Advisory Opinions - Liberal Justices, Conservative Outcomes

Episode Date: June 10, 2025

Sarah Isgur and David French break down the legal merits of the Trump administration’s mobilization of the National Guard and the latest opinions from the liberal side of the Supreme Court. The Agenda:—Federalization of National Guard troops—Liberal justices, conservative outcomes—AI’s bad legal analysis—Reverse employment discrimination—Suing gun manufacturers—Catholic charities—Class-action lawsuit and kiosks Show Notes:—Mitch Landrieu on The Dispatch Podcast 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, ⁠⁠⁠⁠⁠⁠⁠⁠⁠click here⁠⁠⁠⁠⁠⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I still don't understand how they're doing this. I mean, I'm pretty cheap. This meets my budget. Stick to the staples that last with elevated essentials from Quince. Go to quince.com advisory for free shipping on your order and 365-day returns. That's q-u-i-n-c-e dot com slash advisory to get free shipping and 365-day-c-e.com slash advisory to get free shipping and 365 day returns. quince.com slash advisory. Whether it's a family member, friend or furry companion joining your summer road trip, enjoy the peace of mind that comes with Volvo's legendary safety. During Volvo Discover Days, enjoy limited time savings as you make plans to cruise through

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I don't know. But nevertheless, David, we're going to do a little bit News of Day. Then we've got three Supreme Court decisions to talk about, a dig and a cert grant. Does it get more AO than this? It does not. There's no way. This is peak AO. Let's start news of the day.

David, National Guard deployments under the law. This is not the Insurrection Act going on in California. There's been a lot of confusion. Explain. Yeah, so what's happened is, as people have seen on television, there have been violent protests riots outside of ice or federal facilities in Los Angeles and

Trump Mobilized two thousand I believe members of the National Guard and when he did that there was sort of this ripple Throughout the country was have we reached the point where he's invoking the insurrection act. Now the insurrection act, for those who don't remember, there's been some we've discussed it a few times on this podcast. Insurrection act is a very old law. It's one of the older laws in, in American life that allows a president to activate federal troops, active duty soldiers, or to nationalize the National Guard, federalize the National Guard, and deploy troops into city streets, into American territory, to impose order,

and actually perform what you might think of as law enforcement type activities. And some version of an insurrection act, I think is necessary in a democracy. There are times, i.e. the civil war, for example, where law and order breaks down, where the federal authority, there's open defiance of lawful authority. Now, it should only be invoked in extreme circumstances.

And I would say in general, only when requested by a governor or a mayor, that they cannot maintain order. However, the law is pretty broadly written. And, and essentially, and the bottom line means that the president, in his or her sole discretion, can invoke the Insurrection Act, which is a, it's dangerous. That's a dangerous delegation of power to the president, but he didn't do that. He didn't do that. A lot of the rhetoric was rhetoric you would expect from the administration before invoking the Insurrection Act. Like it's an insurrection, it's an invasion, but he didn't do it. Instead, he used a different law, 10 USC, section 12, section 12406. And it is

the relevant passage says, whenever there is a rebellion or danger of rebellion against the authority of the government of the United States, the president may call into federal service members and units of the National Guard of any state in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute the laws. And so essentially what he did was this provision is much narrower than the Insurrection Act. And so essentially what he did is he mobilized the National Guard, but under this authority, this does not grant them law enforcement authority. So it's very essentially protective.

In other words, the National Guard has the ability to protect the federal site, but doesn't have the ability to gauge in actual law enforcement type activities. Steve Vladeck, who's been on this podcast, has a really good post on Substack about it. And he says, under the statute, these troops have the authority to, quote, suppress the rebellion, but they don't have the kind of sweeping

law enforcement authority. And he says, quote, nothing that the president did Saturday night would, for instance, authorize these federalized National Guard troops to conduct their own immigration raids and make their own immigration arrests. Instead, it federalizes 2000 National Guard troops for the sole purpose of protecting the relevant DHS personnel against attacks. So while the rhetoric was extreme, the action has been more limited, at least so far. been more limited, at least so far. But, but I'm praying for peace in Los Angeles right now.

The riots are inexcusable. Civil disobedience is honorable. Violence is way beyond the pale. I'm hoping for peace because I think the consequences that we could see if the 2000 guard troops don't end up stopping the violence, I fully expect that you could see an escalation and potentially an escalation to the Insurrection Act. All right, and with that, let's move to the Supreme Court.

Let's start big picture. And just right off the bat, in each of these three decisions, they were unanimous, they were written by each of the liberal justices, and they were about conservative outcomes. I mean, broadly speaking, if we're just doing outcome based analysis here, but we're not because this is advisory opinions. But I did want to read something that Devin Dwyer over at ABC News, where I'm an analyst, wrote. Each liberal justice wrote an opinion on an issue conservatives championed.

Hagen's decision blocking Mexico's $10 billion lawsuit was cheered by the NRA. Jackson's decision on discrimination was praised by conservative advocacy groups seeking a level playing field. And religious advocates heralded Sotomayor's opinion on tax-exempt status for Catholic charities as fixing an egregious wrong. This is the hand of Chief Justice Roberts at work. He gets to pick who writes the majority opinion in unanimous cases. And so David, I just wanted to spend a moment before we dive into the cases on like the narrative of the Supreme Court, because we are now nearing almost the very end of the term.

