Advisory Opinions - In Dicta We Trust

Episode Date: November 19, 2024

Sarah and David respond to off-the-wall comments and the controversy surrounding Matt Gaetz’s appointment, insights from the Federalist Society convention, and the dynamics of Supreme Court nominations. The Agenda: —Can we all chill? —Likely Trump picks for SCOTUS vacancies —Reverse engineering use of force —There are only two genders? —Sorry, no 10 Commandments in schools —CEQ lacks statutory authority (this is a big deal) —Austin school district gets sued Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get in-store promos, PC optimum points, and more free time. And still get groceries. Shop now at pcexpress.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Iskner. That's David French. Quick housekeeping.

First, if you like listening to this podcast, but you hate listening to the ads, we now offer Dispatch Premium where you can sign up and get this podcast with no ads. So go to the dispatch.com to figure out more about that. Second, I we just I need a break. We're not going to do a second podcast this week. Yeah, we've been going. It's been it's been a brutal pace. I mean, it's not just the podcast pace because we do other things other than the podcast and between, well, gosh, for the last six months, it's been an unbelievable sprint for all of us. So we're going to do a one podcast week and we're going to feel okay about it.

That for us is a vacation. That's exactly right. That's exactly right. And David, listeners need to know that you are suffering today on this podcast. Yes. From a brutal, brutal man cold. Yeah, it's a man cold, Sarah. It's like nothing I've ever experienced.

Nothing, you can't conceive of what I'm going through right now. David got on the pod and he's like, I have a cold, my voice is raspy. I may cough a little. And I was like, are you describing a cold to me? And he's like, yes, I am a little sluggish. I don't feel great. But I'm also a man at the same time. And they just...

It's so hard. It's so hard. It's so hard. Yeah, I know. There's a lot of people nodding along with me right now. Remembering their own past drama. All right. I wanted to revisit just a little piece of our conversation from the emergency pod about some of Donald Trump's picks and in particular, Matt Gaetz for attorney general. We talked about the recess appointments power and I hope the big takeaway was the goose and gander point that if Republicans cheer on and, you know, through acquiescence, allow Donald Trump

to make recess appointments, that the advise and consent power is really dead. And Democrats, of course, will use the same power and they will be in power sooner than you think. But we also talked about the Supreme Court's role in a recess appointments situation and the 2014 case Noel Canning, in which five justices of the Supreme Court said, no, President Obama can't use a three-day recess to appoint members of the National Labor Relations Board, but they suggested that maybe 10 days would be enough. Fun whole conversation, David, on what dicta is at the Supreme Court. Dicta is in the eye of the beholder. But the Supreme Court doesn't answer cases.

It answers questions. So if it answers a case, then it's just the question of, can President Obama appoint someone in a three-day recess to the NRLB? But if it's a question, then it's like, what is the president's recess appointments power, in which case maybe that 10-day thing isn't dicta? Well, this all gets relevant because four justices said, in short, the appointment would have to arise

during the recess, first of all. And second, we don't think this is even a real power anymore. The recess appointments power is an anachronism. We don't have the type of recesses that was the subject of the recess appointments power that the constitution is referring to because we don't have courses, we have internet. And David, what we didn't talk about is like, okay, if there were some sort of nuclear attack

on Washington DC, maybe that would be a recess, a la the constitutional recess appointments power, for instance, Congress is unable to convene. Right. But the whole like, we're taking a 10 day vacation for Christmas. Yeah. Intra session. Yeah. Hard to see how that's a recess. I made the point that there was this sticky thing going on where you would end up having, let's say, Donald Trump make recess appointments. It would go up on the emergency docket. But under Noel Canning, it does look like, assume it's 14 days and it meets what the five justices were talking about. Would they really stay his appointments pending the merits decision, more or less overturning a 2014 precedent from this court before they ever heard the

case or with under Noel Canning, they sort of on the emergency docket have to let it go then use the normal process a year later to overturn Noel Canning? And I was racking my brain trying to think of an example where the Supreme Court had ever leaned into overturning a precedent on the emergency docket. But David, there is one, kind of. Okay. It's not a perfect example. Obergefell. The Obergefell case gets accepted in January 2015. Arguments are April 2015, it's decided June 2015. But before that, in October of 2014, okay, so three months before they grant cert on what will become Obergefell, on the emergency docket, they just let stand rulings that allowed same-sex marriage in

Virginia, Utah, Oklahoma, Indiana, and Wisconsin. Now, there was no explanation, there was no writing, it was just they didn't accept cert, et cetera. On the emergency docket, they didn't stop it. But that to me actually does look pretty similar. Now, it's not as like pure and overturning, if you will, as Noel Canning, but because you have the unanimous decision in Noel Canning and it's really the five justices disagreeing with the four justices

on what could be considered dicta, maybe you have the Chief Justice saying, we're not overturning precedent. Noel Canning says the president couldn't do a recess appointment. We're continuing to say the president can't do a recess appointment under these circumstances. So I might take back what I think the Supreme Court would do on the emergency docket side of the recess appointments. Yeah, you know, it's interesting because if you look at the decision, you know, there's a concurrence that Scalia rights joined by three

other justices. And the concurrence, he says, as you said earlier, Sarah, that their recess appointments clause was only meant to cover breaks between sessions rather than breaks within sessions, which would then undermine the whole argument about, well, if the two parts of the Congress disagree, the President can order the recess, but that would still be within a session, not between sessions. And so, if you look at the list of who joined him, Sarah, Justice Clarence Thomas is still on the court, Justice Samuel Alito still on the court, Justice John Roberts still on the court. So my guess is that the court is probably, the current court is probably much more in line right now with the Scalia position on this than the majority's position.

And that would be very bad news for an effort to engineer a bunch of recess appointments artificially. So I do think, I think you might be right, Sarah, that you could be looking at Supreme Court intervention sooner rather than later on this subject. Because if you look at that null canon concurrence, look at who is on it, look at the current court. Is the current court more dominated by Scalia type thinkers? Yeah, yeah, absolutely. And I'll just again read the text of the constitution because I think it's pretty darn clear

on when the vacancies have to arise. The president shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. Again, David, I think you're exactly right that that A means the vacancies have to happen during the recess. I mean, it literally says that. And when it says which shall expire at the end of the next session, that to me implies these are inter-session vacancies, not intra-session vacancies.

