Advisory Opinions - Let’s Sue the Government

Episode Date: May 19, 2026

Sarah Isgur and David French discuss the IRS lawsuit brought by President Donald Trump, SCOTUS’s mifepristone decision, and a unanimous verdict from the justices that no one except Sarah cares about.  The Agenda: –The 1,776 slush fund –David’s ‘back in the day’ lawsuit against the Obama administration –The Bivens brick wall –Trump loses on the law but wins in the politics –Ballroom and baby steps –Is Trump the Chosen One? –Brief explainer on the Comstock Act –Court rules freight brokers can face negligent hiring suits under state law Show Notes: –Federal Defender Newsletter –Jordan v. Darrisaw Advisory Opinions is a production of SCOTUSblog and The Dispatch, a digital media company covering politics, policy, and culture from a nonpartisan perspective. Click here to sign up for our new Advisory Opinions newsletter, and click here to access all of The Dispatch’s offerings, including audio versions of all our articles and newsletters. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isgard. That's David French. The IRS lawsuit brought by President Trump has been dismissed. Why are David and I still so mad about it? As well as the Supreme Court issues a stay in the Fifth Circuit's Miffipristone decision.

That decision will not go into effect until cert is granted or denied. We have a big decision from the Supreme Court. It was unanimous, and no one will care, except me. I do. I want to talk about it, and I've watched trucking YouTube videos to prove it, my friends. And finally, celebrity trials. David likes them. I don't.

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That was easy. All right, David, we try to start with the newsiest thing, and this one is an IRS lawsuit. Who would have guessed in the Year Our Lord, 2026, The newsiest thing we have to talk about is the dismissal of an IRS lawsuit. But David, here we are. This is Donald Trump's lawsuit against the IRS for basically negligence in allowing his tax returns to be leaked. We have talked about this case before, David, and we said set aside everything else, the names, whatever.

Just the facts, as alleged, would absolutely give rise to a pretty successful. lawsuit in normal times. The difference here, of course, is that it's Donald Trump, who's the sitting president and the IRS is part of the executive branch. And guess what? So is the Department of Justice. And so the judge in this case, very smartly, was asking questions about whether this was, in fact, an adversarial proceeding when it was the sitting president of the United States versus his own Department of Justice. And therefore, like, was this a case or controversy under the Constitution, you know, just asking questions. So that, I think, tipped them off that this was headed nowhere good. David, in normal times, if you really wanted to bring this lawsuit

and you were president, I would argue that the normal thing to do would be to file the lawsuit and then ask for the lawsuit itself to be held in abeyance, meaning that it basically is frozen in time, but you also freeze the statute of limitations and everything else. And then it could be picked back up when there is an adversarial proceeding when Donald Trump has left office. But that's not what they were talking about doing. But David, as of Monday morning, the lawsuit has just been dismissed. The whole thing is gone.

Instead, the White House is talking about creating a $1.7 billion with a B dollar fund to pay out victims of Joe Biden's DOJ's weaponization. Donald Trump, they say, will not be a beneficiary of this fund. And David, we talked about this a little on ABC this week on Sunday with George Stephanopoulos. And he seemed surprised when I mentioned Obama's third party settlements and that while I totally agree that this is like much worse and Donald Trump turning it up to 11 and all of that, stuff. Nevertheless, the existence of this idea, once again, like government by executive order, seems to have really picked up pace during the Obama administration. And David, I just went back to refresh myself on what exactly was involved back then. So let me read you some coverage

from the time. The Obama administration, primarily DOJ, negotiated settlements, which required the settling defendants to pay, quote, donations to hundreds of its favored, politically friendly third parties, such as the National Council of Laraza, the National Fish and Wildlife Foundation, and the National Community Reinvestment Coalition. These third parties were not parties to the litigations, nor victims of alleged misbehavior. The Obama Department of Justice offered to reduce the overall settlement monetary amount, depending on how much the settling party paid to the favored third parties, calling the quid pro quo reduction and, quote, enhanced credit. In fact, for every dollar the banks donated, they received $2 credited towards their

settlement reductions. And as you might suspect, David, third party political allies successfully started lobbying the Obama Department of Justice for these settlement monies. And the Obama Department of Justice made sure that organizations, which were not aligned with the administration's political preferences, such as Pacific Legal Foundation, did not receive nor secondarily benefit from these monies. So, David, this was widely, you know, criticized during the Obama administration for exactly what it was, right? These sort of appropriations that didn't run through Congress that you could get private parties to pay through litigation, coercion, and offered settlements and these credits. So while Congress didn't give any money to La Raza, no money was appropriated,

nevertheless, instead of settlement money going into treasury, it did not go to the treasury, it went to these third-party groups. Okay, so David, this Trump thing is different because this is not a negotiated settlement because the judge would have to have overseen that settlement, and they want to avoid that. Nevertheless, it reads exactly like a third-party settlement. something, by the way, that when I was at DOJ, we literally banned and put out a very big letter banning third party settlement. So here they are. Once again, horseshoe politics, right? We do not have two different political parties. We have basically total agreement on what the government is for. The only question is what you're going to use that power to do. That's it.

