Advisory Opinions - Manners Maketh a Pod

Episode Date: October 7, 2021

In today's pod David and Sarah discuss a federal district court injunction against Texas's heartbeat bill, dive into the deep waters of Mississippi's unbearable aquatic greed, and discuss whether ten robberies is one "occasion" for crime or, well, ten. But that's not all! They also engage in a brief but spirited debate about whether the DOJ's letter about threats against school board members. The pod finishes by talking about manners. In an interesting way. We promise. Show Notes: Mississippi v. Tennessee groundwater case US v. Texas injunction Wooden v. United States AG Garland letter National School Board Association letter to Biden Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. DQ presents how to officially start your summer. Step one, head to DQ. Step two, try the new summer blizzard menu. And step three, dig into new peanut butter cookie dough party, new picnic peach cobbler, and more. Make it official. Only at DQ. Happy tastes good. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger.

Boy, we're going to dive in so fast to our substance today because we've got a lot. We have a lot. There was a Texas case, a Texas district court decision in joining SB8, the Texas heartbeat bill law. We've got thoughts on it. We have SCOTUS oral argument updates. We have some thoughts to share about a letter written from the Biden Department of Justice regarding threats against school board members that has been burning up the internet. Sarah has stories, stories she has in response to a Senate Judiciary Committee majority report about DOJ, Trump efforts to pressure the DOJ to overturn or alter the results of the 2016 election.

And then, I mean, 2020 election. And then lots of you guys weighed in on our discussion of the UCLA professor from the Monday podcast. And some of you disagreed with us. And so we're going to circle back to some of your critiques. We appreciate them. We'll respond to them. Okay. That's a lot. That's a lot, Sarah. And speaking of a lot, shall we start with the 113-page opinion from the United States District Court for the Western District of Texas,

Austin Division, filed yesterday in joining enforcement of the Texas heartbeat bill law. And this was not the case filed by the felon in Arkansas. this was not the case filed by the felon in Arkansas. This was the case filed by the Biden administration against the state of Texas. And 113 pages is a lot to go through. But essentially, the core of it is, is that the judge granted standing to Texas, The core of it is, is that the judge granted standing to Texas, both standing to sort of vindicate the rights of the citizens of Texas and also standing in the United States own capacity as perhaps being in a situation where it would perform abortion, perform abortions or U.S. entities performing abortions.

And it issued an injunction. And I'm just going to read the first bit of it. So this is the order, okay? It is ordered that the state of Texas, including its officers, officials, agents, employees, and any other person or entities acting on its behalf are preliminary and joined from enforcing, and it gives the Texas Code provisions, including, and this is interesting, accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the law. And as said about, as said above, this court has the authority to enjoin the private individuals

who act on behalf of the state or an act of concert with the state, including any interveners that the injunction would be commensurate with the scope of the grant of SBA, with SBA's grant of enforcement power. SB8's grant of enforcement power. We were talking in the green room that you have thoughts and your estimate on how long the injunction lasts was how long? Well, I said they were going to benefit from there being an intervening weekend at this point. Texas has already filed its emergency appeal at the Fifth Circuit. So I was going with Monday or Tuesday. Monday or Tuesday. So explain why you think this injunction is going to fall. Because if the Fifth Circuit is following Supreme Court precedent, as they are want to do.

Obliged to do, obliged to do the Biden lawsuit suffers from the same. Well, it's not the exact same, but quite similar standing problem as the initial lawsuit that the Supreme Court turned down the stay application for in August. down the stay application for in August. And so if the Fifth Circuit is following that, I think they will overturn this injunction as well. Also, you have the Arkansas case. I think it would also be different if the Arkansas case didn't exist. And the judge, Judge Pittman here, his theory of standing, there isn't really a theory of standing it's just there should be standing he's adopting the sotomayor dissent from the texas opinion which look i'm actually very sympathetic to in some like non-legal grander way there's a clear constitutional violation therefore there should be a legal remedy. And there is. I get that. Yes. But like