We're in the month of the end of the term. So just a few weeks left. And yet the number of unanimous decisions is well above 60%. So on the one hand, that's not the narrative about the court. On the other hand, I do just like to footnote this that like, yeah, because the unanimous decisions are easier to get out, we end up with very high unanimous numbers heading into those last couple of weeks, because sort of by definition, and when they put out decisions based on how long it takes to write

them, the ones that aren't unanimous take the longest amount of time, so they come out last. So at the very time that the most number of people are paying attention to the court, they're sort of by definition paying attention to the court, they're sort of by definition paying attention to the cases that aren't going to be unanimous or else they wouldn't be contentious, they would have already been decided, and they wouldn't be part of that end of term. This goes to my crankiness over people who say, yeah, yeah, sure, 50% of the cases in any given term will be unanimous, but not the big cases.

Okay, but that just goes to the definition of what a big case is. If we always define them as the big cases by definition must be contentious and can't be unanimous, it's very circular. Yeah, yeah. No, I thought this was fascinating. It really does undercut the argument that I've heard a lot from people on the right and the left. They say, oh, judges talk all the time about that they have a philosophy and that they're independent, but really don't they just always do what their

side asks them to do? Well, here you have a one, two, three punch, Kagan, Sotomayor, Jackson, where if they were just doing a political thing, hey, gun manufacturers bad, we need to advance sort of far left narratives about racial justice, or you name it, that they would have come out very differently on these cases. And not only did they come out in a way that I think is exactly squares with what the law would dictate. But as you said, Justice Roberts picked them to write the opinions. And so it's fascinating.

It's absolutely fascinating. And I wrote about for Sunday, the DEI case that Jackson authored. And it was fascinating to see the reactions. And it shows the wisdom in selecting Justice Jackson to write it. Because by selecting Justice Jackson to write it, what ends up happening is a lot of people then wrestle with the content rather than the identity of the author. And when you wrestle with the content of the case, the fairness of the outcomes becomes pretty apparent.

And we can kind of walk through that for each one of these cases. You know, speaking of just that, by the way, I don't know how much you've been messing around with AI these days when it comes to Supreme Court cases, but something really interesting happens when you do, which is AI, like I think the overwhelming narratives about this, has a strong bias towards 6-3 outcomes. If the case has any bit of political relevance at all, the AI models will keep

saying that the court is going to come out 6-3, even though that is a very unlikely outcome actually. 50% of the cases are unanimous and roughly speaking, fewer than 10% will be six three along ideological lines. I guess it's funny to me that AI is mirroring back this larger media narrative. Now, it makes sense because it's a large language model, meaning it literally is mirroring back the media narrative about the court in many respects. It's literally mirroring back what human beings say about the court, and human beings are constantly wrong about the court.

Yeah, but like, it's just getting it wrong. And so people are having a really hard time getting AI to sort of work when it comes to Supreme Court predictions because of those incorrect narratives. All right. With that, David, let's actually dive into these cases. Let's start with, what do you think? How about the Ames case, David? This was on employment discrimination. Very good decision. Very good reasoning. I meant us starting with it. Are you good with us starting with it? Oh, okay.

Totally good. I'm excited to start on that one. Yes, I'm excited to start on that one. This was a decision written by Justice Jackson with a concurrence from Clarence Thomas joined by Justice Gorsuch. And because this is advisory opinions, let's start with the text of everything we need to know about this case, David. So first, Title VII.

Title VII bars employment discrimination against any individual because of such individuals' race, color, religion, sex, or national origin. And the text of Title VII provides that an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for an employment practice,

even though other factors also motivated the practice. Okay, that's Title VII. You're ready for your next thing. Now we're gonna talk talk about the McDonald Douglas Factors. This was created by the Supreme Court, what, 50 years ago now, David. So let me run through these. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination under Title VII. Second, if the plaintiff succeeds in proving the prima facie case,

the burden shifts to the defendant to articulate some legitimate non-discriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. That's right, we kind of ping pong back and forth. Now, some circuits created an additional factor called the background circumstances rule. And that's what this case was about. This rule requires a majority group plaintiff to prove, in addition to the standard elements under McDonald Douglas, that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against

the majority. So David, we talked about this case after oral argument. This was a case where a woman did not receive a promotion and the job went instead to someone who was homosexual. Then she was demoted and replaced by someone who was homosexual. She claimed that she was facing discrimination against heterosexual people at her job. The court in this case that was in the Sixth Circuit dismissed her claim because she couldn't prove that this was one of the quote, unusual employers who discriminates

against the majority under that background circumstances rule. The Supreme Court, to put it mildly, nod-dogged that background circumstances rule. As Justice Jackson wrote, Title VII is about individuals and what she didn't write. Bye-bye. Just on the majority's opinion, David, because the concurrence from Justice Thomas is worth quite a bit of time here, but majority, nothing about this is surprising. It reminds me of any number of other cases

where people are treated like groups instead of individuals when the law actually says individuals. I think that this is actually a nice follow on in a lot of ways to the Harvard affirmative action case. We're going to treat people as individuals, y'all, under Title VII, under any anti-discrimination statute. You're not part of a majority or part of a minority. What the hell do those terms even mean in 2025?

