Advisory Opinions - Listener Mailbag Part II

Episode Date: March 15, 2021

Today, our hosts are taking a break from the news cycle to share some fun facts about the Supreme Court and answer a series of questions from their listener mailbox: Are Democratic-appointed Supreme Court justices more ideologically reliable than their Republican-appointed counterparts? What are some cases where you are inclined to agree with the legal reasoning but were bothered by the policy outcome? And perhaps most important, how should one go about hiring an attorney? Sarah and David have the scoop. Show Notes: -“Cleaning Up Quotations” by Jack Metzler in the Journal of Appellate Practice and Process. -“ ‘(Cleaned Up)’ Parenthetical Arrives in the Supreme Court” by Eugene Volokh in Reason. -“Larry Flynt’s Life in Contempt” by Ross Anderson in Los Angeles Magazine. -“Empirical SCOTUS: Interesting meetings of the minds of Supreme Court justices” by Adam Feldman in SCOTUSBlog. -Federal Tort Claims Act and Immigration and Nationality Act. -Cases they mentioned: Keeton v. Hustler Magazine, Inc., Knick v. Township of Scott, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Our Lady of Guadalupe School v. Morrissey-Berru, Morse v. Frederick, Rucho v. Common Cause and Kelo v. City of New London. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And we're going to have a little bit of a different podcast today because it's kind of a slow legal news week, to be honest. We don't have a giant amount of stuff going on with the Supreme Court. No crazy shadow docket stuff happened on Friday. A little bit of a legal lull, actually a little bit of a political lull right now. So here's what we're going to do. We're going to kind of clean up the question inbox. And there's a couple of big questions that we've gotten over the last couple of weeks. And really, these are questions that we've been asked quite a

few times. One is, is it really true that the Democratic nominees for the Supreme Court, the Democratic nominees who are now sitting on the Supreme Court are much more disciplined and lockstep in their voting than the Republican nominees. Because there's a narrative that says the Democratic presidents, they pick reliable justices. The Republican presidents do not pick reliable justices. So we're going to look at that question. And we've been asked that a bunch. So we're going to look at that question. And we've been asked that a bunch. So I'm excited to look at that.

We're also going to answer a question. And I don't know Sarah's answers. She doesn't know mine. What are some Supreme Court cases that came out where you were kind of forced to agree with the legal reasoning, but you really didn't like the policy outcome, which is a very interesting question. So we're going to answer that, but we're going to start with some Supreme Court fun stuff that Sarah has. And then we're going to end with a question that we also got, which was, how do you pick a lawyer? How do you pick a lawyer? And I've got some ideas about

that. So I'm looking forward to this. Every now and then, it's actually good to take a little bit of break from the news cycle and dive into some deeper stuff. So Sarah, why don't you launch us with your Supreme Court fun facts? I'm very excited about this. So we have two fun things that I've run across for this podcast. One, many of you, I'm sure, have memorized the Supreme Court case of Keaton v. Hustler Magazine, Inc. from 1984. In that case, the Supreme Court held that a state could assert personal jurisdiction over the publisher of a national magazine, which published an allegedly defamatory article about a resident of another state and where the magazine had wide circulation. Not that interesting a case, except it involved Hustler Magazine. So a wonderful reporter named Ross Anderson and I got into a conversation about how to determine

when the first contempt citation was issued in the Supreme Court. And in the end, I suggested he call the Supreme Court Public Affairs Office, which he did. And then he wrote this up in this awesome piece for LA Magazine called Larry Flint's Life in Contempt. And so it is true. Larry Flint claimed to be the first person held in contempt, arrested under 18 U.S.C. Section 1507. And indeed, the Supreme Court confirmed that. And here's what Ross ended up finding out. Not all of it got into the piece. So I am giving you Ross Anderson's reporting exclusive for the Advisory Opinions podcast.

Reporting you didn't know you needed. It's true. In a 1984 case, Flint had wanted to represent himself, but clearly very drug addled, the court refused to allow this. represent himself, but clearly very drug addled, the court refused to allow this. Hence, Mr. Flint's colorful outburst from the gallery and Chief Justice Berger had him arrested on the spot. Jonah Bronstein was with some protesters on April 1st, 2015, in the gallery again, and were protesting to overturn Citizens United. And generic, were protesting to overturn Citizens United. And generic, you know, Citizens United, we've talked about that before. After three of them refused to sit down and be quiet, Chief Justice Roberts told them to be quiet and sit, otherwise he would have them charged. And three did,

except for Mr. Bronstein, who began singing and thus was charged. And then he notes, there may be other cases of people being held under it, but nobody I spoke to could remember it, including the Supreme Court. So I thought that was really fun. I mean, there's something actually surprising about that. Anyone can go and see a Supreme Court argument and sit in the gallery. The first, it actually depends argument to argument, but roughly the first 40 to 50 people get to sit in the gallery. The first, it actually depends argument to argument, but roughly the first 40 to 50 people get to sit in the gallery for the entire argument. And then they have a rotating group of seats in the back back where I think you get five minutes a piece and those people get to rotate out. Now for very popular arguments to be in the first 40 or 50 people. You have got to spend the night as I have done before. David, have you spent the night before? I have not. Oh, David. Okay.

