Advisory Opinions - Man Charged with Attempted Murder of Justice Kavanaugh

Episode Date: June 9, 2022

Early Wednesday, police arrested an armed man only a block away from Supreme Court Justice Brett Kavanaugh’s home. The man, who was charged with attempted murder, said he wanted to kill Kavanaugh and reportedly was carrying a pistol, a knife, and pepper spray. David and Sarah discuss the dangers of releasing public officials’ personal information online and the darker story behind the false sexual misconduct allegations at Kavanaugh’s 2018 confirmation hearing. They also dive into Justice Clarence Thomas’ opinion in Egbert v. Boule, and tackle questions from the mailbag.   Show Notes: -Washington Post: “Man with weapon arrested near Brett Kavanaugh’s home, officials say”  -New Yorker: “Senate Democrats investigate a new allegation of sexual misconduct from Brett Kavanaugh’s college years” -Vox: “The rape culture of the 1980s, explained by Sixteen Candles” -Egbert v. Boule -Bivens v. Six Unknown Federal Narcotics Agents -Jason Aldean: “I Use What I Got” -Engblom v. Carey -Harlow v. Fitzgerald Learn more about your ad choices. Visit megaphone.fm/adchoices

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Hey, you paid for it, so keep it. Try the other side. Get started at Fizz.ca. If you need some time to think it over, here's five seconds. Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at Fizz.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we're going to cover a few things today. We're going to start with a really disturbing

incident outside of Justice Kavanaugh's home. We're going to talk about a Supreme Court decision that was handed down today that's actually kind of interesting. It's not one of the biggies, not one of the biggies, but it's kind of interesting. And then we've got a lot of follow-up from our last podcast and a lot of reader questions to cover. But let's weapon near Brett Kavanaugh's Maryland home has been taken into custody by police after telling officers he wanted to kill the Supreme Court justice, according to people familiar with the investigation. The man described as being in his mid-20s was found to be carrying at least one weapon and burglary tools, these people said, speaking on the condition of anonymity to discuss the investigation. Police were notified the person might pose a threat to the justice, but it was not immediately clear who provided the initial tip. The man apparently did not make it onto Kavanaugh's

property, was stopped on a nearby street. Okay, so this is scary stuff, Sarah. And by the way, he was stopped, he was arrested at 1.30 in the morning. This was not 3 p.m. in the afternoon. This was, to me, these things happen from time to time. Someone is arrested in California for making threats against a member of Congress or something like that. This was yards away, 1.30 in the morning, and he has all the tools he needs. God bless the person who called in the tip. Yeah, absolutely.

And I'm going to say this with feeling. This is why you don't dox people. This is why you don't make their homes publicly known. This is why you don't go outside their homes. You don't radiate and broadcast where people live. This is why you don't stoke up hateful rhetoric against public officials. Enough. Enough. I mean, we've already seen political violence in this country. We had a very disturbing incident in Wisconsin where a retired judge was assassinated,

and his assassin had a kill list that had other public officials on it. We're in a dark place right now. And Sarah, I did a debate on the New York Times Argument podcast about protest. And this was exactly the point that I made. I said, once you start broadcasting people's homes and once you declare that homes aren't off limits, it's not even necessarily the sort of angry, peaceful protesters, although they're inflicting a cost on neighbors and kids and spouses and all of that. and all of that. It's who else comes next. And this is exactly what we've seen here. This is why, and, and I'm, this is where we're headed. And, and, you know, I just think it's incredibly important that as many people who have a public, have any sort of public hearing with radical right and radical left to say enough with this doxing enough with the harassment we're heading into for a very dark place i would like to expand uh on your points and um with more anger okay so uh first of all a good friend said to me you know this is why

the justices need to get the opinion out on Dobbs as quickly as possible under the sort of the theory that the Biden would get to replace, uh, then, you know, either the justice who's killed or put that person in this spot and pick another one for justice Breyer seat, whatever, right. They're like, you have some power to change the outcome of Dobbs. As long as you kill a Supreme court justice, who's in the majority right now. I actually discount that because I don't think that the people protesting outside the homes tend to be pretty rational people who probably can do that math. The people who come to kill a Supreme Court justice at 1.30 in the morning with burglary tools and a weapon, less so in my view. I think we'll find that that person didn't have the most rational thought on what they were doing. It appears not only did they blame Justice Kavanaugh

for Justice Alito's opinion, but also blamed him for the mass shooting in Uvalde potentially or other mass shootings. So not surprisingly, this individual person is not going to turn out to be deeply rational. Similar, by the way, to the guy at the congressional baseball shooting who, yeah, sure, he is a Bernie Sanders supporter, but not like the rest of Bernie Sanders supporters. Because if you think you're going to go just shoot a bunch of Republicans, you don't necessarily have a real rational game plan on how that's going to turn out. Okay. That being said, the person who leaked the Dobbs draft, in my view at this point, morally has blood on their hands because without the tipster calling that in, without law enforcement finding him yards away from Justice Kavanaugh's house at 1.30 in the morning, we don't know what would have happened, but I think at this point we can guess.

And so I put this moment squarely at the leakers' feet, and I hope that the investigation steps up that much more. Although, again, I think this was a very foreseeable consequence of the leak. Now we actually have that it was not just foreseeable. It was a consequence of the leak. Second, David, I'd like to expand it beyond the leaker as well. And this gets to my complaint about our politics in general. There are games that people play in DC for political gain in an upcoming election, you know, to get their side a little more leverage in whatever the fight is. And voters don't know that it's a game. And I don't mean game in the like fun way, you know, monopoly or something. I mean a game in like the sort of the,

the larger sense of that term. And I am talking about justice Kavanaugh's confirmation hearing for the people in DC. And I'm, I had, this will have lots of outrage from a lot of people. It was a game. It was, um, They wanted to undermine an incoming justice.