Yeah. to those terms even me in 2025? Yeah, I thought it was a very compelling opinion. And what was so compelling about it is that it just very plainly stated, this is about individuals. And so when you talk about that, I would say if you're going to talk about what is it about the DEI debate that divides us the most, it would be, are you primarily before the law an individual or are you primarily before the law a member of a group? And the more extreme versions of DEI treat people primarily as members of groups. And so, for example, if you're treated primarily as an individual, then there is an individualized determination and you can have, say, a preference

for people who are coming from a working class background or say a preference for first generation college students or preferences like that that are not related to skin color. What you cannot do is then, you know, with the Harvard v. Fair case, for example, use skin color as a proxy for adversity. And in this case, you can't use skin color as a proxy for privilege.

So they're kind of two sides of the same coin. One side, Harvard, says that your race is not a substitution for the judgment of your individual application. And then on the other side, your in this case, sexual orientation is not a marker of dominance or marker of privilege. And I think that that is kind of closing the loop on the DEI debate conceptually.

And I feel like what we're gonna be doing now in this country is have a lot of arguments about DEI that have already been settled by the law and that it's going to take time for that legal settlement to work through the American system and culture. So you're gonna continue to have policies and practices in companies and governments that are discriminatory on the basis of race, sex, and sexual orientation in the name of diversity. And those things are just going to fall one by one by one.

I think the issue at this point is almost settled. Sarah, what do you think? Well, let me ask you a question that might be on some listeners' minds, which is, the Harvard case was 6-3. Justice Jackson was in dissent in that case. And yet this one was unanimous with Justice Jackson writing it, in fact. So how do you square that circle?

in fact. So how do you square that circle? Yeah, well, the ultimate outcome of Harvard v. Fair and let me put it this way, the legal meaning of Harvard v. Fair plus this case, the Ames case, it doesn't matter if one was five four and one was.0. It's the same legal analysis. The outcome of the cases dictate, in this case, the analytical framework. Now, Justice Jackson, Kagan, and Sotomayor dissented, in part maybe because they do think that actually you can use skin color as a proxy for adversity differently. They may have a different view of this. The three of may have a different view of this.

The three of them have a different view of this when it comes to adversity versus privilege because these are, as I said, sort of flip side cases of each other. So they legitimately may have just very different views on that issue, but the outcome of the two cases together means that in large part, although not everyone in the court agrees, the issue is largely settled. And so that's how I would analyze it. It's not that the court is unanimous on all aspects of dealing with DEI, but the two cases together, one unanimous 163, do settle most of the controversy around DEI.

Yeah. I mean, I think in that case, they thought that you could use race to remedy past discrimination and that there were sort of disagreements on what exactly that looked like in the educational context, whether that was really what was going on, yada, yada, yada. Whereas I think what the unanimity is on, which would also apply to the Harvard case, is you must treat people as individuals, not their skin color. I think the dissenters thought that was what Harvard was doing, and that skin color was

part of that individual's identity, whereas the majority thought that they were using it as a group proxy. But I think there is unanimity that you must treat people under the law as individuals, not group members, despite, as you've said, David, what sort of the far left may think about what DEI means. No, you are not part of a group. You are always under the law, an individual. But David, I think we've got to spend some real time on this concurrence by Justice Thomas, because I mean, to say Justice Thomas here

at the end of his career is coming into his own is an understatement. I mean, in the last, what do you think, 10 or so years, is it fair to say? Maybe slightly under that. We're just seeing a lot of Justice Thomas, I think really writing a thesis about his jurisprudential framework across a lot of different cases. One of my favorites is the

original jurisdiction argument that he is having with the court, that the Constitution says that the Supreme Court shall hear cases between states. and yet the Supreme Court has just itself rewritten that to say May hear cases between states Every single time he dissents and says no we are required to take this case under our original Jurisdiction like it is so justice Thomas. Here is another justice Thomas truism Judge made rules are bad. And so in his concurrence, he's talking about how the background circumstances rule

is made the F up, as the kids would say, by judges who were trying to apply that McDonald Douglas framework. And as you can see from a made the F up rule, it caused all sorts of problems and was totally unrelated to the actual text of Title VII to say that you have to prove that this is the unusual employer who discriminates against the majority if you're a member of the majority.

As he goes through it, he's giving examples for instance, the DC Circuit applied the rule to a white plaintiff while acknowledging that, of course, whites are in the minority in the District of Columbia. Is it supposed to be the majority in the pool of employers that you're talking about, in the area that you're talking about, in the country as a whole? Women are the majority of people in the country, and they're the majority in certain employment areas like nursing or teaching, but they're minority in, as Justice Thomas used, construction work, for instance.