Well, you know, sue and settle in the Obama administration was a big problem. And it wasn't just money. It was policy. So, you know, normally when you're the federal government, you make policy, you'll have a federal statute that is passed. You'll have a regulation that is promulgated. You'll have an executive order. All of these things are governed by statute and precedent so that there is a process that you go through before you're going to have the government change the law. Now, one of the things that you had with Sue and Settle was that the government would change, would all change policy based on settlements reached, agree, you know, court orders reached in cooperation with friendly outside allied groups. And so this was something, I remember back when I was in my litigation days, being extremely frustrated by this, just extremely frustrated because you, you realize that when there was a friendly group, often the, it was like walking down the yellow brick road to a settlement. If you were considered to be a hostile group, you met with extreme resistance. And I sued the Obama IRS

back in the day over the Tea Party targeting scandal, which was, sorry guys, a legit scandal. This was legit scandal. Don't let anyone who did like after the fact explainers to try to say it wasn't. It was. But then like you said, here comes the Trump administration and basically says, hold my beer, and then puts together what looks like it might be an almost $2 billion. Now, I'm very curious about this appropriation, Sarah. I'm very curious about this almost $2 billion appropriation. Where is this coming from? But you get almost $2 billion to essentially function as a slush fund for friendly plaintiffs who are going to sue based on Biden administration conduct. And what really makes this worse, Sarah, what really makes this so bad is that how much have we

talked about how difficult is it for ordinary citizens to sue the federal government for violations of their civil rights? It is so hard. You know, when I sued the IRS over the T-partying targeting scandal, we branded that Bivens brick wall like you would not believe. The ability to get financial compensation was essentially off the table. We could get injunctive relief. We could get some prospective relief. And we did and reached a, you know, good settlements in the cases. But it was the idea that you could sue and just get cash. No. And by setting up a $1.7 billion settlement fund, essentially what they're doing is they're circumventing federal immunity for friendly plaintiffs. And, you know, as you were saying, one of the problems with politics right now,

is that parties are moving towards to service the base, not constituent service. So constituent service is all of your constituents. Base service are the core supporters. And what we're beginning to see is a, well, not beginning, it's been going on for a while. Why are the parties so freaking stagnant in their ability to reach out to the middle? Well, it's because they do this stuff. they get into office and basically it's now it's time to pay back to everyone who help put you there to govern for them to hear their concerns to you know to some degree greater or lesser and we're

seeing it on every in the Trump administration from everything from emergency declarations to emergency funds when when they're natural disasters there's a big red state blue state difference we're seeing it in favorable settlements we're just seeing it at full spectrum this sort of same pattern, which is prior president does X, Trump turns it into X squared or X cubed. But you can always say that there's a precedent for X, and then you get to X squared and X cubed with the Trump administration. Yeah, I think part of what should, there's a lot here that should bother people, I mean, just taxpayer money being lit on fire for political favors. But the lobbying that started during the Obama administration from these third party groups because everyone

knew what was happening should be extra gross. And of course, you've seen that type of lobbying here from January 6th defendants saying that they want money basically for supporting the president and like, oh, that's what this is. Now, someone asked like, what standing would someone have to challenge this? No problem. If they turn someone down for this, you know, any part of this $1.7 billion, that person is going to have standing to sue, and it doesn't have to be a lawsuit like, you should have given me the money. It can be this entire thing is unlawful because the money was not appropriated by Congress. So, you know, but David, I got to tell you, like, we've seen this over and over again, right? Trump loses on the law, but he wins on the politics. So fine,

a judge says that you can't hand out $1.7 billion, well, that's, you know, a biased judge. You undermine the independence of the judiciary, et cetera, et cetera, call them partisan. And in the meantime, your base is still thrilled because you tried. I mean, isn't that exactly what we saw over and over again during the Biden administration? He would say, I don't have the power to do this. Then he would do it anyway. Then a court would strike it down. And then they would say, my God, we need to pack the court? It's just constant. It's just absolutely constant. It is try something, put the paint the court into a corner. The court does, you know, I don't say I agree with the court every case, obviously, but 19 times out of 20, it does what I think in general is the right

thing to a greater or lesser degree. And then all of a sudden, again, because the political system is broken, they go, oh, well, the court didn't let me do this. And look, we're, where they're on gerrymandering. You know, I have my issues with Calais. But the bottom line is, the ultimate responsibility for this is the elected branches of government. It's in the words of the Constitution. Like the Constitution says it's the state legislatures unless it's Congress. It does not say it's the state legislatures unless it's the Supreme Court. Well, David, I have a piece of good news for you, or at least it's like sort of making me happier. So you know the whole controversy over the ballroom at the White House. And look, I don't want to, you know, we don't need to dig into

everything about the ballroom. Initially, Trump said that his friends would pay for it. Now it turns out it's going to cost a lot more money and so you need taxpayer dollars to pay for it. Here's something interesting, though, David. Congress actually is negotiating how to pay for the ballroom. I actually, again, this is like the big. babyest of baby steps, but I want to do like the smallest, to the tiniest, like, one-fingered golf clap. Now, it's only one finger because, A, I don't think this is, I actually do think we should have a White House ballroom for what it's worth, but I do not think this is the most pressing

issue facing America by any means. So you don't get any more fingers because it's not that important. Two, we have seen Congress do, they have to pass a budget, such as it is and with shutdowns and all of that. So what I really want is policy-based legislation, which they have not been doing. So you also don't get extra fingers for that. But nevertheless, something needs to be done. And there is Congress sort of, kind of doing it, David. If Congress wants a ballroom, I'm fine with it. Cool. Great. Make it look nice. I don't like just summarily knocking down the East Wing and doing all of that without Congress.