Whole nother podcast about spending the night at the Supreme Court. It was one of the, uh, I don't, one of the best nights of my life. I had a great time. Um, and so I love that the Supreme Court arguments are open to the public. I even kind of love that you just have to get there early and wait, although there is a whole thing about line sitters, paid line sitters. Not cool. All right. We're going to have a. No, that is that's that's actually evil. It is evil, I think. OK, a whole nother discussion to come about camping out for Supreme Court arguments. But there's your fun fact about being held in contempt.

Larry Flint, 1984. And our new friend, Jonah Bronstein. Well done. Okay. Second fun fact, David. Okay. And this is a very big deal. Are you braced for a really big deal?

I'm braced. I'm braced. Are you braced for a really big deal? I'm braced. I'm braced. So three weeks ago, two weeks ago, two and a half weeks ago, the Supreme Court issued a unanimous opinion in a case that we did not talk about called Brownback v. King. Okay. This case will get remembered for nothing else.

It is about the Federal Tort Claims Act, something you and I have spared our listeners from. But, this is really, it's big. For the first time in Supreme Court history, Justice Thomas wrote the opinion, and in one of the citations, it has a parenthetical after it. This is on page six. And the sentence says, under that doctrine, as it existed in 1946, a judgment is, quote, on the merits, end quote, in 1946, a judgment is, quote, on the merits, end quote, if the underlying decision, quote,

actually passes directly on the substance of a particular claim before the court, end quote, period. Id, period, comma, at 501-502, parenthetical, cleaned up, parathetical period footnote six. David, we have cleaned up in the Supreme Court. This had been moving like brush fire through the appellate courts. In fact, in just the last two weeks, there were 114 cleaned up citations, according to the Volokh conspiracy. And so when you say cleaned up, the words cleaned up are actually in the opinion. Yes, the words cleaned up. That is the citation within the citation in the citation. So this was proposed in a 2017 article by a guy named Jack Meltzer in the

Appellate Practice and Process Journal. And he basically said, these citation quotes are getting so out of hand. They can break up and make a paragraph long, a very simple quotation, and then the quotations within quotations can go on and on and on and on. So for instance, I mean, the Vala conspiracy has this great Eighth Circuit decision where they have this very simple quote, the racial group is sufficiently large and geographically compact to constitute a majority in a single member district. But if you don't use the cleaned up citation, it would read, the racial group is quote, little quote, quote, sufficiently large and geographically compact to constitute a majority in a single member district, quote, little quote, quote. Anyway, sorry, I'm not even going to read this. It's too hard. And then it would say Johnson v.

DeGrandi with the whole citation for that, parentheses, quoting, grow, whole citation for that. In turn, quoting Thornburg v. Jingles, whole citation for that. And then it would have three parentheses at the end because of how many citations were embedded within the citations. Or you can just say, LULAC cleaned up. Interesting. So this is going to be a big thing. Now, you can use this for good or evil. The cleaned up can bury or just obscure a whole bunch of things that you might want to know, like that it's the court quoting itself three different times, meaning this is a pretty well-established quote.

Getting rid of all of the intra-quote issues, this would get rid of... It doesn't just fix the citation. You can also get rid of the dot, dot, dots, and all the other stuff within the quote as well under the cleaned up metric. So, you know, you can hide some stuff doing that. So for the next little bit, I think we should keep an eye on especially folks in briefs using cleaned up. I doubt the Supreme Court is going to try to get away with much, but you never know. So there. Well, Sarah, if I'd been able to clean up my parentheticals, I would still be practicing law.

You left too soon, David. I left too soon. My goodness. That's actually interesting. And it's funny because there's a whole aspect of the practice of law and a whole aspect of legal scholarship that it's folks who are eclipsing us in nerdiness by factors of three or four who dedicate an enormous amount of time to things like citation forms and practices. And it's just fantastic, frankly.

I love it. And also, yeah, special shout out to the reader who flagged that for me. and also yeah special shout out to the reader who flagged that for me and i'm going to put both the journal of appellate practice 2017 suggestion for how to do cleaned up quotes and that uh uh volet conspiracy thing that will show you the difference between a cleaned up quote and how it used to be but two weeks ago david so that our listeners can see it because this is maybe a hard thing to explain in a podcast. All right. So shall we move on to a issue that honestly, truly, I think for years, for years, I have heard this complaint. I think there are times when I've made this complaint and that complaint is this. As I said at the very opening of this

podcast, Democrats pick justices that do what they are expected to do, and Republicans all too often pick justices that, quote unquote, go rogue, that cross the lines, vote with the Democratic nominees far more than the vice versa, and that in essence, one party's justices, quote, do what they're supposed to do, and the other party's justices do not. And is this a valid idea? And one of the great things about legal nerdery and legal scholarship is there's basically not a question asked that somebody somewhere hasn't tried to answer. a really interesting empirical analysis of when and how and how often justices sort of cross these lines. And a lot of these lines, like what's a conservative outcome, what's a liberal outcome, you get into these definitions, it can get kind of hazy. So none of this is going to be super, super precise. But you found a really good resource we should put in the show notes by Adam Feldman and SCOTUS blog called Empirical SCOTUS, Interesting Meetings of the Minds of Supreme Court Justices.

