Advisory Opinions - Listener Mailbag Part I

Episode Date: December 21, 2020

On today’s holiday mailbag edition of the podcast, David and Sarah answer a series of listener questions ranging from legal history to college football. Do you have to admit guilt to accept a pardon? Are there any wrongfully decided Supreme Court cases that are still on the books? Is there a secular argument for prohibiting abortion or does restricting the practice entirely depend on adopting religious doctrine in the public square? Are tier 2 or tier 3 law schools worth attending? What are the best books of the year? What is the constitutionality of factoring race into vaccine distribution? And MORE! Tune in to hear the breakdown. Show Notes: -A brief history of pardons from Smithsonian magazine. -Korematsu v. United States, Buck v. Bell, Roe v. Wade, Kelo v. City of New London, Schenck v. United States, Employment Division v. Smith, Monell v. Department of Social Services, Brandenburg v. Ohio, Skinner v. Oklahoma, Trump v. Hawaii. -38 states with fetal homicide laws. -Qualified immunity doctrine. -“Books to Read If You’re Tired of Hearing About Impeachment” by Sarah Isgur in The Dispatch. -Sarah’s book recommendations: The Witches: Salem, 1692 by Stacy Schiff, She Has Her Mother's Laugh: The Powers, Perversions, and Potential of Heredity by Carl Zimmer, How Innovation Works: And Why It Flourishes in Freedom by Matt Ridley, Hero of the Empire: The Boer War, a Daring Escape, and the Making of Winston Churchill by Candice Millard. -David’s book recommendations: Divided We Fall: America's Secession Threat and How to Restore Our Nation by David French, Rhythm of War: The Stormlight Archive, Book 4 by Brandon Sanderson, The Democratization of American Christianity by Nathan Hatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to a holiday mailbag edition of the Advisory Opinions Podcast. This is David French with Sarah Isger. And today we're going to answer reader mail. Well, let me qualify that. It's going to be some combination of reader email, reader text message. Yes, text message. I have friends who text me after they listen to the podcast. And a couple of friends texted

with some good topical questions. Reader Discord comments. So yes, I lurk in this Discord channel that's been informally created to follow... Oh, did I say Caleb producer says I've been saying readers, not listeners. Listener mail, Sarah. Listener mail.

So anyway, many people have sent us signal flares and smoke signals from a variety of different platforms. And today we respond. And there's some really good questions, very good questions, ranging from everything from sports, where I'm going to do battle with my LSU listeners after last podcast, to politics and law, to core constitutional concerns, and hot button culture war topics. So as Sarah says on the Second Tier Dispatch podcast, let's dive right in. Sarah, let's start topical. And you had some good questions regarding pardons.

In the news, there is a possibility of a series of pardons being issued by the president, perhaps even trying to pardon himself. And here are the questions. And we all know, for example, that the pardon power is pretty darn absolute. But the question that you were asked is, do you have to admit guilt to accept a pardon? If you accept the pardon, are you saying that I committed the offense for which I'm being pardoned? Sarah? WME for writing in his question. Actually, I'm just assuming it's a him, but I think it's a him. What are the implications of verdict for the United States, Ray, the admission of guilt inherent in accepting a pardon? Or does the president have further power to grant immunity? So as this person said, there's this case called verdict for the United States. And I just sort of dove into some of our early pardon cases, which were, of course, super fun because you know me, I love history and nerdery,

and this was a good combination. So back in 1915, President Woodrow Wilson was getting cranky, cranky about some leaking. And so they brought the editor of a newspaper in to court and asked him who his source was. He pled the fifth and said he would not testify because of his right against self incrimination. And so President Wilson, clever, clever, issued him a pardon. The newspaper editor declined the pardon. And this case went to the Supreme Court of who's right here. If Wilson issued him a pardon, he is no longer in jeopardy. And therefore, uh, uh, there is no incrimination because he can't be criminated or is the newspaper editor, right? That he can reject the pardon and therefore he is still

in jeopardy and he can incriminate himself and does not have to testify the supreme court said that a pardon was like a deed the president is offering the pardon and the person that is being pardoned has to accept it like a deed because a pardon quote carries an imputation of guilt and acceptance a confession of it. So what the Supreme Court is saying is the reason one might want to reject the pardon is because your fellow man might think that by accepting a pardon, you were acknowledging guilt. Right. And confessing to it, admitting it. However, nowhere in this opinion does it say that you must actively admit guilt or something. You don't need to appear in court and say,

I did this to get your pardon. By the way, this case, Burdick, is based on an even earlier case, which interestingly is called Wilson from the 1830s. It is not obviously about President Wilson. This is about George Wilson. And this one's a weird one because I have tried to do some digging and can't find the answer to my question. So if anyone out there wants to do more digging, I am all for it. So in April of 1830, George Wilson was found guilty of obstructing delivery of the mail, robbery of the mail, and endangering the life of mail carriers. delivery of the mail, robbery of the mail, and endangering the life of mail carriers.

He and his buddy were sentenced to death. His buddy was, in fact, deathed. But Wilson was issued a pardon by President Andrew Jackson. He had friends in high places, as it turned out. But Wilson refused the pardon. The case went to the Supreme Court of like, wait, can he do this? And the court ruled that, no, it had no power to impose a pardon. And that's where like this deed analogy comes from.

The delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered. So Wilson was put to death. And so Wilson was put to death. That's a fascinating turn of events. I was not tracking that fact pattern from back in the day. So the pardon that Andrew Jackson was sending Wilson was specific only to the charge for which he could be put to death. So he was still going to be found guilty of the other charges and he was still going to serve prison time, maybe around 20 years from what I can find. And so maybe he just didn't

want to spend any time in prison. And so he decided that death was better than time in prison in the 1830s, which maybe that's not totally unreasonable. But what I can't find, and in fact, what some historians are acknowledging, is that we don't have why Wilson declined it. So there's several reasons. One, he didn't want the imputation of guilt. He didn't think he did it.

And so he didn't want to be pardoned. He'd rather die than admit sin, if you will. Two, he didn't want to be pardoned. He'd rather die than admit, you know, sin, if you will. Two, he didn't want to spend time in prison. That's, I think, probably my leading contender, just from sort of the Occam's Razerness of it. Or three, he had some sort of mental

instability. I mean, the guy is, you know, basically wrestling horses and doing some other crazy, crazy stuff. And he was just like, nah, no, I want to be put to death because that sounds fun or whatever. So anyway, that is weirdly the history of pardons of case law in this country. Now, we've talked about this before. So the person would need to accept the pardon. And in this case, what Emmy was asking about was Ken Paxton. And so by accepting the part, you know,

certainly the rest of us could assume that Ken Paxton is guilty of the crimes for which he's being investigated, which includes bribery and abuse of office. But Ken Paxton could accept the pardon and say, I'm accepting this pardon because this is a witch hunt, but I didn't do it. He's welcome to do that. And the pardon is still valid. There is a question over whether the FBI could continue investigating him. I believe that legally that answer is no, unless there was some sort of national security issue. But the FBI can't just investigate people for funsies unless there is a criminal rainbow at the end of the tunnel. And so, yeah, I mean, that's what our dear Attorney General of Texas, Ken Paxton, would be considering

if he were to accept the pardon. He does not have to admit guilt, but accepting a pardon, the Supreme Court has said multiple times that that's sort of what comes with. And it is rumored that that is why Gerald Ford sort of said he could sleep at night when he pardoned Nixon, that it came with the imputation of guilt and that that would be enough.

