Advisory Opinions - Making Sense of the Supreme Court Leak Part II

Episode Date: May 5, 2022

David and Sarah spend more time on the leaked draft opinion by Justice Samuel Alito on Dobbs and ask the question: If Alito's opinion holds, what does that mean for gay marriage? They also discuss last week's Supreme Court ruling that the city of Boston violated the First Amendment by refusing to fly a Christian group’s flag and then discuss "After School Satan" more than any podcast in human history. They finish with a discussion of a great concurrence in an infuriating case.   Show Notes: -G-File: “Why Joe Biden Hates Saying the A-Word” -Sarah in Politico: “Abortion Might Not Be the Wedge Issue It Used to Be” -David in The Atlantic: “What Alito Got Right” -Shurtleff v. Boston -Wearry v. Foster Learn more about your ad choices. Visit megaphone.fm/adchoices

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Details at fizz.ca. You ready? certain conditions apply details at fizz.ca you ready i was born ready Welcome to the Advisory Opinions Podcast, the third one of the week. I mean, we're flooding the zone, Sarah, with advisory opinions. We're going to talk about, guess what? Some Dobbs. Some Dobbs. Now, we're not going to dedicate the whole podcast to it. We're probably not even going to dedicate most of the podcast to it because we've got

other stuff to talk about. We gave short shrift to shirtless on Monday. This is the flag First Amendment case. We only really had time to deal with the majority opinion. There was some delightful conversation in the concurrences that we need to talk about. We've also got a really interesting circuit court opinion about one of our favorite topics, immunity, specifically qualified immunity, prosecutorial immunity, municipal liability. So that's fun. So we've got a bunch. We've got a bunch going on. And of course, at some point, the Church of Satan is going to rear its head into this conversation. But Sarah, we've now had a few days to process the leak.

We've had a few days to process the opinion. And so first I want to go to you and see what is your thinking now on either A, the leak, or B, the opinion? So I have a few things that I want to talk about in our conversation today on this topic. One, on the leak, I do think that, A, I want to be clear in our emergency pod, we weren't saying in absolutes that it was a clerk. We were just sort of giving our sort of probabilistic thoughts on that. But you were going to line them up against the wall anyway. I was, actually, but only after the investigation. But I do think we didn't give enough time to the possibility that it is not someone who works at the court, by which I mean that a clerk was sloppy taking something home, you know, accidentally left something at a coffee shop. It would be very unlikely for a clerk to do that, but it's not impossible. Or the more likely accidental version, the clerk has a significant

other, maybe not that significant, and that not very significant other rooted through the clerk's bags while they were asleep. I mean, things like that, versions of that idea where in fact, I mean, things like that, versions of that idea where, in fact, this is not a breach of the Supreme Court institution, even though it was, if that makes sense. And nobody's going to lose their job. Now, the other thing worth mentioning is we talked about whether it would be a crime. And I said that I did not think this was a violation under 18 U.S.C. 641, which would be theft of government property. This was a violation under 18 U.S.C. 641, which would be theft of government property. But now that the investigation's underway, the marshal of the court is a federal investigative officer. And so if, going back to original theory, a clerk is the one who leaked it, that clerk

has an interesting choice ahead of them. If they believe that they covered all of their tracks and there is no chance that they will get caught. And the marshal of the court says, did you at any point show or give, provide a copy of a draft opinion to anyone outside of the courtroom? That person may say no, in which case they have committed a federal crime, 18 USC 1001. If that clerk thinks there is any chance that they might get caught not committing a crime up until the point that they lie, they'd be far better off saying, yes, I did it, getting fired, potentially getting disbarred, but not being a felon who goes to jail. Exactly. That's fascinating. You better be really, really, really confident if you're going to deny it because the denial is a felony. And you'd have to be pretty confident that not only are they not going to catch you, that you've covered your track so well that the denial is a zero-risk proposition. Um, so, and, and, you know, obviously if you were caught lying and were a felon committed of a crime of moral turpitude, which this would be, you wouldn't either be disbarred

or not pass the bar. Some clerks, by the way, don't take the bar until after their clerkship though, the vast majority have taken it, um, just after law school. Uh, so anyway, just another wrinkle on that. And then David, my other three topics which we'll just sort of i think we'll get to all of them i want to talk about gay marriage i want to talk about unenumerated fundamental rights what they act what you think they are if they're not abortion and there have been several law professors who have said that Justice Alito got the history wrong.

You and I are not legal historians. And so it's not that we're going to be able to particularly take sides in this fight. But I want to walk through some of what each side is saying to see if we think there's a path forward. Okay. Oh, those are good topics. Shall we start with gay marriage? it made me think about it as well. He pointed out that it was interesting that very few of the people attacking this Dobbs draft opinion were actually attacking it on the merits. Again, with the qualification that I've seen a lot of law professors talk about the history being slightly wrong. But then in fact, President Biden all the way down politically are saying not that your

right to an abortion is under attack, but that all these other rights will be under attack and making the slippery slope argument. And Jonah's statement is, why isn't abortion enough? It's an interesting point, David. It is an interesting point. It is an interesting point that he raised. And it's something that I noticed as well. I've gotten, honestly, I would say about as many, if not more, questions about gay marriage than I've gotten about abortion. And that actually mirrors other things, Sarah. And because if you look back to the recent past, remember we talked about the Florida law at length, the Florida law, the bounty hunting law. And it was very quickly eclipsed in public consciousness by Dave Chappelle's comedy special, which involved LGBT issues, right?