They wanted to undermine the institution of the Supreme Court, same as the leaker did, by the way, because if the Supreme Court is an institution, is it going your way? And by the way, I don't think it would matter if it was right or left. In this case, this is going to happen to be on the political left, but in no way do I think that this would be singular to one political side or the other. Okay, so if you're not going to own that branch, and by the way, once Justice Kavanaugh was replacing Justice Kennedy, that was the swing vote, right? So they were about to lose that swing vote on the court, sort of creating this potentially permanent loser status for the left at the Supreme Court.

So why not undermine the legitimacy of the Supreme Court moving forward? So that way, when they rule against you, they're not a legitimate branch of government anymore. And that's what I really think that the Kavanaugh hearings were about. And we don't need to go through all of the details and relive that whole thing. My point being that there were a few dozen people in DC directing that and then there were millions of Americans who genuinely were outraged by what they were hearing, not realizing that the people who were stoking that outrage were doing it for their own benefit, not for voters' benefit. And all of this then becomes this inevitability because otherwise,

David, why would you target Justice Kavanaugh for Justice Alito's opinion? Ah, because the political left, and again, here I'm not referring to voters, I'm referring to that elite, that few dozen in DC, the political left has said that Brett Kavanaugh is subhuman, that he's not a real person who you need to respect, not kill, for instance. And why did they do that? Not because they actually believed that, but because it was a larger political framework that would help them politically. And that's disgusting. And here are the consequences. You know, I was thinking as the news came across the wire and a number of people were pointing out, wait, it's a draft Alito opinion, not a draft Kavanaugh opinion. But my mind went back to those gang rape allegations. And that was the moment for me where it, you know, the New Yorker story that was so incredibly thinly sourced, where in the story it talked about how the person had to go and spend time

with her and her lawyer to refresh her recollection about events of decades before. That was bad. And then the gang rape allegation was unbelievably bad. And that was where it just absolutely was manifest to me that this was an effort to just destroy a human being.

And don't forget the initial, the initial allegation was leaked as well. It was leaked. And Blasey Ford hadn't wanted to go forward. Somebody basically threw her into the public square against her will. She had indicated she didn't want to go forward, but the leak emerged. Reagan, I understand, by the way, the allegation that she made set aside whether you believe it or not. I think there's, there are real questions about her credibility, but just for, for this conversation, let's believe her.

We are talking about a time sometime nearly 40 years ago. They are teenagers. We don't know how old she, cause she doesn't remember the year and she doesn't remember how old they are um in which you know there was some physical kissing potentially touching that she did not want that is the allegation there wouldn't be criminal charges brought for that, David. And if they had been brought, and if he had been found guilty, they would have been expunged because he was a minor. It just, it's outrageous to me because when you ask people, they say he's a rapist. He, you could not possibly taking everything she said as 100% truthful, if she had made the call at the time, that would not have been the charge. To me, it's so obvious that it was meant

to be political and to garner outrage to try to turn out voters in 2018. And then it backfired and it failed to do so and arguably had the opposite effect in a state like Missouri in the Senate race. And I am very angry about it. You know, I took the position from the beginning that was a little bit different from that. My position was if there was a preponderance of the evidence that her allegation was correct, was true, I think that Kavanaugh should have been replaced, that his nomination, he should step aside. Seriously, for something that he did that was stupid at 15 that he wasn't charged with and probably couldn't have been charged with? You think someone should be kept out of a job 40 years later for that? Not just a job. I mean, we're not talking about any job here. We're talking about

Supreme Court justice. So my view was slightly different. And I interpreted her charges as something more than, she was tackled and that was her claim. But the problem was it just unraveled from day one. In my view, my, my issue is okay. Let's just, let's, if that is true, if the allegation in her words is true, I'm, I agree that justice, he should not be a justice of the Supreme court, but you couldn't, there was no supporting evidence. There was a ton of contradictory evidence. There was no ability to put, there was no other evidence that even put them in the same room together. Um, it, it fell apart on every front. It just fell apart. And, you know, even the initial story, I remember reading the initial

story and how it was contradictory from the very, very beginning. Contradicted the therapist notes that the Washington Post had obtained. It was contradicted on numerous fronts. Her own friend, we later learned her own friend who she was put forward as sort of her corroborating witnesses. learned her own friend who she was put forward as sort of her corroborating witnesses. I don't think this ever happened. You know, her own friend said that. And so, you know, that allegation by itself, in my view, fell apart from moment one, from day one. And then the others that were tacked on top of it were even far more flimsy than this initial allegation till the point where we got that final sort of rape allegation towards the end that was so over the top and so transparently and incandescently false. And yet, Sarah, all of

these blue checks treated it as if it had to be gospel it just had to be true and it was one of the more vicious things i've seen in public life there was no sort of dispassionate so many parts of the media just completely abandoned this sort of dispassionate fact finding and you know one of the worst moments was after the gang rape allegation when Vox ran a piece basically saying, the movie 16 Candles demonstrates the rape culture of the 80s. And you're thinking, really? Is that what we're doing here? I'll put the piece in the show notes. You kind of have to read it to believe it. But I agree with you, Sarah. It is no accident Is that what we're doing here? I'll put the piece in the show notes. You kind of have to read it to believe it.