All right, David, that's my answer. I love it. I think that's a great answer. I also think that if you're talking about, because some of the interesting, there's an interesting practical question that comes from this, which is obviously, constitutionally, a president can only pardon a person for federal crimes. Now, what if he pardons, say, what if he pardons Ken Paxton, and Ken Paxton is then investigated and prosecuted for parallel state crimes that have many of the common elements of the federal crime? Would the quote-unquote imputation of guilt of accepting the federal pardon be admissible against him in a state prosecution? I would say probably no. I would say probably no. It seems to me that this imputation of guilt isn't necessarily,

necessarily, it strikes me as sort of more of a conceptual, theoretical, sort of constitutional concept than any sort of like concrete evidentiary concept. But I don't think, do we have case law? I don't think that we have case law that would resolve that. Not that I'm aware of, but we do have lots of interesting presidential pardons through history. I did not know, for instance, that Jimmy Carter pardoned Jefferson Davis. Jimmy Carter pardoned Jefferson? You know, we're probably going to have

several listeners saying, well, duh, of course. Did you not know that, you alleged nerds? I did not know that, that Jimmy Carter pardoned Jefferson Davis. Could you imagine how something like that would go over today? Here's the quote. Our nation needs to clear away the guilts and enmities and recriminations of the past to finally set at rest the divisions that threatened to destroy our nation and to discredit the principles on which it was founded.

And so in 1978, Jimmy Carter pardoned Jefferson Davis. How that's consistent, that principle that he just said is consistent with pardoning Jefferson Davis is I'm not totally sure. It seems a little totally sure. Yeah. Tokyo Rose was also pardoned, or at least the Tokyo Rose is actually several women, but the woman who was sort of blamed for being Tokyo Rose was pardoned. George, George Steinbrenner was pardoned. Patty Hearst, the Mylay, one of the Mylay guys. Um, and then there was the one day pardon. Um, the one day pardon yeah so a new york real estate developer uh in the early aughts pleaded guilty to mail fraud and using false documents blah blah blah everyone hated him uh president george w bush issued him a pardon but one day later, the pardon was rescinded

when it turned out that his father had made a $30,000 donation to Republicans. It didn't look good. Uh, in the end, the justice department said the pardon wasn't binding because this guy never received formal notice. So like for one day, he kind of thought he was pardoned, but to our offer and acceptance thing, the justice department claimed it wasn't really offered, therefore it couldn't have been accepted. And sort of like a funny contract law thing, this poor guy not pardoned. Interesting. All right, let's move on to the next one. Also topical, this next question comes from Aaron, among others. And this is related to some of the reports that we saw over

the weekend that the president had Sidney Powell in the Oval Office. There were also reports that Sidney Powell was at the White House yesterday. So Sidney Powell hanging out in the Oval Office with some other folks talking. And Sidney Powell, for those who don't know, she is the Kraken lawyer who has been filing the alleged Kraken lawsuits across the United States. And so there has been reports that the president was considering, among other things, seizing voting machines in various states, issuing orders to seize voting machines as in an effort to prove fraud that had asked questions, the president asked questions about General Flynn's martial law, limited martial law proposal to revote in multiple states and got various kinds of questions like, can he do that? kinds of questions like, can he do that? Is that something I need to worry about?

Well, and the answer is, do I need to worry about this? Well, I think, yes, you should always worry if you're getting credible reports that a president is considering things like this. No, you should not worry that it will actually happen and there are some legal and and structural reasons for that for one thing the voting machines in various states because remember each one of the a presidential election is is it it certainly elects the president of the united states a federal office but it is really 50 separate state elections of state electors. And these voting machines are not in the possession of the federal government. They are not federal property. They are the property of the states and localities that actually control the election. And so there would have to be a legal process, not simply an executive order seizing the voting machine, seizing this

state property. And this would, in all likelihood, flow from a legitimate vote fraud investigation, say, for example, coming out of the DOJ, of which we do not know of any. And it certainly would not just simply be the president directing, in this case, Homeland Security, which was his proposal, to grab them. So there's no authority for the president to do that. And there's no indication, and here's the structural aspect, there's no indication that Homeland Security would be willing to violate the law on the president's command. As far as limited martial law to hold a new election, I mean, that's just a no, no, no, a thousand times no. There's no legal mechanism for that.

But I do think it's worth noting that this kind of does go to some really interesting questions of presidential authority. Even, you know, a lot of folks sort of think of a presidential declaration of emergency, which is, you know, a phrase that's come up a lot, an act that's come up a lot during the Trump administration. You know, he declared an emergency on the southern border. They think of a lot of folks sort of out in the world think of a presidential declaration of emergency as sort of like laying down the I can do anything card.

Like once a president declares an emergency, he then has this enormously broad freedom of action. Well, it does increase his freedom of action in certain respects, but whenever you think a president has, quote unquote, declared an emergency, what you think is, it's like turning a key that unlocks other very specific specified powers. It is not a blanket declaration of sort of royal authority. It is then unlocks specific statutes, which was what a lot of the fight was around the border wall and the border wall funding. Because when he declared an emergency on the border wall,

it's not that he could just throw money at a border wall or declared emergency on the border. It's that it unlocked specific statutes. And now there's litigation over whether those statutes even allowed him to have those funds and to use those funds. It's interesting, though, if you followed at all the Jericho March from last weekend, not last weekend, weekend before last, you saw some people urging that the president, kind of realizing that the president doesn't have just blanket authority,

kind of realizing that the president doesn't have just blanket authority, asking him to invoke the Insurrection Act. Well, Sarah, the Insurrection Act does not apply to a circumstance where you believe that a state didn't vote the way you wanted it to vote. Does not apply. So you have legal and structural barriers to all of this. And we'll just go back to something that we have said a million times here. And that is from the very moment that Joe Biden takes the oath of office, at that instant, Donald Trump becomes a private citizen. He is no longer, even if he's sitting behind the resolute desk saying, I won't leave. He immediately loses all of the authority that he had the second before

the oath was administered. All of it. It is gone. It's just like me sitting behind the resolute desk at that point. Although he would have entitlement to Secret Service protection as a former president, I wouldn't. But other than that, it's just like me. So I'm not going to say rest easy because I don't I'm worried whenever a president says it has been there's credible reports that he's, you know, words like martial law are going through his brain or seizing voting machines are going through his mind, but the checks and balances that restrain that are holding, and there's no indication that they're crumbling. In that circumstance, I'm far more worried about radical action from private actors than I am from government actors. Sarah, anything to add to that? Agree? Disagree? So, David, the only thing that I want to add to this conversation is, and this maybe isn't even the best example of it, but there have been lots of news stories in the past four years, and especially of late, where it's just a story by itself saying the president is considering X. Right. And it's based on an anonymous source of someone who says the president raised the possibility of X. And then you're left with the implication that that was shot down by other people in the room and the president moved on and that those people in the room saved the day.

