the Tuesday next after the first Monday in November in every fourth year succeeding every election of a president and vice president. So the legal explainer, the answer to the president's question, delay the election until people can properly, securely, and safely

vote? Three question marks is not unless Congress says so, period. So then the next question, which is a reasonable one, is okay, fine, they don't delay the election, but he says that the election is invalid and refuses to leave the White House. And that brings us to Amendment 20 of the United States Constitution, also known as the lame duck amendment, by the way. When I was memorizing the Constitution, there was a duck involved in my drawing of 20. Number one, the terms of the president and vice president shall end at noon on the 20th of January. This is relevant because then if you go to Section 3 of the 20th Amendment, if at the time fixed for the beginning of the term of the president, the president elect shall have died, not relevant here. It goes on. If a president shall not have been chosen before the time fixed for the beginning of his term, the vice president elect

shall act as president. But of course we elect those together as David knows well. Then Congress may by law provide for the case wherein neither a president elect nor a vice president elect shall have qualified, declaring who shall then act as president. And of course, Congress, the new Congress will have been sworn in at noon on the third day of January per that amendment. So anyway, that's all to say there is no world in which Donald Trump, even in the land of disputed election, is still president on January 20th unless he won the election. for president. And if, for example, Trump and Trump's GOP decides to seriously dispute an election that's adverse to them, it's going to be disputed for Congress as well, because it'll be conducted on the same day with the same balloting structure and the same ratio of mail-in

ballots to in-person ballots. So here's what I would expect, Sarah, just as a practical matter. I would expect if there is a serious dispute mounted by the president, if he loses, or let's just say by the losing side, if there's a serious dispute mounted by the losing side, the Supreme Court is going to have to step in before the next Congress is sworn in. is sworn in. The Supreme Court would have to, in essence, block any effort to block the swearing in of the new Congress before that first week of January. All of this is worst case scenario stuff, but it's worth talking through worst case scenarios. But my question for you is this, Sarah. scenarios. But my question for you is this, Sarah. So you think this was an actual deliberate tactical choice to distract from the GDP as opposed to just a completely impulsive tweet? Well, so this has been thrown around before, right? The Biden campaign brought this up in April and the Trump campaign responded by calling it an incoherent conspiracy theory. So we know that it was on their radar.

Now, I guess when I say it was a strategic choice, that doesn't mean it's not like subconscious to some extent. Right. Okay. It can be impulsively strategic. That's right. But I do think he has an instinct when he feels the the media cycle moving away from him to know how to throw uh you know step on the ant pile and watch all the ants scurry and i think he enjoys that and honestly i think a lot of his supporters enjoy that and frankly the fact that every single time

it works is annoying to me as well like I am very sympathetic to watching the ants scramble around because it's so predictable. I mean, really, reporters could choose to ignore this and cover policy and substance, but...

Including us, by the way. Here we are, sitting here. Here we are. The irony is not lost on me. And here's the... Now, I think this plays in... There was an interesting article Oh, gosh. i think it's mike

murphy in the bulwark wrote about uh the the last time that what the last time that we saw somebody come back from a huge polling deficit in the summer and that was uh george h. Bush's defeat of Michael Dukakis. And so Murphy was remembering that, and he said something that Dukakis was winning until he was defined. And the interesting thing about that is, doesn't it require a, wouldn't it require the person at the top of the ticket to step back long enough from throwing these sort of Twitter grenades into there to allow the news cycle to completely define his opponent before we could like repeat that history? Or am I off on that?

or am I off on that? I mean, in fairness, I don't think there is anything they could do, any amount of stepping away that could happen that would make this not a referendum on Donald Trump. I think we're in a very different media environment than 1988. The constancy of it. They are actually trying to define Joe Biden and according to some poll numbers,

actually doing a pretty good job. I mean, the campaign's main interest in define Joe Biden, and according to some poll numbers, actually doing a pretty good job. I mean, the campaign's main interest in defining Joe Biden is as, you know, dotty and having some mental health decline. And if you poll people, there was a Michigan poll out recently, that message is sticking, whether it's because the campaign is doing it or because people are coming to their own conclusion. Who knows? I will not, you know, opine on that. But like, so anyway, that's all to say that message is sticking and the poll numbers are where they are. Yeah, right. Exactly. Exactly. So mail-in ballots, though, I so first of all, to go back to his tweet with universal mail-in voting parentheses,

not absentee voting, which is good. I don't think enough people are taking this distinction seriously because they're like, absentee voting is mail-in voting. Yes, absentee ballots are mailed. And yes, the mail-in ballots he's talking about are considered absentee ballots. I get it. I really do. But let's take the argument for a second seriously

and not in, like like Twitter speak. And the distinction that is being made here is between even it sounds like no excuse absentee voting would be fine where you have to request your ballot and you can request it for no reason, any reason, et cetera. This is what many, many states have.excuse absentee balloting. Some have excuse absentee ballot. All have excuse absentee balloting. Versus mail-in balloting, what he is referring to in that, is when everyone gets a ballot mailed to them,