But there is this weird interaction where, you know, in the next section, it talks about his power to adjourn the houses. It says, on extraordinary occasions, convene both houses, or either of them, and in cases of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. So, I mean, in the next section, they gave him power to adjourn the houses, but then they also gave him the power to appoint, like to skip the advise and consent power.

That seems odd that you'd give him the power to skip advise and consent during a recess, but also the power to create the recess. Yeah, yeah. That, I mean, obviously we're not dealing with original intent here. So, which of course, originalism is not original intent, it's original public meaning. But the idea that a original public meaning of those words was that a president could engineer a recess and then appoint his own cabinet. I don't think that fits. That makes no sense. Why have the advice and consent requirement then if it's so easy to

get around? Yeah, it's insane. All right. I also thought it was worth emphasizing, lest anyone misunderstood me, our disagreement over Matt Gaetz, I think is a relatively small one. I understand not everyone thinks it's a small one, but basically none of us believe that Matt Gaetz is the best pick for attorney general.

Matt Gaetz isn't on my top 10,000 lawyers for attorney general that I would pick if I were president. But the question is not who should Donald Trump have picked. The question is, okay, now you're a Republican member of the US Senate. Should you vote to confirm Matt Gaetz? And that's really where the disagreement occurred, which I think is a relatively small one, not some grand question of moral authority. Yeah. Let me say something about that because I went and looked at some of the comments here and can I just say people get a grip, please. Now, I know the vast majority of AO listeners are not people who go on a comment

and send nasty grams in Sarah's direction. But guys, okay, press pause for a second. What was she saying? She was saying, I don't like Matt Gaetz. But one of the things she said was, well, guess what? If you shoot him down, who else will Trump get? Maybe it's somebody worse than Matt Gaetz, because there are such figures in this world. And she also wasn't even advocating for senators to vote for him.

She said, the ethics report could change my mind. There are other things that could change my mind. No fair-minded person could listen to this podcast and think, Sarah wants Matt Gaetz to be Attorney General of the United States. It was much more, this is a crap-tastic situation. What do you do with it? Okay, that's a different thing. And so I would really urge you all, and it's a small number of people,

this is one of those things where like, do you remember in your elementary school, and the teacher would say, I'm not talking to everybody, but you know who you are. So I'm not talking to everybody, but some of you listeners, you know who you are, chill out in the comments. I mean, taking on Sarah's marriage,

taking on her moral structure of her life, because she's like, I don't, you know, this is a tough situation. I really hate, I really hate this guy was appointed, but what we do is not a reason to pass profound moral judgment on her life. So please chill out. This is how comment sections get closed. Y'all. This is how this is a comment section is a, is a, a little extra treat for super dedicated people.

And it's not a constitutional right. And so you have to exercise, exercise your privilege responsibly. And seriously, just absolutely chill out on this. I know a lot of emotions are raw, but we're not going to get through the next four years if this is the kind of thing where you're going to say, well, I'm out on Sarah Isger now. I mean, come on, please just take a breath, please. And we can talk about Matt Gaetz and the difficult situation Trump has put Republican senators in without stampeding into Sarah needs to shut up about her marriage. It's wild. Anyway, sorry.

I also think there's, in some ways, right, it was a theoretical conversation about what you should do about a Matt Gaetz. Again, we don't have the ethics report. I'm not the world's foremost expert on Matt Gaetz. Again, we don't have the Ethics Report. I'm not the world's foremost expert on Matt Gaetz. A lot of people are very upset that I didn't know more about Matt Gaetz. Okay. But there's also, again, this more theoretical conversation that bumps up into the very practical, real politic hypothetical as well on who he would get next, okay? So let's say that he nominates Matt Gaetz first, and then we know with our Magic 8 Ball that it's Ken Paxton next, and the- John Eastman.

John Eastman after that, Jeff Clark after that. Yeah. Okay, so- And by the way, a guy who wouldn't nominate Matt Gaetz would absolutely nominate a John Eastman or Jeff Clark. I mean, let's just move out of this idea that you're gonna reject Matt Gaetz and Donald Trump's gonna go,

well, now I'm gonna be responsible. So. What I hear and what I think is a tough question is like, okay, then you reject them too. The Senate has a moral responsibility to just keep rejecting them. From a theoretical standpoint, I think that's obviously true if you believe they're all not qualified to be attorney general under your understanding of your powers under the advise and consent

clause. But that bumps up against some real politics as well. Do you have the votes to keep rejecting them? At what point, you know, we don't have an attorney general, we have an acting attorney general. Maybe the acting attorney general isn't so great either. You know, I talked about who would be in those first few weeks, the acting attorney general, but what I didn't get into was basically you could put someone in, you know, from the landing team, the transition team, I believe once they've served 90 days, they can be acting attorney general, as long as they're a GS-15 or higher.

So also now, you've got an acting attorney general problem. So the theoretical meets the reality very quickly in this case. And I don't think I did the best job explaining the tension between those two. Well, you know, Sarah, honestly, you should not have to respond with Talmudic precision and still receive the goodwill of our listeners.

We have a history here, you know, like there's a long track record. So my... Fair, fair. I'll also say from a real politics standpoint, for those who think that I'm angling for a job in this administration, generally when you don't vote for the president and say that the attorney general pick is a bad one, they don't come and knock on your door and beg you to come in. That's not really what happens next. Wait, I've got like five missed calls from Trump. I'll bring you various positions.

I don't know about you, but yeah, I would just... And look, sorry for taking a little extra time to deal with this, but it is actually the case that, you know, look, everybody's got thick skin at this point in the business, but you know, the nasty grams, the unfair nasty grams from dispatch listeners are not enjoyable. So you know, just take a pause, default towards grace, and understand that you're talking to somebody who's absolutely said and done a lot to assert her own intellectual, ideological, and moral independence in this moment. So you know, please just pause and respond with grace. And surely the point of the dispatch is to hear things you don't agree with.