but the bottom line is if Congress is doing anything, I'm going to applaud them moving in a direction towards actually governing the way the Constitution says they should. I would be remiss if I did not. Note, I'm going to read to you an actual quote said by an actual human being at the rededicate America to the Lord 250 rally. And I've actually debated this person twice about Trump. Quote, it's hard to believe that it would take two centuries for the Lord. to raise up a great man to bring that ballroom finally to stand where it needs to stand. If I could pick the order of operations, at least here,

I would like for the court to throw out the lawsuit about the ballroom on standing because no, walking by the White House and aesthetically missing the East Wing does not give you standing. That is very, very silly to me. And we talked about that lawsuit previously, David. So I would like that to be thrown out on standing and then to have Congress appropriate

money, I guess. Can I, can we have nice things? Let's get back to the slush fund. Again, back to Congress. If people have been wronged by the federal government, their civil rights have been violated by weaponization, et cetera, et cetera, there's a way to deal with this. Lift executive immunities instead of creating slush funds for favored clients. No, change the immunity structure. At the very least, make it the same as state and local officials. You're not a special a special little creature for working for the federal government. You don't get that extra little bonus. You're not special.

And so that's the way to do this. If there's been weaponization, and I do believe I have seen compelling evidence of there are cases from the Biden administration that I think were plainly political. I'm not applying that to the J-6ers, not applying it to the J-6ers, but beyond that, I do believe that there were some cases where the Biden administration was not even handed in the way to apply justice. And so in those circumstances, let's have Congress revise immunity instead of like, what are we going to do now? Just swap slush funds, party to party? It's absurd. All right, David. When we get back, we're going to actually talk about the dissents in the Miffa-Pristone case.

We'll be right back. All right, David, let's move over to the Supreme Court. We have a, you know, permanent, not permanent, whatever you want to call it, decision from the Supreme Court's interim docket on the Miffa Prestone case. We also got a couple decisions from the Supreme Court, one of which I think is worth talking about. But let's touch on the Miffa Prestone decision first. David, if you remember, the Fifth Circuit held that Louisiana did in fact have standing to bring a case against the FDA's rule allowing non-in-person, prescriptions for abortion-inducing Mipristone, and the FDA was likely to lose, and their mandate went into effect immediately that Miphyprisone could not be prescribed anywhere in the country

without an in-person doctor's visit. We had questions about that, for instance, why is it anywhere in the country? Didn't we get rid of nationwide injunctions? Well, David and I told you that Trump v. Casa was going to be the least consequential big Supreme Court case ever, despite all the headlines and the hand-wringing. And so guess what? Here's a perfect example. This regulation was done through the Administrative Procedure Act. And as we told you guys, sure, they shut the door, but they left all the windows to the house open and the back door unlocked. And so under the Administrative Procedure Act, Congress included language that a judge could, quote, set aside. any unlawful regulation. Well, so the Fifth Circuit found that this was unlawful,

therefore they set aside the regulation, meaning the regulation no longer existed anywhere in the nation. Hence, nationwide, you could not prescribe Mitha pristone without an in-person. Doctors visit. So what happened? Justice Alito, who is the circuit justice, issued an in-chambers administrative stay and said that the Supreme Court would deal with it, by, I think it was like a Monday, yeah, Monday at five o'clock. Monday rolled around and he was like, up, we need till Thursday. And again, anyone kind of watching this would have guessed what was going on. It means that they're going to issue the stay and that there's going to be a dissent.

Well, guess what happened on Thursday by five o'clock? They issued the stay with no opinion. And we had two dissents, Justice Alito and Justice Thomas both dissented separately, quite short. It's only eight pages total. David, quickly on the not having any written opinion from the majority, and therefore we don't know the votes of which justices came out where, I mean, this is like some OG shadow docket stuff. And yet, I heard nothing, nothing from all of the OMG, burn it down, the Supreme Court sucks critics. It's almost like their complaint is not with the interim docket, but just the outcomes. It's like, David, they don't care about the process.

In fact, they just are trying to claim to care about the process when it's the outcomes they don't like. So tell me again how we shouldn't have an interim docket, how we should just defer to the circuit court that made the decision. I'm being very sarcastic. Yeah, as you should be. I mean, very few headlines saying in unexplained shadow decision, Supreme Court. But I'm interested in a different question. I know it's pure curiam, so we don't have any writing, but we have six at least, not at least, we have maybe up to six, perhaps seven, because we only had two dissents, up to seven judges who seem to be okay with the stay. I would say for three of them, Sotomayor, Kagan and Jackson, they're probably,

I would be guessing that they would not just be upholding stay on standing reasons, but also on the merits. The other four, Gorsuch, Barrett, Kavanaugh, Roberts, what do you think? Standing? Merits? I know we're doing a little informed speculation. We talked a lot about standing last time. Yeah, so I think you have a standing problem here. We discussed that at length why Louisiana would not have standing.