which only a few states have. So you don't request it. It is, in fact, versus opt-in, opt-out. Mail-in ballots, what he's talking about is the opt out. Absentee or opt in. Okay. So is there a problem with fraud and mail-in voting? Not really in the states that we've seen. And we had Rachel Kleinfeld on way, way back pre-pandemic. No, maybe it was, maybe it was just post-pandemic. Early pandemic. Early pandemic, yeah. And she walked through that, in fact, mail-in ballots

not only is there not a particular uptick in fraud, but also it doesn't really seem to help one side or the other. Fair enough. That being said, what something she flagged, and boy was this prescient was,

however, those states actually got to prepare and they knew what they were doing and they had a plan and they did it and they executed. What we are seeing around the country are states that are completely unprepared to deal with the wave of mail that we're talking about. And everyone's pointing to New York. So let's. And everyone's pointing to New York, so let's go over what's happening in New York real quick. On June 23rd, New York had a primary. The 12th congressional district is mostly what's at issue here, although actually many of the primaries

have not been resolved yet, but the 12th one is the one that's the closest right now. 403,000 ballots were returned to New York City this cycle. In 2016, 23,000. Of those 403,000 ballots, tens of thousands are being invalidated because, for instance, they're missing a signature on the for instance, they're missing a signature on the outside or they're missing a postmark on the envelope that shows that it was mailed before the primary date. And by the way, that postmark issue is a real problem because you, as the voter,

have no control over the postmark. The post office did not know that they needed to put a postmark because it was bulk mail, yada, yada. So there's just no postmark on them. So you don't even know that your vote has been invalidated. And when you're talking about tens of thousands of ballots being invalidated, that's a real problem. The absentee ballots this year made up well over 50% of the vote. So that's a disaster that we're all heading toward. the vote. So that's a disaster that we're all heading toward. And of course, polling-wise,

let's see, the latest Harvard-Capps-Harris poll found that 70% of voters support mail-in option, 88% of Democrats, 71% of independents, and 50% of Republicans. Well, what's funny about this is that if Republicans,, if Republicans by a larger percentage go in and vote in person and Democrats vote by mail and there's a much higher invalidation rate of the mail-in ballots. David, to your point, there should not be an assumption that Trump loses because of his mail-in ballot hate. Right. In fact, if the percentage of invalidated ballots holds from New York, which I'm not saying it will hold that high, but even, you know, a few thousand ballots,

as we saw in Pennsylvania, Michigan, and Wisconsin in 2016 being invalidated, could be a big, big deal. And if there's a partisan divide in that, woof, it may not be the Trump campaign clearing this election invalid. Yeah, you raise a really good point. And that's one of the reasons why I really want the election result to be clear enough that it's not just outside the margin of fraud, it's outside the margin of error. And that is, you know, we're far from knowing whether that's going to be the case. I mean, we're far from knowing. And, you know, look,

it makes sense if you're doing large-scale changes to the way people vote on the fly in the midst of a pandemic when many of our administrative agencies at all levels have not exactly proven themselves to be the most efficient and competent and well-run institutions in the United States, we're beginning to see the strains in the system here the way we've seen basically the strains in the system everywhere, which is why I thought it was really smart of Rachel in our original podcast to talk about expanded absentee, was what she emphasized much more than trying to go universal mail-in. Do we have, you know, it'd be interesting, maybe this would be a dispatch assignment desk. What is the current status of mail-in voting and expanded absentee state by state?

Because we're nowhere near universal mail-in balloting right now. Nowhere near that. No, I mean, this is part of the litigation going on in Wisconsin and Texas. Full disclosure, my husband is an attorney, an appellate attorney, and while I can't discuss his clients, you may be able to see his name

on some things. Yeah. Yeah, so this will end up in litigation. And courts, including the Supreme Court, are very reticent to get involved in last-minute election cases. But we're in July, well, soon to be August. Where that line is, voting starts in some of these places in mid-September.

Yeah, yeah. I mean, if time is running out on the Flynn litigation, time is double running out on litigation regarding the election. So buckle up, y'all. Buckle up. So speaking of buckling up... I'm waiting to see where this segue is going. I've been buckled up for four days reading four days of leaks from the Supreme Court. It was a buppy transition, folks. Wow. No, it's a good transition. It's like a roller coaster ride from day to day.

What am I going to see? How can we try to figure out who leaked? We can't. But anyway, for those of you who have not followed this at all, some really, something really unusual has occurred. Now, how do you pronounce Joan's name? Biskupic. Biskupic.

Okay. Joan Biskupic at CNN has apparently got a source or sources inside the Supreme Court, and she has been spending four consecutive days talking with exclusive scoops about how this Supreme Court term unfolded, including some of the behind-the-scenes wrangling that occurred to reach the various decisions, including exposing some of the internal deliberations over the Trump taxes case. June Medical. Yes, yeah, claiming that Justice Kavanaugh

tried to, quote, sidestep the abortion case. Let's kind of take this systematically and first talk about the leaking itself. It's stunning. Unprecedented. Yeah, yeah, yeah, itself. It's stunning. Unprecedented. Yeah. Yeah. Go.