So who is a majority and who is a minority really depends on how you're defining the group. And as he notes, what has ended up for those circuits that use the background circumstances rule is that they kind of did feel squeamish about like, whether Catholics are Christians and therefore part of the majority or whether they're not. So you know what, we're only using the background circumstances rule to apply to white people and men. So it just created a huge mess. However, David, he had this incredible footnote three

that I want to read to you, speaking of DEI. The background circumstances rule is nonsensical for an additional reason. It requires courts to assume that only an unusual employer would discriminate against those it perceives to be in the majority. But a number of this nation's largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups. American employers have long been obsessed with diversity, equity, and inclusion initiatives and affirmative action plans.

Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority. So David, this may not be the end of these cases, just as Thomas looks raring to go on the next employment discrimination case along those lines. But his actual concurrence was not to just stick the knife in the background circumstances rule with Justice Jackson did just fine.

It was to make the point that there's another judge made the F up rule here. The McDonald Douglas framework is judicially made and has nothing to do with Title VII, has turned into a major mess in the lower courts, has since the beginning, how you apply it, when you apply it. If you remember, for instance, when I was discussing the text of Title VII, I mentioned that that discrimination based on race, color, religion, sex, or national origin needs to be a motivating factor for an employment practice, even though other factors also motivated the practice. But if you look again at the McDonnell Douglas framework, it says you must prove that the

reasons given by the defendant were not its true reasons, but were a pretext for its discrimination. Well, what if it's a multi-reasoned motivation? How do you do that? Can you do it at the summary judgment stage, for instance? And Justice Thomas's point is judges, stop making up frameworks.

You don't need to do this. They are bad. Just use the text. Stop distorting what the law actually is. So here's how he ends. In the meantime, litigants and lower courts are free to proceed without the McDonnell Douglas framework. This court has never required anyone to use it, and district courts are well equipped to resolve summary judgment motions without it. Every day and in almost every context except the Title VII context, district courts across the country resolve summary judgment motions by applying the straightforward text of the summary

judgment rule 56. In my view, it might behoove courts and litigants to take that same approach in Title VII cases. Atextual, judge-created legal rules have a tendency to generate complexity, confusion and erroneous results. I am pleased that the court rejects the A textual background circumstances rule. But like you think about the McDonnell Douglas framework, David, and he's just so right that it has spawned any number of precedents on how to apply the McDonnell Douglas framework and additional factors to consider and you're off to the races.

Well, you know, I'm, I'm with him, especially on this case and the McDonald Douglas framework. And I'm with him largely with him on just the general argument about judge made rules. It does introduce complexity and especially here. Why do you need to have a back and forth legal standard when normally when you're filing, when you're pursuing a case in civil litigation, you're just proving your allegations by a preponderance of the evidence. Did they discriminate against me or not by a preponderance of the evidence? Was this a motivating factor or not by a preponderance of the evidence?

Totally extra complexity here. Now a lot of litigants have adapted to it. It's almost like a dance. You make your initial claim, you have your anticipated defense, and then you have your rebuttal, which is actually how just all litigation works. I know that's sort of funny about it. Yeah, which is so weird about it. So then you're like, wait, okay, but just the way litigation works is now called the

McDonald Douglas framework. I don't get the, it's. But the lower court started reading into every word of the McDonald Douglas framework way too much and then creating precedent to build upon the McDonald Douglas framework. And you kept moving further and further away from Title VII as they kept building the McDonald Douglas edifice that is, again, my new legal doctrine made the F up. Yeah, no, you're exactly right. Because if you're a judge and you think, okay, hey, wait a minute, this framework just looks

like the way litigation works, but they didn't leave it that way. They said we have a special framework, so it must mean something special. And they created all the specialness about it. And it's just needlessly complicated. But in normal, in your normal plain vanilla employment discrimination case, it actually is fine. It's when the case gets complicated, when there are unusual facts that things get really tough.

But in normal case, you do this dance and you make your claim, they have the rebuttal, you make your response and that's that. It is what it is. But it's when cases get difficult, it's when cases get unique, that all of this, you know, a spider web or a web of complexity just sort of descends upon it. And it's frustrating, it's time consuming, it delays justice. So yeah, I'm with Justice Thomas here. And so just to rehash, you have Justice Jackson

writing for a unanimous court holding that a heterosexual can claim homosexuals discriminated against her in employment and move her case forward. Though I have to say, I do think in the end she will lose her case just based on what's been alleged in the complaint. You have Justice Thomas trying to make it easier for people to bring employment discrimination claims.

So take that Supreme Court narrative about what liberals and conservatives want for outcomes only. Yeah, no, that's it. I had not thought about that second part that you just raised, Sarah. Here's Justice Thomas, arguably the single most conservative judge on the court, certainly in the running for one of two. And he's like, yeah, we need simpler employment litigation practices, which is very actually

quite plaintiff friendly, because it's the plaintiffs who tend to have much fewer resources. They want cases to be more straightforward. Defendants thrive on complexity often. And so I hadn't even thought about that other side of this, but you're exactly right. Well, let's move to our next narrative busting case, the Smith and Wesson gun case. And before we do, we'll take a quick break to hear from our sponsor. At Desjardins Insurance,

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All right, David, we're back and we're talking Smith and Wesson. This case was unanimous and written by Justice Kagan with a concurrence by Justice Thomas and a concurrence by Justice Jackson. This is about the Protection of Lawful Commerce in Arms Act, the PLCAA. It barred certain lawsuits against manufacturers and sellers of firearms. And this was really Congress's express rejection of efforts by, as Congress put it, to accomplish through litigation that which they have been unable to achieve by legislation.