this is not that story because there is a meeting in the Oval Office and what you have is people reporting on what was going on in the meeting and the purpose of that meeting is what we're talking about. That is different than some of these other stories where it's just, yeah, there's not a meeting about this thing. The president raises it at some time to someone, we don't know who, it's a lot of sort of anonymous stuff, but the headline is extraordinary. You know, president considers shooting so-and-so into the sun type stuff. This is not so much a defense of the president as perhaps an indictment of him, but this guy raises like a thousand things in a single breath and moves on just as quickly. And so I wish that more of that reporting came with sort of a, and nothing was ever going to come of this. Like he didn't need to be talked

down. It wasn't real in the first place. Um, and so anyway, that's all to say, like, I, I hope people take some of this with a grain of salt. Again, I think the Sidney Powell, Mike Flynn thing is a little different because they were invited to the Oval Office. There was a heated discussion. All of that, I think, is good reporting. And thank you to the reporters who did that reporting for us. But on some of these other ones of what the president is, quote unquote, considering. Just read the news stories carefully. Make sure that this isn't just a single source claiming that the president said something one time when he was on the john and never to be raised again. Can I can I bring up probably

the paradigmatic example of that? Please do. This this one is scoop. Axios, August 25th, 2019. Trump suggested nuking hurricanes to stop them from hitting the U.S. I think that's a pretty good one. And I would just note the problem is that they're undisprovable. Because when the president doesn't nuke the hurricanes, then the answer that comes back is, well, he was talked out of it. Instead of like, what would be the evidence needed that either the president never raised it, it wasn't raised seriously, or it was raised in this like sort of frenetic flurry of thoughts,

like injecting, you know, I think a good example of this is when the president, we saw it happen when the president suggested injecting, you know, I think a good example of this is when the president, we saw it happen when the president suggested injecting bleach. Right. He said that to all of us. So we all heard it, you know, but you could imagine the news story version of that. If he had said it privately, president mulling, whether to tell people to inject bleach, Well, he's just rambling. Right. Again, that's not so much a defense, mind you, of him. But it does mean that you should read news stories

about stuff that is sort of confirming your prior, scaring you, making you want to tweet angry things. Just read those news stories carefully. So I think what ends up happening is there's sort of a double, there's two things going on at once. One is the leaker wants to communicate to the outside world, there's something wrong with this guy.

But also they want to communicate, and look how I'm heroically standing in the gap. Yeah. communicate and look how i'm heroically standing exactly yeah yeah but i i just got to read this uh this quote um so here from 2019 um so trump allegedly said i got it i got it why don't we nuke them um he says they start forming off coast of africa as they're moving across atlantic we drop a bomb inside the eye of the hurricane and disrupt it. Why can't we do that? So I love this little color added by the anonymous source.

The briefer, quote, was knocked back on his heels, the source in the room added. You could hear a gnat fart in that meeting. People were astonished. That's an interesting bit of color there, Sarah. Feels like we probably could narrow down who the source is if those are your color commentaries. Oh, yeah. Yeah, that's an interesting point. I hadn't thought about that. But anyway, yeah, I think that's a great caveat to add. I think in this circumstance, given the president's I think in this circumstance, given the president's comments and tweets and the presence of the Sidney Powell, we don't know for sure what happened in that room.

That's why I said the reporting was credible, but certainly not completely confirmed. But the questions were, suppose that this reporting is true and he had these desires, could he carry them out? Answer, no. Let's take a moment and thank our sponsor, Headspace. Even in the new year, it's hard to start a new routine, but if you're one of the 34% of Americans who made a resolution to be less stressed, Headspace is here to help. Headspace is your daily dose of mindfulness in the form of guided meditations and an easy-to-use app. It's one of the only meditation apps advancing the field of mindfulness and meditation

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Next question, Sarah. Next question. Hi, David and Sarah. I came across an article about the internment camps during World War II and remembered another article I read about Trump v. Hawaii and its mention of how Korematsu was wrongly decided. There are several cases I'm aware of that have been wrongly decided and overturned.

Korematsu stayed on the books for years, though. I'm wondering if there are any similar cases wrongly decided that are still on the books that are not as well known and or what cases do you think are wrongly decided that you would like to see overturned? So that's super fun. Bad Supreme Court cases. So, yes.

Korematsu. So let's talk about how cases get overturned. So let's talk about how cases get overturned. Cases can get name-checked in other cases for a precedential value, or I don't like this case, or distinguished on the facts. The only way to explicitly overturn a case, however, is that it needs to be the same question presented to the court. This is the Korematsu problem, is that because everyone understands that Korematsu was wrongly decided, it's almost impossible for Korematsu to get actually overturned. And Trump v. Hawaii is not actually on the facts of Korematsu either. And therefore, Roberts in the Trump v. Hawaii decision says,

so basically the dissent invokes Korematsu. Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps solely and explicitly on the basis of race is objectively unlawful and outside the scope of presidential authority. But it is wholly inapt to the current thing, yada yada, and it goes on. but it is wholly inapt to the current thing, yada, yada, and it goes on. Next paragraph. Affords the court this opportunity to make express what is already obvious. Korematsu was gravely wrong the day it was decided,

has been overruled in the court of history, and to be clear, has no place in law under the constitution. He has to say that because he can't overrule Korematsu in this case. And so, technically speaking, Korematsu is still in the books. And actually, technically speaking, a lot of the worst Supreme Court decisions

weren't overruled, really, because the facts just weren't exactly the same. I want to use perhaps the most infamous example, which is Buck v. Bell. David, I assume you are familiar with this terrible, terrible Supreme Court opinion. This is the forced sterilization opinion? That's right.

So this is 1927, where, I mean, Oliver Wendell Holmes is one of our most famous judges ever, and he's considered a great judge. When he gets to the Supreme Court, however, he is considered maybe not a great justice. And this is one of the main reasons is that he writes the majority opinion in Buck v. Bell, ruling that a state statute that permitted compulsory sterilization for folks, including the intellectually disabled, for the protection and health of the state did not violate the due process clause. So this is all based on the eugenics movement that was part of the progressive

experts, you know, are going to control our government type idea. You have heard the famous quote from it that three generations of imbeciles are enough but the facts of the case are i mean like not they're worse than you think they are so basically the uh mother and daughter were found to be promiscuous, not particularly intellectually disabled, but they were having children and they weren't able really to afford these children. One historian, by the way, has said that, yeah, Carrie Buck wasn't feeble-minded at all. She was put in an insane asylum to hide a rape.

That is not particularly shocking. There's actually a wonderful book that is on genetics, but that touches on, actually not just touches, has large chunks about the cases that were going on around this time. And it all centers around a different Buck, Pearl S. Buck, the author of The Good Earth. In 1921, sorry, 1920, she had a daughter

named Carol who had, and I'm going to, I'm sorry, scientists, phenylketonuria. And this is a disease that causes severe mental and intellectual disabilities, but it's because your metabolism isn't able to process this one amino acid. And so it builds up in your system, in your brain, and causes a mental disorder. It also makes you smell weird, by the way. And so her daughter does become mentally disabled. And this is, again, she's put away. And the 1920s are a just a, you know, we thought this was OK in this country. Sixty four thousand sterilizations were performed in the United States as part of eugenics legislation. And so you fast forward. To 1942, there's a case that is pretty close to on point, Skinner v. State of Oklahoma, that is another sterilization case where they find that it does violate the Equal Protection Clause as well as the Due Process Clause.

But they say that because explicitly the Oklahoma law applied to habitual criminals but excluded excluded white collar crimes from sterilization. And so that's why it's equal protection. From that point forward, it's not like Buck v. Bell was really like, well, we can still do Buck v. Bell things. But there were sterilizations after this, a lot of them actually, because Skinner v. Oklahoma said nothing about the disabled or about what types of people could be sterilized. And of course, you have the Nazis shortly after 1942 and their sterilization regime discovered, so that makes it pretty unpopular. Some footnotes on the history of sterilization. Buck v. Bell is cited in another famous case as still being good law long after the Skinner case.

David, do you know which one it is by chance? I do not. I do not. Buck v. Bell is cited in Roe v. Wade. Huh. I had forgotten that. Yeah, it's not cited for the right to an abortion, but Blackmun is citing it and says,

the privacy right involved in abortion, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the court's decision.

The court has refused to recognize an unlimited right of this kind in the past. And he cites a case on vaccinations and Buck v. Bell. Interesting. Yeah. Now, the right not to be sterilized does not extend to the right to procreate. They are not considered the same thing, which to me is pretty obvious.