They had two different theories, one that they're long. were being undermined and that that should give them standing sort of as a special state sovereign standing, wave your magic wand. And number two, that they did have a pocketbook injury because two of the women who had complications were on Medicaid and, in fact, went to a hospital and the state had to pay for the complications because of Medicaid. David, I think you've got a few votes here for standing for sure. But here's what I'll tell you that's interesting and maybe why we don't have a written decision. I mean, I do think the Supreme Court is kind of calling BS on, you know, it was like at first they were like, oh, maybe this is true. All the shadow docket criticisms and we

should do more. And then as they did more and the criticisms actually ramped up instead of down as they wrote more, I think now they're like, never mind, you guys suck. So I think actually, we already reached the high watermark of interim docket written decisions. and we will see a retrenchment back. But, David, I would not be surprised if you actually see some votes flip on the merits question that, in fact, you do have three, maybe even four justices saying that Louisiana has standing

and that they think the 2023 REMs, as they're called, were not correctly done under the Administrative Procedure Act, but that nevertheless you put the stay into place because of those stay factors, which can sort of cut crosswise on likelihood of success on the merits sometimes. So I think you have three votes that the REMs were proper. I think you have then two to three votes that Louisiana doesn't have standing, but that the REMs probably weren't proper. And then I think you might have three, maybe four votes that they do have standing and that the were improper. But I think the standing issue is going to be the one that's most difficult,

because what they're trying to do is say, without an in-person visit, the provision of the drugs by mail is the source of the injury. And, you know, the question I would have with Medicaid is, wait, was it the provision of drugs by mail that was the source of the injury? Or was it the decision to take the drug that was the source of the injury? And the drug was available, not by mail, if they got in a car. And so the question is going to be sort of where, what's the traceability, the injury. And it's interesting, there was actually a plaintiff in the suit who had a physical injury, claimed a physical injury from Mithoprestone, but in the lower courts, they didn't analyze her standing. But the issue there is if she's asking for prospective relief, she would have to

show that, well, but for this injunction, I'm going to, after having been injured, go voluntarily and I'm going to go do this again, you know. And so if you have a past injury from the drug, then that's a compensatory claim. With the future injury, as we saw from the Facebook censorship cases, you know, you've got to show that you've got a likelihood that you're going to face a challenge or a problem in the future. And in this circumstance, it's entirely in her control

whether she seeks Miff or Preston. That's such a good point on why the injunction part gets tricky. So here's what happens from here. There will be a cert petition from the Fifth Circuit up to the Supreme Court. And the Supreme Court almost certainly at this point is going to grant that cert petition. Remember, it only takes four votes to grant. So this will be a case heard next term and that the stay will stay in effect, if you will, until then. Now, if for some reason there aren't four votes, then the Fifth Circuit's decision would go into effect at the point that cert is denied, but that's not going to happen. David, let's talk quickly about the two dissents.

Justice Thomas dissented because, as he said, Louisiana argued below it is a criminal offense to ship Mitha Prestone for use in abortions. The Comstock Act bans using the males to ship any drug for producing abortion. Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes. And whereas it would serve the public interest to reduce applicants' opportunity to commit crimes, a stay would have the opposite effect. I respectfully dissent. Justice Alito, interestingly, did not join Justice Thomas's opinion, wrote separately to talk about the standing of the two companies that are at issue

here, the two that produce Miffa Prestone and asked for the stay. I'm going to read a little bit more of his dissent, because it is short and I think it's interesting. What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women's Health, which restored the right of each state to decide how to regulate abortions within its borders. Some states responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other states, including Louisiana, made abortion illegal except in narrow circumstances. But Louisiana's efforts have been thwarted by certain medical providers, private organizations, and states that abhor laws like Louisiana's, and seek to undermine their enforcement. These medical providers and private organizations have developed an operation, enabling women in Louisiana and other states that restrict abortions to place an all of all.

online order for a pill called Miphypristone that induces abortion. One might think that Louisiana could stop or impede this out-of-state interference in its law enforcement by bringing civil actions or criminal charges against the participants in this scheme. Brackett, David, we've gotten a lot of questions about this, so I'm going to read this part so people understand why this is happening in Louisiana can't stop it. But states have effectively blocked these efforts by enabling so-called shield laws, which prevent Louisiana from visiting any adverse legal consequences on the perpetrators. For example, a New York law barred state officials from cooperating with other states' efforts to take civil or criminal action related to illegal abortions. Another New York law exempted

Miffipristone from the requirement that prescription labels bear the prescribing medical provider's name. And a news story that said New York Governor Kathy Hochel has refused to extradite a doctor who allegedly prescribed and sent abortifacians. into Louisiana. As a result, more abortions now occur each month in Louisiana than they did before Dobbs. By one count, nearly 1,000 abortions occur there each month. Yes. We got a lot of correspondence after our first Miffra-Prestone discussion about, and we're talking about how abortion had gone up under Trump before Dobbs. Abortion kept going up after Dobbs. And a lot of people came back to us and said that a lot of the red states, lives were being saved in the red states, not in the blue states.