Right, so they were providing exemptions to the gun manufacturers, not because they loved gun manufacturers so much, but because there were all of these lawsuits trying to shut down gun manufacturers that they couldn't get done through legislation. So basically, it says they're immune from product liability lawsuits, except if you can show that the manufacturer or seller knowingly violated a state or federal statute applicable to the sale or marketing of firearms. That violation was the approximate cause of the harm for which relief is sought. So, now we're going to test how big that exception is. Here comes Mexico.

Mexico sues the manufacturer saying that they were aiding and abetting the illegal trafficking of guns into Mexico. Their argument? They only have a single gun store in Mexico. They issue fewer than 50 gun permits per year. But gun traffickers purchase their firearms in the United States, often in illegal transactions and deliver them to drug cartels in Mexico.

Those groups, predictably enough, use the imported firearms to commit serious crimes, drug dealing, kidnapping, murder, and others. According to the Mexican government, as many as 90% of the guns recovered at crime scenes in Mexico originated in the United States. So just to refresh everyone's memory of how our system of gun selling works here. The gun manufacturers sell to distributors, the distributors sell to dealers, the dealers sell to customers. So Mexico's claiming that a small minority of the dealers are responsible for most of the sales to Mexican traffickers.

So how do they get to the manufacturers? Three arguments. One, the manufacturers continue to supply those dealers as they do legitimate ones in order to boost their own profit. Like they know who the bad dealers are and they keep giving them guns through this, you know, system of manufacturer to distributor,

distributor to dealer. Okay, two, the manufacturers have failed to impose the kind of controls on their distribution networks that would prevent illegal sales to Mexican drug traffickers. We'll call this the they could do more argument. Right. And number three, the manufacturers have made design and marketing decisions intended to stimulate cartels

members demands for their product. Most prominently, Mexico asserts that the manufacturers have increased production of military-style assault weapons with an eye towards cultivating the criminal market with Spanish language names or graphics alluding to Mexican history. Justice Kagan, in short, Mexico has not adequately pleaded what it needs to, that the manufacturers participate in those sales, as in something they wish to bring about and seek by their actions to make succeed. So in short, all three of Mexico's arguments can be true.

And nevertheless, it is not enough to actually win in that exception from the PLCAA. David, reaction. That I think it's a pretty simple way to think about this. Justice Kagan and eight other members of the court were essentially saying, we're not gonna blow up the definition of aiding and abetting for this case.

That aiding and abetting is a phrase with a real meaning in the real world that generally means that you have to pinpoint specific criminal transactions that the defendants assisted. So what are these specific transactions that you believe were unlawfully assisted? And then as the court says, instead, it levels a more general accusation that all the manufacturers assist some number of unidentified rogue dealers in violation of various legal bars. So it's a systemic argument that would, I mean, the downline consequences Sarah of, of expanding aiding and abetting liability this much, I shudder to think of what they would be.

And in fact, you know, if you're going to level a charge that say, if the court was truly activist, outcome-oriented, gun manufacturers bad, bad gun manufacturers have to suffer consequences. They might try to carve out some expansion of aiding and abetting liability that applies only in this arena. But no, they just didn't do that for a million good reasons. So when we listened to this case, when we talked about the oral argument to this case, we knew it was coming out this way. And I actually did not see or do not remember from oral argument that a single justice strongly indicated that they were going to be ruling for Smith and Wesson. So this outcome does not surprise me.

The reasoning I think is very, very sound. And it's basically, look, if you're gonna allege aiding and abetting, you gotta allege actual aiding and abetting, you got to allege actual aiding and abetting. You can't just allege marketing and selling, which is essentially what they've done. So, once again, I think the Chief Justice did something brilliant here. I think picking Jackson to write the employment discrimination case makes a lot of sense.

I think having Justice Kagan write this makes a lot of sense because you have Justice Kagan here, the textualist. She's looking at the PLCAA. It says aiding and abetting, even if you want the outcome to be that Mexico can, through a lawsuit, shut down American gun manufacturers. This is about Congress actually doing its job once upon a time and then reading that statute and applying it to the context and the facts here, a Justice Kagan specialty, if I've ever seen one. Worth a quick moment on the Clarence Thomas concurrence in this one. In short, he's saying that he thinks not only does the PLCAA require the plausible

allegation of aiding and abetting, like it has been used in every other context to mean to aid and abet, but he thinks it might require an earlier finding of guilt or liability in an adjudication. As in, mere allegation would not be enough. You would need to get that criminal liability in court somehow before you can bring then this civil case. David, thoughts, feelings or meh, nobody joins you anyway.