And why don't you start walking us through sort of the top line results? And then I've got some thoughts about some specific case outcomes. So they have this chart, and I'm going to try to explain the chart, but again, we'll put it in the show notes. And it has the justices' ideological scores along the side, and then time and the bottom. So each justice has their own little color-coded line. And what you're going to see when you look at this is that the Republican appointed justices, except for Souter, let's put Souter in his own little category there, vary a lot in their ideological lines. They're all pretty evenly spaced out.

At no point have they clumped together. This goes from 1994 to 2018. But what you're also going to see is the democratically appointed justices are super clumped together in their ideological score from roughly 1994 to let's call it 2008. And then Breyer and Kagan hang out together. They are nearly like line for line there. together. They are nearly like line for line there. Ginsburg and Sotomayor start becoming far more liberal and they diverge actually pretty dramatically, but they diverge more liberally. And in this chart, that would be down. And so what you have is that actually, it's not that the conservatives are all over the place and the liberals are tightly clumped again after 2010. It's that each one has diverged enough that you're going to end up with.

I mean, if you were looking at this and I didn't tell you anything about it, and I said, where's the majority going to be? You're going to see this 5-4 clump come out really clearly, except that what it actually looks like is a 1-2-3-4-5, and then 6-7 are together and 8-9 are together. And the 6-7 are Breyer-Kagan, and the 8-9 is Ginsburg and Sotomayor. Now, of course, A, you have to trust their ideological scoring of all these opinions, which is tough. And I trust SCOTUSblog a lot, but it's just tough. I'm not going to agree with all their ideological ones. It also does not take into account those one-offs where a conservative joins with the liberals. It'll pull their score down a little, but it's hard to see

in a line that goes from 1994 to 2018, right? So if you just look at last term, here's some interesting facts. Of the 60 votes that were cast in the OT, actually this is OT19 term, the liberals voted as a unified group 80% of the time, and the conservative justices voted together 70% of the time. So that's overall, that includes unanimous opinions. In the 5-4 cases, the liberal justices voted together 92% of the time, but the conservative justices voted together 85% of the time, the foremost conservative. So that's interesting to me. Now, this is where I think we get into things that matter more. And we'll talk about what we make of these numbers, I'm sure, the things that matter more. And we'll talk about like what we make of these numbers, I'm sure, after, in a moment. The four most conservative justices also wrote way more separate opinions.

Two-thirds of the concurring opinions and 45, sorry, two-thirds of the concurring opinions were written by those four. Of the 45 solo opinions that were written, they wrote 31 of them. So they're just voicing their opinions a lot more. But that makes sense if you've got a majority of the court. You're going to have then intra-disputes among those conservative justices. You're going to see way more concurring opinions, and you're going to see more solo opinions. David. Yeah. Also, before we sort of dive into some of the individual cases, they also had a helpful chart of the most common issues that are cross-ideological.

And this actually mostly didn't surprise me. So cross-ideological, the most common cross-ideological issues are search and seizure, criminal law, and the sentencing category. And this is where you're going to have some of these originalists joining with progressives that are, and these originalists who are very keen to offer robust defense of the, you know, of the Bill of Rights. And so they have a robust, originalist view of the Bill of Rights that joins with sort of the progressive view of criminal law more generally. And so that's where you're going to see some common issues. Also, which was very interesting to me

and not unexpected at all, was First Amendment. First Amendment cases were often quite cross-ideological. And that's something I'll talk about in just a second. That's something that I've consistently seen is a cross-ideological commitment to the First Amendment. What's the least cross-ideological? Interesting. Bankruptcy? Didn't know, Sarah. Didn't know, Sarah. Didn't know that there was such a sharp divide. Criminal law,

sort of miscellaneous criminal law cases, death penalty cases, I would expect that. I would expect that. Employment discrimination cases, again, that's one you might expect. But a lot of them were just sort of not your hot button issues. And it strikes me that when you're looking at a chart like this, that a lot of what's happening with the sort of view that the progressive justices do what they're supposed to do and the conservative justices or Republican nominees don't do what they're supposed to do boils down to just a very few, very hot button cases rather than sort of, yeah, I would say on the margins, especially as you noted in the last 10 years or so, it does look like the progressive justices vote together with a bit more regularity, but the Republican nominees vote together with an awful lot of regularity too not with a disparity not so great as to sort of say well one side just flunks at its judicial nominations and the other side uh get has gotten it gets exactly the outcomes that they want it's a little bit of it there's difference, but I'm not sure it's a huge difference, but I

think it really boils down to much more of the individual big, big cases is where I think the perception comes in. Yes. And the fact that in the last, you know, 30 years or whatever, there's been five Republican appointed votes on the court at minimum. Right. Means that when you see someone switch sides to change the outcome, it's going to be a 5-4 case where a conservative had to side with the liberals in order for it to be noticed. A liberal siding with the conservatives and making it 6-3 is just never going to stand out in your mind.