But in 2002, the Ninth Circuit held that an inmate was not permitted to artificially inseminate his wife because the right to procreate is fundamentally inconsistent with incarceration. So that that is sort of the flip side of Skinner v. Oklahoma. Anyway, that's a long way of saying there's a really bad case that hasn't been explicitly overturned. But again, because now it would be hard to come up with the exact same scenario because it's considered so wrong. On cases, though, that aren't so grievously morally repugnant as koromatsu or buck v bell i am curious david if you have other cases that you just think are obviously wrongly decided and will be overturned at some point i will throw out kilo yes uh the fifth amendment takings case where the government can take land and then use it for private enterprise, for commercial gain.

That's one that a lot of people side-eyed at the time. Oh, side-eyed is an understatement. It was frothing at the mouth rage at Kelo. Like, take grandma's house to build a Walmart is a good way to describe the holding of Kelo. Because the government thinks that it would be better for the public if Walmart was there instead of grandma. Yeah, that created a wave of state legislation to sort of prevent that kind of activity. I think Kelo would, I think it'd be likely overruled by the Supreme Court under its present composition. So yeah, I think Kelo is a bad case. I've got a bunch of cases that I want obliterated. I mean,

we can go, well, how much time you got? But I'm going to do a more historical poll that is not as bad as but V-Bell, but it's still cited and quoted wrongly. Okay. So my, my list, I've got, you know, Roe and Casey, I've got Harlow v. Fitzgerald, qualified immunity, Monell, municipal liability, which we'll talk about. I, you know, I could go, I, Smith, Employment Division v. Smith. I'm surprised I haven't even, I haven't attacked Employment Division V. Smith yet in this podcast. I try to do it at least once per podcast. So I've got a lot. But here we go.

This is the famous case of Schenck v. United States. Now, this is the one that had the oft-quoted limitation on free speech that says you can't shout fire in a crowded theater. Okay? You hear this all the time. And every time somebody says you can't shout fire in a crowded theater, I don't say I get into sort of a homicidal mode,

but it's like quasi-tempted towards assault mode. Because Schenck v. United States is an awful case for, uh, that is, that is complete. It has not been so far as I know, formally overruled, but it's essentially a dead letter. But people who quote Schenck v. United States don't realize that what they're quoting is a case that allowed the jailing of an anti-war activist under the Espionage Act for writing and distributing a pamphlet that expressed opposition to the draft during World War I. The pamphlet didn't call for violence. It didn't even call for civil disobedience. And this was deemed to be a clear, quote unquote, clear and present danger to the public, opposition to the draft. And so it's in this context that the shouting

fire in a crowded theater analogy was used. And that's why I get so upset when I see that analogy used again and again, because it's also often used in similarly ridiculous ways to just sort of say, it's a shorthand way of saying, well, the right to free speech is an absolute. You can't shout fire in a crowded theater and therefore you can't, and then it will go into all of the other kinds of government restrictions on speech. Now, Brandenburg v. Ohio, which we've talked about before in the incitement discussion that we had that listeners might remember, essentially overruled it. I mean, Schenck and Brandenburg v. Ohio are pretty much not compatible. much until the concurrence in Brandenburg v. Ohio. And so it's hanging out there. It's not really a viable case law anymore, but it is still used all the time in American discourse. And yet, when people use it, what they don't realize

is that they're essentially promoting a case that jailed someone for opposing the draft. So, yeah, that case, because it is still used so much in our discourse, even though it's functionally a dead letter, that case, I would love to see the Supreme Court just sort of say, in case there's any confusion at all, Schenck is in the dustbin of history. And that brings me to another thing, Sarah. Yes. This is kind of off topic a little bit. You know, it's interesting to me, and maybe we should table this for another time when you go through american constitutional history you see a bunch of awful stuff yeah i mean dread scott

buck v bell koramatsu plessy v fergus Ferguson in the free expression context shank and so I kind of wish because I've been writing a lot about this sort of concept called uh Christian nationalism there are a lot of people and I know who I know on the far left who have a extremely negative view of history American history extremely negative so to them American history, extremely negative. So to them, American history is Buck v. Bell. It is Korematsu. It is Plessy. It is Dred Scott. That's American history. And they minimize the virtues of American history. They minimize some of the better aspects of American history. And then there's an awful lot of people who they have a sort of almost reverential view of American history. And they don't even know about the Buck v. Vells.

To the extent they think about Dred Scott, they think, well, of course, Dred Scott was ultimately defeated, which it was. And what I wish people would do is grapple with both fully. Grapple with both fully, because it actually has an important bearing on the way you view the country now. world, that reverential view of American history doesn't grapple with some of these other cases we've talked about. And because it doesn't grapple with these other cases, with these other aspects of our history, it doesn't adequately grapple with the present reality of the United States. Short soapbox. All right, we got to get through this mailbox. What's next? I know. I know. Jeez, we're going slow. Okay. Oh, wait. Well, this one, okay, believe it or not, I'm going to do this relatively quickly. Okay. And this comes from Paul. I am totally sympathetic to your religious position on abortion and shocked about attempts to force religious people to violate their consciences in this context.

But I don't understand why a moderate view about abortion, okay, early, almost never okay, later, well, anyway. So in other words, he's saying late-term abortion, restrictions for late-term abortion, and fewer restrictions for early abortion. abortion, restrictions for late-term abortion, and fewer restrictions for early abortion. He said, said differently, I just can't find justification for your position, my pro-life position, outside of religion. So it seems to me that you of all people are proposing a religious test for public policy in the USA when it comes to abortion. Can you and Sarah discuss this? abortion. Can you and Sarah discuss this? That's big. That's big. I laughed when David sent me his five questions for this episode. And I was like, what? We're just going to like, oh yeah, we'll just do a little one-off abortion email. Great.

But I actually have a relatively short answer to the question of does the pro-life position depend entirely on a religious view of the humanity of the child? In other words, do you have to agree with the scriptural view of the worth of the life of an unborn child to be pro-life? And the answer to that is, the very short answer to that is no. In fact, some of the most prominent, one of the most prominent pro-life intellectuals of the last 30 years or so was a guy named Nat Hentoff,

who was, Sarah, did you ever know about Nat Hentoff? Nope. Okay, he was bigger when you were younger. But he was a writer at The Village Voice, very progressive, champion of free speech, but a huge champion of free speech, also a champion of life, atheist. But the short answer is that

regardless of your religious point of view, or regardless of whether you even of your religious point of view, or regardless of whether you even have a religious point of view, we have long recognized that the government has an interest in preserving life. And so therefore the question regarding the government's interest on preserving life is, is the unborn child life? Now, a lot of folks have pointed out that, you know, for example, the Supreme Court has labeled

an unborn child as potential life, but there is a scientific, not scriptural, pro-life argument that is very, that you can make very briefly to state that an unborn child is life, an independent, a separate life from the mother that is based entirely on scientific rather than scriptural grounds. It says, look, from the moment of conception, an unborn child has a DNA that is separate from the mother and separate from the father. It is not a mere appendage to a mother like, say, for example, a thumb or a tumor or anything like that. It is a separate human life. And from the very beginning, it has a separate genetic code, it has a separate DNA, and it is the same separate entity from conception until death at just different stages of development. And so then the question is, is that life? Is that life that merits the state's protection. And so if you acknowledge that sort of scientific reality that

says this is a separate human being, and I remember getting into a really heated discussion in law school surrounding these very scientific concepts as opposed to sort of scriptural concepts. If you acknowledge that it is a separate human being that is alive as opposed to potential life. Then it really begins to change in many ways, change the equation of the abortion debate. has gained so much cultural, has made so much cultural progress and somewhat legal progress, but cultural progress is that it has used science even more often than scripture to argue its point of view