Talk about that. I mean, it's so bad, honestly, because almost all of these leaks appear to come from conference. Now, the only people in the room for conference are the justices. They tell their clerks, of course, what the vote was afterwards and often tell their clerks then, you know, some of the details, no doubt. But conference is sacred. Right. Multiple sources read out conference conversations. You know, it's fun for us at the moment, although, A, I'll say none of these revelations

were like stunning. They were all things that people had said, you know, had guessed had probably happened. So now we have some confirmation from anonymous sources. But it will change conference. You are not going to speak all of your thoughts and feelings in conference anymore if you think that CNN is going to have a full readout

come late July, less than a month later. To the extent we've had sources talk about conference stuff in the past, it's been years later, sometimes decades later in sort of, well, it doesn't really matter now type one-on-one interviews in front of an audience that then were like, oh, did you hear this about a case from the 60s? Yeah, right, exactly. It's stunning in its breadth. It's stunning that it's not just a one-off case. It's a four-part series

of basically the entire terms conferences. And it's stunning in its speed. Yeah, and the thing was, if you look back, you and I were both privy to some of these rumors that were raging about gorsuch and the bostock opinion yep um you know we looked you know at the bostock oral argument and said huh i think he's i think he might rule you know that title seven includes uh protection for, you know, gay and transgender individuals. That was from the oral argument.

But then just words started to spread, like rocket through the conservative legal community that Justice Gorsuch was going to write an opinion or join a majority extending protection to LGBT Americans. And that, that would just kind of hardened into received conventional wisdom. So that tells me something was happening beforehand, even though that smells more like a clerk leak than a justice leak. But as you're saying, when you're talking that much about, now it's not impossible that this is a clerk leak about conference. No, it's not at all. But it would strike me as it would be pretty bold if it was relying on a single clerk relaying what their justice said. Correct. It's hearsay at that point. Right, right. If you have a double clerk from maybe two different justices, that's a lot more.

I think the likelihood of finding two different clerks to breach etiquette at such a high level would be unlikely. But here's how this stuff works from the media side. You get one source that's rock solid, and then you go to the others and say, I've got a source who says X and person wants to dispute X. So they dispute it. Well, now you've got two sources. And then you go to the third person and say, I've got sources that say X and Y, what do you want to say about it? And then of course they want to dispute it and defend themselves. And so, you know, I do think that's probably how this happened. I think it started with one very good source that gave a bunch of stuff and then the whole thing fell apart and you've got a lot of sniping coming from across the way. Interestingly,

all of this, all of the leaks are about the conservative justices. I was reading the four part series, you know, as it came out each morning and sort of thinking maybe she's just doing the conservatives first and the liberal elites will come later nope the vast majority are on Roberts himself with a little Kavanaugh

some Gorsuch very little Alito and no Thomas so what does that... Key Bono. Key Bono. What does that say to you? You can take it either way.

That, you know, someone on the liberal side is leaking on the conservatives. I think through experience that is less likely. This looks like infighting to me. Well, and that was where I was headed with this as well, because if you wanted to talk about, now I'm going to use a term that we use, but I'm not using it in an accusatory way.

I'm just using this in a descriptive way. It seems like all the spiciness was on one side of the aisle this time around. Yeah. And, you know, intra family disputes, as we saw in Bostock,

for instance, on the fight over textualism and originalism, the intra family disputes often get hotter than the cross family disputes. Yeah. And so, you know, generally, if you're seeing a lot of back and forth,

that's all within one side, it's actually just that side having a conversation with itself. Again, there's no particular evidence for that. This is what it is. This is just two people talking. That's right. There's also clerks. There's the justices. Then there's justice allies, I'll call them.

justices then there's like justice allies i'll call them the justices have friends and spouses and other people who they rely on because being a justice can be a very monastic lifestyle um you know it's again hard to imagine that someone is in the inner circle of a justice and would do this uh but i just want to expand the, you know, there are other people, but I just don't think you'd talk about conference to them. Yeah, that's the part. Let me read one paragraph

from the first one. This is about cert petitions that we've talked about. Remember they denied all the Second Amendment cert petitions and all the qualified immunity cert petitions. Kind of a head scratcher because everyone thought they'd at least take one of the Second Amendment cert petitions and all the qualified immunity cert petitions. Kind of a head scratcher because everyone thought they'd at least take one of the Second Amendment ones. There were tons of indications that they were looking for a Second Amendment case to take.

They took the New York one and then dig slash not digged it. Okay. Roberts also sent enough signals during internal deliberations on firearm restrictions, sources said, to convince fellow conservatives he would not provide a critical fifth vote anytime soon to overturn gun control regulations. As a result, the justices in June denied several petitions regarding Second Amendment rights. Yeah. I mean, that's someone unhappy, I think, with that. So that to me rules out four people on the court. Yeah.

I mean, that's a sharp reading of it because the way it's written, it would seem to me if this is, say, Kagan leaking, just to take a name at random of the four, it would be the Justice Roberts did not give sufficient indication to the progressive four that he would rule

in the way that they would like for them to take it, right? Well, and don't forget, you only need four votes to take it. Yes, exactly. If the liberals had been upset by not taking it, well, they could have taken it. So the only people upset about not taking it are the four who didn't think they had a fifth vote.