Well, can't speak for all the red states, but here we have the Supreme Court saying in Louisiana, you have more abortions even with a ban in place than you had before Dobbs. And so when pro-life folks have looked at the Trump administration and said, what are you doing about Mitha Prestone? Because remember, once again, we got an issue here. All eyes are on the court, but guess who could do something about Mitha Prestone, Congress and the Trump administration? and they're not doing it. So now everyone's going to the court and going, court, why aren't you doing something about this?

And this is something which is sort of the pro-life fraud that is the Trump administration and is shorting being exposed here. And I thought that was fascinating now that you have a situation where there are now more abortions in Louisiana than before Dobbs. That is a shocking thing in a state that has largely has an abortion ban. So Alito goes on to say in 2021, the FDA, said they would not enforce any laws against prescribing not in person. In 2023, they made that formal with these REMs saying that it was eliminating the in-person dispensing requirement for Mifipristone. The Trump administration has said they are reviewing those REMs, but that they're

putting it off for at least six months, cough, cough after the midterms. And so Alito's point is, you don't have standing because even if those REMs are gone, per the Fifth Circuit, they have been set aside, then the non-enforcement policy would go into effect, and you have to wait to come back to us when there's an actual threat of enforcement. David, I have to say, I didn't find any of the two dissents particularly persuasive on this point, but Justice Alito has written so much about standing. I think standing is like this wild, wild west frontier for the Roberts Court in particular, because they are trying to sort of do this more formalism, narrow. They want real cases or controversies,

Because in this moment of, you know, negative polarization, everyone wants to come in and sue the government for something they don't like. And so to have stiffer standing requirements for this court is going to seem like a good idea, regardless of where your politics are because everyone's running into court if the other party gets into power in the White House. So standing is where it's at. Anytime you have a justice writing about standing, you should pay extra huge attention to it. because this is only going to get bigger and bigger. Can I highlight something about Justice Thomas's descent?

I'm going to read from his descent. It is a criminal offense to ship Mifoprestone for use in abortions. The Comstock Act bans using the males to ship any drug for producing abortion. And neighboring provision makes it a felony to use any express company or other common carrier or interpretive computer service, interactive computer service, to ship any drug designed, adapted, or intended for producing abortion. Applicants ship Mithoprestone to certified pharmacies, which in turn must ship Mitha Prestone using a shipping service to users. So this is, I want to talk very briefly about the Comstock Act, Sarah, because there has been

some discussion about, wait a minute, couldn't the Comstock Act essentially criminalize the distribution of Mithoprestone? So here's the Comstock Act. This is a law that dates way, back. So you're talking, you know, 1870s and original, it's sort of its original origin, been updated a bit since then, but it's generally not that enforced. It's sort of a zombie law. And here's what it reads. Every obscene, lewd, lascivious, indecent, filthy or vile article matter, thing, device, or substance, and every article or thing designed, adapted, or intended for producing

abortion or for any indecent or moral use. And it goes on and on, whoever uses the mails for the mailing carriage and the mails or delivery of anything declared by this section to be non-mailable or knowingly causes it to be delivered by mail according to the direction thereof, etc., etc., can be in prison not more than five years. Okay. So the question is, wait a minute, don't we now have a federal law on the books that bans sending Mitha Prestone by mail? Obviously, when Roe was in place, this would be, you know, you couldn't enforce this. Obviously, the very first part that bans any obscene, lewd, lascivious, indecent, filthy, or vile article is going to be unenforceable as unconstitutionally overbroad and vague when it involves speech,

but what about abortion? And so the way that post-Dobs, essentially the interpretation of this has been, you can't, that it cannot ban the shipment of a lawful drug in the state. So if you're using it for a lawful purpose, if abortion is lawful in the state, then the Comstock Act won't apply. And when it comes to, say, shipping to Louisiana, because there are certain very narrow circumstances in which the abortion is lawful, it becomes very difficult to then just kind of preemptively ban it

because there are lawful purposes for which it can be sent. But the question I have, Sarah, is this. Is that interpretation correct? Is it actually correct to say that the Comstock Act, which on its face bans the use of the males for distributing anything that produces an abortion? is that going to be unconstitutional if it applies to those places where the shipment of Mitha Preston is for a lawful use in the state? I'm not so sure about that. And Thomas seems to be like really sure that the Comstock Act is enforceable.