But I agree with you, Sarah. It is no accident that it's Kavanaugh who's targeted here. Okay. Well, God bless Justice Kavanaugh and his family. We're glad you're safe this morning. And again, we may never know who this person is, but the hero of this story is absolutely the one who raised their hand and again, just we may never know who this person is, but the hero of this story is absolutely the one who raised their hand and said, this isn't right. And someone's going, you know, this person who I know is going to do something really bad and called law enforcement. It's not an easy thing

to do with someone, you know, it's not an easy thing to do, even if you don't like the person, because you're about to spend a lot of time talking to law enforcement. So that person is the real hero of this story. Thank you to whoever you are. Absolutely. All right. Should we move on to Bivens? Yes. So worth noting, we've seen your comments in the mailbag that you wanted us to cover more on the actual innocence death penalty case from last week and potentially on this federal arbitration case. You are a small minority, but you are a mighty minority on the federal arbitration case. And so we're going to do both of those on Monday. You have been heard. But today, at 10.01 a.m., the Supreme Court posted one opinion.

And with the R number, which I remember I said meant you only get that one. It is a Justice Thomas opinion. And we've talked about it before on the podcast, David. Yes. But the outcome was even more exciting than I expected. Tell us about it, Sarah. Tell us about it, Sarah. Tell us about it. Okay.

It's not, maybe it's not that exciting to other people. All right. Here's the breakdown of the opinion, by the way. It's Thomas Roberts, Alito, Kavanaugh, Barrett. So that's your five. Gorsuch concurring in the judgment. So it's really a 6-3. But then you've got Sotomayor, Breyer, and Kagan concurring in half of it and dissenting for half of it. So it's unanimous that Bivens, a case that we're going to talk about a lot right now,

a case that we're going to talk about a lot right now, should not be extended to the First Amendment. And 6-3 on whether Bivens should be extended, in this case, to a Fourth Amendment excessive force claim. And one vote from Justice Kavanaugh that Bivens shouldn't exist anymore. All right. Gorsuch. Who did I say?

Kavanaugh. Oh, man. Yeah, Gorsuch. Sorry, Kavanaugh on the mind. Okay. For those who remember, this is about Smuggler's Inn in Blaine, Washington, where the guy basically names his hotel, I Do Crime. In fact, his hotel is on the border. It extends five feet into the border. Justice Thomas helpfully including two pictures of Smuggler's Inn. One is of the border itself that has been delineated with large rocks. The other picture is of the inside of Smuggler's Inn, which to call it an inn is generous.

I've stayed in hostels in Europe that looked nicer and more private. Okay, so Mr. Boulay, and I'm going to apologize to both of our people here in this case for probably mispronouncing their names. Boulay owns Smuggler's Inn. He has been an informant for Border Patrol and ICE. They've paid him upwards of $60,000. And here's his business model.

He runs a Smuggler's Inn. It's not a funny name. It's just what it is. And so if you pay him money, he will transport you from the airport or the border or whatever, $100 to $150 per hour for his shuttle services. And if he gets the feeling that you're a bad guy who he doesn't like, then he'll call federal law enforcement and tip them off. They'll arrest you a few blocks away. He keeps the money. You get arrested. Federal law enforcement gets another notch in their belt everyone's happy so what went wrong david i will tell you the opinion is a little unsatisfying because i'm not clear how this relationship went so wrong everyone seemed to be benefiting in sort of a um What's the restaurant keeper's name in Les Mis? Oh, gosh.

With the wife? Tenardier. Tenardier. Yes. This is a very Tenardier situation that's happening along the Canadian border. Bule, our Smugglers Inn guy, tips off law enforcement that his staff is picking up someone from SeaTac, the airport, to drive them to Smugglers Inn, who's a Turkish national. And that that's just weird, right? Because why is a Turkish national flown from Turkey to Seattle to then drive to Blaine, Washington to stay in a hostel that's, you know, on the Canadian border. So clearly,

you know, he tips him off for a reason. So our border patrol agent, Egbert, love Egbert's name. That's fun. Eric Egbert. So he's Johnny on the spot, right? He's waiting all day long for the Turkish dude to arrive Turkish dude does arrive but now for some reason Bule steps onto his porch and says get off my property Egbert is pulled into the driveway basically behind the the Turkish guy's car yeah can I interrupt you for a little uh a little color to the story. Sure. It says, later that afternoon, Agent Egbert observed one of Boulay's vehicles, a black SUV with the license plate smuggler,

returning to the end. I do crime on your license plate. I do crime, yes. Again, which would be really funny if you don't do crime, but it's weirder if you actually just are a smuggler. Yeah. But okay. So Egbert's now on his property. So is Turkish guy, who Bule again has tipped him off that

Turkish guy might be a bad dude, whatever. Bule gets on his porch and says, get off my property. He's already gone through customs at the airport. He's fine. at the airport, he's fine. Um, Egbert continues to go towards Turkish guy. Bule then puts himself between Egbert and Turkish guy. Egbert lifts Bule into the air, throws him onto the car, and then throws him onto the ground. At some point, um, Egbert gets hurt during this. He says hurts his shoulder and like his side or whatever. Uh, sorry, Bule gets hurt. Egbert gets hurt during this. He says hurts his shoulder and like his side or whatever. Sorry, Boulay gets hurt. Egbert then checks Turkish guy's stuff and like everything checks out about Turkish guy. We don't know what happens to Turkish guy next. Turkish guy goes off into the world. He's living his best life somewhere. We have no idea. Boulay calls 9-1-1 to lodge a complaint with Egbert's supervisor. Egbert then, in the aftermath, calls all sorts of people to rat on Boulay. He calls the IRS.