Isn't that why you're here? Isn't that why you listen to this podcast? If you agree with everything we all say, go find some other podcast. You shouldn't agree with us all the time. No, no, no, no, no, no. Wait, wait. Stay here because we're right. We're right. And you've you finally found it. Upper Canada College inspires boys from senior kindergarten to year 12 to find their passions and realize their potential. An IB World School, UCC offers a supportive environment, cutting

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to the morning dispatch. It's worth your time. Okay. So also David, it was the Federal Society National Convention this week. I was at the dinner where we had Justice Gorsuch interviewing Justice Breyer. And it was a real treat. I thought I would share two little nuggets of wisdom from Justice Gorsuch that I thought were fun. So first of all, as he was doing the introductions, he was noting that there's always sort of a bar open

after the dinner's over, and that he knew that the longer this conversation went, that meant that he was delaying us from getting to the bar. And he said, David, I'm quoting now, "'As the people of Eastern Oklahoma know, "'I'm not a judge who cares much about consequences. You know, my favorite thing about that is that is a joke that is spectacular

and only about 90 people in America would get it or 900 or whatever, just, and most were concentrated in that room. And also advisory opinions listeners. That's right. This was referring to the McGirt case in which Justice Gorsuch held that the way he read Indian treaties for the majority

meant that criminal prosecutions in large swaths of Eastern Oklahoma could not happen at the federal level. So, and, but David, it was important also from this like, Eastern Oklahoma could not happen at the federal level. So, and, but David, it was, it was important also from this, like, why axis consequentialist point. It was like kind of a telling joke. I mean, we've called him the YOLO justice.

He seems to be leaning into the YOLO-ness. Yeah. Yeah. No, that, I thought that was a fantastic joke and, but also betrayed a bit about his legal theory, yeah, which is the law is the law. There was also this one, which was Justice Gorsuch quoting Justice Breyer talking to Justice Gorsuch. So while this quote comes from Justice Gorsuch

at the dinner, he is repeating advice that Justice Breyer gave him when he joined the court. If you listen to someone you disagree with, and it may take a while, but if you listen long enough, you'll find something to agree on and maybe start there. Isn't that just a lovely sentiment? Oh, I love that. And very Justice Breyer-esque? Yeah. Yeah. No, I love that. I loved that quote. So that was another successful Federalist Society convention

put into the books. Interestingly, they did not announce who the new president of the Federalist Society would be. But I understand we're now down to two candidates. So they really, interestingly, on the day of that dinner, they were calling candidates and saying that they had been removed from contention, but then did not announce who would be the president

of the Federal Society. So my understanding is we are now down to Dean Reuter, who has been a member of the Federal Society staff now for a long time. His current title is Senior Vice President and General Counsel. And the other candidate is Robert Ault from the Buckeye Institute over

in Ohio. So congrats to the two finalists. And I don't know, I guess we'll find out next month. Yeah, no, I'm and I don't really have a scouting report on either individual. So I'll be very curious to see to see who who wins and what happens. So David, obviously, one of the talks of the Federal Society was who would be the next Supreme Court nominee. The conversations I would say centered around four people, by and large. Judge the Parr of the Sixth Circuit,

who we've talked a lot about on this podcast. Judge Oldham of the Fifth Circuit. Judge Ho of the Fifth Circuit, who obviously we just had on this podcast. And there was a little bit of a dark horse conversation about Patrick Bumate, Judge Bumate of the Ninth Circuit as well. And David, I checked in on the betting markets. Oh, interesting.

The betting markets currently have Judge the Par at 25%, Judge Oldham at 17%, and Judge Ho at 12%. They've been remarkably stable since election day. No Judge Bumate appearing on the betting markets yet. But again, after this, do you convene all these lawyers and they're chatting about it? I think it comes down to what model of justice that they're interested in. And again, this is assuming they pick off the normie list, as I've said. But even on the normie list, right? It's, do you want someone to go in there who is going to be a voice of persuasion, who is going to bring people along with their thinking? Or do you want someone, you know, a YOLO justice, who's not gonna be a voice of persuasion, but they're going to be sort of the vanguard

of perhaps a new type of conservative judicial ideology on the court. And the interesting question for both of those models, I think, is you may think that the current moment lasts forever. And I think this is a huge problem within the sort of MAGA, common good constitutionalism world, That whatever is right now will forever be. The people who are in power will forever be. The current culture war

fights will forever be. But when you're picking a justice who's 12 years old to be on the court, they're gonna be on the court and you have no idea what the culture war issue 10 years, 20 years from now is going to be. So again, I would be far less worried about outcome if I were the decider than I would about process because you only know what outcome you want today. Well, I'm glad you said that, Sarah, because one of the things that's really fascinating

about the current moment is the triumphalism that you're beginning to see sort of on the MAGA right. And it's really interesting and I get it, I get it because he won the popular vote. He won a clear Electoral College victory that this was a decisive win by modern standards. Now it was a squeaker of a win by historical standards. It was a decisive win by modern standards. And it's fascinating when I went back and I was researching my book that I wrote in 2020 about American divisions, what was fascinating, Sarah, was after every election cycle that

had a clear winner, there was this consensus amongst the partisans that locked in that they had cracked the code, that they'd figured it all out. And so after 2008, there was enormous triumphalism with greater reason for it on the part of the Obama administration. They had a filibuster-proof majority in the Senate. They had the House. Obama had won a giant electoral college, again, by modern standards and popular vote victory. So there was all this triumphalism. We cracked the code. 2010 Tea Party Revolution. Up ends the House majority.

Lots of triumphalism from Republicans. Then comes 2012 and Obama wins. And you heard the phrase coalition of the ascendant, right? That Obama's winning all the growing demographics and the Republicans were relegated to all the shrinking demographics. And you just go back and forth. And at every turn, there's this enormous triumphalism that says, we've cracked the code, we figured it out. And this is not unique to us. This is a point, Sarah, that I've seen you make is, look, it's really hard to divorce what happened in America from what happened all over the globe.

This is the first time in generations that every single incumbent party, every single incumbent party in the entire developed world lost vote share. It didn't matter if they were woke or anti-woke. It didn't matter if they were right or if they were left. They got demolished. And let's remember, you know, in Britain in 2019, there was this Boris Johnson's Boris Johnson one going away. There were all these think pieces about how the Tories had

broken the red wall, the labor wall in northern England and all of this. And then you roll forward to 2024 and labor wins the biggest wipeout victory it's won in forever. And so it is, we're in this, we've been for a while in the swing back and forth kind of pattern. And so I think my agitriumphalism is very deeply, deeply misplaced. There's another thing here also, I've already started to see some of this commentary around how quote dangerous like Judge Ho is

or how dangerous Judge Tepar is. And I'm thinking, guys, did you not just see that Matt Gaetz was nominated for attorney general? Like, are we doing this? Like, if a Judge Ho or Judge Tappar is nominated, these are judges who have a long track record of mainstream jurisprudence. I want to emphasize this. Mainstream conservative originalist jurisprudence at a long track record. They might be on the more conservative side of the mainstream, but they are mainstream jurists.