So there's been a lot of kind of discussion in the air about this. It seems like the Trump administration is not going to be. enforcing the Comstock Act. It seems like there's no move on the part of the Trump administration to enforce the Comstock Act, but would a future more pro-life administration enforce it? And what would happen if it does? So, you know, it's a zombie law, but it's still out there. It's a mobile zombie. It's out there groaning around and walking and stuff and biting. And Thomas seems to think it might be more than a zombie. Thomas seems to think it's got like hope to come back to life. Well, as he noted, Louisiana wrote this in their brief. So in theory,

we could talk about this at the oral argument next term when this case is argued before the court. So we shall see. Also, just a last note on this, you'll note that the court did not grant cert in this. There was some discussion of whether they would just go ahead and like hear this immediately or grant cert now and schedule it for later. They did not. Again, I'm putting this in my category of They are over your criticisms of the interim docket and that, you know, everything needs to be argued right now, et cetera, et cetera, because it sure does look like this has all been outcome complaints and not process complaints. All right, David, when we get back, we've got a lot here. I want to talk really quickly about the trucking decision from the Supreme Court, a big case in terms of,

you know, the American economy, but nobody wanted to talk about it. So here at advisory opinions, we will. And you've got a lot of, I don't know, celebrity trials going on or getting overturned, etc. Let's talk about why we don't talk about celebrity trials and the history of Allen charges. We'll be right back. David, nobody wants to talk about the Federal Aviation Administration Authorization Act, but I will. I am brave enough to do it here on advisory opinions. First of all, Let's just like talk some facts here. There's 3.5 or so million truck drivers in the United States. It is the most common job in the United States. It is the plurality position held by the most number of Americans in total. Close to 10 million people work in the trucking industry.

This unanimous decision that we got from the Supreme Court has been blowing up for those 10 million people. It is going to wildly change the trucking industry, but none of us are talking about it, because it's not a very sexy decision on, like, law world stuff. But David, I just want to give it a quick shout out. So this was a unanimous decision in which the Supreme Court was interpreting, again, the Federal Aviation Administration Authorization Act. So this is a law from Congress. It's a pure statutory interpretation case. The F-quadruple-A, F-Triple-A Act, I don't. know what we should call that. Anyway, preempts state laws related to the prices, routes, and services of the trucking injury, in industry. But there is an important exception. States retain authority

to regulate safety, quote, with respect to motor vehicles. This case presents the question whether a claim that one company negligently hired another to transport goods falls within that exception. Justice Barrett, writing again for the unanimous court, It does. So, David, this is about brokers. Sellers often use motor carriers to transport products to their destination, but finding a carrier can be time-consuming, so many sellers rely on brokers to do it for them. Think of it this way.

Brokers are the transportation industry's matchmakers, connecting sellers of goods to the carriers who move them. There's about 28,000 brokers that arrange transportation for about a third of all freight shipped in the United States by the... more than 780,000 carriers. This is a case about a guy who was injured. He was a truck driver, injured by another truck driver, and he sued not only the trucking company, but also the brokerage company that hired the trucking company that match made the trucking company saying that they negligently match made the shipper with this transportation company that had a really marginal

safety rating. And what the Supreme Court has held here is that federal law does not preempt this, that yes, you can bring a state tort claim against the broker. And David, here's the reason why I want to talk about this, because we talk about consequences and like consequentialist justices and what are the big cases. And this hits on all of that. You can watch YouTube videos today saying this is the biggest event ever to happen in trucking since deregulation in the 80s, for years, owner operators have been screaming. The brokers won't load me. The vetting is killing small carriers.

The Supreme Court just made it 10 times worse. Brokers can now be sued in state court when their carrier kills somebody on the road. Every broker general counsel in America is reading that opinion right now and making one decision. Vet harder, reject more, document everything. And David, already the insurance companies for the brokers. one broker already this week was reinsured at three and a half times the rate. Some are saying it could go five to ten times their current insurance rates. This will wipe out the majority. Some saying 40 to 60 percent of these broker companies are going to be gone because of that.

And that, by the way, means you will have consolidation in the industry, you know, very, very few broker companies and, you know, these marginally safe companies that we're doing the trucking, they're gone also. So consolidation of brokers, consolidation in the actual trucking companies. And that's going to mean higher prices for everyone, David. And, you know, if you like your Amazon stuff or really any stuff that you get in the mail or to your store, almost all of it is done by trucking at this point. So, David, this could actually have the biggest economic consequences of any case the Supreme Court decided this term, maybe for several terms now, and nobody's going to talk about it because it wasn't, quote unquote, a big case.

Right, not a big case. It was unanimous, barred opinion, I believe. And as far as the economics of the trucking industry, I shall remain silent because I do not know it. I wouldn't watch these YouTube videos. I had a great time. Here's one of the main reporters on trucking, by the way. truckload operators, big and small are super excited. Large truckload operators, mega fleets are big winners. Large 3PL execs are very positive. I don't even know what that is. Insurance going up, you know, 3.5x at the minimum. Trucking spot rates are going to surge. Contract truckload rates will also surge as everyone knows capacity is coming out of the market because there's going to be fewer trucks. Brokers aren't sure of how to define a safe carrier. Shippers are asking questions but not

making changes. You want to talk about supply chain issues, David. Woof. Yeah, I mean, I do not dispute at all that this is a huge case. I also don't know the proper balance between vetting and safety. When you first hear, this means more vetting, you're like, yay. And then you hear, this means everything will cost more. Boo. But, but, but, There is a balance between vetting and price and how much more dangerous do we want the roads to be to make goods cheaper. You know, these are really important questions that, as you said, Congress needs to resolve. The only question for the court was whether the broker's assessment of the safety of the trucking company that it was brokering is a question of safety, quote, with respect to motor vehicles. I have to say, David, I actually, I know this was a unanimous decision and makes it sound like it was an easy question of law.