Yeah. Yeah. So this is broadcasting and what you said about inter-family disputes, what you're basically saying is the Supreme Court might not be that different from Twitter. Because it's left on left and right on right that's really nasty on Twitter. Yeah, yeah. So some of the substance of it. Yeah. What I thought was interesting,

so a lot of the people, I saw a lot of sort of the chatter about it. Well, this confirms the court is, so is thoroughly political. All these leaks confirm that the court is thoroughly political. And I thought, okay, did anyone doubt horse trading was taking place? Did anyone doubt that when it came to decide which cases were going to be taken and which cases were not going to be taken, that there were a lot of prudential as opposed to purely legal considerations coming into play. Well, yeah, I think that's worth distinguishing because I actually read this and did not see

anything political. I saw, well, political with a big P. Right. Republican versus Democrat, I saw none of. I saw a lot of political, like the way we're all political in our offices, like office politics. Yeah, there's a lot of office politics like the way we're all political in our offices, like office politics. Yeah, there's a lot of office politics. It's an office, folks. Right, right. I mean, you know, if you have a particular judicial outlook and a particular judicial philosophy, you're still going to be tactical about the way in which you try to advance it. about the way in which you try to advance it. So, for example, if you're in the four justices who apparently really want to have a bit more robust

Second Amendment jurisprudence, wouldn't it be imprudent to take the cases now? And does that make it small-L political that they did not? You're not sort of a robot that says, case wrongly decided must grant review uh if you feel like if the case is wrongly decided and you grant review that it will then be wrongly decided by the court itself uh so a lot of this it looked like a a lot of tough decision making regarding prudential questions which is not the same as big P political.

I'm trying to get a conservative result. I'm trying to get a liberal result here. Yeah. So do you want to dive into some of the cases, some of the actual leaks? Yeah. Yeah. We've already talked about the second amendment, which as a second Amendment gun rights supporter myself, I'm like, well, sayonara to any Second Amendment case law

coming any time in the near future. Although there's a little bit of Heisenberg uncertainty principle here. Now that this has been written, will they take the case? Because this is now out in the open. Yeah, that's a good question. Yeah, so which one do you want to talk about? Let's start with Bostock, then go June Medical, then go Trump Finances.

Those are sort of the big three that are mentioned in order, more or less. There was nothing particularly shocking in the Bostock leaks. Like to the point that I was like, why even leak this? Right. The only thing that, again, I think was completely predictable was that, no, Kagan didn't ghostwrite the Gorsuch opinion for him.

She was in touch with Gorsuch during the deliberation, CNN, sources told CNN. And of all the four justices on the left kagan seems most able to persuade roberts despite holding different ideologies and politics their legal experience and instincts are similar and they appear to enjoy a mutual respect this is actually very indicative of the overall the four-part series there's like one sentence that's based on sources and then there's a bunch of stuff that's like fill in of feelings and thoughts. And it's a little hard sometimes to know which one's coming from the source

and which one's just like, and we all know there's a mutual respect based on them smiling. Yeah, right. Based on them smiling. And it doesn't seem to be a forced smile. It seems to be a genuine smile. That's right.

And then like later on it says, Alito was infuriated by the turn of events and immediately after seeing gorsuch's draft opinion according to sources familiar with the matter alerted his colleagues that he would be writing a dissent no joke really there's a shock like duh i don't think we needed sources for that one yeah, right. that his textual analysis was somehow disingenuous. Right. That it was pretextual. But no, I mean, you know, it seems to be, it seems to that what happened on the page is what happened behind the scenes. And that's, from that standpoint, I was thinking,

the leak is interesting. The substance of the leak on Bostock, not super interesting? No, all things that like you don't even need to really follow the Supreme Court. All you needed to do was read the opinion

and then read the dissent and know that when Alito saw the opinion, he didn't want to sign on to it and wrote a dissent. Yep. Yeah. Nailed it.

Exactly. Exactly. Sources say, what are your sources? The majority and opinion and the dissent. Those are solid sources, Sarah. I will say that if it were just the Bostock piece, I would have said it was a clerk who sort of accidentally leaked something because they would not have considered it a leak to say that Alito was infuriated after seeing the draft opinion and said he would write a dissent. But there are other things that do make it seem like a more knowing, intentional leak. So now let's move on to June Medical, which is no surprise to you, is going to be the one that's most interesting to me.

So I'll read the key part. In mid-March, Kavanaugh began making his... Okay, so essentially, the argument is that Justice Kavanaugh didn't want to address the whole women's health precedent squarely. That there was a, when the justices privately discussed June Medical, and again, this was the admitting privileges law from Louisiana, privately discussed the case days after oral arguments. CNN has learned, it says their vote was 5-4 to reverse the Fifth Circuit and strike down Louisiana law, that Roberts provided the pivotal fifth vote. Which then never changed. We know that.