They are. And look, I'm very nervous going forward. One of the first things I questioned when I saw the Matt Gaetz pick was, what does this mean for the judicial picks in Trump 2.0? And so I'm very concerned that a Judge Ho or a Judge SParle wouldn't make the cut compared to a more purely MAGA figure. And so this is going to be one of the fights going forward. How much does Donald Trump retain a toehold in what you

might call traditional Republican jurisprudence, governance, et cetera, versus how much is he going all in on pure reaction and anti-establishmentarianism? I mean, the Marco Rubio, Secretary of State, picks as there's a toehold in normie-Republicanism. Matt Gaetz, nope. Pete Hegseth, to a lesser extent, nope. RFK Jr., capital nope.

Tulsi Gabbard, capital nope. So we really aren't in a position where I think some of the old categories that say, well, I don't want an originalist on the court. You should be thankful for an originalist on the court compared to what might come. Because I'm quite nervous about what might come, to be frank. All right. We had a fun oral argument at the Supreme Court, David. This was the Delgatti case.

Mr. Delgatti is a member of the Genovese crime family. You may have heard of them. They're the basis of almost every major mob movie. They are one of the five crime families that make up the larger criminal network known as La Casa Nostra in New York. The family operates through a well-defined hierarchical structure. The administration, headed by the boss, runs the family and oversees various captains who run crews made up of soldiers and associates. A lot of words and quotes there that again, could have come out of the Godfather or the Sopranos or whatever else. Anyway, Mr. Delgatti is associated with the

Genovese crime family and he decided to, okay, I'll just read this. Delgatti and others connected to the family, family by the way, is capitalized in the Second Circuit opinion relaying the facts of this. Delegati and others connected to the family frequented a local gas station owned by Luigi Romano. Romano was apparently having problems with Joseph Benelli, a neighborhood bully who had been terrorizing him and stealing from his gas station. In addition to menacing Romano, Benelli was also suspected of cooperating

against known bookies in the neighborhood, which made him a potential threat to the criminal activities of the family, its members and its associates. Around May 2014, at Romano's request, Delgatti organized a plot to murder Benelli. Romano paid Delgatti in advance for the hit, and Delgatti shared a portion of this payment

with DiBello after receiving his permission to carry out the crime. All right, fun times. The question here is going to be though, he is charged federally for RICO, racketeering corrupt organization. I mean, this is what you do with mob guys. And he's given a sentencing enhancement under the Armed Career Criminal Act for a crime of violence. But the murder statute in New York includes both murders of commission and murders of omission.

And the Supreme Court has said that they use a categorical approach when it comes to applying the crime of violence enhancement. And for those who aren't familiar, the categorical approach is an analysis that looks to the statutory elements of an offense rather than the facts of a defendant's conduct. So the Armed Career Criminal Act, Congress is pretty clear, right? It's like we want to punish crimes that are made far worse by having a firearm or the use of violence as opposed to those crimes that don't. We've run into endless problems at the Supreme Court on this question. Here of course, you're running into a few AO favorites, right?

This is some bad man stays in jail stuff if I've ever seen it. But it's also the case that it's a pretty obvious problem if it includes crimes of omission, that maybe those aren't crimes of violence. I wanted to highlight a few moments from the oral argument. First of all, a few things to listen for. One, Justice Gorsuch and Justice Jackson are very much appear to be on the same team. They do not think this qualifies as a crime of violence. Once again, I think you might see the two of them team up in what I think will be a dissent

in this case. Really interesting. We've highlighted this for you guys over and over again. Gorsuch and Jackson, it's the horseshoe theory of judicial philosophy. And I think it continues to be a fun little bromance, but it's not a bromance, between the two of them. David? So it is very interesting how they formed this sort of interesting criminal defense alliance, so to speak. I mean, I'm sure they don't think of it in those categories,

but it is fascinating. And as soon as I saw this case, I thought, I bet I know where Justice Gorsuch is gonna come down on this. And I don't know, I agree with you, Sarah, that it is in that bad man stays in jail category. Sort of the underlying facts of what we're dealing with here are pretty rough.

But at the same time, I'm very curious as to whether they're going to be able to pull anybody with them. I do think it is quite possible even in the face of egregious facts, but the underlying question is absolutely fascinating. So I want to read a piece of Justice Gorsuch's colloquy. All right, but there are some places where we have gone well beyond that common law rule and imposed a duty of care even for the good Samaritan. So let's take a hypothetical.

Someone comes across the street, sees that the manhole covers open, doesn't rescue the little old lady who steps into it because this person has animus toward little old ladies. Now, an extreme hypothetical. Justice Breyer might be proud. Oh, that would be murder in a state with a good Samaritan statue. Physical force, I guess, the gravity? I mean, what more powerful force in the universe is there than that? Would that, in your view, fall within the government's understanding of what would qualify as the application of violent force? So he actually talks about gravity being the most powerful force in the universe twice in the oral argument, and I know we have physicists who listen to this who are freaking out.

Physics lesson for everyone. If you learn nothing else from this podcast today, this is your takeaway. As you may vaguely remember from your high school physics, there are four forces, gravity, electromagnetism, the strong force, and the weak force. The strong and weak force are the nuclear forces. As suggested by its name, the strong force is the strongest of the fundamental forces. It is about 100 times stronger than electromagnetism and 100 trillion, trillion, trillion times stronger than gravity. However, the strong force only has influence

over very, very small distances. So gravity, David, is the weakest of the four forces. Wait, wait, wait, is gravity weaker than the weak force? Yes. Wow, okay. I'm surprised I'm still sitting here. Gravity works. We are affected by gravity

and the strong nuclear force and the weak nuclear force are working over as very small distances, quarks and the whatnot. So I don't know, I'm curious what our physicists think about Justice Gorsuch's point. Obviously in the most literal sense, he's wrong, but gravity is pretty strong when you think about the universe as a whole and maybe acts of omission and crimes of violence. What do our physicist friends say?