So Dave Chappelle's comedy special was far more resonant, and the controversy over it was far more resonant than Florida's abortion law. We just went through days and days and days of dominant conversation around HB 1557 in Florida. Again, an LGBT-related issue. This is, by the way, for those who didn't memorize the number, the don't say gay bill. Right. Yeah, for those who've not memorized Florida State statute numbers. Including me. That was for me.

Okay. So again, days of coverage around an LGBT issue in one state. Here we have an absolute, historically, because the Supreme Court of an opinion overturning abortion. And there sometimes feels like there's almost as much conversation about LGBT issues, which goes to a larger cultural reality. And it's something that Jonah talked about in his piece. It's also something that I've been talking about for a long time when people talk about

culture change in the US. And I'll quote my former National Review colleague, Ramesh Panuru, who said several years ago, look, culture change in the US isn't all uniformly to the left. America has become more pro-life, more pro-gun, and more pro-gay. And so, essentially and dispositionally, people are uncomfortable with abortion even when they support abortion rights. But people are much more enthusiastic about supporting LGBT rights, unreservedly enthusiastic about supporting LGBT rights. And I think that's part of the reason for the more muted reaction that we've

seen in previous abortion controversies and the more emphatic and dramatic action reaction we've seen in LGBT controversies. See, I think that in fact, and by the way, I'm just going to do a self plug here for my own piece in Politico magazine, the place where all of the leaks go, David. But in fact, if this had happened 15 years ago, it would have been an earthquake. But because of the sorting mechanism that's already happened,

the cultural issue died down because for a cultural issue to have resonance, it needs friction. And if there's not political friction left, something for either political party to gain or specific candidates to gain, it goes down even if there's not consensus on it. And what you see in the LGBTQ stuff is friction, right? The two sides don't agree and aren't perfectly sorted yet. I got some interesting history that I thought would be fun to share. At the 1972 Democratic Convention, 59% of delegates voted against an abortion rights plank for the platform. Yep. In 2009, 64 Democrats voted for a Hyde amendment type amendment to Obamacare,

meaning no federal funding for abortions. The Republican party though has a much more fun history. Okay. So obviously Ronald Reagan signed a very liberal abortion bill when he was governor of California. Nelson Rockefeller, before he was vice president for Ford, was signed into law. New York became the first state to legalize abortion without a residency requirement pre-Roe. New York became, quote, an abortion destination. George H.W. Bush's father was the treasurer of Planned Parenthood. George H.W. Bush's nickname.

I'd forgotten that. Yeah. George H.W. Bush's nickname in Congress when he was a freshman was Rubbers because he supported contraceptive access. In the 1990s, a group called Republican Majority for Choice had chapters in nearly 20 states, an annual budget of a million dollars. Lots of incumbents, right? I mean, think Lincoln Chafee.

Obviously, there's like lots, there's like dozens that I'm not thinking of right now. So today, Lisa Murkowski and Susan Collins are the last two pro-choice Republicans. And Republican majority for choice closed down in 2018. Doesn't even exist anymore. Same thing has happened on the House side. There's just no friction left. Yeah.

You know, and the religious history is interesting as well, because for a long time, the pro-life movement was seen as a Catholic issue. This is something that Catholics are concerned about. And even the Southern Baptist Convention, which is now unreservedly pro-life, unreservedly pro-life, was in 1973 when Roe was decided, supported abortion rights. Not necessarily to the same extent that Roe codified, but it did support abortion rights. There was a big sort that occurred in the religious ranks as well. So you'll have a bunch of the more mainline denominations now support abortion rights. And then the more evangelical denominations, I don't know of an evangelical institution around that supports abortion rights. As you're saying,

around that supports abortion rights. All the sort, as you're saying, all of the sorting has definitely, has definitely happened. But I, I still think there's something about it that is just more muted. You know, as one of the things, you know, one of the things that I've talked about before is that we have this really fascinating Notre Dame study that indicates, because Twitter, let's just put it out here, Twitter is not representative of the American public. We'll say it again, and we'll say it super loudly. Twitter is more progressive in the user base and much more progressive amongst the power users. So if you're walking onto Twitter to gauge public opinion, it's like walking down the streets of Berkeley. As Dave Chappelle said, Twitter is not real life. Yes. Yes. So if you know one in America says, you know what, to figure out what Americans think about an issue, let's walk through the streets of Berkeley. They would say, well, I want to know what the far left of America thinks.

You'll go to Berkeley for sure, but not to find out what Americans think. So this Notre Dame study that talked to hundreds of people at length, a demographically representative, none of the Americans we interviewed talked about abortion as a desirable good. None, not even the people who were most committed to abortion rights. So I think that might be one reason, at least so far, things are perhaps more muted. Also, it's still just a draft opinion. Interestingly, David, I think I told you this, right? That when I was in college, my freshman year, they were offering free bus rides to DC to go to the, um, March for choice, whatever that March is called.

And I was like free bus ride to DC and I'm pro choice. Awesome. So I got on the bus and during that bus ride, it was a bunch of older women talking about abortion as a, as a good, right? And this is right after Clinton was running on, what's the line? Why am I blanking on the line? Something, something rare. Thank you. Safe, legal, rare.