the legal remedy may not be within this case. Right. Right. Yeah. So and just to reiterate, what this law was designed from the ground up to do was to prevent standard pre-enforcement review. So in most laws, and just sort of go back from the beginning. So what this Texas law does for new listeners is that it prohibits abortions after a heartbeat is detected, but it does not allow the state to enforce the prohibition. It grants any person other than an agent of the state. And when we say any person, we mean any person, including, for example, felons in Arkansas, one person who sued under this law, to enforce the heartbeat bill restriction by filing a lawsuit. And if they win against anyone who performs an abortion or aids and abets the performance of an abortion, not against the woman who obtains the abortion, but against anyone who performs the abortion or aids and abets the performance of an abortion, not against the woman who obtains the abortion, but against anyone who performs the abortion or aids and abets,

you can sue, you can get $10,000 plus fees and costs, attorney's fees and costs. And so this is a highly unusual way to enforce a state legal prohibition. And normally, when there's a heartbeat bill, the primary enforcer of the heartbeat bill is the state. And so to block the enforcement, you sue the state. In this case, the state doesn't enforce it. And this was designed to prevent what's called pre-enforcement review. And it did successfully prevent a pre-enforcement injunction. It does not prevent review of the law. It does not do that.

There is a lawsuit that has been filed that we've discussed in a previous podcast, filed by a guy, I believe serving present time in Arkansas, who has sued a doctor who says he performed an abortion in violation of this statute. And so in other words, this case is going to be, this law is going to be reviewed in a court of competent jurisdiction. There is no way to totally avoid judicial review. This was a way to avoid pre-enforcement judicial review.

And this case filed by the United States is trying to essentially recreate, I mean, it's now post-enforcement, to try to figure out a way to do sort of an end run around the law structure, which requires adjudicating the legality of abortion in the context of a lawsuit against somebody who performed an abortion or aided and abetted. And so that's one of the reasons why this thing is 113 pages,, trying to get around this, get around this prohibition. Now, let me ask you this though,

Sarah. So here they, they do allege in the case that there is an injury in fact, in other words, that it's not just sort of a standing claim where you're saying, Hey, In other words, that it's not just sort of a standing claim where you're saying, hey, we're asserting the constitutional rights of women in Texas. They state, and here's for example, here's an injury in fact. It says, for example, the Federal Bureau of Prisons regulations provide that a BOP person's clinical director, quote, shall arrange for an abortion to take place when a pregnant inmate requests an elective abortion. BOP further bears all costs of providing an abortion in the case

of rape or incest. So in that circumstance, they're saying we have standing because BOP officials would incur civil liability in context with complying with federal regulations. So what about that argument that that's going to provide standing to challenge the Texas litigation? I actually found that reasonably compelling. What did you think? I think, I mean, the fact that there would be federal officials who shall arrange the abortion to take place, that is aiding and abetting within that is aiding and abetting within the scope of the law. I think the question that I have is less, does the state have standing to challenge, does the state have standing? And it's more, who is the state suing? Yeah, yeah. Which has always been, that was the initial problem. And it's the problem here, by the way, to quote toward the end of the opinion, the United States has demonstrated that it is in its interest and

therefore the public's interest to prove that the Constitution is not only as strong as one state's thinly veiled attempt to restrict constitutional rights and preclude judicial review. There is the highest public interest in preserving constitutional guarantees, including those that bear the most most directly on private rights. That sounds really nice. That is the Sotomayor and to some extent Breyer's point. If there's a violation, there must be a remedy. if there's a violation, there must be a remedy. But there's a lot of skipping around, as you said, on, OK, you've got the standing to sue, but who are you suing? And in fact, in the preliminary injunction and its effect, here's how that's handled. Despite the Texas attorney general's lack of clarity about what the state would do in the face of a preliminary injunction,

attorney general's lack of clarity about what the state would do in the face of a preliminary injunction this court trusts that the state will identify the correct state officers officials judges clerks and employees to comply with this order as in the judge doesn't know particularly who to enjoin it's like an injunction applied to the state and then the state is supposed to find out who to enjoin. And which is weird. What's the what is the interesting aspect of this? Look, again, the the way this is going to be challenged and and here here's a way that this would be challenged is if the Bureau of Prisons fulfills its regulatory obligation to facilitate an elective abortion. And then another felon in Arkansas sues the BOP and then the BOP raises a constitutional defense. So nobody would be disputing in that circumstance standing. Nobody would be disputing the ability to adjudicate the fundamental issue. So this is all about how do you adjudicate the issue before enforcement, before that in that specific case, the enforcement locks in. And here's the interesting thing about this injunction that was intriguing to me. And again, we're probably already spending too much time on this, Sarah, because the Fifth Circuit's going to weigh in pronto.