Meh, yeah, meh, no. That would be narrowing aiding and abetting. So, I think the virtue of the original, of the court's majority opinion is it's just applying a standard aiding and abetting analysis here. Justice Thomas seems to be narrowing aiding and abetting. And what could be, if this was applied, could work out in some really unfortunate ways that an idea that you have to have a predicate conviction before you have an aiding and abetting liability or predicate legal determination before

there's aiding and abetting liability. Well, like we don't do that in wrongful death cases, for instance. So like you can be held civilly liable for killing someone, even if you were not held criminally liable because the standard is different beyond a reasonable doubt versus more likely than not. But as Justice Thomas notes, allowing plaintiffs to proffer mere allegations of a predicate violation would force many defendants

in PLCAA litigation to litigate their criminal guilt in a civil proceeding without the full panoply of protections that we otherwise afford to criminal defendants in PLCAA litigation to litigate their criminal guilt in a civil proceeding without the full panoply of protections that we otherwise afford to criminal defendants." Yeah, I hear you, but we do that in civil cases and other contexts quite a bit. Yeah, all the time. A civil case is not a criminal case. It's got a lower burden of proof. I mean, the most famous example of that is O.J. Simpson. O.J.! Yep.

Jinks. Yep. Jinx. Yep, exactly. Say it all together, children. All right, David, I wanna make sure we leave plenty of time for Catholic charities. This was a decision written by Justice Sotomayor with concurrences by Clarence Thomas and Justice Jackson. All right, I'll read now from her opinion.

Wisconsin, like many other states, exempt certain religious organizations from paying taxes into the state's unemployment compensation system. One such exemption covers nonprofits operated primarily for religious purposes and controlled, supervised, or principally supported by a church. Dishonors, Catholic charities, bureau, and four of the entities that it operates claimed that they qualify for the exemption as religious organizations controlled by the

Roman Catholic Diocese of Superior Wisconsin. The Wisconsin Supreme Court disagreed, holding that petitioners are not operated primarily for religious purpose because they neither engage in proselytization nor serve only Catholics in their charitable work. Here's Justice Sotomayor's recitation of the findings of the Wisconsin Supreme Court, which are, if you use the legal term, bonkers. The dispositive question was whether petitioners are operated primarily for religious purposes.

The Wisconsin Supreme Court interpreted that statutory phrase to require judicial inquiry into not only an organization's motivations, but also its activities. To determine whether an organization's activities are primarily religious in nature, the court held, court should focus on whether an organization participated in worship services, religious outreach, ceremony, or religious education. Applying that standard, the court held that petitioners' activities are secular in nature, not religious. Petitioners neither attempt to imbue program participants with the Catholic faith, nor supply any religious materials to program participants or employees, the court observed. Both employment with the

organization and services offered by the organizations are open to all participants, regardless of religion. And the charitable services offered by sub-entities could be provided by organizations of either religious or secular motivations. And here's Justice Sotomayor explaining why that's a big no. The clearest command of the Establishment Clause that the

government may not officially prefer one religious denomination over another. When a state law establishes a denominational preference, courts must treat the law as suspect and apply strict scrutiny in judging its constitutionality. A law that differentiates between religions along theological lines is textbook denominational discrimination. Yep. Consider an exemption that applies only to religious organizations that perform baptisms, engage in monotheistic worship, or hold services on Sunday.

Such laws establish a preference for certain religions based on the content of their religious doctrine, namely how they worship, hold services, or initiate members and whether they engage in those practices at all. Such official differentiation along theological lines is fundamentally foreign to our constitutional order for the law knows no heresy and is committed to the support of no dogma." A great quote, by the way. I love that quote. Catholic teaching, petitioners say, forbids misusing works of charity for purposes of proselytism. It also requires provision of charitable services without making distinctions by race, sex, or religion. Many religions apparently impose similar rules prohibiting proselytization or religious differentiation in the provision of charitable

services. See brief for religious liberty scholars discussing Judaism, Islam, Sikhism and Hinduism. And as she ends the opinion, there may be hard calls to make in policing this rule, but this is not one. So a couple of thoughts right off. When you read out loud, Sarah, you may not have been conscious of this, but when you read out loud that the Supreme Court has just unanimously affirmed the principle, the law knows no heresy and is committed to the support of no dogma, there was a sound of a million screaming Christian

nationalists in the background. How dare you, Supreme Court? How dare you? This is so obviously correct. This is one of the very few cases I think that the Supreme Court takes just for error correction purposes. But it's interesting, it's so obviously correct and the decision of the Wisconsin Supreme Court was so obviously wrong that you think, well, this has to be a total outlier. This is just totally the product of those libs in Wisconsin, right? The anti-Catholic

libs in Wisconsin. This is what they do. No, there's a parallel issue coming out of the state of, drum roll please, Texas, where the state of Texas is making a similar argument about Catholic social service organizations that reach out to migrants and saying that reaching out to migrants is not religious activity and making a very similar argument. And so what you're seeing, I mean, this horseshoe theory, reality of American politics, I don't think enough people have absorbed how completely we are horseshoeing at the edges of American political life. And where it becomes most clear are in these constitutional cases. And the approach to minority faiths, for example, minority expressions of faith or expressions

of faith that are in disagreement with majority democratic will, you name it. And so I think this case, which was an error correction case on a very weird, on a very weird fact situation is actually more important than we realized because this was, look at it this way, this case is a vaccination against a virus that was already starting to spread. Now, what's interesting is we will have a follow on case here. I think maybe even just

next term, maybe the term after, because there is a federal law that the Wisconsin law was based on. Now, Wisconsin had its own interpretation, as you know, said by the Wisconsin Supreme Court and the Wisconsin government about how exactly primary purpose operates in Wisconsin. But the language is the same as the federal law and whether that law also must fall will be interesting. That was the subject of Justice Jackson's concurrence. She was sort of coming up with a saving argument for the federal law if they would simply interpret it differently than the Wisconsin language. The Solicitor General had already basically said that

parts of that federal law would probably, applications of that federal law would probably have to fall. So I do see that coming down the pike here in short order. But, I mean, this was just like a actually kind of beautiful opinion written by Justice Sotomayor in an era where so much is so contentious and one side's beauty is another side's ugly. I love that this was unanimous. And I just I really like the way that she wrote it. Yeah, it's a it's a wonderful opinion.