Safe, legal, rare resonated with me. This woman who said she had six abortions and it was her primary means of birth control and thank God and like the cheering and the clapping. So I got off the bus pro-life. Yeah. And again, I want to make a distinction between, I have a lot of distinctions in terms of my personal views on this. And I think pro-life

and pro-choice are stupid labels actually. But something that is morally wrong, there's things that are morally wrong that we do all the time. there's things that are morally wrong that we do all the time. There's things that we decide should be legally wrong and morally wrong. And of course, then there's the question of whether the constitution should speak to something and whether it should be legally or morally right or wrong or whatever. Anyway, I just think it's worth painting out all of those options and why pro-choice and pro-life doesn't cover what you think about each one of those. But David, and maybe this is just, again, like I'm a hammer, so everything's a nail. I see the muted response as telling us that most of our political drama

and our culture war friction is not coming from the bottom up. It is coming from the top down. And so if Democrats do not believe, for instance, that they can win the midterm elections on this issue, raise money on this issue, they're not driving it from the top. And so the bottom has, there's, you know, churn at the bottom, but there's nowhere for that churn to really go and mobilize together. And that's why we from the outside feel like it's muted, I guess. I find it fascinating, you know, even back when the, when SB8 went into effect and there was, you know, churn around that, the money raising numbers weren't very good. They didn't tick up substantially the day after as all these groups expected it to.

And then, of course, November happens with Terry McAuliffe, who had run on this issue. It didn't do what they expected it to. And you look at Biden's approval numbers, who he is sinking with young people. I think young people will react to this issue. I think it is of interest to them. But as you said, David, it's not the top issue for them. They're like, I have birth control. I have a whole bunch of other stuff. And by the way, when we say young people, I'm frankly talking about relatively wealthy white young people. They're far more interested in the LGBTQ issues, as you said. And then Black Democratic voters, Black, I mean, and the Latino Democratic voters,

who are two groups that are to the right of the median Democratic voter and candidate on abortion, Black Democratic voters and Latino Democratic voters. They can't campaign on it without, like, if the point is to turn out the voters that they are losing with, this is the wrong issue. And so I think you're seeing a muted response because they're like, ugh, we need an issue to turn out these voters, but this isn't a good one. You know, you might raise a really good point about, and in fact, Democratic strategists are beginning to finally understand that, wait a minute, this sort of young, white Democrat cohort

that disproportionately populates newsrooms and staffers' offices in Congress. And Twitter. And Twitter is not representative of not just of America,

but of their own electorate. Yep. So I have all these links, by the way, in the piece that we'll put in the show notes of not just of America, but of their own electorate. Yep. So I have all these links, by the way, in the piece that we'll put in the show notes about where Latino and Black voters are compared to the median Democratic voter, like within their own party. Obviously, Gallup also has run Black voters as a whole.

It's just all very interesting. But David, let's get to the legal question. Alito, in his draft opinion, says abortion is different because it involves someone else's potential life. That's why it's different than gay marriage. So let's not spend much time thinking about Obergefell. It's not on the table. Yeah. it appears everyone else did as well. So do better for Justice Alito and tell me why if abortion is not an unenumerated right in the Constitution, because we go back to the founding and the time right before the 14th Amendment, and clearly states had laws prohibiting abortion at various levels. And we'll get into the history in a little bit. And then I think about gay marriage and many laws existed, obviously criminalizing sodomy at various points, but also David, just the question of the generalization of the question.

So if the question is, could I kill a fetus in most States in the country? The answer is no. At any of those two points, could I marry anyone I wanted to clearly? No. I mean, set aside even gay marriage, which fine wasn't contemplated, but, um, bigamy, uh, incest there, there were all sorts of prohibitions on who you could marry. So at any, at using Justice Alito's own methodology, why is Obergefell safe? So can we just get real practical, Sarah? No, because I get it. Practically, I understand. I want to know how judicial philosophy that these people say they believe in will not threaten Obergefell. You may understand, but I'm not sure the whole audience understands.

Okay, fine. All right. I don't think he gets five votes for an opinion that would threaten Obergefell. Of course not. Yeah. So there's a key answer. So that's why you end up with two paragraphs here that are really critical.

So he has a bunch of cases. He talks about a long line of cases involving deriving substantive rights from the Due Process Clause of the 14th Amendment. Now, the Due due process clause of the 14th Amendment. Now, the due process clause of the 14th Amendment doesn't contain any explicit protection for any substantive rights, but it's long been sort of the hook for this idea that says, wait, the Constitution doesn't spell out all of our rights. It is not the total list of all of our rights. And in fact, the Constitution explicitly says in the Ninth Amendment that it is not

spelling out all of our rights. So there are other rights. So how do you find out what those other rights are? What's the hook for them? It's interesting that they've chosen the Due Process Clause of the 14th Amendment as the hook here, but it's been the hook, and it's been the hook for a long time. And the number of cases where it's been the hook is really pretty impressive. Loving v. Virginia interracial marriage, that was both 14th Amendment due process and equal protection. You're talking about contraception. You're talking about overturning anti-sodomy laws. You're talking about Obergefell. You're talking about contraception. You're talking about overturning anti-sodomy laws. You're talking about Obergefell. You're also talking about things like the right to make decisions about the education of your kids.

Yes, but the right to travel and the right to make decisions about how to raise your children have been found to be unenumerated fundamental rights. And it seems to me that if you use Justice Alito's methodology, those would stand up just fine through history. There's no state laws. Everyone thought there was a right to travel. Everyone thought there was a right to travel everyone thought there was a right to raise your children as you wanted to within only the very uh outer limits of abuse and neglect and even then how we define abuse would be very different uh however again i'm

having trouble placing the right to birth control, the right to, and birth control, you might need to weirdly separate out a little the difference between, for instance, a sort of homemade sheepskin condom, I guess, versus a right to a birth control pill or an IUD, like a medical procedure, basically. Sodomy, gay marriage. You know what? Loving v. Virginia actually do think is separately available. So yeah,

equal protection, it's a race issue. So that is different and quite specific in the 14th Amendment. And on the like, you get to marry who you want in terms of their class, for instance, was already quite accepted. But again, under the legal philosophy, not the political reality, David, how does this opinion not implicate those cases? It doesn't. How does it not?