about the separate humanity of the unborn child. It's one of the reasons why ultrasounds, for example, are very, very, effective uh in a pro life argument um there's an and so that the exposure to the separate life of the child um as opposed to sort of opening a bible and turning to a specific verse but that exposure to the separate life of the child as a scientific matter carries with it moral implications that people of many faiths or no faith wrestle with. So that's my very short version of that very, very, very long argument. I would note just from a legal standpoint that the law is still having trouble wrestling with this,

obviously. But 38 states have fetal homicide laws. 29 states have fetal homicide laws that apply to the earliest stages of pregnancy. And I'll throw this in the show notes as well. This is from the National Conference of State Legislatures. And so if that's the case that we're recognizing it as life in the law on one hand, then you've got a problem on the other hand, perhaps. I actually think, David, though, to answer the question, there are scriptural, I suppose, reasons to be pro-life, but I've actually never really heard them argued in the public square around these laws. So I sort of flipped the question on its head. You know, yes, I think that pro-life positions are associated with Christianity and evangelicalism in particular. But regardless, you're going to have this problem of, you know, a woman who is eight months pregnant, who then the, you know, boyfriend who doesn't want the child or something goes and punches her repeatedly in the stomach for the purpose of aborting the child, in at least 38 states, he will be charged with

fetal homicide. Now, as I'm sure some of you have already thinking, nope, it will not be the same as if you punched a child to death outside the womb in terms of the punishment. But that, of course, is up to states and how states are grappling with this. But that is, I mean, this is the problem. This is why the issue hasn't gone away, I guess, David, that the science is both clear and messy. Right. And I read something recently

about where we are in the progression of being able to, you know, we can already conceive babies in Petri dishes using, obviously,

a mother's egg and a father's sperm, mix them together, bada bing, bada bam, you've got a little zygote, a little blastocyst going, it expands.

What we have not been able to do is to grow that blastocyst in anything except a mother's... A womb. A womb to term. But they're working on it. And so, I would just sort of have this little note for the future.

They've already, I believe, done it with non-human animal and been able to grow a blastocyst into a to term creature. Once they can do that with a human, how will that affect the law? And if we think it is theoretically possible, should it be affecting the law now one way or the other, or the fact that it's not possible and therefore, you know, the fetus cannot live without the mother. That's why the mother's rights are implicated.

So until the mother's rights aren't implicated in practice, not just in theory, then I think this stays pretty messy. Yeah. I think you're very right that if you actually look at the public debate surrounding abortion, it is very rare that you're going to hear a scriptural argument. It is very rare. In in fact it has basically received conventional wisdom within the pro-life community to don't do that yeah like that's a no that's a no do not do that you know stick with the scientific argument and then make a moral argument based on the science and and i think that that's sort of the if you're you know if if you had something so as like a pro lifestyle guide of argument it would be that it would be make the scientific argument and then sort of the, if you're, you know, if, if you had something as like a pro-life style guide

of argument, it would be that it would be make the scientific argument and then, uh, make the moral argument based on the science. What I continue to find interesting about the debate though, just from a political standpoint is, um, how like the, the gender gap, if you will, there seemed to be a whole lot more outspoken men who are pro-life, and there seem to be a whole lot more outspoken women who are pro-choice. And then I think in the middle,

you have a lot of women who have carried a baby and are sort of waving their hands in the air saying this is so much more complicated than either of you think it is. in the air saying this is so much more complicated than either of you think it is well i have a whole album side about how i believe the um a lot of the pro-life argument um well i want to phrase this very carefully i believe that there are a lot of people who use pro-life arguments as a cudgel to beat people into partisan line, but do not actually in their lives value,

um, stopping abortion the way they say they do. Okay. Was that careful and clear enough? I was watching David articulate each word in his mind before saying it to us. Yes. And I will say this, and I have abundant reason to believe that that is the case. Why do I have abundant reason to believe that is the case? I have been a pro-life attorney advocate for decades, decades. And there are some things that I know from being all across the country, litigating, raising money, et cetera. Do you know

how many crisis pregnancy centers operate on a shoestring? On a shoestring? I would think all of them. Virtually all of them operate on a shoestring. Now, if people are telling me that this is the greatest crime against humanity in the history of the United States of America, one would expect that a crisis pregnancy center, for example, would be probably the most lavishly funded and staffed institution in any given community, overflowing, overflowing with the bounty of the richest Christian community in the world, which is the American Christian community. But that is not the case, Sarah. That is not the case. And so, one of my arguments, and in fact, crisis pregnancy centers are among the most effective ways when they're run well and they're run the way they're intended to run to combat abortion in the United States of America because they form relationships with people.

They take people where they are and form relationships based in love, based in support, and provide ways for people to care for their children or to find people who will care for their children. And they're incredibly valuable. And yet, and yet, they operate on a shoestring, on an absolute shoestring, in the face of all kinds of rhetoric you'll read on Twitter and read on Facebook about that this is the single most important issue in the United States of America. And I have started to tune it out and sometimes will respond very quickly. I will listen to your critique after you tell me that you have donated to your local crisis pregnancy center. Leaving the abortion argument aside for a moment, David, I also just want to point out that it is uh the christmas season there are a lot of people in particular this year with covid with unemployment rates skyrocketing in some places really struggling and some of them are brand new moms right uh and so your local church yourks Club, anything that you are even remotely aware of

will have a mother or a couple who has a new baby and are struggling to afford diapers and formula and really basic stuff this Christmas season. And I would just encourage you, you know, God, I had extra wipes and extra diapers and formula and packed it all up and brought it to a couple. The husband is unemployed because of coronavirus and they just had twins. And it's hard to imagine what it would be like to not afford diapers for your twin babies on top of how hard it would be to have twins in the first place. So no matter what side of this debate you fall on, there are new moms out there in need. And it is the season to, you know, if you're at Target already or Walmart or the grocery store, just pick up an extra pack of diapers,

throw it in your cart, and then drop it off to whatever church you drive home by on your way back. It will be so appreciated by someone. And even better, if you can go sponsor one of those new moms and provide her a pack of diapers once a month for the next year, that would be really appreciated too. a pack of diapers once a month for the next year. That would be really appreciated too. Very well said. Let's take a moment and thank our sponsor, ExpressVPN. How did you choose which internet service provider to use?

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I think the next ones, guys, are going to be a little lighter. So anyway. All right. Relative brevity. I think the next ones, guys, are going to be a little lighter. So anyway. All right. I have a question from Rob. You have discussed the ongoing debate over qualified immunity and other topics related to state immunity and police autonomy.

But in a recent article that I read, the author brings up the Monell rule and how it applies to suits involving local violations of civil rights. brings up the Monell rule and how it applies to suits involving local violations of civil rights. How does the Monell rule interact with the previously discussed subjects? And why is it so unmentioned in the broader debate? Great question, Rob. So we had talked about qualified immunity. And just as a refresher, this is where you're going to sue the teacher or the police officer or a state actor. And you need to, one, the court has to find that your constitutional rights were violated.

And two, that that right was, quote, clearly established at the time of the alleged conduct. And oftentimes they kind of skip the first one and go straight to the second one, because if they could find that constitutional right wasn't even clearly established at the time of the alleged conduct, they don't really even need to determine whether your right was violated or whether that is a right to begin with. And this makes qualified immunity a hot, hot, hot mess. A hot, hot, hot mess. Monell is where you aren't suing the officer or the teacher, but you're in fact suing the police force or the school district. Now, why would you do that?