It's not going to be as memorable. And I want to give an example of Kagan in the Ramos case. So this is a different way to look at this because she was in the dissent. So Ramos, if you remember, is the unanimous jury verdict for death penalty that we've talked about. And there were three dissenting justices, Alito, Roberts, and Kagan. That's a really unusual group, but no one's going to remember that because it was 6-3. now what's interesting is that kagan actually when you look at these she's going to be the liberal appointed justice who's going to side with the conservatives most often and at least in this scotus blog thing i'm going to read from this commentator suggests that kagan's reasons

for dissenting in ramos in which the court overruled an earlier case to hold that the constitution requires unanimous jury verdict in state criminal trials, were different than Roberts and Alito's. According to this argument, Roberts and Alito's votes in Ramos stemmed from a more conservative approach, while Kagan was motivated by a concern

for precedent. Okay, so... Yeah, we talked about this at the time. We talked about this at the time that Roe might have been hovering a bit in the background. Exactly. And she had done similar things. She had a dissent in Nick v. Township of Scott, which was also a precedent concerning thing. So, of course, the justices may have different reasons for joining. It's actually why you're going to see so many of those concurring opinions within the conservative block,

is they have different reasons for joining each other. But let me go through a few of these. So the other reason is that it's not always the same conservative justice anymore. When it was Kennedy, everyone was like, well, look, it's not Republican-appointed justices. It's just Kennedy. Well, and Souter doesn't count. Souter's like off on an island in his own world, and we just don't talk about that anymore. Okay, so Bostock, where Gorsuch joins with the liberals

on Title VII, including gender orientation and gender identity. Gorsuch is the the liberals on Title VII, including gender orientation and gender identity. Gorsuch is the Republican appointed justice who sides with the liberals to make that a 5-4 case. It was Roberts II, 6-3. Oh, you're right. Sorry. Gorsuch joined with the liberals in, has so far, in five 5- four decisions. That's a lot. Yeah. Roberts,

of course, is probably the one who's done the most. You have the Obamacare case from 2012 where everyone's like, wait a second, what now? But recently it's been picking up some steam. You have the census case, you have the DACA case.

And then in the Louisiana abortion case, Kavanaugh comes over. Now Roberts was with him there as well. So I don't think it's crazy. In fact, the numbers just bear it out. Absolutely, the conservative justices vote together as a bloc less often than the liberal justices. But once you discount the fact that they have that fifth vote in the first place, and that's where the four versus four is the way you actually want to

compare it, and then you want to compare it in those five, four cases where people actually care, because I don't think most people actually care about the ones that are unanimous, for instance. 92%, I already read the stat, but 92% for the liberal justices and 85% for the foremost conservative justices. That's the straight comparison. So yeah, it's true. But to your point, David, seven points, you know, it's there, but it's not what people feel like it is. And I think you hit upon a very key aspect of this, and that if you've had a Republican majority in the court, which there's been a Republican-nominated majority in the court for a long time, you're expecting, as a conservative, to just, you know, what's the, oh gosh, the song, All I do is win, win, win, win, win. Like that's, yeah, that's your expectation. And so when one of the justices rules against the position you want to see prevail, it really

stings. Whereas if you're expecting to lose, and instead of losing 5-4, you lose 7-2, it doesn't really sting. And, you know, it's interesting to me. And one of the things that people often say is, well, the justices, the liberal justices stay together on all the culture war cases. On all the culture war cases, yeah, you might have these interesting alignments when it comes to criminal procedure or things like this or administrative law. When it comes to culture war or things like this or administrative law. When it comes to culture war cases, they stay together. And I think on the abortion front, that's been largely absolutely true. But on religious liberty and the First Amendment,

that has not been true. So, for example, Trinity Lutheran, very important decision regarding whether there can be direct state financial aid to a church was a 7-2 decision with, of course, Kagan and Breyer coming along. You don't get much more hot button than Our Lady of Guadalupe, which was the conflict between non-discrimination laws and the hiring autonomy of a religious organization and who could be a minister. In other words, completely exempt, completely exempt from all non-discrimination laws. Again, 7-2. So these were cases. And the interesting thing is I did not see very much backlash at all from the left directed at Kagan and Breyer. Because they're not 5-4. Yeah, because they weren't 5-4. And I think it's because they didn't have an expectation.

They didn't feel the loss because of the switch. Let's say had this been 4-4 and then Kagan had made it 5-4 and written the opinion, sort of like Obamacare with Roberts, you might have some real anger on the left, but the fact that these cases were 7-2 and the switch to the other side didn't make the difference in the outcome,

I think leads to a lot of people just kind of taking it for not really focusing in on the importance of that switch. And I'm not saying, I mean switch in the sort of the sense of what people's baseline ideological projections would have been, not switch in the sense of jurisprudence. I think there's one other reason why people feel like the conservative justices flip-flop more than the liberal justices. And I think that goes to the jurisprudential philosophy of the two sides.

So both sides, let's agree, want a just result. But the conservatives have emphasized that a just result means a just process. And the liberal justices have emphasized that a just result must mandate a just outcome. It's not just if the outcome isn't also just, and the conservatives don't believe that necessarily. And so the conservative court watchers happen to also believe that justice equals a just outcome. Now, what that just outcome is, of course, is the opposite of what the liberal justices believe. But that philosophical difference, I think, drives some of that feeling of loss on those five, four cases as well.