How many Pinocchios does Justice Gorsuch get for saying, what more powerful force in the universe is there than gravity? So that's my big question coming out of this. Now, on the other end of the ideological spectrum in this case, here's a Justice Alito back and forth. I mean, these are fascinating legal arguments. Some of the people who have come here to hear this case may not know much about the facts of the case. So what was the offense for which your client was convicted? Hiring someone in order to commit murder.

And that in your submission is not a crime of violence. It does not have as an element, the use of physical force. So I don't think you're going to get Justice Alito's vote, Alon. You did a masterful oral argument, but it looks like that one's not going to go Alon's way. Alon Kadim, by the way, the oral advocate on behalf of Mr. Delegati. But there was another back and forth on the hypothetical, David, that I did think was fun.

I thought I would read it to folks. Because what is this podcast for if not fun hypotheticals about engagement rings and poison with Justice Kagan? So this is Justice Kagan and Alain Quedin again. I take the point that ordinary understandings of what it means to use violent force might not cover omissions, but so too it wouldn't cover poison. And we have said that it does cover poison. So we're not really operating in a world in which it's completely sort of ordinary Joe understandings of the phrase, crime of violence, physical force. So respectfully, Your Honor, I agree poison is sort of the outer limit, but I do think

the court was making a point there, which is that in response to the defendant's argument in another case called Castleman, that essentially you had to apply the force directly in order for it to count, the court said, no, if you put poison in tea, it's very much like pulling the trigger of a gun. It's a gentle pull of the trigger. That's not the violent force. The violent force is later when the bullet makes impact. But still, in both of those instances, you're doing something to bring the victim into contact with that force, which may be wholly absent in the case of a pure omission, Justice Kagan.

How about if instead of putting poison in, I knew there was something in the refrigerator which had gone very bad and it was completely toxic. And I said to my worst enemy, why don't you eat that cake in the refrigerator? Where does that fall in your, you know, which side of the line? Yeah, that sounds a lot like the food in the fridge is poison and you're just tricking them into consuming it. Kagan, correct? And so?

And so it would count as a use of physical force. Even though now you haven't done anything. Well, respectfully, you have taken some steps to bring them into contact with it, without which, if you hadn't taken that step, they wouldn't consume what was in the fridge. Kagan, well, I mean, in any of these cases, including in the supposedly pure omissions case, we can find some step.

I mean, when you're withholding medicine from the ailing person, probably there's some step that you've taken to prevent the ailing person from getting that medicine herself, or you know, there's some step that you've taken to put yourself in a position of duty to that person. There's always something we can look to. If you're going so far as to say that my telling the person to eat the cake in the refrigerator is an action,

so I think you have to ask yourself two questions. One, is there even violent physical force involved? In the instance in which someone expires because they don't have the right medication, usually you would not describe that as involving violent physical force. So if a septum generian slips into a coma and then doesn't eat and as a result dies, no one is going to describe that death as involving violent physical force. So the question is, would you describe it as involving violent physical force? Because there was someone who was supposed to be there feeding the nutrition tube, but failed to do so. I think that sort of summarizes, David,

you've got Alito on the one end, you've got Gorsuch and Jackson on the other end. Most of the other justices were asking Kagan-esque cake hypotheticals. Yeah, yeah. And I think the best case that, so again, let's go back to Justice Thomas. I thought, again, this was a very clarifying question where he said, so when you're thinking

if you poison someone and cause the death of that person, that is in your argument different from withholding critical heart medicine when someone is in the process of having a heart attack. And so it's very clear that, you know, Justice Thomas is getting at, wait, aren't these things equally bad? If you administer to poison versus withhold medicine, these things are both of them very clearly very bad. But the language of the statute says a felony qualifies as a crime of violence

if it quote, has an element, the use, attempted use or threatened use of physical force against the person or property of another. I mean, going back to the statute, the method of statutory interpretation is not that establishes a moral principle that taking actions that result in the death of another human being are bad. No, that establishes a statutory

standard as to what things we're going to specifically criminalize. So, I'm somewhat sympathetic even though I completely get the hypothetical that withholding heart medication is horrific, horrific, and can cause the death of somebody. That I don't see that as a use of force. And so I, you know, going to the text of the statute, I feel like this is something easily remedied by a revision in the text of the statute. That's a fair point.

I was gonna say that the consequences of this, to go back to some consequentialism on that y-axis, many states have murder statutes that include both acts of commission and acts of omission. And so suddenly you could have this world where the crime of violence enhancement would apply to most state laws on let's say armed robbery, but wouldn't apply to most state laws on murder.

And so murder suddenly isn't a crime of violence anymore. That would seem like an odd consequence. And then I think you have to decide whether, um, you know, we've, we've talked about this in the context of the major questions, doctrine, and lots of other things. Is the consequence supposed to put a thumb on the scale or is the consequence simply informing your reading of what Congress intended, if that makes sense? And I think that could be

a big distinction in how this opinion turns out. You know, are you looking at congressional intent and saying, they had to intend for murder to be a crime of violence. Therefore, if suddenly my very textualist reading now excludes most murder statutes, the consequence is informing me that that doesn't make a lot of sense and I should go back and try rereading it, which is what Judge Ho was arguing as far as what consequences are

in his jurisprudential world, versus it being a separate consideration itself of like, well, if the consequences are going to exclude murder, I don't want that consequence and therefore I'm going to change my decision. Yeah. No, I think that makes a lot of sense. One question that I would have about this case, so the bad man stays in jail that we've talked about, how much does this actually impact

whether or not the dude stays in jail? Oh, he's staying in jail a lot. This is just like how much past his natural life he will still be in jail. Exactly, so this is, yeah, exactly. So if you're prosecuting someone who's hired a hit man, normally it is not the case that your only count in your indictment is this count.

There's a lot more to choose from here. So it is a 90. He's convicted of the Rico violation. This is just the enhancement. Yeah, exactly. Exactly. So this is not purely bad man stays in jail. How long is his skeleton in the cell, basically?