He calls local and state officials to look into his business. Just for the footnote of how this all turns out, all of those investigations into Boulay find nothing, which is amazing given the Tenadier aspect of this whole thing. Yeah, amazing. Egbert, on the other hand, they do a year-long investigation into him within Customs and Border Patrol. And yeah, it's not great. They say that he acted unprofessionally, and I believe he's relieved of his duties at that point. But regardless, Boulay sues Egbert for damages under Bivens. So we've talked about Bivens before.

Well, there's an important step. So, okay. Yeah. Um, Boulay filed a claim under the, uh, federal or federal tort claims act FTCA. So it was denied. And I think, so there was a year long investigation. Border patrol ended up taking no action against Egbert, uh, for his alleged acts of retaliation, and he continued to serve as an active duty agent. So he launched a tort claims, a federal tort claims act, an administrative claim that he lost. And then he goes with the Bivens claim. So I think that's an important point here. That is important, although in the Sotomayor dissent, it says CBP's investigation of agent Egbert concluded that he failed to be forthcoming with investigators and demonstrated lack of integrity,

serious offenses that warranted his removal. Yeah. Thomas says he went on to serve in border patrol. Okay. We'll keep that flag on there. Now it's possible that he wasn't found to have violated Boulay's fourth amendment rights or first amendment, right. You know, he wasn't found to have done anything to Boulay, but that during the course of the investigation, he wasn't forthcoming about other stuff or who knows. And so we actually are now like they're both right. Yeah. But the important point to me is the Federal Tort Claims

Act loss. Okay. Yeah. Okay. That is relevant to David. Yeah. That's relevant to me because it's relevant to the analysis, I think. But anyway. It's relevant to me because it's relevant to the analysis. That's right. All right. Bivens versus six unknown named agents. 1971, the Supreme Court created an implied cause of action under the Fourth Amendment for unreasonable searches and seizures where you could sue and collect monetary damages. We've talked about this tons in the state context. This is qualified immunity, right? This is why qualified immunity exists, because you're suing under Section 1983, which is a congressional created cause of action for a violation of your constitutional rights by a state officer. But there is no 1983 congressional created cause of action against federal officers.

So the Supreme Court created one in 1971 for the Fourth Amendment. And the question for Mr. Boulay and Mr. Egbert is, is this close enough to what the Supreme Court created in 1971? It's a Fourth Amendment, unreasonable, excessive force claim. And he also brought a First Amendment claim for retaliation, by the way. Now, as I said, 9-0, nobody thinks that Bivens in 1971 created a First Amendment retaliation claim. That wasn't even close. But there's a lot of disagreement over the excessive force claim. And here's the problem, David. You have a current Supreme Court that thinks that Bivens was wrong. And Justice Thomas isn't shy about it. I think the end of the opinion sums it up pretty nicely here. I'll read it to you. Since it was decided,

Bivens has had no shortage of detractors. Chief Justice Berger dissenting, Justice Black dissenting, Justice Black men dissenting, Justice Rehnquist dissenting, Justice Scalia concurring, Justice Thomas concurring, and then citing Justice Gorsuch's concurrence to this very case. Thomas concurring and then citing Justice Gorsuch's concurrence to this very case. And more recently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in Constitution. But to decide the case before us, we need not reconsider Bivens itself. Accordingly, we reverse the judgment of, in this case, the Ninth Circuit. itself. Accordingly, we reverse the judgment of, in this case, the Ninth Circuit. So David,

this is a really interesting case when you put it in the context of Dobbs, for instance. Yeah, I was just thinking that. Because this is actually a stare decisis case. Do you overturn Bivens because you think it's stupid now and was incorrectly decided in 1971? Or do you sort of cabinet a zombie precedent, little lemon-esque, if you will, and say, fine, if you are literally Mr. Bivens, come back. You might have a claim against six unknown named officers, but otherwise, don't bring that noise to us. Or do you just overturn a bad precedent? And I mean, this is a legitimate debate that the Supreme Court clearly is still having with itself. When is a precedent so wrong that it should be overturned versus when it should be capped versus when it should be continued? And David, it gets really, really interesting

because Harlow v. Fitzgerald, which we have also talked about extensively on this podcast, because it's what created the qualified immunity standard that we have today that you think is bonkers town, and I think is mostly bonkers town. And husband of the pod wrote a whole law review article about in the days after our son was born inexplicably. Harlow's decided in 1982. So 11 years after Bivens and Harlow creates qualified immunity because of Bivens. So if Bivens hadn't existed in 1971, you never have Harlow qualified immunity because Harlow would just say, you don't have a cause of action against federal officers. By the way, a whole line of weird cases coming out of the Nixon administration, Harlow v. Fitzgerald,

just the tip of the iceberg. So many, so many bad facts make bad law cases out of the corruption, frankly, of the Nixon administration. But this is all to say, David, when you have a precedent that isn't right under the law, it has all these babies now, like Harlow, that wouldn't be decided the way that they were. So anyway, and then just to briefly touch on justice gorsuch's concurrence which i'm just going to guess that david is a big fan of the justice gorsuch concurrence it's short it's sweet and boy is it persuasive it's so good our constitution separation of power prohibits federal courts from assuming legislative authority as the court today acknowledges bivins crossed that line by implying a new set of private