There's a few reasons, but perhaps the most important is money. The individual officer, of course, is judgment proof by and large. You want to sue the police force because they have a budget and they can pay you a lot more money. However, Monell liability is really hard. Basically, you need to show that the entire municipal entity has a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that municipal entity that violated your rights, with a slight caveat that they can be sued for constitutional deprivations visited pursuant to governmental custom, even if that hasn't been super formally established,

but it needs to be pretty formally established, even if it's a custom. So the idea here is that if a officer did violate your rights, that right was clearly established, they don't have qualified immunity. Congratulations, you have a piece of paper saying that and you have no money around it

because you can't then sue the police force and collect any money unless the police force basically told all their officers that they could violate your constitutional rights in that way. And so that's the difference between Monell and qualified immunity. They're kind of two sides of the same coin, David,

in terms of being able to vindicate your constitutional rights. But the reason that people get wrapped around the qualified immunity axle is because there is something deeply insulting about the fact that the courts often won't even reach whether your constitutional rights were violated because of that clearly established test. And so we're not even to how you will be vindicated money-wise. And so you got to sort of attack qualified immunity first.

I'm not sure Monel will ever be off the books, whereas I think that the qualified immunity line of cases will be changing here pretty soon. I think qualified immunity is going to change. But, you know, it's, I think both, I think Manel is just a little, qualified immunity is easier to explain. Because you can simply say the officer can, or whatever state employee, can violate your civil rights and not be liable to you. Which offends people's sense of fairness and injustice. I think, but Manel is a very important doctrine. which offends people's sense of fairness and injustice.

I think, but Monell is a very important doctrine, and Monell and qualified immunity together sort of add up to, it's good to be sovereign. It's good to be the state sovereign, because these doctrines are not doctrines that have precise analogs in the private sector. So Manel provides broader protection for municipalities than private employers enjoy, under various exceptions to sort of respondeat superior doctrine. In other words, in a private employer, as a general matter,

an employee who commits a tort, who commits a wrong in the course of their employment, then the employer is going to be answering for that as well as the employee. Now, there are exceptions to this. This is a very complicated, I'm sure we've got some insurance defense lawyers and some tort lawyers who can just go chapter and verse in their state about all of the different tweaks and nuances of the doctrine in their state.

But, you know, this is one of the reasons why often, like if there's a car accident and somebody runs into a tractor trailer driven by a Walmart tractor trailer, they're suing Walmart and they're suing the driver. And many cases they can recover and they'll recover from Walmart and if the driver has any money from the driver. But, uh, so Monell and qualified immunity together mean that the state as an entity or that, you know, the municipality as an entity and the municipal employee as an individual enjoy a kind of immunity that is not common in the private sector. And it, it, it's again, something that it's often overlooked, uh, in something that I think is a growing number of people are calling for it to be revisited. But I agree with you, Sarah. I think tweaks to qualified immunity are probably much more likely than tweaks to Monell. All right, next up. All righty.

You and Sarah spend a lot of time giving career advice to people who went to top tier law schools. That's not most law students. Should we bother going to law school if we're looking at going to mainly a tier two or tier three school? And that's an amalgamation of email and discord comments. So I've got, here's my initial answer, because Sarah, you know, I'm a generally pro-law school kind of person. So long as you can afford it, and by afford it, I mean,

don't go into $100,000 of debt for a law degree that isn't necessarily going to bring you a job that is going to allow you to reasonably and with reasonable efficiency pay back that money. So long as you can afford it, as a general matter, I see law school as an option expanding choice. It is something that gives you greater career options than you had before you entered law school, so long as you go in with reasonable expectations on what the degree will grant you. And you understand that, especially if you're, looking at, say, a tier three law school, many tier two law schools, that there is not a glide path from graduation into a good legal job.

And certainly depending on the economy at the time, the legal market, that it is sometimes very difficult to initially find the kind of legal job that you want to find coming from a tier two or tier three law school. It can be difficult. It absolutely can. But at the same time, you have gained a valuable credential, often that pays off in unexpected ways down the road. I know of a number of people who, for example, they work in large companies, they go to law school, a night law school on the side, gain that credential, and that credential allows them to have greater mobility internally in their corporation. I know a number of people who have that. That's their circumstance. I also know a number of people who go to law schools, and they're really kind of indifferent to the law school because they want to just open their own practice or join a practice that already exists with a family member. Also, there are a wide variety of jobs that are available in the criminal justice system. And what people are looking for is the credential that enables them to get the job that they're looking for so long as your expectations are not unreasonable and so long as the expense to you is not unreasonable. When you don't want to go is when you're getting

massively into debt with the expectation that the JD degree by itself is going to start to immediately pay you dividends. That is not the case at every law school. Sarah, your thoughts? David, you ignorant slut. I disagree entirely. Oh my goodness. I'm so right, listeners. I'm so right.

Just keep that in mind. Just keep that in mind. Here's what i i will say we do need more good lawyers representing for instance criminal defendants on death row um we need good lawyers taking sort of the hardest cases that don't pay well if you're interested in doing that and taking a vow of poverty, I'm all for it. I will note, however, it actually, it's very competitive to go work at a public defender's office, the federal public defender's office. Yeah, federal defender. Just like it's very competitive to go work as a federal assistant U.S. attorney. So the prosecution and defense side in the Fed courts for criminal

law, really hard jobs to get. We need also, though, really smart people doing that at the state and city level. Let's assume for a second that that's not what you're interested in. Please don't go to law school. If you are a smart person, please go do something else that will give more to society. We don't need our best and brightest in the United States litigating between Exxon and Chevron. We just don't. We've got plenty of them. Exxon and Chevron are plenty well-represented right now. What we need are the smartest people in the United States going into engineering. We need them going into chemistry to find us a great energy source that doesn't pollute. We need them going into medicine, health. How about virology? Epidemiology, anyone?

Thank goodness we have the people we have right now who were able to do those vaccines. I don't know about you, David, but truly the most inspiring moment of this whole year was that short video watching the FedEx and the UPS truck pull out of that very nondescript warehouse onto the street as the first vaccines rolled out. And I later that day ran into a FedEx driver and she said that she had worked for FedEx for 25 years. Her father had worked for FedEx for his entire career before that. And she was so proud to work at FedEx that day because her company was distributing that vaccine. That is honorable work. That is stuff we need. We need people discovering the vaccines. We need people distributing the vaccines, all of those things. We don't actually need lawyers for a lot of that. Lawyers are a transaction cost

to a well-functioning society, and it's a transaction cost that can help. It can create certainty. We've had lawyers since basically the beginning of time for that reason, but we don't really need more of them. So, no, I am against more people going to law school. Now, David's reasons are very sort of individual looking and mine are very society wide. What we need is a group. So take that for what you will. But yes, David.

Your advice is awesome for our high school freshman listeners. It is not as useful for our junior year in college with a history major listeners. That's not true. The switch from virology from history is a little tough, Sarah. It's a little tough. Fine. They cannot go discover the next great vaccine. I will acknowledge that.

But there's lots of things that they can go do that are not going to a second and third tier law school. So my advice, I stand by it for you high school, I mean, your college juniors out there who have a yearning to learn law. I'm not going to sidetrack you into mechanical engineering. Sarah, Sarah wants you to go to six more years of school in a field that you've never dipped your toe into. I'm saying your existing training can be extremely useful in law school and can provide you with many

additional options, which can also benefit society, so long as your expectations and your expenses are reasonable. You know what you can go do with a history degree, David? You could go work at a crisis pregnancy center. You could go teach English to people who are struggling to learn that. You can go teach gifted kids English. Teach English.