Or how much worse does it get for him? By the way, if you're curious what happened to the bully that they were trying to kill, Benelli, Duke and his crew drove to Benelli's home and positioned themselves in a nearby parking lot to wait for his return. As Benelli arrived home with a female companion, the crew watched and waited for the right moment to shoot, but they eventually abandoned their plan because too many potential witnesses were in the vicinity. Upon learning that Duke and his men had failed, Delegati tried to convince them to return at once to shoot both Benelli and his companion in Benelli's home,

but the crew refused. Hitman with a heart of gold, David. You know, I've seen movies like that. I've seen, they have a code, Sarah, they have a code. They were chivalrous. Delegati then insisted that the men returned the following day to try again. The crew agreed and drove to the same location the next day,

but this second attempt was thwarted when law enforcement officers who had learned of the plot arrested the would-be murderers following a car stop. Well, all's well that ends well, Sarah. Sounds like a lot of bad people involved in this, by the way. Mr. Benelli doesn't sound like a great guy either. But yep, glad no one died. Miller Lite.

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Help us innovate to keep healthcare alive. Donate at healthcarelives.ca. All right, David, you have some cases out there in the world that you wanted to highlight. Why don't you walk us through them? Yes. So I've got a couple in particular and then a third that I know so little about this that I'm not even sure I want to open my mouth but let me sort of do a case update on a on a case that we talked about for some time or some time ago. And this is a case involving a student who had a t-shirt and this is is one we talked about, came out of the First Circuit, that says, in quotes, there are censored genders. And so, censored in, was, you know, put in brackets. In other words, you're not allowed to say how many genders there are, etc. And there has been 18 states

who filed amicus briefs urging the Supreme Court to grant cert in the case. And I do think it is an interesting case, and it's also one that's not just interesting as we've talked about on the specific gender issue. That's obviously the thing that gets headlines because it is talking about an extremely hot-button topic, trans rights, the extent to which trans rights can interfere with free speech rights, etc. But it really is also getting to some of this idea that, okay, if the substantial remember under Tinker versus Des Moines area school district, students do not shed their rights at the schoolhouse gate. However, they're not allowed to engage in conduct that would cause a substantial disruption to the educational process.

And one of the key questions that has emerged is how much, over the many years, is how much over the many years is how much of that substantial disruption narrative can be prophylactic and speculative. In other words, we're going to ban what we think is going to cause a substantial disruption versus we're going to ban what has caused and is causing a substantial disruption. And I think this is a case that's going to be very interesting on that line. And in fact, that is one of the core elements of the actual argument made in the petition that are in the amicus, which is that substantial disruption prong, it should be narrow and non-speculative.

In other words, you cannot ban speech because you speculate that it will cause the disruption. And, you know, Sarah, I think that this is an ideal opportunity for the Supreme Court to take this and really drill down on this substantial disruption prong because I can tell you after practicing free speech cases in secondary education as well as higher education, that substantial disruption analysis is a little bit of a mess. It is a little bit of a mess. That substantial disruption analysis is a little bit of a mess. It is a little bit of a mess How much of it for example is rooted in pure heckler's veto? in other words, otherwise innocuous speech can become Disruptive because you have an unreasonable violent element in the school versus how much do you need to control that?

Unreasonable violent element and allow the speech to take place So it's it's going to be a very interesting decision by the court and it would not shock me if they take it. Yeah, I mean, this is why we tend not to cover cert petitions on this podcast, because the chance of any given petition being accepted is so low. But I sort of on the qualified immunity side, there are certain topics, David, that are just sitting out there percolating and the court's going to take something at some point. The question is, which vehicle, does it have exactly the procedural everything that they want? And this has been an overall complaint is I think the court has professionalized itself so much and that that's one of the

explanations for why they take fewer and fewer cases, because they look for such a perfect vehicle. for why they take fewer and fewer cases, because they look for such a perfect vehicle, they're not taking a case to deal with that case, they're taking a case to deal with 50 cases that have been or will be percolating, you know, 1,000 cases. And therefore, they look for the perfect vehicle to do so. And I just think that is probably a mistake at this point,

because so many pitches go right across the plate and the problem just continues. Yeah. Now, on the other hand, when you're dealing with an institution that is dealing with legitimacy problems of its own, you know, swinging at every pitch, I get why that's not a very attractive course of action

either. Yeah. But I think we've gone too far in the other direction. And yeah, so I don't think this case will probably be granted cert, not because of this case, but because the odds are just in my favor on that one. Anytime a cert petition comes up, unless it's something like the OSHA mandate, vaccine mandate, or something giant

where you just know this is headed, it's very, very likely that it's not going to be granted. That's your default position. But I wanted to highlight this because it does highlight this glowing, I mean, this real obvious area of the law where there's a lot of ambiguity. And you know, what's it going to end up? Here's my prediction, Sarah, if

the court takes this case, and if it does decide the way I think it should decide, which is the substantial disruption analysis has to be, as the brief says, narrow and non speculative, and also not just purely rooted in heckler's veto. So whatever, you know, the angriest group of students choose to permit is what's permitted. What you'll just see is a lot more school uniforms because schools will just be like, okay, we're out on this. It reminds me of when in the early 90s when we began to have some cases around things like somebody hangs a Confederate flag out of their dorm room window or someone puts a Confederate flag on their dorm room door,

and all these people all up and down the hall have all these statements, you know. And obviously, you can't say no Confederate flag, yes to some other cause, because people are hanging hammer and sickle flags, signifying that they're communists. And schools were not doing anything about that. And so, what ended up happening is a lot of schools said, no flags, no dorm hangings, or no hangings on your door. And so this is one thing that ends up happening, which is unfortunate. But I think-

I mean, talk about consequentialism, right? Like, you know, we can talk about what we think the First Amendment should protect, but if you're a principal at one of these schools, you don't want kids showing up in these t-shirts that are going to cause a disruption. You know what I mean, David? They just are. And yes, I get they're hecklers, but it is still a disruption that the school now has to deal with.

And what the First Amendment says in some happy theoretical way, and I want to be very clear where I fall on this line. Y'all know, I don't give one anything about the school principal in this scenario, unfortunately, but I do recognize that the consequences are insane for the school. Yeah, yeah, it's tough. I mean, it's really hard, and that's why schools are defaulting to school uniforms.