Right, right. So Breyer begins drafting the decision, yada, yada, yada. So then in mid-March, it says Kavanaugh began making a case in a series of private memos to his colleagues, comma, according to two sources, comma, for returning. Now, this is not a conference leak here, necessarily. This is that there were private memos for returning the dispute to a trial judge to gather more facts on just how onerous the admitting privileges requirement was. He had laid the groundwork for that position

in February 2019, when the majority blocked the Louisiana abortion law from taking an effect. So then this is again, one of those classic, hey, I have a source with a factoid that I'm now backing up with public information. Kavanaugh's new suggestion would keep the law blocked in the short term while the case moved back through the legal system. That aspect might not have pleased Kavanaugh's core conservative constituency, correct,

which wanted the law enforced. In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close, threatening a woman's constitutional right to end the pregnancy. In the long term, Kavanaugh's demanding approach would make it more difficult to challenge the state physician regulation, meaning it could be eventually enforced down the line. I found that interesting. Did you find that interesting? Yeah, because that's stuff that we couldn't possibly know from the opinions and that's that's what i mean by a leak that's a real leak yeah now there were other parts of the article though that i found unpersuasive and unsourced which was that this was sort of all about him

you know the confirmation hearings and his recognition that, you know, he's, uh, he does not want to appear to be a reflexive conservative vote, particularly against women. That's not sourced. There's nothing on that, that he was so affected by his confirmation hearing. And that's what affected his June medical thoughts to try to dodge it. Uh, I, not only is it not sourced, I don't buy into it at all. Well, and the other thing is, if you were going to say, if you were going to tell me before the Christine Blasey Ford stuff, what kind of justice would Brett Kavanaugh be? Who remember is the establishment's establishment establishment Republican attorney. I mean, this guy has

GOP political and legal roots stretching way back. This is a guy that virtually any Republican president would have, he would have been on the short list for anybody. So this isn't some outsider he picked at all in any way, shape or form shape or form and you know knowing his jurisprudence prior to this he was he was a cautious jurist in a lot of ways and this is sort of a this is sort of a cautious jurist move on this legal challenge it's hey i don't think that the factual record has been developed enough right and. And so in that sense, honestly, I thought that that was one quite likely outcome of the case

after oral argument, exactly what he's urging in those memos. And like this sentence, having undergone that divisive battle, his confirmation hearing, Kavanaugh in his writing appears keenly aware of the tenuous public opinion of him and ready to adopt a posture of conciliation with his colleagues as he tries to influence deliberations on cases.

That sentence annoyed me to no end. It has stuck in my craw for days. I thought when I read Kavanaugh's opinions, Kavanaugh reminds me of Kavanaugh. Yes. And full disclosure, I have a personal relationship with Justice Kavanaugh. And I say that not therefore I know, but more like, so that is more likely to stick in my craw. But also, I think if you do know him well, that would, that would be a pretty surprising thing to read. Right.

Right. I mean, yeah, you know, when you read Justice Kavanaugh's opinions in this term, they do not seem to be politically crafted opinions. They seem to be the kinds of opinions Justice Kavanaugh, Judge Kavanaugh would have written on the DC circuit. Okay. Trump finance cases. And we have some Kavanaugh and Roberts stuff on this.

Yes. What stuck out to you here? You know, the overall tenor of this last piece was that everyone was struggling with how to do this. And she keeps putting it as, they had trouble getting over the fact that it was Donald Trump. That is, I don't think, particularly, well, this says,

the justices could not purge Trump from their thinking, the sources told CNN, but they were aware that these disputes were not just about him. Okay. I don't really know what to make of that. You know, some of this is that for all of these stories, we don't have any quotes from the sources. Right. It's a lot of, you know, the reporter putting it for us and then saying, according to sources.

That's always tough. tough yeah yeah yeah it is it is and um i can i there is something that was mentioned in the very first of the articles and it's not a leak but it helps some things lock into place for me articles and it's not a leak but it helps some things lock into place for me and the sort of the sequencing of events because you remember we've kind of had this discussion of really from when some of these cases started to come down that justice roberts is over the trump administration your theory yes your big theory my theory my theory theory. My theory. And my two big pieces of evidence are the census case and the DACA case. The DACA case even more than the census. Well, both of them. What Joan points out is he also resided over the impeachment trial.

he sort of saw all of the evidence of Trump's corruption just laid out comprehensively and systematically. And I just find that interesting. And I don't know, you know, maybe one day after Justice Roberts retires, I can take him out to dinner and I can ask him in the cone of silence, Mr. Chief Justice, may it please the court, in the cone of silence, were you over it? Can you just tell me, were you over it? And I think he would say, well, I listened to every episode of Advisory Opinions, and David, you nailed it.

But I don't know. I don't know. I just, when I saw that, it reminded me of sort of the sequence of events, and it would have been census case where the administration really deceived the court. Then he watches impeachment. Then you have the DACA case where, quite frankly, he was unimpressed with a lot of the course of conduct in the case before. And anyway, that's just my additional plug for my argument. But you also had Roberts doing some other stuff that,

I mean, this was something that we would not have known, but for sources in the court, there was a copyright case that we did not talk about, a Georgia copyright case. This is not something that would make it to advisory opinions. But initially, according to this, Justice Thomas was writing the majority opinion and Roberts ends up taking the case and he ends up writing it. You know, that's a big deal to know about vote flipping behind the scenes in the court, opinions being drafted by one, then being taken by the other.

And so I use it as an example of, you know, it's not just Trump stuff that Roberts puts his weight into. Georgia copyright also. Yeah. All important Georgiaia copyright case it was not even a o worthy that's right yeah yeah well this is you know so what's what's next sarah are we going to i i'm gonna say what's the over under in supreme court terms on getting a leaked copy of a draft opinion. Oh my God.