I think I would have dissented in this case, interestingly. I was reading the majority opinion. It was just like, I don't know. I don't think I'm there. I don't think you've convinced me. There is a concurrence by Justice Kavanaugh joined by Justice Alito, relatively rare combo. And basically all it says is actually this was a really hard case. Here were the really good points on the one side.

here were the really good points on the other side. In the end, here's, you know, why I'm coming out this way. But I was really surprised it was unanimous because I did think it's just a really hard question of statutory interpretation. But once again, David, Congress could change this tomorrow. They won't, but they could. And actually with 10 million people's jobs on the line, one way or the other, they might. Though again, when the biggest companies actually stand to benefit, maybe not. We'll see. David, let's talk some celebrity trials. We had two that made the news this week. One, the Murdaugh murder case where he was convicted. Murdoch. The murder. You know, I mispronounced that last time and we got all those emails about it.

I did too. I did too. Yeah. And then I watched a whole Hulu series on it, which was amazing. So now I've got it drilled into my mind. And I've got all the nicknames of the people. I think true crime entertainment is bad for America. There's nothing new about it, by the way. This goes back hundreds of years. So I'm not saying this is like, like, you know, what's undermining American culture or something. But I do think it's kind of bad for your brain. Nevertheless, David, the Murdoch conviction was overturned. He remains in prison because he pled guilty to financial crimes.

But what about the murders, David? Let's just give everybody a little bit of refresher, a member of a very prominent family in South Carolina. You know, one of these families, if you grew up in the small town south, you're very familiar with like the folks who've kind of ruled the roost for generations. They have a firm, you know, his father was like a lead prosecutor in the town, very well connected in South Carolina politics, et cetera. But they had a problem, Sarah. And the problem was people kept dying all around them.

And ultimately, there is a charge that Alex Murdoch kills his wife and his son. In this case had massive amounts of attention. and one of the individuals involved in this case was a clerk of the court, and the clerk of the court had a book deal. As part of the book deal, apparently she was believing that it would be better for her book if there was going to be a guilty verdict. And so this person said a few things to the jury that were inarguably inappropriate. At the very end of both the documentary and the dramatization, I remember hearing them

talking about. There's appeal and allegations of jury tampering. And I had this kind of gulp moment because I thought as soon as I heard allegations of jury tampering, I thought, hold the phone. It all depends on what those facts are. So let me tell you some of the facts. Juror X, who testified on the first day of the hearing, acknowledged that Hill, that's the last name of the woman who was the clerk, say before Murdoz testimony, looks like the defendant is going to testify this is an important day or this was an epic day. and that it was rare for a defendant to testify. Then you get to Jersey.

Jersey submitted one of the affidavits Murdoch attached to his motion for a new trial and was the first juror to testify on the second hearing date. When asked whether she heard Hill make any comments about the case, Jersey responded that Hill said to watch his actions, to watch him closely. Jersey explained Hill's statements influenced her finding Murdoch guilty because, quote, to me, it felt like she made it seem like he was already guilty. And so we could go on and through more facts. But essentially, you have this common theme.

Watch him, watch his body language. This is a big day. This shouldn't take long, et cetera. There's a lot of it that was pretty clearly aimed towards pushing the jury in one direction. Well, David, let's move to our second celebrity trial. Harvey Weinstein had a deadlocked jury in his third sexual assault trial after the judge sent the jury back with an Allen charge. Now again, we're not going to get into the facts of this. I don't even know whether to call this a celebrity trial, but Weinstein is in prison and continues

to be tried for various things related to allegations of rape and sexual assault. But David, I thought this would be a fun time to talk about Allen charges. In federal court, when a jury is deadlocked, they must reach a unanimous verdict. And they come back, and they're like, Your Honor, we can't agree. Like, we're out. The judge can give them this charge, and I will read it to you. Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you. As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must

decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict. All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position. I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should

not single out any part of any instruction, including this one, and ignore others. They are all equally important. You may now retire and continue your deliberations. I really like the you may now retire. Like, no, no, no, you shall now retire. You're not given an option. You are required to go back after an Allen charge and continue deliberating. David, interestingly, many states have banned Allen charges because it has this intended, right, effect of trying to cow the minority.

Whether the minority is for conviction or the minority is for acquittal, it's this idea that you're sending back the jurors to beat up on the holdouts. Several states have banned it, including in whole or in part, 23 states. That's a lot in our country and sort of a fun laboratory of experiment thing. And David, I thought I would just give a brief history of Allen charges. This goes back to an 1896 case where the facts, like we're never going to know the facts, but it involves two black teenagers, one of whom Alexander Allen is going to have a still in his pocket. They are wearing shoes. They are the, you know, sort of at least by

appearance, wealthier boys in this scuffle. And they're going to get in a fight with three white teenage boys who are carrying sticks, willows that they have cut down to stab frogs with, they say. There's all sorts of, I mean, there's an enormous amount of evidence, like, oh, there's only one set of feet walking through the fence line. That's a barefoot foot. But in the end, one of the white boys is going to end up dead, and Alexander Allen is going to be convicted of murder. That conviction is going to be reversed twice because of jury instructions by the judge. Then the third time, the jury deadlocks and the judge sends the jury back with sort of a version of an Allen charge. I mean, it is an Allen charge, but it's more like a thumb on the scale,