Which is expensive on parents who, you know. But is it more or less expensive than buying all the clothes that, you know, all the various different clothes that people, you know, that is a, that's an interesting question. I think there are some parents who would say that school uniforms are less expensive. I mean, you still have to buy your kid clothes for after school and the weekends and stuff like that. It's not like they just wear their school uniforms all day long. That's true.

Yeah, no, that's true. At 3 p.m., they're changing clothes. All right, what's next? Yes. So what's next is a little 177-page opinion. How did the United States District Court for the Middle District of Louisiana. And you know what we're not going to do, Sarah? We're not going to go through a 177-page district court opinion other than to highlight the topic and the sort of what's the path going

forward. And so this was a case that we talked about before, and this was the Louisiana Ten Commandments law requiring a particular version of the Ten Commandments to be hung in Louisiana classrooms. And of course, it was going to generate a legal challenge. And an Obama-appointed judge in the district court in Louisiana wrote a 177-page opinion, which of course struck down the Louisiana Ten Commandments law. And the thing that's notable about it is a couple, well, there's a couple of things notable about it. One is the court could have just issued a five-page opinion, quite frankly, which was, hey, there's this Supreme Court case from 1980 called Stone v. Graham

dealing with a Kentucky state law that required the posting of a copy of the Ten Commandments. And the court found that it violated the Establishment Clause. And I'm a district court, that's the Supreme Court, and I hear all of your arguments as to why the court has changed and would come out differently, but that's all fine and good and interesting, but that's not my job. And five or ten pages, you're out. But what the judge did was, I think, something quite different, which was, let's just explain

all the reasons, essentially, why Stone v. Graham was rightly decided, even under the jurisprudence of the current Supreme Court. And so it was quite obvious that the judge was trying to say in detail, wait, even under modern standards of Establishment Clause jurisprudence, that Stone v. Graham reasoning, or at least the Stone v. Graham outcome is still going to be the same.

So we're gonna keep an eye on this. No need to dive into the 177 page opinion, but I always like updating folks on cases that we have spotlighted in their inception. And so this will be absolutely appealed. And one other thing to note, Louisiana knew it was what they knew what was happening when the governor signed this law. They knew they were defying the Supreme Court and they're trying to set new Supreme Court

precedent. And Sarah, I don't necessarily think the Supreme Court, and they're trying to set new Supreme Court precedent. And Sarah, I don't necessarily think the Supreme Court will take this case. So it reminds me a little bit of the Mississippi 15-week abortion ban. They knew they were defying the Supreme Court. They wanted to tee up a Supreme Court case, et cetera, et cetera, that had followed in the heels

of a Texas regulation that had been struck down, then a Louisiana regulation that was struck down on abortion providers having surgical centers nearby and admitting privileges. And so Mississippi was like, well, what if we just do a ban? Like, let's just do this thing head on because the incrementalism isn't working. Similar thing here, perhaps, also worth noting, Mississippi's in the Fifth Circuit. Guess what? So is Louisiana. Yeah. I'll be very curious which panel gets this. We'll find out one week before the oral argument.

So we're several months away at this point from knowing any of that. I think I'm going to withhold judgment on whether the Supreme Court takes this. Let's see what the panel at the Fifth Circuit is. Let's see how that oral argument goes. Yeah. We'll know more in a few months. Yeah, yeah. I think if the Fifth Circuit strikes down Louisiana, it's hard for me to see the Supreme Court taking it.

I just- Totally agree. But if the Supreme Court upholds Louisiana, then that changes my analysis. Yeah, I could see the Supreme Court not taking it in that case too, actually. But let's wait and see.

All right, what's next? Yeah, the final one is a case. We're going to talk about this very briefly, Sarah, because this is getting into complex environmental regulation. But it's one of those cases where the people who know this subject were swapping this all over Twitter going going huge, big news, breaking. I'm just going to read from a very brief statement about it from Bridget Dooling in the Yale Journal on Regulation. So, you know, I apologize for the redundancy because I'm sure that

most listeners are already up on the Yale Journal on Regulation. But for the very small percentage of us who are not on a day-to-day basis, let me explain what happened here according to Bridget Dooling. So it begins like this. Today, the DC Circuit held that the Council of Environmental Quality, CEQ, lacks statutory authority to issue rules under the National Environmental Protection Act.

In other words, you have a government council that has, the ruling is they have no statutory authority to issue rules. In Marin Ottoman Society versus Federal Aviation Authority, the court declined to consider arguments about whether the FAA complied with CEQ's rules because it found those rules to be ultra-virus or beyond CEQ's legal authority. Why was this big? She goes on to say, the ruling upends almost five decades of administrative practice as CEQ has been issuing regulations since the 1970s.

Okay, so let me reset this. There's a group called the Council of Environmental Quality. It has been regulating in the environmental arena since the 1970s, and now the DC circuit has said they have no authority to do that. Wow, okay. In doing so, when it was enacting regulations, CEQ was acting under Executive Order 11991,

which was signed by President Jimmy Carter in May 1977. EO 11991 directed CEQ to issue regulations and directed agencies to comply with those regulations unless prohibited by law. The Executive Order grounded the action and the president's constitutional and statutory power in furtherance of the purpose and policy of NEPA." This is the National Environmental Protection Act. The problem is that NEPA does not provide express rulemaking authority. Okay, so what we have here, Sarah, is really a fascinating example of how regulatory discretion run amok has led to

generations of rulemaking and the absence of specific statutory authority. So this is a case that I want to keep an eye on. This is a DC circuit. And it's very interesting in the way it's narrowing regulatory authority. But it's also a telling sort of illustration of how discretion granted to agencies had run amok because here you were dealing with an executive order that granted a rulemaking authority that wasn't in the statute. And so, and then the agencies ran with it for decades. So very interesting case, esoteric case, but important case. And that just exhausted the full level of knowledge I have on that subject, Sarah. David, do you remember when we talked about the circuit decision in which the, if you were a majority member, you had to prove extra in order to prove discrimination?