Sorry. Why is Obergefell safe after this Dobbs opinion? Philosophically, it is not. Yeah, okay. And that's why it is not frivolous. And people who are sort of scorning those who are saying, wait, Obergefell isn't safe, or that people are scorning that, they're scorning it entirely on a practical basis. Which I find unsatisfying.

Interestingly enough, if this then becomes the majority opinion, they'll be able to scorn it on a precedential basis because this will move precedent in the substantive due process arena a bit. But as of right now, he draws a distinction here. So he does two things. He says... The distinction he draws is dangerous. I want to get to that too, but please draw the distinction. So he says, what sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely, and this is again, you know, going back to the substantive due process, abortion destroys what these decisions call potential life and what the law at issue in this case regards as the life of an unborn human being. None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. So he's saying it's

all on its own. And then he repeats, he goes, and drawing this critical distinction. So again, it is sharply distinguishes what draws this critical distinction. Um, and then we'll get to another aspect of this, um, reliance. Okay. On starry decisis, we'll get to reliance in a minute. There's a better reliance argument. Okay. So this also though, implicates a potential motivation for the leak because exactly what you said, David, a huge part of what we're all going to focus on is why this doesn't affect Obergefell. The answer to that is because this implicates the life of an unborn human being. Now, wait a second. Why then should California and New York be able to legalize a post-viability abortion if they want to? I don't see under the Alito opinion how this is leaving it up to states.

It's leaving it up to states in terms of pre-viability. But post-viability, this opinion at multiple places, although I think that is the most obvious one, to me, not just sets up, already decides the legal challenge against, again, I'm using California, New York, not because they actually have this, but, you know, New York decides you can get an elective abortion at 39 weeks. Well, what made Dobbs, you know, different? Oh, because it involved a human being. Well, if it involves a human being, that human being then has some rights under the 14th amendment as well. So when I get said, you know, this alternative reason for why the opinion could have leaked that the other,

some of the other justices didn't want to sign on to that portion. The opinion was changing or who knows what else. Um, uh, for instance, that, that opinion didn't get five votes, but a concurrence has five votes with at least one of those votes saying they would not sign on to the Alito opinion. And so the Alito is getting out there by someone who believes that, in fact, there is some personhood life interest protected. So, again, it's an unsatisfying protection for Obergefell. And, you know, I think it sets up this next set of cases, which is kind of what a head spinner that would be to go from abortion is legal throughout the country to now it's up to states unless it's post viability, in which case you can't legalize it.

Yeah, that's going to be very interesting. And what's interesting is it seems to me so if once if this is the majority opinion, this becomes this becomes precedential and it will essentially establish a precedent that will in many ways reaffirm obergefell subtly as distinct from abortion uh but on a fill you're right on a philosophical basis and it's interesting um alito gives a subtle or not so subtle nod to the philosophical challenge when he talks about that these substantive due process cases are, quote, controversial. Oh, indeed, they've been controversial for a long time. And so, interestingly, I wonder if this decision is then read, if it becomes precedent, as reaffirming a whole lot of substantive due process cases except Roe-Casey.

But the other point here where I think perhaps there's a greater philosophical distinction, because to be clear, that distinction that substantive due process only so long as it impacts you and consenting adults is not necessarily been a the guiding principle because of course if you're talking about education of kids that's not you and consenting adults right so um so the the more concrete principle is goes back to stare decisis and that is is there, concrete reliance on the existence of these precedents? And he says there is not an example of concrete reliance on Roe and Casey, but if you're talking about concrete reliance, it's hard to have a more concrete reliance than marrying somebody.

And do the most important decision you will make in your whole life, cats and kittens. That was for the younger listeners, not for the older ones who already know that truth. So I think his stronger stare decisis distinction, a stronger stare decisis distinction, is in this concrete reliance point. And I think that's a more, which goes to, which goes to stare decisis, which is, it's stronger, but it's still squishy at the same time. Because concrete reliance is a judge made, made up kind of standard also. And so what do you think about the concrete reliance part of this? Yeah, I mean, I think that Alito by and large dismantles stare decisis, which I think it's hard not to. This is one of the areas where I will not criticize the draft

opinion because I don't have a particularly principled way to distinguish the cases that we leave on the books, even though they may not be quite right. For instance, qualified immunity, right? That might be a pretty good example in some ways. It's staying on the books because it's there. Even if we started over from scratch, it might not be. Tons of the establishment clause jurisprudence cases, which although they look like they're about to overturn Lemon, as we'll get to in a little bit, but same idea, right? If we were starting from scratch, we probably wouldn't do that, but we're just going to cabinet or something like that versus Plessy.

I can't come up with a principal distinction for when something's really wrong and we need to start over versus when it's only wrong and we're just going to cabin it. And neither can any of the justices on the court, it seems. I think my frustration is with the pro row folks and they're trying to distinguish it as well, like why it's different than Plessy. I don't think they've got a way to distinguish it. They're just like, no, no, freeze the status quo when we like the status quo, when in fact, the vast majority of the cases that we're talking about here overturned another case. And until they can distinguish why Bowers v. Hardwick was precedent we could overturn to then have Lawrence that said that you couldn't criminalize sodomy between two consenting adults,

then I'm not sure why Roe and Dobbs are different. And again, I'm not saying that's a good thing. I think there should be, but I haven't come up with one. They haven't come up with one, but they like to ignore the distinction they want to make between Bowers and Roe. I don't see one. You know what, David, though, speaking of snark, I did find it very frustrating.