But here's the interesting thing. It says, and I read this, but I want to highlight this, that the state of Texas, it is ordered that the state of Texas, including officers, officials, agents, employees, et cetera, et cetera, are preliminary and joined from enforcing the law, including accepting or docketing along with all of the actual judicial actions you take in a case, like maintaining a docket, hearing the case, resolving the case. So literally, it seems like they're trying to get around some of this ex parte young stuff by enjoining, say, the county clerk. Yeah, I'm super pumped about this, David. So I'm actually thrilled with Pittman's order

because if you care about abortion again, this is not your vehicle. The Arkansas case is your vehicle on the abortion question, which isn't that interesting because that's been resolved several times. Dobbs is interesting, but this isn't. But for a legal nerd, this is the ex parte order you've been waiting for, because now I think we actually do have a vehicle for this to go up to have a purely ex parte young case, which I hope because it will end up going up post dobs in its actually substantive form, that we can sort of remove the abortion distortion part of this case and simply have a discussion on whether you can enjoin state judicial officials, their clerks, sort of the mechanisms around courts from enforcing an unconstitutional law? Is that enforcing an unconstitutional law?

It's a fascinating question, one that we don't really have the answer to. And my theory has been that we would have something just like this. Yes, I think the Fifth Circuit is going to put a to stay the injunction. But I think then we can have this go up in a pretty substantive way on ex parte young, which will then resolve whether other states can do this about other things, whether it's California on covid restrictions or New York on gun restrictions or who knows what else. This idea of bounty hunting is not great. And I don't think other states will be able to do it because of, I think it'll be Pittman's order. Because I think this is made to be appealed.

I think that's why he did it the way he did it. Yeah. And it's an interesting concept. He did enjoin the courts. He did enjoin the judges. But it's fascinating. Imagine if he didn't enjoin the judges. He just enjoin the clerks from accepting the case. The docketing, yeah. when you file a lawsuit, it used to be it used to be a hand delivery process from the get go before electronic filing. But you would hand the clerk of the court a or a deputy clerk. You would hand them a complaint. They would stamp copies as stamped as to date and time that it is filed. They would physically take a piece of paper

and put it in a case file to open the case file. You then would have the stamped copies of the complaint that you would take and physically serve on the defendants. And now there's electronic filing and it's a little bit less hands-on, literally hands-on than it used to be. But imagine if you are trying to e-file a case, a complaint, and the clerk's office, the website just rejects it. No, you take it to the clerk. The clerk says, holds their hands at arm's length and says no i cannot um all right david before we move on there is one non-substantive thing i want to bring up about

this opinion so you mentioned it was 113 pages but i'm curious if i trusted when it said page 112 out of 113 and then so let me tell you why it's not 113 pages if you go to the introduction and read the paragraph the first paragraph it starts with a person's right under the constitution to choose to obtain an abortion prior to fetal viability is well established now go to the second paragraph a person's right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. Now go to the second paragraph. A person's right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. So I was like, wait a second. They look identical, except I noticed at the end, the spacing of the last word is a little different.

So I was like, well, what happened? Let me read you sentence number two of these paragraphs that are the same. Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the state contrived an unprecedented and transparent statutory scheme to do just that. The state created a private cause of action by which individuals with no personal interest in or connection to a person seeking an abortion would be incentivized to use the state's judicial system, judges, and court officials to interfere with the right to an abortion. Here's the version in paragraph two. With full knowledge that depriving

its citizens of this right by direct state action would be flagrantly unconstitutional, depriving its citizens of this right by direct state action would be flagrantly unconstitutional. The state contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state judicial system, judges and court officials. So we have some redlining that happened, but instead of the paragraph getting deleted, both versions were included. And so the question to you, David, is which one is the clerk and which one is the judge's edits? Because I think I have an idea.