Process is not, you know, a just process doesn't like make you feel warm and cozy at night like a warm chocolate chip cookie with milk. Right. It does not. It does not at all. And what's interesting, though, is if you go back and you look at First Amendment jurisprudence, what's interesting to me is from the standpoint of robust First Amendment, one of the things that I hear people say is Republicans need to win because we need to protect a robust First Amendment. And that's absolutely key. And if we do not have Republican appointed justices, we will not have a robust First Amendment. And the interesting thing to me, we all know how I feel about Employment Division v. Smith, right? Cue ominous music, Employment Division v. Smith. That was one

where it was actually the conservative justices who torpedoed the free exercise clause. I'm looking at the lineup there. Scalia, who wrote the opinion, Kennedy, O'Connor, Rehnquist, Stevens, White, 6-3 for Employment Division v. Smith. One of the other of the more notorious First Amendment cases, you've heard me talk about this before, Morse v. Frederick, better known as Bong Hits for Jesus case, who wrote the majority, who was in the majority opinion, uh, denying the free speech rights of a kid off campus to make a joke. Roberts, Scalia, Kennedy, Thomas, Alito. That's one of these cases where sometimes it feels as if there's just a, you enter into like a, what was that Seinfeld episode did you ever see it bizarro

Seinfeld yes where it's like bizarro Supreme Court whoa whoa whoa whoa whatever happened to originalist jurisprudence and the First Amendment here so those are interesting cases where it just feels like everything just flip-flopped, just complete and very important cases just felt like a flip-flop. But I guess I would sum it up like this. Yes, progressive justices do vote together more than conservative justices, not by a lot, but by a measurable amount. but by a measurable amount. Number two, you notice it when the conservative justices sort of flip because they've had the majority forever, and it often makes a difference

between winning and losing. And so number three, you don't notice it when the progressive justices flip because you felt like you were going to win anyway. Does that sound like a fair summary? I think that's about right, with the caveat that, yes,

the liberals vote together, the four most liberals vote together a little more often than the four most conservatives in those cases that matter. But that 7% statistic probably wouldn't be enough that you would feel it the way

that culturally we seem to feel it. Right, exactly. Up your health game with Sun Life and the Toronto Raptors health experts. Access nutritional tips, mental health coaching, and advice on overall wellness. As the official health and wellness partner of the Toronto Raptors, we want you to be a fan of your health with sunlifehealthyyou.com. Okay. Now let's go on to an interesting topic. I actually had to think about this a lot. Me too.

And I'm going to tell you why I had to think about this. I'm going to tell the listeners why I had to think about this a lot. But the question was, can you tell me situations in which your judicial philosophy meant that you supported an outcome of a case, you agreed with an outcome of a case, even though it went against what your policy preference would be. Is that a fair way of describing the question? Yeah. Which I thought was a really interesting question. which I thought was a really interesting question.

And you would think, oh, well, I can think, I can come up with A, B, C, D, E, and F, E, F, and G. And I realized, and I was sitting here thinking through it, and I realized why I was having trouble thinking through this in quite, why I was kind of having a mental block, Sarah. Here's why I had a mental block. For a very long time,

I have analyzed cases as they come to the court just from the get-go, not as who do I want to win, but from the standpoint of who should win, which are two different things. So I've been spending an awful lot of time, years and years, thinking through Supreme Court cases through the standpoint of what is, I think, the proper legal lens to analyze the case and not through the policy lens. In other words, if I was king of the universe,

how I'd want this to come out for the common good as opposed to what does the constitution or the statute dictate? So I had to kind of shift gears honestly in thinking about these cases. So anyway, do you want to go first or do you want me to go first?

I'm really excited to hear what yours are. I felt like in approaching this, A, I hadn't really given it a lot of thought. And in the end, I felt like oftentimes it was hard for me to separate because if the law is a certain way, then that's the way I want the case to turn out. I couldn't really take apart the law from a policy end because the policy end should be what the law dictates. Once I decided that I was not going to vary from that, that is too fundamental to my way of thinking, I then realized that the cases that I agreed with the legal outcome, but disagreed with the policy outcome, it became very simple, David. They were all about when you defer to the political branches, which are most accountable to the people. So the law may dictate that you defer to the political branches, and then the political branches may do something exceptionally stupid.

In fact, may is often the wrong term there. Yeah. So both of my cases are that. Both of my cases are that. Now, one of them, I am going to side with the four liberals. And one of them, I'm going to side with the four conservatives. And I'm sort of curious if I'm not going to make you guess because I think that's too hard. I think you and I might have the same one.

But no, on one of them, we might. We might. OK, but yeah. OK, one of them i really doubt you have because i think i'm pretty counter cultural on this one and it's the kilo case so this is the 2005 case in which a um the city of new london is trying to take property for an economic development project. And in doing so, they want this little old lady's house. She's lived in it forever and ever. It's this great little house. She argues it's not blighted, all of this stuff. And they're going to pay her for it. It's not a question of compensation under the Fifth Amendment. But let me read you the Fifth Amendment real quick.

Fifth Amendment. But let me read you the Fifth Amendment real quick. My eyes are bugging out. What? Can you see my eyes are bugging out? Your eyes are bugging out. Okay, keep going. Nor shall private property be taken for public use without just compensation. So the whole case turned around. What is public use? And Kennedy sided with the four liberal justices in saying that this counted as public use, that it was an economic development that would, for instance, according to the city, create jobs and tax revenue. And it was all part of creating this little shopping center or whatever else. And the dissent, for what it's worth, argued that that is public purpose, but not public use, and that the Fifth Amendment requires public use. You cannot take person A's property and give it to person B, private person B, and claim that's public use.