The House GOP conference tweeted out something like, still looking for the word abortion in the Constitution. Not the point, dude. And for conservatives or purported conservatives to imply that the only rights that we have are the ones enumerated, and that there, for instance, isn't a right to raise your children the way you see fit, or to travel? Not a good look for the House GOP conference. Now, then there were all sorts of snarky responses back on Twitter, including, by the way, from our own Professor Vladek that said, still looking for the word Air Force. Look, I actually don't think that's a very good comparison. The Navy has planes and we don't. But anyway, the point is, this is why it takes us 40 minutes to have this conversation and you don't have it

in one-off lines on Twitter. It's not going to be very productive. So I appreciate you, David. Okay, last bit here is the history. So a lot of legal historians saying that Alito had the history wrong, in some cases just like specifically wrong, like he has the year of the Florida law being pre 14th Amendment when in fact it passed right after the 14th Amendment. So it's irrelevant to his analysis. This is a draft opinion. For all we know, the Florida statute's been taken

out and they found the error. I don't know. Or that this legal historian's wrong. I don't know. This seems like a, that one seems pretty easy to fact check one way or the other, the year something happened. But to a broader point, A, they're arguing that all of these laws were post quickening and that quickening is close to viability and that Alito is basically just ignoring, um, all of that history. And again, they go back of course, to the Greeks and the Romans, and even before that to the Egyptians and that throughout human history, uh, pre quickening women have been able to terminate their pregnancy. And that even post quickening, there were exceptions for the life and the health of mother. Okay, number two, and this one I will say I find more interesting.

David, when we think about all sorts of other things like loving v. Virginia, for instance, like Loving v. Virginia, for instance, interracial marriage, or Brown v. Board of Education. We don't look to the founding to decide what rights they thought Black people had at the time for very good reason. And we don't look pre-14th Amendment. And so when you think about abortion, women didn't have the right to vote. They didn't have the right to own property. It was a deeply anti-woman, I would say era, entire human history for the most part. Doesn't that negate that prong of Alito's reasoning when, in fact, women didn't have basic rights, including the right to vote on these very laws? They were being burned for witchcraft instead. There was a spectrum between voting and burning at the stake. There was, although I read that great book about the Salem witch trials. And I guess one of the people that Alito cites actually did sentence women to death for witchcraft.

So that dude who's sentencing women to death for witchcraft also thinks they shouldn't be able to have abortions. Color me shocked. Yeah, you know, I think that's a great moral response more than a great constitutional response. Why isn't it a great moral response more than a great constitutional response. Why isn't it a great constitutional response? Well, because if you're talking about some of the great advances in, if you take the state of liberty pre-14th Amendment and pre-suffrage, the way the gap between the existing liberty and the granting of liberty was bridged was by amendment, was by constitutional amendment. These were not rights that existed historically under the American Constitution and under the traditional, the understanding of liberty at the founding.

And so what did we do? We amended the Constitution. And so the question then is, where do rights come from? In other words, if you're saying somebody should have a right, and you have a compelling argument that somebody should have a right, and that right has not been traditionally recognized under law, who recognizes that right? Who recognizes that right? And I think that one of the differences between the right and the left in sort of judicial philosophy is the conservative jurists would say, oh, that's legislative. That's a legislative function. If somebody should have something that they have not been granted by the Constitution or understood within an original understanding of the Constitution, boom, amendment, legislation, that's where it happens. And I think a more progressive view says it happens whoever has the power to make it happen. So if the court has the power to make it happen, the court needs to make it happen. If this legislature can make it happen, the legislature needs to make it happen.

If the president by executive authority wants to make it happen, he can make it happen. If the president by executive authority wants to make it happen, he can make it happen. It's that the imperative of the moral question overrides the source of the right. And I think that that's how, say, an Alito or a Thomas or a Scalia would say, okay, what you're making is a moral argument that a right should exist that does not exist. It doesn't exist explicitly in the Constitution. It didn't exist in the founding. Yeah, but I don't agree with that. Be for the same reasons, right? So you have the 13th Amendment, which prohibits slavery. That, I think, is the best example of we pass an amendment to fix the problem. Fine. The 14th Amendment, though, says and all of this other stuff that wasn't being recognized before because of race.

And we've now read into that other protected classes, gender being one of them. Why did privileges or immunities or equal protection not grant the right to vote? Yeah, I mean, I think it should have. I think the 19th Amendment was unnecessary, but that's a conversation for another time. Nevertheless. No, I'm with you on that. I mean, equal protection. Right. What could be more protective than the right to vote? Crazy. Right. But so ignore that little problem with my history, the original understanding of the 14th Amendment. But we don't, for the race cases, look pre-14th Amendment to see whether black people had certain rights to determine whether those are unenumerated rights in the Constitution. rights in the constitution as in we don't say whether black people had the right to raise their children however they wanted to determine whether it's an or travel to determine whether that's an

unenumerated right for a black plaintiff in a case because clearly it wasn't in the early 19th century because we say the 13th and 14th amendment broke that constitutional chain so abortion to me is not similar to slavery, but it is similar to travel and the right to raise children. So why are we looking pre-14th Amendment, or if you want, pre-19th Amendment, to say that when women had no political power to determine these laws that were being voted on, or at least by their representatives, that somehow that's going to determine the rights that these women have now, that seems, from a constitutional place, that does seem a little bizarre.

Well, that goes to the concept of original public meaning. So the original public meaning of the Civil War amendments was to eliminate the badges and incidents of slavery. So that's a historically important phrase, the badges and incidents of slavery. So that's a historically important phrase, the badges and incidents of slavery. And so if you're going to talk about what's the original public meaning of these amendments, well, then that's pretty obvious

that what it was intended to do was to eliminate the vestiges of slavery in the United States. Not just slavery, but the vestiges. Which is why, by the way, women didn't get the right to vote when the 14th Amendment was ratified. Right. It was not considered part of the original public meaning. Right. Now, as we've talked about, there's a text. Okay. There's a text and the text says equal protection. Okay. And so in that circumstance, why isn't voting equal protection under the law? Hmm.