I hope that doesn't happen. I really do. Oh, I hope it doesn't happen either. But I feel like one thing that we've learned is once norms are breached, it's really hard to stitch them back together again. Very hard. You know, I don't know what I hope for the court, whether I hope this was a rogue clerk, in which case I think it undermines trust with clerks and clerks will be shut out of

more stuff, which is maybe not good. Or if it were a justice, in which case I think it erodes the entire court. Yeah. Yeah. If it's a, to me, the just, if this is a justice, that's, I'm not going to say the nine alarm fire, but it's like the eight alarm fire. It's the seven alarm fire. It's bad. It's bad. Yeah. And I think, you know, they're not all physically together, although several of the justices have been going into their chambers. But I assure you that they have a pretty good

sense of who it was. Not necessarily the specific person, but the type of person that it was. Yeah. As someone who used to be on, you know, guess who the leak is duty. I rarely could know the person, but I often knew the type of person. You know, you raise a fantastic future topic on advisory opinions, which is what happens inside the building when you read the leak. I think a lot of people would be interested in that. Don't spoil it. Okay. Okay. No spoilers. Don't spoil it because we got to leave some rounds in the chamber, so to speak, for future advisory opinions. Okay.

Okay, should we move on to DACA? DACA, DACA. Sarah, do you want to take us through what's happened? Yeah, so there was all this noise and fury earlier in the week as there were rumors that the administration was not going to accept new applicants and that this was, quote, in defiance of a court order. I was very

annoyed, including on our Slack channel, David. Yes, you were. And I was like, hold on, hold on. You were spicy. We're not going to do law by Twitter. Let's wait for the order to come out before you think that they're, quote, defying a court order.

Because while I understand there's maybe not a lot of trust in the administration at the highest levels, it turns out that the lawyers who actually appear in court generally don't want to be held in contempt. And when the order did come out, first of all, it is long it's uh eight pages

in in you know small little font uh that's pretty long for a memo from dhs much longer for instance than the initial two memos that we were dealing with in daca the 2017 rescission and the 2018 re-recision and what this does is it rescinds the two rescissions so yes uh 2017 and 2018 re-recision rescissions are both wiped off and what this says is okay i'm going to keep considering this, making certain immediate changes to DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court's decisions. For the reasons outlined below, and that's like six pages, and then you get to page seven and eight, and it says, accordingly, effective immediately, DHS shall. And the biggest things are, one, no new applicants, and two, current applicants who are up for renewal can renew for one year, not two years.

So is this legal? Yes, in short answer, almost certainly. The Supreme Court, when they said that the rescissions of DACA were not done correctly, were really just talking about these memos not dotting their I's, crossing their T's, and basically gave a, not even a roadmap, like what's more detailed than a roadmap? Like a full 3D panorama of how to do it right the next time. And this is certainly, I think, well within this really detailed, all the reasons, all the feelings. I think this is well within the APA's

recommendations of how to have reasoned decision-making rescinding part of the initial DACA program, not all of it. And part of the reason youA program, not all of it. And part of the reason you know this, David, is because no lawsuits have been filed. Yet. Yet.

They will be, but the fact that they couldn't file them that night. Yeah, so you shouldn't practice Twitter law and you shouldn't practice headline law. Yeah. So court orders apply to, court orders are quite specific and they apply to specific documents. And so what, when the,

when Secretary Wolf withdrew the 2017 memorandum and the 2018, the 2017 Duke memorandum and the 2018 Nielsen memorandum, you moot out all the challenges to those documents. Correct. And all the lower court orders applying to them, again, with like some small asterisks, you know, you can't evade the court orders intentionally, that type thing by just having the same memo over again. But like in this case, they're gone. Right. And so there's a couple of things here. So number one, you moved out all those challenges to these memoranda that no longer

are in effect. And then the other thing is that I think is interesting is that, um, what it talks about is, so the DACA, DACA had really two elements. One was we're going to exercise our prosecutorial discretion not to remove people. And then we're going to grant a status as a result of exercising that prosecutorial discretion. And what this new memo does, it really focuses on the prosecutorial discretion part of it. And Josh Blackman, our former podcast guest, says, I don't think a district court can order the Trump administration to exercise its prosecutorial discretion with respect to granting new DACA authorizations. Now, I think the key word in that sentence is can. I think if he said, I don't think a district court will order, I think I would

dispute that. I'm expecting a legal challenge to this. I'm expecting it, you know, and filed in a very favorable jurisdiction so we'll we'll see uh but you know the prosecutorial discretion aspect of this was always the strongest aspect of the daca memo um and the one that the constitutionally constitutionally and the one that the courts were least likely to touch uh the program that you know the, the benefits that flowed from that exercise of prosecutorial discretion were always the ones that were most legally vulnerable. Have we confused everybody? I think so. Hey, some breaking news though for our next pod, perhaps. Okay. Former President Obama just said that the Senate should eliminate the filibuster. Well, there you go.