And look, in the end, in that case, I hate that the city of New London took this woman's private property to build a strip mall. I hate that. But I think you defer to the city when they say this is an economic development project that will increase the overall tax revenue for the city, increase property values overall, create jobs. That is the job of the city of New London. And if you don't like the decision that they made, which I would not have liked, I would vote all of those people out of the city council.

They are accountable. And so I hate the policy outcome of that. But I think that's what the law dictated. Okay. That's my first example. That's interesting. Okay. My second example is similar in terms of why I take the position that I'm taking. And this is Ruscio v. Common Cause. This is the- Okay. I did not get that one. Okay. This is the partisan gerrymandering case. So,

plaintiffs in North Carolina and Maryland filed lawsuits challenging the congressional district maps as unconstitutional partisan gerrymandering. They claimed that the state's districting plan discriminated against Democrats or Republicans, depending

on North Carolina discriminated against Democrats, Maryland discriminated against Democrats or Republicans, depending on North Carolina discriminated against Democrats, Maryland discriminated against Republicans. And they alleged that violated the First Amendment Equal Protection Clause of the 14th Amendment, the Election Clause, and Article 1, Section 2. So in this case, by the way, it was the conservative justices who found that partisan gerrymandering is simply non-justiciable. Otherwise, you're going to have courts drawing these lines because, of course, their partisan interests are entering into their heads. There are some things that are clearly unconstitutional when drawing district lines, race being one of the most obvious. But if you don't like partisan gerrymandering,

you have a lot of choices. One, vote out all of those state legislators who made those lines, and two, vote for referendums or amendments or however it needs to get done in your state to have independent commissions, which is in fact what Justice Roberts, for instance, argues for in Ruscio and notes that that's happening in a lot of places already. I don't like partisan gerrymandering. I think it undermines faith in democracy. I think it is bad just as sort of a matter of first principles. But I don't think the Constitution prohibits it, and I don't want the courts in the business of redrawing lines and they already are by the way and so that's another one where political accountability is just more important and i don't like the outcome partisan gerrymandering sucks but rucho

is rightly decided those are my two interesting so i've got more than two i have i have more than two but one is a clump so it's kind of two all right so number one and the one was easy for me to come up with was trump v hawaii so this is the this is the um uh travel ban case so and and I agreed with the court's decision as a legal matter, but loathed the policy on a couple of points. One, I think the underlying statute, section 1182F of the Immigration and Nationality Act is nuts.

Like it's just nuts. This is the part, this is a statute that says, whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may, by proclamation, be detrimental to the interests of the United States, he may, by proclamation, royal decree, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants. Whoa. Like, the policy problem with that statute and the delegation of authority to the president of the United States. Wow. And then the travel ban itself. It's not that I didn't think that there were problems, especially if you're going back to the 2016 era and the height of the fight against ISIS and ISIS efforts to infiltrate Western nations with terrorists is not that I think that there couldn't be necessary immigration restrictions

or additional scrutiny of immigrants from particular countries. That it's not that I think that at all. I think sometimes national security should permit that. I think sometimes national security should permit that. It's just that if you looked at travel bans 1.0, 2.0, 3.0, they got increasingly, each one of them got sort of increasingly better written. And Sarah, you're in the middle of the administration at this point. They got increasingly better written,

but I don't think that they ever got to where they needed to be. But at the same time, that statute was there and it says that and Congress did that. And so I thought that the Supreme Court of the United States was correct to uphold the travel ban because the statute says what it says, even though the statute is just absolute. It is a steaming dumpster fire of a statute in my view so that that's number one yeah that's the one that's the one i thought i thought we might i thought we might agree on that one i think that's pretty close it's the same idea if you don't yeah um you know the the political you there's people to hold accountable for that. Yes. Yes. Okay, and the other is, and this is, we're going to be reaching back into a little bit more of the past, and that is, these are the detention cases from the War on Terror.

And these are, for example, example hamdi v rumsfeld bomadien if that's how you pronounce it v bush um if you're talking about hamdan ham there's hamdi there's hamdan this bomadien v rumsfeld and all of these sort of deal with what is it that we need to do with unlawful combatants seized in a theater of armed conflict. People are operating without uniforms, not in accordance with the traditional law of armed conflict. What should be done with them? And I have a whole set of ideas about that um where you know my my view has long been that the the law of war the burden of the violation of the law of war as a policy matter should not rest with the party that is complying with the law of war in other words a a an enemy combatant that chooses to violate the law of war should that choice to with the law of war in other words a a an enemy combatant that chooses to violate the

law of war should that choice to violate the law of war should not impose upon the complying party us additional uh tactical and legal burdens that the burden of non-compliance should fall upon the violator and and but at the same time we have a a web of habeas doctrine. We have a web of statutes, for example, that limit the authority of the commander-in-chief even in times of war. And so if you look at the way in which the collection of cases hamstrung the president's autonomy, I think that that was directed by the Constitution. It was required by statute. These cases were properly decided.