That's a really good question. But the text here isn't helpful on the abortion point. Okay. The text is not helpful at all. And in fact, the text is not helpful at all on the sort of the substantive due process wrong. I mean, the due process clause. But this is why conservatives don't like substantive due process, which is then all over Justice Alito's draft opinion.

I say, yeah, but so that's why Justice Alito's draft opinion, if it's the actual opinion, interestingly enough, would be the first sort of conservative ratification of a big chunk of substantive due process law. Which is a little crazy too. Yeah, it's why I'm very curious. I mean, we talked about this in the emergency pod, but I think this opinion has real problems all over it, in it, through it, all the prepositions. I had to memorize all the prepositions, by the way,

in sixth grade with like, abort about above, according to, across. So yeah, all of the prepositions. I don't know. I know that people think, well, it has to be locked in now that it's out there. Well, I've been interviewed about this on multiple occasions already, and I'm actually going to write about it as well. If someone is saying the theoretical concept behind Alito's opinion casts Obergefell into doubt, that's not frivolous or bad faith to say that. It's not.

They're right. Now, the answer to that is that Alito is setting new precedent, and the new precedent that Alito is setting is precedent that says, well, abortion is different. And these other cases we're not touching. They're sharply distinguishable. But then at the same time, Alito is also sort of saying, but story to size isn't super meaningful anyway.

Yeah, I mean, it sounds a lot like Casey in that sense. We're not overturning Roe. We're just totally gutting it. We're not overturning Obergefell. We're just totally gutting the premises on which it is based. Thanks, KK, bye. Right. So I do think the answer to me is a political and a pragmatic one, honestly. It's a pragmatic one. I don't think he would have had four other people to sign on to vitiating substantive due process entirely. And so what the case does is it sets new precedent over turning Roe and distinguishing Roe

from the other substantive due process cases. And that's what it is. And we will see, Sarah, I'm very confident we will see people who will challenge, re-challenge Obergefell. Well, and that brings us to Shurtleff, the case we said that we'd talk about instead of the one that we said

we wouldn't spend the majority of our time talking about that we have now definitely spent the majority of our time talking about well david the satanic temple has sent a request to boston city hall to fly their flag for one week in july it is to mark satanic appreciation week from july 23rd to 29th We don't know what flag they want to fly, though it appears that on their website they have several choices. First of all, oh, by the way, they also heavy supporters of abortion, as you might expect. They're very upset about the draft opinion. And they run an education program for students called, quote, After school Satan. Right. Cool. Cool. All right. So, David, this is the not just possible, but highly probable outcome of all

cases that are like Shurtleff, why we can't have nice things from, I mean, frankly, the satanic temple is sort of the most harmless version of this, but my impression is they sort of exist to get attention. Yeah, they're kind of a trolling organization more than an actual, like, Satan-worshipping, goat-blood-drinking sort of outfit. But yeah, this is a common thing that happens, is that they, if, for example, a crash or a Ten Commandments display is permitted, they'll submit a Baphomet display.

I think that's how you pronounce it. I've never known how to pronounce that word, so good to you. The goat, you know, satanic goat display. Why have goats gotten a bad rap in all this, by the way? I like goats. Before we moved out of a more rural area, I wanted a goat. But anyway, they do this constantly. And so they kind of have a double purpose here. One is to expose hypocrisy, free speech hypocrisy. So you'll have some of the common good constitutionalists will come out and go, any law that permits satanic speech is in violation of the natural law and therefore can, you know, and you go through this whole thing. So they try to expose free speech hypocrisy.

And the other thing they try to do is sort of in an interesting way, shut down displays of Ten Commandments because saying, well, you can't have the Ten Commandments without the goat, right? And so if you don't want the goat, you can't have the Ten Commandments. So it's sort of a- And it's pretty effective. That's why Boston City Hall, that's why a case like Shurtleff didn't happen 40 years ago, because most places already knew not to have a third flagpole. And indeed, I'm sure Boston will not have a third flagpole for long. Although I hope, dear Boston City Hall, I hope you just come up with actual rules governing who can fly a flag on the flagpole. For instance, countries. That would be great.

Just to recognize our heritage in this country of welcoming all sorts of people. That's a great way to do a flag and then you don't need to fly the satanic flag, the Christian flag, the Nazi flag, anything else. Those people aren't countries. But David, what I think is going to happen is that they will simply fly some other government flag. You know, they have the American flag, the Massachusetts flag, the POW flag flies below the American flag. They could move that to its own flagpole or any other government speech that they want, and no one can do a darn thing about it. Right, right. So yeah, this is going to be the classic. And satanic temples, very efficient at this, because people absolutely lose their minds at the idea of after-school Satan. So you can't constitutionally after school Satan. Gosh.

Wait, wait. I'm laughing because David, I mean, first of all, after school Satan is a great name. Second, it's a lot like drag time story hour to me. Yeah. If you want to send your kid to after school Satan, who are we to say that you can't? I guess. Feel free. If they weren't doing it at the public library, they would no doubt be doing it at someone's home or somewhere else. So it's not like you're just getting rid

of after-school Satan. Right. And the bottom line is, after-school Satan only exists because people get mad at it. Right. So I feel like I dated this guy in high school, by the way,

like I dated a guy named after school Satan. No, I just, I, I know exactly who this person is. I'm not going to say this person's name on air, lest someone else who I went to high school with remembers my one of my high school.