I don't care. Teach history. You can go work at FedEx and make their supply chains more efficient. Or you can do HR for a vaccine company to make sure that they're getting the best people. So many options. David, you admit law is a transaction cost. It is not additive. The transaction cost can be important, but you are not producing. You are taking away. You are a friction in the system. An instrument of justice in the system. An instrument of justice, Sarah.

All right. I love the law. I love the law. I like law school. Okay. Anyway. All right. From Travis. Long time reader, first listener, first-time writer with a question about law school. I'm starting to get involved in politics with the eventual goal of running for office, perhaps. However, I have basically zero law knowledge. Now, this is not from Travis. This is from me. So for instance, David, instead of going to a second or third tier law school, Travis has come up with the very smart question. I was wondering if you and David could recommend some resources and books that would give someone like me enough of a grounding in legal practice to basically ask intelligent questions and understand the answers. Basically, instead of going to law school,

basically, instead of going to law school, I want to go to law vocational technical school. I think that is a great idea. I think an understanding of the law is incredibly important. I think being versed in the law is a great idea. You don't need to go to three years of law school for that. Instead, I recommend you start where you should always start when it comes to questions of the law with the late Antonin Scalia. He has a wonderful book called Reading Law, the Interpretation of Legal Texts. And actually, Scalia wrote a bunch of books with this guy named Brian Garner, and you can look at them all on Amazon, peruse them all and see which ones are your jumping off point. There are some on statutory interpretation. There's some on originalism. There's some on writing well, making your case oral presentations. So many good ones. I think reading the law is probably where someone like Travis kind of wants to start. But I actually think that these Scalia Garner books in general cover the waterfront.

Pick one of them that sounds like you will keep reading it and enjoy it and love turning the pages. And from there, there'll be all sorts of citations and interesting rabbit trails for you to follow. David, what's your recommendation? I actually can't beat that recommendation. I think that's an... I'm going to completely affirm't beat that recommendation. I think that's an, I'm going to completely affirm my co-host. I think that's awesome.

Wow. And I'm mainly doing that, not just because it's an awesome answer, but because I want to give sufficient time to my next discussion. It's a little selfish, Sarah, but somebody came at me on college football and I cannot let that go unanswered.

So 100% endorse Sarah's recommendation. And now, and I'm going to mispronounce your name, Rem, R-E-H-M. Would you concur that that's pronounced Rem? Yep. So that if it's a mistake, it's both of our mistakes? All right. that's pronounced rim? Yep. So that if it's a mistake, it's both of our mistakes. All right. So rim said something after our last podcast, where I talked about the primacy of certain programs in college football and rim came in with a great email, but you know, I've been following

sec football for longer than you've been alive rim. So if you come at the king, you best not miss. All right, so here's what Rem says. First off, I love the show. Okay, so that already signifies he's a person of wisdom and discernment. Sophomore at LSU. He's part of Tiger Band. Got to perform at 12 games LSU played last season, including the SEC Championship,

Peach Bowl, National Championship. Now that, Sarah, is a college experience. That is, that's fantastic. Anyway, support David's position in the NCAA is awful, but he takes issue with his assessment of LSU as a team. He says, Dave Aranda left to coach Baylor. Bo Pelini is neglected to install the defensive system. LSU had unprecedented turnover with the majority of starters opting out of the whole season.

Our starting quarterback was injured halfway through the season. There was no spring practice or a fall camp. Some of our best players opted out. There were no tune-up games. So there's a list of excuses as to why LSU was bad. Well, not bad. I mean, they were 5-5, but I love his kicker. He says, none of this matters, however,

because we beat Florida and took away their national championship hopes. That's a little bit of SEC spite and hate that I'm here for every day, Sarah. But anyway, so actually, Rem, a number of people took issue with my statement that Alabama, for example, just has constant drumbeat of Alabama Clemson, Alabama Clemson, Alabama Clemson, well, or Alabama Clemson, Ohio state. I think I read last night that of the 28 births in the college football playoffs, since the college football playoffs was inaugurated, Sarah, I believe it's 16 of the 28 have gone to Alabama, Clemson, or Ohio State. And so I want to just say, one of the things that I think makes... When I talk about the distinction, not just in recruiting,

but the program itself, the way normal schools operate is think of their program like a series of waves. You get in a really good recruiting class or two. They grow up together. Maybe by the time they're sophomores, juniors, seniors, that wave crests and crashes upon the shore in this thunderous, awesome season. And then it recedes again until you can find that next sort of magical combination. And then you come forward again to crash upon the shore. That is the way LSU, for example, has done it. My Auburn Tigers have advanced and receded.

You can just go through program after program after program, even those that are typically expected to win eight or nine games, to come to that crescendo, it's a cyclical thing. That is not the case with Alabama. That is not the case with Alabama. Rem, I want to refer you to, so Rem is, I want to refer Rem to a little time, the ancient year of 2018. And in 2018, Sarah, Alabama was struggling against Georgia, struggling.

And so at halftime, here's what Alabama did. Rather than saying that their quarterback, who I think at that point had only lost one game in his career, what does Nick Saban do? He benches his quarterback for a true freshman named Tua Tagovaila. Okay? Benches him for a true freshman named Tua Tagovaila, okay, binges him for a true freshman. That true freshman caps a comeback that ends with a 41-yard touchdown pass in overtime to a freshman, Devonta Smith. What also happens during the second half? A freshman by the name of Najee Harris carries the ball for, oh, let's see. I don't know. I think it was around 60 some odd yards, including, oh, yeah, 64 yards and six carries.

He had a 16 yarder and a 35 yarder to set up field goal to keep Alabama alive. So what am I saying, Sarah? Sarah, Alabama is so powerful that it can bench its upperclassmen in a championship game, bring in freshmen, and still win. And still win. This is a machine. The wave of Alabama is always cresting and crashing upon the shore. Always. And look, I get it.

I get that these excuses that Rem mounted, they're valid for normal programs. That's the way normal programs operate. When you have to replace your starters with freshmen, when you're rebuilding with freshmen, you lose. That's the way it works. But when it's Alabama, your freshmen come in and win the national championship. That's the difference. That's the difference. And that's why all of us who are not Alabama fans are sick and tired of Alabama. Okay, that's it, Sarah. All right, last question for me from Ethan.

In the past, you put out a list of books you had read and recommended. It was a varied list that covered a lot of different topics. I wanted to drop you a line and say that I really enjoyed this and have read a few of your recommendations and that it would be fun if this was a reoccurring thing, maybe annually, and it'd be fun to hear from everyone else. All right, Ethan. I have three that I'm going to mention on this podcast, but you know what? I was going to take some time off until New Year's from writing after I get my newsletter done today, but maybe I need to redo my book recommendation. So last year, actually

this year, I recommended seven books in January that I had enjoyed sort of the most overall, sort of a kicking off point for my time at the Dispatch, perhaps so people could get to know me a little better. I'll put it in the show notes, but it included Impeached, The Trial of President Andrew Johnson, The Rise and Fall of the Dinosaurs with Steve Rusati, who we had on our podcast,

Why We Sleep, which is a cool science book on sleep and dreams, Destiny of the Republic by Candace Millard, who is, I mean, all of her writing. She has one on Churchill as well that I read this year. That's awesome. Invisible Women, Data Bias in a World Designed for Men, The Body, A Guide for Occupants by Bill Bryson, because I love all of his science books. And What If? Serious Scientific Answers to Absurd Hypothetical Questions. All right. So if you want links for any of those, it'll be on our show notes. Here are my three that I am mentioning today

from my 2020 reading, How Innovation Works and Why It Flourishes in Freedom by Matt Ridley. It sounds like a political book, but it's kind of more of a science economics book with a little political stuff at the end. I'll be really honest, the political stuff at the end didn't do much for me, but the science-y history stuff was awesome. So big fan of that. She has her mother's laugh, the powers, perversions, and potential of heredity by Carl Zimmer. That, by the way, is the book with all the stuff about Pearl S. Buck's daughter, Carol, and Buck v. Bell. And that was, it's a long book, but man, it, I mean, I don't think you're going to be able to put it down. It's really well done if you like pop science reading.