And that that itself seemed discriminatory. I've got another one of those type of cases coming out of the Fifth Circuit. This went on bonk. It ended up tying 9-9, which means basically nothing, right? It just affirms below the district court decision. I don't think the Supreme Court will take this, and I think you'll probably be able to tell why, but interesting fact pattern. Okay. So, BW attended middle school and high school in the Austin Independent School District. He was mocked, physically

beaten, and verbally abused throughout his time in the district. According to the complaint, one student promised to beat this out of him and then did so because he was white. A teaching aide pejoratively referred to him as whitey and repeatedly belittled him for struggling with class material. Quote, can't figure this one out whitey? Need help whitey? Gosh. Students repeatedly recited, quote, the evils of the white race to BW in class. A teacher mocked BW for listening to what she called white gospel music.

Another teacher told BW that she was concerned about how many white people there are. A third teacher told BW that I will not have a white man talk to me about gender issues. In another incident, a student went so far as to make a meme of BW dressed as a hooded Ku Klux Klansman and circulate it to the whole school. The administrator stood by and took no significant action to stop the bullying. Shockingly, some of the administrators joined in the harassment. BW's middle school principal, for instance, yanked an earbud out of his ear and retorted sarcastically, are you listening to Dixie? And then walked away laughing at herself. He was subjected to name-calling, tripping, and obscene gestures from classmates.

This occurred time and again over the course of two and a half years. But the complaint also alleges that B.W. faced discrimination because of his political beliefs. Among other things, he avers that he was attacked and insulted by students for wearing a t-shirt supporting Senator Ted Cruz. He also alleges that one student threatened him because of his stated support for former President Donald Trump. Quote, Oh my f-ing God, I'm going to kill all Trump supporters. I don't give a shit who hears it. I want to kill all of them. End quote. give a shit who hears it. I wanna kill all of them." End quote. BW asserts in his complaint that he was quote, not only ostracized for being a Republican,

but broader stereotypes about being a Trump supporter, Caucasian and Christian emerged. For example, he was soon harassed for being a racist, anti-feminist, anti-gay, when he and his family are absolutely not end quote. Okay, so under the rules of civil procedure, like we've talked about before, the question is whether his complaint adequately stated a claim to move forward. And that was the nine-nine split. Whether, in fact, he had,

as the panel said, a flawed attempt to conflate political with racial animus, because of course, the political animus is not going to be protected. And the racial animus is. So nine people thought that the racial animus could stand on its own. Nine thought that it was in fact part of the political animus not protected, and therefore there was no claim stated and the case could not move forward. And this is all just assuming that everything in the complaint is true. So interesting case,

David. Obviously that will go up to the Supreme Court in terms of asking the Supreme Court to hear it. But because it's so messy, I think the Supreme Court is going to want a vehicle where they are deciding first about the anti-majority bias question before they decide the conflation question itself. Yeah, that sounds like a messy case to step in on with a lot of complicated facts. Yeah, that's interesting. Fascinating case though,

because my own thought would be, let's say you're angry at somebody over their politics, but then you manifest that anger by mocking their race, that's going to be racial harassment. Which it looks like this was here. Yeah. It looks like that hypothetical is just the facts here. Exactly.

Yeah, exactly. All right, David, we got a lot of emails and comments about the engagement ring stuff. I would say overall, most people tended to agree with you, hopefully. Or at least come down in that middle bucket. Yeah, no, I think that's right. But very few people wanted to say that it was an inducement to say yes. Remember the three buckets where one,

the ring is an inducement to say yes to the proposal. Two, it is a gift upon saying yes to the proposal. And three, it's a conditional gift. The condition is met when you actually become married. But David, I did want to read this email from an economist, and we got several emails from economists. We did. And the economists all agreed with me.

So as an economist and a happily married man, I have to agree with Sarah. Sorry, David, but women shouldn't have to give back engagement rings if the engagement's called off. They often give back the ring and that's often the expectation, but they should keep it. Here's the fun part. It's better for most men if women keep the ring. To an economist, an engagement ring isn't a conditional

gift, it's closer to a, I want to marry you gift. And it is an enticement, as Sarah points out, a signal of how well the giver can provide. But the engagement ring is also a signal of commitment. It demonstrates to the recipient that the giver will take the relationship seriously and will be faithful. It says, look how much money I'm tying up in this little thing. And now I'm giving it to you.

I must really trust you. I'm asking you to trust me. Being able to get that ring back cheapens the signal. There must really trust you. I'm asking you to trust me." Being able to get that ring back cheapens the signal. There's some trust signaled there. The ring is in her possession, after all. But if there's an expectation that she has to give it back, then a lot of that signal value is lost. Men have to then spend more on a ring to signal trust and commitment. A ring worth three months salary with a high chance to get it back does about the same job as a ring worth one month salary with no chance to get it back. If women conventionally kept the ring after an engagement ended, men would have to spend less, possibly far less, to effectively signal trust and commitment.

The only people the current system benefits are men who prefer to pose with willy nilly and ring producers. I love this. Normally, I don't understand economics very well. I think economics and law are just totally different languages and I speak law language. But David, this makes perfect sense to me and I love it. It makes some sense. I do think it makes some sense. Yeah.

I mean, legally, it's irrelevant, but... Legally irrelevant, yeah, absolutely. But still... I do also want to point out the listeners who noted that, you know, traditionally in the movies, you know, you open the ring box, say, will you marry me? Which was my point, like you open the ring box first, then say, will you marry me? That, I think, is some evidence for bucket one. But you normally don't put the ring on her finger

before she answers, right? In the movies and in real life too, you open the ring box, you say, will you marry me? She says yes, then you put the ring on her finger. So that's some argument for two, that it is a gift upon saying yes. I don't know about that, Sarah. What do you think?

I don't know. You slide the ring on, you open the thing, you slide the ring on and will you marry? I don't know. I don't think it's that cut and dry. Oh really? You don't think of that order? No, because I don't think that people are thinking through the concept of what is the legal status of this ring.

So I'm going to withhold it until the yes. I think they think that this is a seamless process, a unified whole. So yeah. Interesting. Yeah. All right. I also got lots of tips on how to remember the difference between whether you're bullish on something or bearish on something. But this was the best and I thought you'd like it, David. As a Chicagoan growing up in the 90s,

my way to remember it is that the bulls are good and the bears are bad. But now it's less useful because they're both bad. But if the bulls get good again, it'll be helpful again. That's funny. I like that. All right, David. We are going to take the rest of this week off. We will see you-all next week. Happy Thanksgiving planning in the meantime.