He said it was a Jim Crow relic and getting rid of it if needed to pass things like DC statehood, voting rights measures, et cetera, should do it. So yeah, I think the filibuster is going to be on our list soon. So in my book that's coming out in September, plug, plug, plug, called Divided We Fall, pre-order, pre-order, pre-order on Amazon and Barnes and Noble and anywhere books can be found online. One of my prerequisites for real instability in our system is the elimination of the legislative filibuster, but we'll explain that later. Yeah. Yeah. Let's save it. Let's save it. All right. So the bar exam, the bar exam. So we got this email from a listener who, uh, is trying to take the bar exam and it sounds like a hot mess. So we're sorry. It's a hot mess. And he said,

maybe you can have a conversation about the purpose of the bar exam, whether it is important, necessary for the profession, and possible alternatives like diploma licensure. So here's what's funny, because I don't think that people will necessarily expect this of me, because I think that state bars are dumb and perhaps unlawful. I think bar exams are both important and necessary. bars are dumb and perhaps unlawful. I think bar exams are both important and necessary. Okay. We're about to have a Donnybrook. No.

No, I want to, I mean, my mind is open. I'm willing to hear you out. And my opinion is not, well, anyway to hear you out. And my opinion is not... Well, anyway, you go ahead. Go ahead. So let's set aside the COVID problems, which we'll get to.

But in short, the state bars have no clue what to do about the bar exam in the era of COVID. They've tried online. And neither do we. And it's been hacked. They've tried in person.

And the proctors aren't wearing masks and are licking the students as best I can tell. I don't know. There's all sorts of stuff going on. Sources say, I mean, sources say. Okay. So some states are saying, for instance, that you don't have to take the bar exam, but you'll have this asterisk next to you that says that instead of the bar exam, you apprenticed for a year or

two. I forget what it was. And so you're like this weird second-class lawyer for the rest of the time. States have come up with weird things like this. California, of course, you don't have to go to law school, but can just apprentice instead of law school and then take the bar exam. So whatever. States have been playing with this. I am open to states experimenting a little on this. But let me tell you why, in general, I think the bar exam is a good thing. In medical school, there are a limited number of slots for medical students. And there is weeding out. It is hard to get into medical school. And then there's a lot of licensing stuff on the back end. Why?

Because they can kill people. Right. Lawyers, first of all, pretty much anyone can go to law school. We have tons of room at our law schools. There's no real limit on those. The law schools like making money. And so, you know, to take an above the law term,

schools like making money. And so, you know, to take an above the law term, uh, these, I think they're called a T3 for third tier toilet law schools are full of law students. Now law lawyers do not kill people except they kind of do. Uh, lawyers have a lot of power over people's lives. And as we've talked about in the death penalty context, for instance, and I don't want to sound overly dramatic, but a lawyer who waives your arguments at the lower level... Can kill a person. Can kill a person. This is a big problem to me.

The bar exam passage rates are quite high, almost across the country. The bar exam passage rates are quite high, almost across the country. 60%, 70%, low 80%. Surely we can agree that if you can't pass the bar, and by the way, you can keep taking the bar. Yeah. If you can't either be smart enough to pass the bar without studying, okay. I mean, I fall into this category, so I guess I'm fine with those people. Or two, study well enough to pass the bar on something that has an 83% pass rate.

I'm not sure that you should have that ability to have that power over people's lives. Because once you pass the bar, we don't control whether you become a public defender of what type of lawyer you're going to be. So I'll tell you why you're right and wrong at the same time. Okay. All right. So, but first, can I tell you my fun bar exam taking story? Okay. It's short. Okay. And, but it's illustrative. So I took the Tennessee bar. That was the first bar that I took. And just to sort of give you a sense of it, so you took the multi-state section,

which is the multiple choice. The SATs of the bar exam. The SATs of the bar exam. Day two is the essay portion. And Tennessee had 12 essays. You only had to pass seven, Sarah. Like you could fail five essays. And so the first essay that the very first question, took the multi-state, felt good about it. Very first question in my bar exam was on the Uniform

Tennessee Bulk Sales Act. Now, what was unfortunate about that is I'd never heard of the Uniform Tennessee Bulk Sales Act. I think it's Article 6 of the Uniform Commercial Code. Some lawyer listener, please correct me if I'm wrong. And so here was my entire essay answer. I don't know what this is. And then I just turned the page and I kept going. Now, unfortunately, the woman to my left had already failed multiple times. And when she read the Uniform Tennessee Bulk Sales Act, which I later learned was not even covered in the bar review, like if you were Barbary, no, it was never mentioned. She began to weep and was weeping the rest of the morning session, the whole way through. So I'm trying to take the test with somebody coming apart beside me.

I felt really bad for her. But I bring this up because I agree with you that lawyers have a lot of influence over individuals' lives. Child custody disputes, property ownership, wills, trust in estates.

Anytime you're hiring a lawyer, it's because something very important is about to go wrong in your life if this isn't handled right. So that's why I say no to the bar exam, which is a generalist super surface survey of the law. I mean, it is an inch deep. It's a mile wide and a millimeter deep. an inch deep. It's a mile wide and a millimeter deep. But then most lawyers, it's decreasingly the case that you sort of open up a law office and you hang up your shingle and you just sort of take all comers on all issues. What I would say is, let's do something like what we have in medicine where you have a board certification. We do have a board certification.