rights and liabilities Congress never ordained. Recognizing its misstep, this court has struggled for decades to find its way back. Today, the court helpfully answers some of these lingering questions. It recognizes that our two-step inquiry really boils down to a single question. Is there any reason to think Congress might be better equipped than a court to weigh the costs and benefits of allowing a damages action to proceed? But respectfully, resolving that much only serves to highlight the larger remaining question. When might a court ever be better equipped than the people's elected representatives to weigh the costs and benefits of creating a cause of action? It seems to me that to ask the

question is to answer it. Instead of saying as much explicitly, however, the court proceeds on to conduct a case-specific analysis. And there I confess difficulties. The plaintiff is an American citizen who argues that a federal law enforcement officer violated the Fourth Amendment in searching the curtilage of his home. Candidly, I struggle to see how this set of facts differs meaningly from those in Bivens itself. To be sure, as the court emphasizes, the episode here took place near an international border, but what does that matter? The court suggests that Fourth Amendment violations matter less in this context because of likely national security risks. So once more, we tote up for ourselves the costs and benefits of a private right of action in this or that setting and reach a legislative judgment.

To atone for Bivens, it seems we continue repeating its most basic mistake. He finally ends by saying, in fairness to future litigants and our lower courts colleagues, we should not hold out that kind of false hope, and in the process invite still more protracted litigation destined to yield nothing. Instead, we should exercise the truer modesty of ceding an ill-gotten gain and forthrightly return the power to create new causes of action to the people's representatives. Well said. Very well said. I mean, he quotes this great 2021 opinion that we covered last year, but quoting himself, by the way. Yes. Sometimes it seems this court leaves a door ajar and holds

out the possibility that someone someday might walk through it, even as it devises a rule that ensures no one ever will. So this is a Justice Gorsuch special, right? Stare decisis is a weak sauce. Just overturn these cases, whether it's Lemon or Bivens or anything else, quit trying to cabin them because it causes confusion. Lower courts still follow them. And that's where I think, David, my Y-axis on my 3-3-3 court really comes into play. Justice Gorsuch, not an institutionalist, even though I think his jurisprudence in some ways is more to the left of Kavanaugh in some respects because of his special type of textualism. but he's not an institutionalist at all. So stare decisis, pretty meaningless to him. If the case was wrongly decided, say so. It's not our fault

that 50 years ago they got it wrong. Yeah, right. And one thing that is persuasive, and the reason why I wanted to put a pin in the Federal Tort Claims Act is that Tort Claims Act is that Congress has actually given people an ability to seek relief from the government. It's given people the ability to seek compensation from the federal government, this Federal Tort Claims Act. And so if you're talking about, you know, in the context of of can Congress or has Congress legislated in a way that waives sovereign immunity, at least to a degree that allows litigants to pursue claims for monetary damages? It has. It has. This Bivens cause of action, and I'm glad you brought this up, is very, very different from Section 1983. It's very different from the qualified immunity case law surrounding Section 1983, because Section 1983 actually grants the ability to receive

compensation. It says that litigants, when their civil rights are violated, shall be compensated. And then the Supreme Court kind of took that away. With Bivens, what the Supreme Court did was, kind of took that away. With Bivens, what the Supreme Court did was when there is no actual statute or provision granting a right to compensation, it just went ahead and gave it and then took that partially away as well. So I did think it was interesting that the opinion highlighted he sought compensation under the Federal Tort Claims Act. Congress gave him ability to receive it, and he was denied, and he goes to the well again with Bivens. Not surprisingly, in the dissent, Sotomayor, Kagan, and Breyer do not think that you should just get rid of Bivens or even unnecessarily cabinet. They don't want to extend it to the

First Amendment, but they agree with Justice Gorsuch that this is pretty indistinguishable from Bivens itself. And therefore, unless you're going to overturn Bivens, this is a Bivens case. They don't want to overturn Bivens. Therefore, they would have let the Fourth Amendment claim proceed. Not the sexiest case in some respects, David, but actually I think it's a really interesting insight when the temperature is lower and how the different justices view stare decisis as a doctrine. Yeah, it is interesting. It is interesting. And I think your statement about Gorsuch is very well taken. It's not my fault you got it wrong 50 years ago. Why should I be burdened by your mistakes? Says Justice Gorsuch. And we'll take a quick break to hear from our sponsor today, Aura.

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Okay, so first of all, in discussing our professional failures and disappointments from last episode, I forgot to mention the song that I like listening to on repeat in such moments of my life. I have a whole playlist actually. I really do. But the Jason Aldean song, I use what I got is like number one on my list. And I'll just, I'll just read you some of the lyrics, David, because it brings me joy when the skies are gray. Um, now I've got wallowing songs on my playlist, but this is not a wallowing song. This is a fight song. Nobody ever thought I'd make it in this town. They all said I should leave my truck, pack, and turn right back around. They said I didn't have what it takes. I needed money and a pretty face, but I just look at them and say, I use what I got, take what I get until I ain't got nothing

left. Then I give it some more, keep on climbing up that mountain. Keep trucking along. Work up a sweat. Past every no, after no, after no, till I get a yes. I don't worry about what I've got. I use what I got. Profound. It is. Jason Aldean, profound. All right. We also got some comments about incorporation that obviously the Third Amendment hasn't

been incorporated. But David, has it? So in Engbloom versus Kerry, the Second Circuit actually has a very precedential Third Amendment case from 1982. And a major part of this case is incorporating the Third Amendment against the states, and specifically beyond the federal use of the National Guard to include state use of the National Guard. This involved a prison riot in New York. Now, it's true the Supreme Court has not reached this question because there's no circuit split on it. the Supreme Court has not reached this question because there's no circuit split on it. But certainly in these states covered by the Second Circuit, the Third Amendment is incorporated against them. And for the rest of the country, they haven't reached it yet that I know of. But I think it's fair to say at this point that the Third Amendment is incorporated because the