They also went against my sort of underlying philosophical point of view about how the law of war should operate. And we've forgotten those cases because, I mean, these cases were absolute front burner, major political and constitutional cases at the time. But because the intensity of combat has faded, because the memory of 9-11 has faded, nobody remembers them anymore. Nobody thinks about them anymore. But, oh boy, in the moment, those were some pretty darn important cases. So those are my answers. I do remember that. I thought that was a really fun exercise. Yeah, it was interesting. It made my brain hurt a little bit because you spend so much time as a, you know, if you're in the position of being a legal analyst, you spend so much time as a, you know, if you're in the position of being a legal analyst,

you spend so much time sort of thinking them through from the standpoint of what outcome does the law dictate versus what outcome do I want? That you disconnect the want from the analysis. It's interesting. It's the way, think of it, if that sounds completely alien to you, imagine if you change your life from being like an NBA fan to being an NBA analyst. And you talk to people who are involved in sports analysis, they get so into who's got the best arm in the NFL, who's got, you know, who's the best running back, who's got the best defensive scheme, that you sort of start to disconnect a lot of the rooting interests.

It's true. It happens. But I will never disconnect my rooting interest in superhero movies. All right, David. in superhero movies. All right, David. So the last question that we're going to answer from the mailbox was from someone who said, look, you've talked a lot about going to law school and what people should think about, about whether they'd make good lawyers and et cetera, et cetera. But what about the rest of us who most likely are not considering going to law school, but in fact, may need to hire a lawyer someday? What should we be looking for when hiring an attorney?

And I said, that question is too hard because it depends on why you need the attorney. I have very different advice depending on what type of attorney that you need and what your legal problem is. But David said, no, I've got advice and jumped right in. So I'm curious what David has to say because I don't think I have any. Please go. Okay. So, I mean, let's just dispense with some of the ordinary stuff like, you know, of course, affordability. I mean, you know, don't choose somebody you can't afford,

et cetera, et cetera. Like those are baseline things. So I've got one generalized piece of advice and one piece of advice that's specific to an arena. So here's the generalized piece of advice. And that is, if you have ever looked at bar complaints and what is it that pisses off clients more than anything, and let's put aside fraud, things like that. Of course, you're not going to knowingly hire an attorney who would take your money. Here it is, responsiveness.

Responsiveness. Never hire an attorney who seems to be too busy to get back to you quickly. And in fact, one of the most important, I would say one of the most important aspects of vetting an attorney and making a decision, just assuming you've chosen your universe as competent people. So, because no one's going to knowingly go in and hire somebody incompetent. You're choosing between three, four, five people that you seem to have a decent rapport with. Who's most responsive to you? Who's going to get back to you?

Because no attorney should be too important for their client. Okay? And I promise you, I promise you, you will set yourself up for one of the most frustrating experiences of your life if you hire an attorney who isn't immediately responsive. And yeah, you can't know how they're going to be a year into your case, but if they're not immediately responsive in this early process where you're deciding, that can be kind of a hint. That can be sort of a warning. hint. That can be sort of a warning. And you should never think, well, it's just because they're so in demand, they're so great that they can't respond to me. And one of the things that I did back when I was practicing law and supervised lawyers who were practicing, it was like, get, and even though these were pro bono cases, get back to your client. Their call is top of your list.

You know, I don't care if you have media calls. I don't care if you have an internal conference call. You get back to your client because you have a fiduciary duty to your client. You don't have a fiduciary duty to your internal conference call or to the media, the reporter. And so that's, and I promise you, if you take nothing from this podcast other than, hey, I have two lawyers. One is a little slow in getting back to me, and one will get back to me immediately. You'll thank me. You'll thank me. David, I think your advice is wise. The only quibble I will have with it

is that it applies to everything. Boyfriends, comms professionals that you're thinking of hiring for your campaign, really any employee that you're thinking of hiring for anything, your gardener, your pediatrician. Everyone wants responsiveness in everything from everyone, the end. But I promise you, this is an issue in the practice of law where I have seen it happen, where clients sort of get this weird thing that says, if my lawyer is busy, it's one of the reasons because my lawyer is so darn good. And much heartache flies down that path.

That's a really good point. But I think, I mean, let me apply that to boyfriends as well. I mean, he's not answering my texts right away because he's super popular. He's the captain of the football team. And he's just got a lot on his plate right now. No, girl. If he likes you,

he'll answer those texts ASAP. Truth. Can't argue with that. He's not going to get more responsive over time. He won't get less busy over time. Also true. And if he does, that's a whole different problem. That's exactly right.

Okay, now I have another piece of advice for those people who might be involved in publicly contentious, like public interest litigation. I just had a conversation with somebody who called me and they were asking me, they were choosing between two or three public interest law firms

involved in First Amendment litigation. And the question was, which one should I choose? And now this is a smaller category. Most people are not going to be involved in constitutional cases, but this is a nice segue for me to get on a soapbox, Sarah. One of the things you want to talk to people who are informed in the loop is, does this law firm primarily represent its clients or does it primarily represent its cause? And if they have a reputation for primarily

representing the cause, run away, flee. Because when a lawyer takes on a case, even if the lawyer is pro bono, even if the lawyer is working for a public interest law firm that is dedicated to a cause, you know what? That lawyer has a fiduciary relationship to you and not the cause. It's to you. And one of the things that I've seen happen all too often is a lawyer will be representing a client with one eye on the client and one eye on the larger meta litigation strategy for the cause. And there will be times when those two things will come into conflict. resolve those things in different ways, but the, the lawyers who are doing the best job are the ones who resolve the conflict between cause and client in favor of the client. And, and yeah, so we just probably spoke to on that, on that score, we probably spoke to like seven of our