Allen charge. This time, the Supreme Court says it's okay. So he is sentenced to hang. sentence is commuted by President Grover Cleveland. They're not sure, but they think the person who petitioned President Cleveland was his former attorney general who had happened to be this guy's former defense attorney. His name was Garland. And fun fact about Garland, David, he's going to go on a few years later to argue a relatively boring case before the Supreme Court, have a stroke at the podium and die 10 minutes later, Augustus Hill Garland, one of the first attorneys general in the United States, by the way. The only person, according to Federal Defender newsletter, he died in 1890, the only person to die arguing in the well before the Supreme Court, had a stroke, 10 minutes

later, dead. So David, like, this history was so fun to dig into. And again, there's, you know, This is in Arkansas where you have two black boys and the two white boys' dad sort of work for the former slave black farmer. There is racial tension written all over this, but it is very unclear, you know, who started the fight, how much of a fight there was. But what we do know, of course, is that one boy brought a pistol and that he shot the white teenager who died. David, what do you think of Allen charges? Not in love with them. Not in love with them. I mean, I get it. I get it sort of this idea of don't give up too soon.

But I would, this idea of urging to reach a verdict, I get very, very nervous about that. I would say that just in the natural course, they feel pressure already. There is pressure in that room. There is enormous amount of peer pressure in the room. So I don't know, Sarah. Remember this judge, he was a hanging judge in Arkansas.

He was known for that. In fact, in the end, he would sentence 160 people to die by hanging, although more than half had their convictions reversed with 16 being acquitted after a new trial. So this is your quintessential Arkansas hanging judge who gives these jury instructions that all sort of face one way. So remember, it's been reversed twice. It is sent down for a third trial. here is the Allen charge that is upheld by the Supreme Court in this case.

The conclusion reached by 11 men are to be relied on rather than conclusions of the 12th man, whose means and opportunities for reaching a right judgment are the same as those of his fellows. That each member of a jury should always convince himself that 12 wiser, more intelligent and impartial men than he and his fellows cannot be found in the country, that any conclusion to be reached by them is very apt to be a right conclusion, and that therefore they should be very careful to agree, if possible, and the conclusion reached, and that one juror should not consider that the 11 associated with him are pig-headed, obstinate, and impracticable because they are not of his opinion. It was after that charge that they went back and reached the verdict of guilty of first-degree murder,

and he was sentenced for the third time to hang. That, to me, is not an Allen charge. That is a clear, like, everyone go beat up on the whole thing. out. I think the current Allen charge is almost hard to even understand what they're trying to say other than I'm going to make you go back and deliberate more for funzies. So in that sense, I think it is improved significantly since the original 1896 Allen charge. I guess this charge was actually given in, I think, like 1892. But David, I'm with you. I would almost rather a charge that says, I do not think you have actually done enough deliberation, just go back and deliberate more,

rather than listen to your heart and the evidence. Ask yourselves whether your fellow jurors are, you know, blah, blah, blah. No, you only deliberated for a few hours, go try some more. And then if you come back, at some point, I'll decide that you have given it your best shot. That to me would be a better Allen charge than making it about the individual jurors, I guess. Basically saying here's sort of a standard amount of time in which we're going to say that a jury can deliberate before we're going to let them give up. So if you come in and it's like two hours and we're already yelling at each other, guys, come on. If it's for, if it's 72 hours, you know, that's a, that's a different deal. So I could imagine a sort of a standard time as an allotment.

I don't know. It's a, it's a, it's not an easy issue because it is the case that some juries will give up too soon, but you don't want to put undue pressure. Not a clear line here, Sarah, not a clear line. And that's why we have great federal district judges to be able to determine this. I trust them to do it. I don't think we need a black and white rule. By the way, it was like pretty hard for me to find the details of the case, the actual, you know, underlying crime and all the facts. If you're curious about it, I'll put in the show notes, the federal public defender newsletter from 2017 where I found a lot of the facts that I was reading in case anyone else wants to dig in to the, you know,

again, this like fight between two teenage boys that ended just absolutely tragically. And yeah, this was on the edge of Cherokee country, David. That's why it was in federal court. There is the characters in this could make an amazing Netflix series. That's a true crime I would get into. Someone write the novel about this. There, I just gave you an amazing idea, listeners. Someone go write this novel.

All right, David, for the next advisory opinions, we've got some fun circuit cases. Can judges be banned from talking about their partisanship if it's a nonpartisan judicial race? Or is that protected by the First Amendment? Georgia is having their judicial retention race May 19th. So it is certainly relevant. We'll talk about that and should lock, you know, that case about how states. states don't have to pay for religious education, but all those other cases kind of say that they do? Should Locke be overturned? One judge describes it, I mean, how can you not love this, David?

Locke binds us even as a moth-eaten shell of its former self. All that and more on the next advisory opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe. subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at the dispatch.com slash join. And if you use promo code A.O, you'll get one month free and help me win the ongoing, deeply scientific, internal debate over which dispatch podcast is the true flagship. And if ads aren't your thing,

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Thanks so much for tuning in. We'll see you next time.