Supreme Court declined to take the case, if there were a circuit split, there's no reason to think that they wouldn't be, that the state using the National Guard would implicate the 14th Amendment through Third Amendment just as much as anything else. What say you, David? I'm with you, and I'm with you. And I just want to know, we need to find the organization responsible for the defense of the Third Amendment, because it's the most successful advocacy organization in American history. It's the most systematically, fundamentally respected amendment in all of the Bill of Rights. Well, that elephant fence that I had installed in my backyard sure has been working well, too. Not a single elephant has gotten into my backyard. Okay, David, if you had the power to fix one common legal misconception by the general public. That's a great question. Can I punt to you because you've read the question before and probably already thought of it,

and then that will give me a chance to think more? Yeah, except that I couldn't really come up with one. Well, here's one. Okay. The court system adjudicates burdens of proof, not guilt or innocence. That's a good one. And I think that's a really important thing to keep in mind when you're thinking about the difference between civil law and criminal law, for example. the difference between civil law and criminal law, for example,

when you're thinking about how can you figure out if someone's actually filed a false claim, if an allegation is false just versus unproven. But that's come up in a number of conversations recently, the difference between adjudicating guilt and innocence versus burdens of proof. I feel like we're fixing one of the previous common misconceptions that would annoy me. And that was that Roe v. Wade was like an on or off switch. Like if you got rid of Roe, then abortion was illegal throughout the country. Oh, that's a good, that's a very good one.

If you had Roe, abortion was legal throughout the country when in fact, it's floor, not a ceiling, or a ceiling, not a floor, whatever. But if you get rid of row, it's just left up to the states. But I feel like we're pushing through that misconception in the last few months. Yeah, absolutely. No, that's been a big one for a long, long time. Yeah. All right. Next mailbag question. In what ways are an attorney's performance in trial evaluated beyond their win

loss record? Across many sports, player and team performance can often be measured far better through stats like, now I didn't look any of these up and I don't know what any of them are. Okay. XG, DVOA, and-R than by looking at wins and losses? How would you go about coming up with a courtroom equivalent of W-A-R? And David, let us know what that is. War, wins above replacement. So that's basically a stat that says there is a sort of a baseline kind of player, sort of the replacement level player.

And how many wins above that replacement level player do you provide a team? So in other words- So you basically do expected wins. Yeah, it's sort of like basically a measure of trying to say how much better are you than say the median player. Okay. So, yeah. Okay, so what are you than say the median player. Okay. So yeah. Okay. So how,

what would you say is the equivalent in the practice of law? And do you have a different answer for civil litigators versus criminal or prosecutors versus defense attorneys, anything like that? Yeah. So I would say there are some definitely above win-loss in some specific arenas. So defense attorneys, criminal defense attorneys, it is not common to get a clean acquittal. But it is much more common to maybe get a much more reduced sentence, say, or conviction only some counts and not all counts. In other words, how much are you mitigating the damage to your client versus relieving them of all legal responsibility? And this is also something that you see, let's say, in tobacco law, if you're a defense attorney in tobacco litigation or class action litigation, yeah, you're going for the clean defense verdict, but failing the

defense verdict, there's a lot you can do to mitigate the damage to your client, whether it's a prison sentence or whether it's a dollar figure. So you might have a technical loss as a defense attorney, but if your client spends six months in jail instead of 16 years, you're calling that a W in a pretty profound way. Or if your client is paying $5 million instead of $500 million, and that's another big, that's a big change to your client's fortunes. So that is something very much like wins above replacement. Yes, absolutely. What would be, but I don't think that people have systematically tried to analyze that. It would be so difficult to really do that systemically, but yeah, absolutely. There are ways to measure effectiveness beyond win loss.

I feel like in the campaign consultant context, that because we don't measure wins and losses really, because right, you could end up in a race that was unwinnable or unlosable. It's the whole name of my newsletter for the dispatch, the sweep, because it's curling, right? It's those people with a broom who are furiously sweeping, but there's like a very heavy stone going down the ice in the direction it's going. And so the difference you can make on a race may be nothing or may just be minimal. And if the race is a five point race, maybe you can make a two point difference, but that will turn out not to matter. And unlike in the litigation context, only losing by three points instead of five points makes no actual difference to your client. They are still not a senator or president. And yet people sort of

become famous for being famous on these things. And so they keep getting hired, even though I would say they are actually like wins below replacement. They're doing worse than the media and campaign consultant. And it's kind of known in the business, but there's a den of thieves aspect to the whole thing, I guess, a little bit as well. In the legal context, there is definitely some of that, right? There are people who are famous lawyers because they're famous lawyers. Well, especially in the plaintiffs, if you're going to a lawyer that you've seen advertised on television, many of them are wins below replacement lawyers, but they deal in volume. So they're just bringing in mass numbers of clients and they're settling these cases at scale.