I didn't have that many high school boyfriends that I had to. But yeah, I mean, right. He was very atheist. And so all of he was very into what would now be called after school Satan. Yeah. And what ends up happening is the more angry you get at this thing, the more people show up at it. So you'll you'll have some people who are like, don't tell me what to do, you religious fundamentalists. And if you're telling me that after-school Satan is the worst thing in the world, guess what I'm going to do? I'm going to go to after-school Satan. If everyone chills out about it and sort of says, this is whatever, free speech, it drains the protest of its power. Drag Queen's story hour got a big boost

in public consciousness by sort of identifying it as sort of the symbol of all American decadence, right? And so a lot of what ends up happening, the way to deal with trolling, whether trolling is on Twitter or trolling is in real life is you don't feed it. You don't get outraged at it. And, but you're right. I mean, I didn't get to weigh in on drag time story hour that predates AO and our, uh, our deep friendship, but I don't really get it because drag is not trans. They're very, very different. And men have been dressing as women forever.

Like, how do you think Shakespeare worked? I don't understand. I actually don't. But that's another story for another Drag Time Story Hour, I suppose. I mean, there's a famous YouTube. you can find it of rudy dressed in drag burying donald the entire movie tootsie which won an oscar i think it won an oscar didn't it win best picture i don't know okay but anyway david so we the briar opinion basically is very briary? It's like you weigh a bunch of stuff and history and what else they're doing. And it's common sense, right?

Breyer's entire judicial philosophy is use common sense, which at some point you have to appreciate. But then you end up with nine platonic guardians who are just each using their own thoughts, which plenty of people think is happening regardless of what they say they're doing. I understand that. Breyer, at least, is more honest about it than most. But if you don't think that's what they're all doing, then let me introduce you to the Alito concurrence, which is a 3-3-3 opinion. It's Alito, Thomas, and Gorsuch. And then there's the Gorsuch concurrence to the Alito concurrence, which you particularly, I think, have a crush on,

the Gorsuch concurrence. So start where you want, David, between those two. All right. So the Gorsuch concurrence is just this delightful screed against the lemon test. And if you think we're the only ones who use undead analogies. They're not original to advisory opinions, although we have perfected the form. We've perfected the form, Sarah. But Gorsuch says, he's talking about the Lemon Test. It's a long screed about the Lemon Test. And the Lemon Test is, again, this judicially concocted test to try to determine

when a state entity is violating the Establishment Clause. And it has been discarded, although not explicitly overruled by the Supreme Court, it's been discarded for a long time. It's just not been applied. And it talks about, and Gorsuch begins a key segment of his dissent like this, with all these messages directing and redirecting the inquiry to original meaning as illuminated by history, why did Boston still follow Lemon in this case? Why do other localities in lower courts sometimes do the same thing, allowing Lemon even now to, quote, sit up in its grave and shuffle abroad, unquote? And that's quoting Justice Scalia. So here he just is, quoting Justice Scalia. So here he just is, he's actually channeling you, Sarah, from our previous conversation in the Coach Kennedy case, which is that although Lemon has been dead at the Supreme Court for a long time or undead at the Supreme Court for a long time, the lower courts have,

you know, and it still had resonance down at the grassroots. It is still something that is used. It was used. Lemon was used in the shirtlift case to deny the right to fly a flag. Um, it is still, was still used in the coach Kennedy case regarding prayer. But David, there's, there's a very good answer to that. What do the Shurtleff case and the Coach Kennedy case have in common? They both happened in circuits that favor the establishment clause over the free exercise clause. And what does Lemon let you do? Lemon puts a thumb on the scale on the establishment side. So they don't want Lemon to be dead. So until the Supreme Court overrules it, they have every incentive to keep applying Lemon.

And frankly, that's the Supreme Court's fault, not the circuit's fault. Yep. And this is what Gorsuch says. First, it's hard not to wonder whether some simply prefer the policy outcomes Lemon can be manipulated to produce. Just dial down your hypothetical observer's concern

with facts and history, dial up his inclination to offense, and the test is guaranteed to spit out results more hostile to religion than anything a careful inquiry into the original understanding of the Constitution could sustain. So he says, Lemon may promote an unserious, results-oriented approach to constitutional interpretation, but for some, that may be more a virtue than a vice. And then he says, to the extent that this is why some still invoke lemon today, it reflects poorly on us all. Channeling you, Sarah.

Channeling you. I've always thought that Neil Gorsuch and I were just separated at birth, you know? I feel like people say that all the time. We look alike. We sound alike. So much. And I just love all the time we look alike we sound alike so much i and i just love i just love all the undead illusions second it seems that lemon may occasionally shuffle from its grave from another for another and more prosaic reason i mean this is this is just good stuff here i mean this is this fun legal writing. So it's very clear. It's just very clear that Gorsuch wants Lemon gone.

And maybe that will happen in the Kennedy case. We shall see. See, I feel like this would have been the better case to kill Lemon than Kennedy. If you couldn't get the votes here, I'm concerned about whether you can get them in Kennedy. But I suppose we'll see. I also have to say the Alito concurrence, by the way, is not obviously it comes out the same way. This was a unanimous opinion. The Alito concurrence is all about government speech and making a real test for government speech rather than sort of the the Breyer. I know it when I see it.

Pornography test. than sort of the uh the briar i know it when i see it pornography test but again just on tone david you struck something that has like been with me and i've had trouble articulating it gorsuch sounds like he's having fun in his job when he writes it exudes a certain amount of joy you know happy warrior yeah alito's writing doesn't It didn't in the Dobbs draft and it doesn't here. And I just wonder if after, you know, 15 years on the court, Justice Alito, are you not having any fun anymore? I hope you are. I really do. Yeah. Well, you know, there's a reason why we've referred to him as Spicy Alito. I know. It makes me a little sad. Have more fun, Justice Alito. So here's Gorsuch again.