I thought the each one of these three cases were a combination of correct outcome with correct approach. And it's very interesting because of this, because of this, we went through a news cycle about, think about this. We just went through a news cycle with a Supreme Court case about DEI,

a Supreme Court case about guns, and a Supreme Court case about religious liberty. And it made not a ripple, not a ripple in public consciousness. This was something that was, I mean, it was in newspapers, et cetera. But as far as compared to previous battles over guns, over religion, over diversity. It's really remarkable how quiet it all was, Sarah. But this gets to my six, three point. If these cases had been six, three,

I think they would have been seen very differently. But because they were unanimous, people weren't able to project their partisanship on the outcome that they would have if the three liberal justice, for instance, has been in dissent or if the cases had turned out differently. Certainly for instance, that Smith and Wesson case would have been seen as a huge case if it had turned out the other way. If Mexico could sue gun manufacturers and hold them liable for traffickers crimes in

Mexico, that would have been a big, big gun case. So the lineup matters to defining a big case, the outcome matters to defining a big case. So I don't think I'm disclosing anything I shouldn't, but as we talk about SCOTUS blog, for instance, we're having a conversation about whether at the beginning of a term or when cert is granted if cert's granted midterm to sort of pick our big cases on the front end so that we don't consciously or subconsciously fall victim to this ourselves. Say what we think the big cases are before we know the lineup or the outcome. Because I think that's the only way you can do it

with credibility. No, I, yeah, that I think that's a very good way of saying it. What are the, identify them ahead of time. Identify, not by the reaction to them, but by the importance of them independently of the reaction to them. No, I love that.

I love that. All right, David, when we come back, I want to talk about a dig that we got on Thursday as well as a cert grant that we got on Friday by accident. We'll be right back. And now we'll hear from Aura Frames. What do you get the man who already has everything or says he doesn't need anything?

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your tools should too. Visit square.ca to get started. We're back. So David, first thing, we had six opinions on Thursday. We're not talking about the other three really because, well, sorry, even for me, they were a little boring. Except this one case called LabCorp. I was super into it. I listened to the whole argument. We didn't cover it on AO at the time because I knew I wasn't going to be able

to get you particularly excited about class action certification until we had a decision. But then we got the decision. They digged it, David. They dismissed as improvidently granted because there was some messiness around which court order the plaintiffs actually had appealed here, blah, blah, who cares? But we have a really unusual dissent from the dig by Justice Kavanaugh. So I just wanted to read this to you because if you're a civil litigator out there, I thought you'd find it interesting

and I've got a little story at the end. Okay, so first of all, Rule 23 authorizes class action certification only when common questions of law and fact predominate. Okay, so that's really the only question here. What does it mean to have common questions of law and fact predominate. Okay, so that's really the only question here. What does it mean to have common questions of law and fact? Here's Justice Kavanaugh writing in his Dissent from the Dig. The facts are fairly straightforward.

LabCorp provides a diagnostic laboratory service. In 2017, they introduced self-service kiosks for patients to check in for their appointments. Although the touchscreen kiosks are accessible to most patients, blind and visually impaired patients require assistance. To accommodate those patients who cannot use a kiosk without assistance or who prefer not to use one, LabCorp maintained and bolstered its front desk services at patient service centers.

Despite those accommodations, legally blind plaintiffs sued LabCorp in district court. As relevant here, they claimed that LabCorp in district court. As relevant here, they claimed that LabCorp's new kiosks violated the Americans with Disabilities Act. Plaintiffs sought to certify a class with potential damages of up to $500 million per year. Okay. So in May, 2022, the district court certified a class consisting of, quote, all legally blind individuals in California who visited a LabCorp patient services center in California during the applicable limitations period and were denied full and equal enjoyment of the

good services, facilities, privileges, advantages, or accommodations due to LabCorp's failure to make its e-check-in kiosks accessible to legally blind individuals. LabCorp appealed, contending that plaintiff's class definition was overbroad because it would sweep in many uninjured members, including blind patients who would not use kiosks anyway because they dislike kiosks or prefer to speak with a front desk employee when checking in for appointments. And as Justice Kavanaugh points out,

classes that are overinflated with uninjured members raise the stakes for businesses that are the targets of class actions. Overbroad and incorrectly certified classes threaten massive liability. Here, $500 million a year, that in reality can coerce businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial. Importantly, those coerced settlements substantially raise the cost of doing business and companies in turn pass on those costs to consumers in the form of higher prices, to retirement account holders in the form of lower returns, and to workers in the form of lower salaries and

lesser benefits. So, overbroad and incorrectly certified classes can ultimately harm consumers, retirees, and workers among others. David, if the case hadn't been digged, I think we were going to see a decision that classes must be only injured members and that that was actually going to be a pretty messy thing because you have to figure that out at the class certification stage. But what about the damages stage? And again, our civil litigators will be shaking, nodding their heads vigorously at this point. David, I told you I was really into this case.