Yeah, but make that intense. I am a board. Yeah, people actually. Make it real. Yeah, make it real. Okay. Make it real. Because it is hard to become board certified. It's just that nobody really needs to become board certified. Exactly. So if I'm going to say I'm a family lawyer, I better be board certified in family law. If I'm going to say. I'm fine with that. Make it harder. The thing I am most actually keen about is disbarring people, frankly. I'm far more passionate that we should be disbarring a lot more people.

If you go read some of the disciplinary stuff that then you don't get disbarred for, dear Lord, it's so, so, so bad. Yeah, yeah. Because the thing about the law It's so, so, so bad. now where you would say, which kind? In every area of law is growing in the body of knowledge, the body of case law, the amount of legal development you have to keep up with. And so I'm very much in favor of a rigorous process so that even if you're a public defender, you cannot be a public and you cannot be or a criminal defense lawyer, you cannot be

a public defender unless you're board certified, unless you have gone through this process. And you can choose what area you want to become board certified in out of law school. And you can be board certified in more than one area. Here are some COVID problems

with the bar this year that I want your reaction to. One. Okay. On the essays, a lot of the hypotheticals are about COVID. Look, I get it and I get it's on everyone's mind, but I have to say, if your parent had just died from coronavirus and now you're taking the bar exam and it's a coronavirus-related question, that's not great. I don't love that.

Number two, in Indiana, I guess, it just wasn't going to happen to have an online bar exam. So they're doing it by email. It's open. It's proctorless. Okay.

Yeah. The ones about the proctors not wearing masks, that seems pretty universal. It's like they start wearing masks and then don't. I mean, for anyone who's taken any standardized tests, to be a proctor at a standardized test does not sound like the most fun thing ever. It's like one thing after another.

And our poor emailer sounds like he is in the throes of it as well. So I'm sorry that I think the bar exam is necessary and important. Um, but I'm really sorry to all the people who are trying to take it this year. And I have no problem, by the way, giving a one year, you can practice law under the purview of another attorney. And then we'll try again next year to take the bar exam. But I don't know whether if it were me

and I had studied for the bar exam, I would want that. And then they just cancel the bar exam because this is definitely one of those exams where you crash for it and you forget everything three days later. Yeah. Oh. So just because you studied for it this year,

like you would not be able to take it next year and not have to restudy. You're making my argument for me, Sarah, that this generalist test that you instantaneously forget all the substance that you learned within one week. I know, but I just think you should probably have to be able to have passed it, even if the things you have to know to pass it aren't relevant. Well, I could imagine if you're in the class of attorney who says and they still exist i'm going to be in columbia tennessee where i used to live mule capital of the united states and i'm going to be a generalist i'm going to take car accident cases i'm going to take custody

cases i'm going to do wills and you know then you take the general bar exam you take the generalist a generalist i am it's like being I'm board certified in internal medicine. That's, you know. But I think I'm actually a little meaner to these young law grads who've just come through the crucible of law school. Because I'd say, okay, once you choose a practice area, you're going to have to prove it. You're going to have to prove that you know this. I'm great with that. Sort of like AP tests. Exactly.

You know, so speaking of stories on my econ AP test, they asked some question that I had no clue what it was about. And so I wrote, I heart Alan Greenspan. And I'll have you know, I passed that AP exam. Well, there you go. That's fantastic. I heart Alan Greenspan. Yeah. You know, Sarah, you just keep undermining the nerd shaming you consistently try to impose on me.

You really do. You just know that some proctor saw that and was like, well, she knows who Alan Greenspan is. Close enough. Exactly. Exactly. That's right. Exactly.

All right. Well, those are. That's right. Exactly. All right. Well, those are our thoughts on the, on the bar exam. Anything else? Any other breaking news before we sign off the pod? No. Should we tease a little bit that what we're going to do a little bit,

something different in August? Yes. Yes. So we're going to have, I'm not sure if it's going to be one a week or whatever. I'm not sure of the pace. We'll, we'll figure that all out, but we're going to have some deep dive podcasts on nerd passions. So I did a solicitation asking for, um, advice on who could be a super volcano expert to come on and talk to us. We're going to have a super volcano expert. Don't know who it is

yet, but we're going to have a super volcano expert. Don't know who it is yet, but we're going to have a super volcano expert. Sarah, what are some of the preview of coming nerd attractions for you? It's going to be a surprise, but it'll be nerdy. It'll be real nerdy. Okay, good. Well, I will not, because I'm only saying the super volcano because we've already talked about it. It's true. mine mine we'll have to have the nerd off and they will be so like the supervolcano they will be not related to the law at all this is just going to be fun vacation from law topics for august in little bite-sized nerd increments and some relief from politics as politics we'll still talk about it in the other podcasts and including on advisory opinions but there will be advisory opinions podcasts where you're just going to get a nice break from

the crumbling institutions and norms of the United States of America. I, for one, am quite excited. Me too. All right. Fantastic. Thank you so much for listening. And again, please go rate us on Apple Podcasts and please subscribe on Apple Podcasts and check out thedispatch.com. This has been Advisory Opinions with David French and Sarah Iskren. Bye.