And they're not necessarily getting the most you can get out of the case because they just literally can't dedicate the time. It's a volume business. And so some of these folks are, they might get you a settlement relatively quickly, but it might be 40, 30% below what more diligent litigation would yield. But they're phenomenally successful in absolute financial terms. And they're very famous in any given community. I mean, practically every city in America has some set of lawyers that they're recognizable in the street because of their ad campaigns. And I'll say there's a lot of lawyers who then won't take those cases because

they're only profitable in a volume business. So, I mean, there's this whole incentive system built into the legal structure where billable hours don't make sense. You have to do volume and you have to do contingency fee cases. And those people build up an expertise. And so, yeah, in any individual case, you may not get as much as you would have gotten if there was some magical unicorn of a lawyer who would just spend all their time on your case. But economically, that would make no rational sense. And instead, these people have built up a real expertise for being able to look at your case and make a gut check on how much they think you're probably

going to get. And they're going to take 30 or 40% of it. Yeah. Yeah. Okay. David, would the USDA, Department of Agriculture, threatening to withhold SNAP and school lunch funding based on noncompliance with federal policies on LGBT protections in schools cross the line into federal coercion of state policies? I'm genuinely curious here and thinking specifically of the taxing and spending clause in the wiggle room between South Dakota versus Dole saying Congress can condition funding on compliance with certain rules and the Medicaid expansion portion of the NFIB versus Sibelius decision, that was the Obamacare case, drawing a line at some undetermined point. Does this new guidance cross that line? And does it

make a difference if it's an executive branch agency making that decision and not Congress as the taxing and spending clause gives Congress the spending power? And David, I just want to say, these are the type of listeners we have. Yes. That is such a well-researched, intelligent question. They basically covered everything that we would talk about, but just basically repeat their question, but using full stops instead of question marks, can the USDA withhold certain funds from states that enact policies that contradict? I don't know. I'm not sure of all of the facts here, but essentially contradict the policies of the administration on the LGBT front in other areas. Yeah, think transgender sports rules. If the federal government has a policy that someone's chosen gender is how they get to play in sports in a primary school, K-12 primary and secondary school situation, but then the state passes a law saying, no, it's your gender

assigned at birth, can the Department of Agriculture say great, then you pay for your own school lunches throughout the state, not just at any given school? And my answer in this is, in general, no. In general, the conditions that are attached to grants are defined as a general matter if you're talking about federal funding. Federal funding might have conditions attached to it. Those conditions are typically assigned by Congress, for example. And the idea that you can sort of turn off the spigot of federal funding if a grant recipient is fulfilling all of the conditions of the grant, but defying the government in another way, the answer is a general no on this.

And we've seen this in the sanctuary city context. I was just going to bring that up. Yeah. The Trump administration, the Department of Justice, while I'm there, tries to shoehorn in immigration detainers into state and local police grants that have been set by Congress. And so far, at least the courts have said, no dog to that. Right. And there's even probably a limit, and this gets to the Medicaid case, there's a limit to which Congress, even Congress acting as Congress, can attach what kind of grant conditions it can attach to grant making. How coercive can it be? Now, I think it's pretty clear that it can be pretty coercive when the grant,

when the conditions are very much related to the purpose of the program itself, then you can attach some pretty stringent conditions. But when it's not related to the purpose of the program itself, then you can attach some pretty stringent conditions. But when it's not related to the purpose of the program itself. So if you have a school lunch program that's designed to feed underprivileged kids, and you're saying, well, we're going to only feed underprivileged kids as long as you allow transgender swimmers to swim, that's not related to the program itself. So your conditions themselves are, just saying, well, Congress did it,

isn't going to get you a sort of a get out of jail free card. The conditions have to be related to the program, logically, rationally related to the program. And then you can't go on and just ad hoc, attach additional conditions as a matter of executive action to try to force compliance with policy in unrelated areas? Yeah, I think this will be a no-brainer for two reasons, both highlighted here by our listener. One, the executive branch versus Congress setting the

condition, you lose, you're done. And two, the proximity to school lunches, no, unless you're denying lunches to someone because of their gender identity. Now, I actually still think, as you said, David, it's a really interesting question about that space between South Dakota v. Dole, which was raising the drinking age and attaching that to highway funds by Congress. And again, this is just a case where it was really good facts and everyone kind of wanted it to be the case. So it was like, well, let's just say it's okay because it feels good. It feels a little like Pruneyard to me, the mall case with the teenagers who want their petition signed. It's like, well, they're just teenagers who want

petition signed. Let the kids get their petition. What could this affect 30 years down, 40 years down the road? So you have South Dakota v. Dole versus, as again, the listener very smartly noted, NFIB versus Sibelius on Medicaid expansion in the Obamacare context, which they struck down as not being within Congress's power because it was too coercive. I think obviously this court is going to lean more toward the coercive side and limiting Congress's powers and less toward South Dakota v. Dole. It's close enough, but we haven't had a whole lot on that recently. And I think we'll see more if Congress ever does anything. Okay, David, I've got a fun one. Okay.

Is dating getting married a viable and or desirable option to pursue during law school? And if so, what are the pros and cons of dating fellow law students versus finding people outside law school, say in a target rich environment like a church young adult group? And since David, you married someone

outside and I married a lawyer, we might have different answers to this question. So I don't think there's a right answer to that question. You know, so my oldest daughter got married in college, so she got married while going to college. I married a college student. I was just right out of law school, so I married a college student. Nancy was a junior. I don't see any problem with dating or marrying people in school. There's this idea that says, well,

that's a uniquely difficult time. It's easier than work. I mean, what are you talking about? Like when you, as much as you study in law school, you are not working as hard as you work in your first law job. Like that's just a fact. I remember studying a lot in law school and then getting out into, you know, into the law firm world and thinking I have never worked like this. Like relationships were easier to form when I was in law school, when I started dating Nancy and I was a big firm associate, it was hard to find time to see her. Like we didn't see each other much. Um, which makes the fact that we got engaged after six weeks, all the more, uh, crazy, but it's a great story 26 years later. Um, so I don't know.