I listened to the whole oral argument. It was very long, pretty contentious at points. And then I went about my life rather than covering it on this podcast. But a few weeks later, I had to go to LabCorp to get some blood work. And during the oral argument, I had been assured that it was actually totally up to you whether

you want to use the kiosk. That a lot of people would prefer to use the kiosk, but a lot of people would prefer to go talk to a human being, and that that's the whole thing about why we don't know whether this class was in fact overbroad and included uninjured members. So I walk into LabCorp, I see the kiosk, and I'm sort of fumbling with all my stuff and whatever. So I just go to the front desk to check in. You know what happens, David.

She says, oh, you have to use the kiosk. Yes. Okay. So that's funny because I was just about to interject and say, I'm fascinated by this case because about a couple of weeks ago, I had to go to LabCorp to get some pleasure on. And my experience was very different. I walk into, I believe it's a Walgreens, I walk to the back and there was a LabCorp sign and there was a closed door and a kiosk. And that was it. There was no human being. There was a cashier at the front of Walgreens. There was a pharmacist in the pharmacy, but there was

absolutely not a human being. And so I'm sitting there going, I'm just, I used the kiosk and I was thinking, wait a minute, is there actually a human being here? What's going on? Shouldn't there be a person? And so I used the kiosk. I waited about three minutes and then the sealed door, which had no window, like this was not a welcoming kind of door, the sealed door opens, a tech comes out and says, come on in. But it gave me a little bit of an interesting perspective on this case that it was just a wall with a kiosk. That was the lab court location. Look, many times when I walk into these types of places, I would rather use the kiosk because

there's a line to talk to the person at the front and I'm just trying to check in or whatever. So, I like the kiosk option, but I do think they need to be an option. Anyway, I thought it was very funny that the fact pattern accepted was that they are just optional and yet it felt very not optional for me and I guess for you too, David. All right, one more thing. There was an interesting cert grant that we actually got Friday instead of Monday due to a basically a clerical error at the Supreme Court. They accidentally sent out an email to a bunch of the lawyers. By that point, it was like, well, oh, well, I guess we're just going to post the orders

list on Friday night. I got to say for someone who covers the court, that's very annoying to post anything on a Friday night that's not an emergency or short order docket issue. But whatever it did give me the weekend to prepare for this podcast. So David, this case is about IQ tests and the death penalty. As you know, we do not execute people who are found to be mentally retarded. And we have held that that means having an IQ below 70 points. IQ tests, however, are not pure science, right? They vary. The question in this case is, what happens when the person took multiple IQ tests and

the IQ tests range between 72 and 78 with a margin of error of about plus or minus three IQ points. So that 72-point IQ test could be as low as 69, and of course the 78 one could be as high as 81. And how much can the courts consider other information that would perhaps convince them that the person is not mentally competent to be executed. This case was in the 11th Circuit. It was sent back by the Supreme Court before, and the 11th Circuit once again struck down

the imposition of the death penalty, and the Supreme Court has granted cert on it. So I gotta tell you, David, I think in the end, this will be upholding the death penalty for this person. But it will be just argued next term and decided next year. David Gardner Yeah, this is an area that IQ testing that I know so little about that my ability to sort of walk in and talk about this, I'm going to have to read the briefing in this case pretty carefully to form any kind of educated opinion on it. But I tend to agree with

you. I tend to agree that that's likely the ultimate outcome. But before I say another syllable, I want to read all the briefing in this case. David, forget the topic. The case went up to the court. They reversed and set it back down and now it's back up and they grant cert. I don't care what the topic is. You're getting reversed for good. They think you're playing shenanigans, whatever the topic, and they don't like it. What's sort of surprising about it is it's this 11th Circuit panel, the 11th Circuit, you know, not really known for being soft on the death penalty. You know, I think you see the courts when it comes to death penalty cases, really wanting to cut back

on the decades that it takes, cut back on the judicial second guessing. They want a fair process, but once that process has been completed, we're not gonna have endless appeals, endless court intervention, but we'll see, we'll see. All right, David, that wraps up this episode of Advisory Opinions. We've got some really interesting circuit cases for next episode.

And of course, who knows what could come out on the short order docket between now and then? Could be a barn burner. But if you are looking for something else to listen to, former New Orleans Mayor Mitch Landrieu was on the Dispatch podcast with Jamie this week. Landrieu was pushing back against that book, Original Sin, the one written by Jake Tapper and Alex Thompson about Biden's mental decline and the cover-up at the White House. That book has been a bestseller, to say the least. In a time when political books have not been doing particularly well in the Trump era, this has been a real difference.

Very interesting podcast if you're looking for something else to listen to. And if not, we'll see you next time on Advisory Opinions.