And then, I don't know why, David, but this one just feels very modern to me right now. The Witches, Suspicion, Betrayal, and Hysteria in 1692 Salem. I mean, the sort of, I don't know, quick historical Wikipedia version of the Salem Witch Trials that we think of in our heads, of these, you know, teenage girls obviously being crazy slash they probably just have epilepsy. And these dum-dums in 1692 blamed witches. They knew what epilepsy was. They knew that teenage girls were, you know, problematic as we do now. Stacey Schiff writes this book.

It feels very modern. It's based on original source material that she has read. And you walk away wondering whether maybe that story is more modern than we kind of want it to be. Maybe 1692 Salem isn't that different than 2020 Salem, the United States. What are your recommendations, David? So aside from a certain book called Divided We Fall, America's a Secession Threat and How to Restore Our Nation by your friendly podcast host, co-host,

I have three, okay? One is, and I really enjoyed this, The Splendid and the Vile, a saga of Churchill, Family, and Defiance During the Blitz. It's different from almost any other book that, well, it's different from any other book that I've read about the Blitz and about the Battle of Britain and this really crisis time in British and world history. in British and world history, when it appeared that Nazi Germany was ascendant and that Britain would fall, it very much focuses not on the military and the political, but on the personal.

What was it like to be Winston Churchill during this time? And it's really interesting. I found myself occasionally frustrated because I like to learn more things about sort of the macro military history aspect of what was going on. But it was a very micro look at Churchill's life. And I found myself thinking about it quite a few times since I read it. So that's one.

Can I pair with that that Candace Millard, the one who wrote that great James Garfield book that I love so much that was in my last year's recommendation with Splendid in the Vial. I highly recommend that you pair with that Hero of the Empire, which is her book on Churchill in his 20s in the Boer War. And it's awesome. She's just such a wonderful writer. Please continue. Now, the next one is Rhythm of War, book four in the Stormlight Archive series. So if you are a fan of high fantasy world building, incredibly rich world building, I cannot recommend the Stormlight Archive books enough. It's Brandon Sanderson.

I believe he's a BYU professor. He also wrote the Mistborn series. These books are great. And so if you've read the first three and you don't know if you want to dive into the I don't know sometimes it feels like it might be 3,000 pages but I think it's only a little over 1,000

Rhythm of War Stormlight Archive read it awesome world building awesome high fantasy I want to know which premium cable service or streaming service is going to drop about half a billion dollars into filming this because this would be incredible. And then the last one, and I've finally started reading this after being recommended it by many,

many people as really helpful in explaining our present political moment in Christian conservatism. It's a 1991 book by Nathan Hatch called The Democratization of American Christianity. You can get it on Amazon, and already it is absolutely fascinating. It's absolutely fascinating about how American evangelicalism has been for lack of a better term populist for a pretty long time uh and how it has de-emphasized clerical authority for a very long time and this has profound effects that we feel today that should have led us to be less surprised by the last four years than we, many of us have been. So it's called the democratization of American Christianity,

1991 book. I'm diving into it. It is fascinating. And give it a read. So there's my three. I like it. All right. Last question. I can't believe i did this one last sarah what's wrong with me um all right so here's the last one it is there is they're reporting over the weekend and and that race was going to be factored in diversity and equity interests were going to be factored into vaccine distribution so what is the legality or constitutionality of factoring race into vaccine distribution um and and i was sent uh a and i was sent a news report daily mail always take daily mail with giant grains of salt um but they did refer to a number of states that have quote committed to focus on racial and ethnic communities as they

decide which groups should be prioritized in receiving a coronavirus vaccine um it's an interesting question sarah and here's the way the way I would look at the constitutionality or legality. If you are, if the focus of vaccine distribution is to get the vaccine to the communities that have already demonstrated higher death rates, even that is a race-neutral criteria that may have a disproportionate impact on different racial groups. In other words, if you're saying, we're going to first get the vaccine to communities that have shown the highest death rates, and in this state or in this locality, black communities, heavily African-American communities in a city, in a state have had higher death rates.

The legality of that, because you're pointing to the death rate, a race-neutral criteria, rather than to the race, you're probably going to sort of have a, you might have a hands, the courts would probably have a hands-off approach if uh there was going to be a legal challenge if however someone was saying for reasons of addressing historical racism or inequities or for reasons of you know diversity and inclusion we're going to begin to prioritize say you know to some between two similarly situated say african-amer-year-old and a white 75-year-old with equivalent health, we're going to prioritize African-American, you're probably going to have an equal protection issue there. That's something that is, if somebody's going to

challenge that, if race is the reason for the targeting as opposed to more vulnerable communities is the reason for the vaccine targeting, that more vulnerable communities is the reason for the vaccine targeting. That's just my quick back of the envelope analysis of it. What do you think, Sarah? I think that's all true, but let me come up with a slightly third scenario that instead of just looking at death rates based on, let's call it zip code or something. Right. That in fact, you find that genetically, someone who also carries the genetic code for darker skin pigmentation is more likely to carry the genetic code

to be more vulnerable to strokes, let's say, because of the coronavirus. And so it is race-based, but I think that then would also pass strict scrutiny. It would be a compelling government interest to save the most lives possible, and it would be narrowly tailored to achieve that interest. So you have your zip code version where it's not race-based. That's almost certainly going to be okay, disparate impact-wise. based, that's almost certainly going to be okay.

Disparate impact wise, you have, it is race based, but it is that race is correlated with higher resulting death statistics. That's going to have to pass strict scrutiny because it is race based, but I think it will pass strict scrutiny in this case because it is tied to the medical outcome. And then you have a third scenario where it is race-based, therefore you have to apply strict scrutiny, but they're using race not because it is tied to medical outcome, but because of sort of race itself. Your example of two similarly situated people,

just one happens to be of one race and one happens to be of the other, and we're going to favor one race with the vaccine. That would not pass strict scrutiny. It would not, I think, be a compelling governmental interest. And even if it were found to be a compelling governmental interest, let's say to ameliorate past racial injustice,

it would not be narrowly tailored to achieve the interest of, for instance, ameliorating past racial injustice. So there. You said that better than I said it. So that's a perfect way to end the podcast. So that was fun. I enjoyed that. We should do this more often, with the exception of maybe realizing that we're going to spend a lot of time on them. So maybe three

a piece, four a piece. Yeah, but producer Caleb just came in with the two. That is unwelcome advice, producer Caleb. Mean, Caleb. Mean. But this was fun and I really enjoy interacting with the listeners.

So please do send us questions. Sarah at thedispatch.com David at thedispatch.com or if you're one of the discorders. I do monitor Discord and participate when I can.

So please reach out to us. We appreciate it. And also this is the last podcast of the year. We are going to go on hiatus until Monday, January 4th.

So we hope you guys have a very Merry Christmas, Happy Holidays, Happy New Year. And we will be back on the 4th. And no doubt, we'll have an awful lot to talk about, including Jonah's active aggression against My Movie Taste and his most recent remnant podcast. Jonah, if you were listening to this podcast, that aggression will not stand

and your championing of the movie They Live will be systematically dismantled. But until that time, please go rate us on Apple Podcasts. Please subscribe to this feed and check out all of what we offer at thedispatch.com. We will see you next year. And we'll take a quick break to hear from our sponsor today, Aura.

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