I think it's fine to date during school. I think there's a, that's a great time to date. I think it's fine to get married during school. I think it's very artificial to say that you have to wait until you're done and you have a certain level of financial stability. What are you going to do? Starve? You're not. You're going to live like you would live as a student. You're going to have a small apartment. You're not going to have a lot of money, big deal. And you're going to have a lot more time together than you would if you're dating someone as a professional. So I think a lot, we put a burden on a lot of students to say, well, you got to wait until you're done with all of your education and have less time and more demands on yourself to actually find a relationship.

Okay. I'm off my soapbox. David, I just want you to know that probably 90% of my calories, my senior year in college came from cans of black beans, instant oatmeal and cans of tuna. Yeah. So you can starve. I know. Or at least get scurvy. We did have a,

I knew a guy in college who got scurvy. Really? Oh, that's, that's hilarious. So you were just a little bit of lemon juice away from protecting yourself. That's true. Uh, I think this is hard. Um, So you're just a little bit of lemon juice away from protecting yourself. That's true. I think this is hard.

So look, I think that dating, getting married in law school is not the law school part. I think it's knowing yourself. Are you sort of done becoming who you're going to become? And that's really hard to know in the moment. And so I don't know how to advise you on that one. But if you're still in the process of finding yourself, it might not be great to anchor someone else to your process and trying to figure out if they're still in the process because you will continue to change. But it's kind of like eyesight, right? There's going to be periods of large, quick changes, and then it'll be incremental. You want to get married when

you're sort of, I think, done with the large tectonic changes in who you're going to be and on that path of just your eyesight getting a little worse every year, not that you suddenly need massive surgery. Except hopefully the change is in the opposite direction, like you're getting a little bit better every year. You should be getting a little bit better. Marriage will make you get a little bit better every year, I think. And as far as marrying a lawyer versus not marrying a lawyer, I am very grateful that Husband of the Pod and I don't do the same thing because I am a deeply competitive person. I actually think he'd be fine with it.

Although hard to say, right? He can act all magnanimous when I'm not better at the thing that he's doing. Be very interesting if I were doing exactly what he was doing, but better at it. Maybe that would change his tune. So I think marrying another lawyer who does something different is great because you can still share these conversations. I mean, I've let you guys in on lots of nerd conversations that Hop and I have after the brisket goes to sleep and they're the best. And it's a really fun part of our marriage. Like this morning at 10.01, I yelled Bivens throughout the house. I bet David didn't get to do that at 10.01 a.m. Eastern.

No, no. Or if I did, I feel no restraint. I'm happy to yell it. It would just be meaningless. It would have been meaningless. Yeah. So I definitely think it's fun to marry someone who at least shares your professional interests so that that part of your life isn't turned off when you get home. But you have to really love what you do for a living and want to talk about it at the end of the day and want your spouse to talk about it at the end of the day. I will tell you there are times when Hop wants to talk about something that he's worked on and I'm like, all right, this is marriage, right? You can do this, Sarah.

You're going to make me, next time I see Scott, I'm going to call him accidentally Hop. next time I see Scott, I'm going to call him accidentally hop. I don't know. So I guess I'm in favor of marrying a lawyer, but I know marriages where both people are partners at major white shoe law firms. That's really hard. It's hard to raise kids when you're at the same place in your career at the same time doing the same thing because on any given day you know like one of the kids gets covid they can't go to school who's staying home the one who has a deposition in seattle or the one who has a deposition in florida you know so there's definitely downsides to marrying someone who does exactly what you do and at the same high level uh yeah but they make a lot of money so yeah uh but even so child care this like there's my friends have this saying of shoot off the money cannon like you know if there's something that money can fix and you have

the money shoot the money cannon shoot off the. That is funny. When it comes to childcare, that's hard. You can't just run outside and grab someone off the street and force them to come in your house for $20 an hour and watch your kid. I have found. Yeah. No, that would be very, very challenging. All right, David, those are some of our best mailbag questions of late. We do not know when we'll get more Supreme Court opinions, but presumably Monday morning. And we're going to go back and revisit the actual innocence case that came out two weeks ago and the federal arbitration case involving Southwest Airlines that came out Monday that we were rightfully chastised. Excoriated, excoriated for giving it short shrift. But I think the reason in our defense is that we're so amped up for the possibility of Dobbs

or one of the big ones. Clean power plan. Yeah. And that. Yeah. And that. Coach Kennedy. I am like, yeah, I know.

I want to see Dobbs because I want to do the red line comparison, but I am more pumped about Coach Kennedy unquestionably. Oh, I'm hyped for the Coach Kennedy case. Yeah. I'm hyped for that. So we have this universe of cases that we're hyped for. And then when it's not one of them, we have maybe an irrational letdown and we're not able to objectively analyze their importance in the moment because we're just sad. The problem is there's 29 cases left to go. And frankly, if this were any Supreme Court term, we wouldn't be getting those major cases at this point, probably. We'd probably be still a week off. So it is truly irrational disappointment because in any term, we would not have Coach Kennedy. It was argued late. It will be maybe the last case to come out.

Yeah, we would in a normal times we'd be expecting maybe the very last day of the term to have three of these big ones. Yeah. Yeah. At which point we do six consecutive emergency pods. That's right. Yeah.

All right. Well, thank you listeners as always, please rate us where you rate podcasts, please subscribe where you listen, and please check out the dispatch.com. Bye.