Here's Gorsuch having fun. Ultimately, Lemon devolved into a kind of children's game. Start with a Christmas scene, a menorah, or a flag. Then pick your own reasonable observer avatar. In this game, the avatar's default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it?

Mind you, don't ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it endorses religion. If so, game over. That's so good. I mean, again, just having a lot of fun. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories

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That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Speaking of having some fun, I don't know that Judge Jim Ho on the Fifth Circuit was having fun, but I think he wrote an opinion that is worth going a little long in this podcast to talk about because of the structure of the opinion.id really cares about the substance of the opinion david is hot to trot on uh immunity issues qualified immunity prosecutorial absolute prosecutorial immunity i obviously care about those but maybe similar to the billboard case my passions you know you can't be a 10 on everything right the structure of this case though david to me should be followed by circuit judges throughout the country they should read this

concurrence the gist is part a well let's set it set up the case a little bit as to as to i don't even think no i don't because it applies to everything, David. Part A, I like the outcome of this decision. Part B, unfortunately, the outcome is directly contradicted by circuit precedent and the Supreme Court. Part C, here's why that circuit precedent and the Supreme Court are wrong. It's perfect, David. It shows a level of intellectual honesty and consistency. A judicial philosophy doesn't mean anything if you can't point to cases where you don't get your preferred outcome.

And so it doesn't matter what this case was about for me. preferred outcome. And so it doesn't matter what this case was about for me. I want to see parts A, B, and C all over the place. And perhaps particularly for my interest from FedSoc-y judges, because FedSoc in particular holds themselves to a standard that they say what the law is, not what the law should be. So there should be tons of decisions that say, I like the way this case is coming out, but I'm dissenting because it's foreclosed by precedent. And then here's why I wish it were different. And I think it should be different. And I have really good reasons for it. And people should adopt these reasons. All right, David, now you can talk about why you actually care about the case. Yeah, well, the case is why would Judge Ho sort of agree from a moral standpoint with the outcome of the case while believing that the law doesn't compel the outcome?

The case is a terrible case. It involves an individual who was convicted of capital murder, convicted of capital murder on the basis of evidence that apparently the prosecutor and police officers just concocted. They took a jailhouse informant, and the jailhouse informant was the person who was indispensable in convicting the defendant. And my gosh, I mean, what they had done was unbelievable to coerce his testimony and to concoct his testimony. Wait, also, one of the witnesses is a minor who didn't have a parent present who was nowhere near it. I mean, it's crazy.

Here's a key paragraph. In December December 2001, two and a half years after Walbur's murder, Detective Foster pulled Jeffrey Ashton out of school without his mother's permission and detained him at the district attorney's office. Ashton was barely a teenager at the time. Over the course of at least six separate meetings, beginning three months before the trial, Foster and Paralou, these are defendants, intimidated the child, who was facing his own juvenile proceedings, into adopting a story they had invented that placed Weary,

the person who was ultimately convicted of capital murder, near the crime scene at the time of the murder. At one meeting, the district attorney and detective falsified the results of a photo array lineup indicating that the child had identified Weary as the person he had seen in the fabricated story. In truth, Ashton had told officials he did not recognize Weary after they pointed him out in the photo array. At another meeting, Foster took the child to see the victim's blood-stained car. Before and after each of these meetings, Perlow and Foster met to

confer upon their efforts to pressure Ashton into adopting and testifying to the story they fabricated. Can I just say, David, can I just say what is most, most, most upsetting about all of that? Obviously, someone being put on death row who's innocent is, there's not really words for that. But maybe more to the point, your job as a police officer and as a prosecutor is to protect your community. If you knowingly put an innocent man behind bars, it means you also are knowingly keeping a murderer not just out there, but that nobody is looking for that person. It's, yeah. I mean, this is unreal. So you can see why Judge Ho would say the district attorney and the detective should be liable, right, morally. Just to finish this off, in the district attorney and detective's narrative, Ashton, the alleged

witness, had gone to a musician appreciation function at his church on the night of the murder. According to the false narrative, as he walked home alone, he heard footsteps and hid under a house. Following their script, Ashton testified that he then saw Weary throw Weebers, or Walbers, this is the murder victim, cologne bottle into a ditch and to get into Walbers' car. In reality, Ashton had been at a strawberry festival with his older sister in Ponchatoula, miles away from the scene on the night of Walbers' murder.

So many things here. We don't need to have the qualified immunity discussion again, prosecutor. We don't need to have that discussion again. We've had it and we're running long. But one quick thing, I saw some people, we saw in the Ketanji Brown-Jackson confirmation hearing, some people casting aspersions on defense attorneys. This is why you have defense attorneys. Not every case is like this, but by golly, you don't know which ones are or are not until you dive into the case, until you stand up for your client

and represent them in court. This is just, it's just beyond appalling, Sarah. It's beyond appalling. And again, highly recommend Judge Ho's opinion on this It's just beyond appalling, Sarah. It's beyond appalling. And again, highly recommend Judge Ho's opinion on this as a model and a framework for future cases and dissents. All right. Wow.

Well, this is, we've again, again, we've gone long, but I think that this was some good stuff. This was good potting if i don't say so myself sarah you always say so yourself that's the thing well i mean in fairness this is you are you think all of our pods are like uh marvel movies they're all good well i mean who's to argue, with that point? And if you agree with me, go rate us on Apple Podcasts or wherever you get your podcasts. Please subscribe and please check us out at thedispatch.com. And we'll be back on Monday. Bye.