listeners, but, but it's a, I think it's a big, I think it's a big issue in the nonprofit litigation space. And sometimes it's institutional, sometimes it's individual, but it's incumbent upon the lawyer to represent the client and not the cause. We've actually talked about, Sarah, as we've read these oral argument transcripts, and you can see when the lawyer is doing a really good job by going for the narrow victory rather than swinging for the fences to go for the big sort of like legal principle adjudication. I'm thinking, you know what? That's a lawyer representing their client right there. Because what does a client want? Client wants to walk out of that courtroom with a W. It doesn't serve their interest

necessarily to swing for the fences and walk out with a capital W. They just need a small lowercase w. That's all they need. And that's a lawyer doing a good job for their client. Okay. There is one thing that you said, though, at the beginning, you said, if you can afford the attorney. And you sort of thing that you said though, at the beginning, you said, if you can afford the attorney and you sort of brush that off, like obviously that's a number one consideration. So on Thursday, David, you and I are going to talk to a guy named Christopher Bogart. He is the CEO and founder of Burford Capital and they do litigation funding, which is this fascinating new world in lawsuits where these third party entities fund litigation to then take a cut of it. It's sort of like contingency fee, but contingency fees are taken on by the law firm. This is taken on by the third party.

Also, he was the general counsel of Time Warner. That's great. But his law firm was Cravath, which is like the old school Death Star white shoe big law, like original big law is Cravath. So I want to ask him a little bit about that. And this is a sentence in his bio, of which I understand very few of the words. Mr. Bogart graduated with distinction from the Faculty of Law of the University of Western Ontario where he was the gold medalist. So we're going to have to talk a little bit about Canadian law because gold medalist sounds good, but I have, I mean, maybe they have platinum medalist. I don't know. Yeah. Is he an Olympic athlete of law? That's interesting. Yeah. That's interesting.

So that'll, I think, be an interesting footnote to this whole conversation about how to hire lawyers. I mean, basically on Thursday, we're going to talk about how to fund a lawsuit potentially. Yeah, I'm looking forward to that. That's going to be an interesting conversation. Okay, Sarah. Yes. The Best Picture nominees came out.

And I have seen one of them. Okay, read me the nominees. Sound of Metal. No. Mank. No. Minari. No.

Promising Young Woman. No. Yes, that's the one I've seen. You need to watch that. That is a... That movie is disturbing. The Father. No.

Judas and the Black Messiah. No. The Trial of the Chicago 7. Yes. Yes, I have seen that one. Of course. Is that good? I mean, it's a long one.

Yeah. I don't know that it's best picture material, but I enjoyed it. Okay. No Mad Land. No. Okay. Is that it? So that's it.

Okay. I haven't. So I've heard of Promising Young Woman. I've heard of like one of the other ones, maybe two. I haven't heard of a good chunk of those, at least half. Yeah, same with me. And I try to keep my finger on the pulse of pop culture, but maybe this doesn't even count as, some of these don't even necessarily count as pop culture. No. Did you check in for the Grammys last night? No. So I didn't watch any of it, but

I did. I was like, oh, let's see how old I am. And I went and looked on Spotify for the Grammys official playlist where I could listen to all the songs that had been nominated. And I was quite pleased that I had heard many of the songs. And for instance, Brandi Carlile with the High Women won. So there was some good stuff going on in the Grammys, I would say. And I'm a little concerned about the Oscars. Yeah, I'm a little concerned about the Oscars. Where's Wonder Woman 84 in that list? I mean, come on. On the other hand, the Black Pumas didn't win anything at the Grammys. And I thought their song Colors was one of the best. I can just groove to the Black Pumas album all day long.

And in fact, that's what the Brisket and I did this morning. Nice. Well, I would be interested in your thoughts on Promising Young Woman. Nancy watched it, said, you have to watch this. I would be interested in your thoughts on Promising Young Woman. Okay. Nancy watched it, said, you have to watch this. I don't want to say anything about it because the premise is, it's important to walk in not knowing the premise. Okay.

I won't look up anything. Oh, David, I'm going to have to spend real money to watch this oh are you i've just spent 20 dollars it says on google play i'm gonna do it for you and for our podcast listeners so podcast listeners everyone let's all watch promising young woman so that we can talk about it without spoilers because david seems to say that that a thing. We won't talk about it on Thursday. So we all have one week to watch Promising Young Woman. All right. Deal. I like it.

Okay. Fantastic. All right. Well, that has been the Advisory Opinions Podcast for Monday. Really appreciate all your ratings. Please go rate us. If you have not rated us at Apple Podcasts, please subscribe and check out thedispatch.com, including Sarah's newsletter, The Sweep, which is just an outstanding deep

dive into American politics. Do you have any preview for folks? Oh, I think today's is going to be really good. I was talking to my bestie from college, though, David, and she subscribes to your newsletter and loves it. Oh, good. Yes. That's fantastic. This is a non-religious, fairly liberal person who serves in the military,

and she thinks the Sunday French press is really, really interesting and enlightening and thoughtful and good. Oh, that's great to hear. Well, you can also get the French press, my newsletter at thedispatchscott.com. So please check us out and we will talk to you on Thursday. And we'll take a quick break to hear from our sponsor today, Aura.

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