Okay, I'm going. Here's my idea. Uh-huh. My idea is that the second paragraph is the clerk and the top paragraph is the judge. That is almost certainly correct. Professor, do you know why? What's your reason? My reason is the second paragraph, the second sentence of the second paragraph is written

in such a way that you imagine lawyers talk. It's a single word that really stands out to me, and I think you're pointing to it. What is the word that makes me know that it was a clerk? All right, hold on. I'm looking at it. Whereby. That's correct. You win the grand prize. The whereby is what makes sure that you know it's a clerk. The judge took out the whereby and made a very long convoluted sentence, two separate sentences, much more readable. So if you just want a lesson in editing and you're a young person or a law student, I actually think this is a great example pre-clerking of how you

can see how law clerks learn to be better writers, because that's absolutely something I would have written. And that's absolutely the edit my judge would have made. That is we're a hive mind, Sarah. That is hilarious. Because but yes, that's absolutely true. And I know we have a lot of law students who listen, a lot of young lawyers who listen. Never write the way you imagine lawyers write. And really just never use the word whereby. There's never a reason to use whereby. What about heretofore? That one's totally fine. That one's great.

Heretofore is good. I don't know if I've ever used heretofore. I'm joking. That's obviously very bad. Yeah, it is really remarkable the extent to which when you're a young lawyer, it's almost as if you're afraid to write like a human being. I love, though, that we now have, I think, the largest number of justices on the Supreme Court that really put an emphasis on human being writing versus legal writing. And I think probably a record number of circuit judges who are doing it as well. So applause to the federal judiciary for your human beingness.

We appreciate it. Agreed. Agreed. Get started at Planet Fitness today for $1 down and then only $15 a month. Hurry, this great offer ends April 12th. $49 annual fee applies. See Home Club for details. Okay, so let's move on from Texas to Sarah. Stardust arguments. Oh my gosh, it was so much fun. I've had the best week. Okay, so first the new argument format,

right? We knew what it would be in theory, but there was always a question of how it would go in practice. So pre-pandemic person arguing takes the podium. In theory, the justice with the most seniority could interrupt any more junior justice. But other than that, it was a free for all and a free for all. It was. It was getting to be quite unpleasant, in my view. Then during the pandemic, when they moved to conference call arguments, Chief Justice Roberts simply called on each justice. They got sort of an arbitrarily similar amount of time. The arguments lasted for much longer. You heard from every justice, but the justice was sort of unable to keep following up on their point. The advocate

could run out the clock on some of the harder questions was part of the complaint. So what they announced for this one in theory, and for this term, was that we would still have simultaneous broadcasting of the argument, which was really important to me. It would go back to the free-for-all format, but at the end, it would be the Chief Justice

calling on each justice for questions. Right. David, it was so glorious. So first of all, even in the first part, the free for all part that should have been the same as pre-COVID, Justice Thomas repeatedly asking questions, different cases. And it was great. and it was great. And then having the end where just the chief justice then calls on everyone. Yes, for the most part, most of them did not then ask a question, but sometimes they did. Justice Barrett and one of them had a hadn't asked questions during the argument.

She is the most junior justice, mind you. And then at the end, when she was called on, she asked her question. Sort of exactly what the argument is, what the argument format was prepared to take into account. Gorsuch also asked one of his best questions in the called on format versus the initial format. But what's interesting, David, is the free for all. The first part was much, much, I thought, calmer. Now, we didn't have any of the hot potato cases this week. So maybe it's that. But like Justice Alito in the wooden case that we're about to talk about.

Had a long, very interesting colloquy with Wooden's counsel. Justice Kagan came in at one point. Then it went back to Alito. I mean, it was just it was the way you think Supreme Court arguments should be. The temperature had just been taken way, way down. And it was great. way, way down. And it was great. So two thumbs up for the new format, Chief Justice. We, I like it. David, I assume you share my opinion with our hive mind.

Of course. Do we even? I think at this point, we basically could just take turns doing the podcast. Yeah. And say, on behalf of Sarah. Here's what David would say. Yeah. Okay. So that was the argument. But I wanted to talk about two cases in particular. The water case that I wasn't interested in until you kept talking about it. And then I was like, well, the Armed Career Criminal Act with the 10 mini storage units and whether that was a single occasion.

So, David, the water case, thoughts, feelings, Mississippi versus Tennessee. You're going down, Mississippi. You're going down. OK, so this is this was the case where we talked about a little bit. Really, actually, an interesting, it's quite interesting case. It involves the state of Tennessee pumping groundwater from an aquifer and allegedly taking a very small amount of water from Mississippi. I mean, what is 400 billion gallons between friends, right? So Tennessee apparently is taking water from this aquifer. Now, the it would be one case if the aquifer were only in Mississippi and Tennessee was snaking a bunch of pipes across the border from Memphis down to, you know, where my family's from, Bahia, Mississippi, and just slurping up all that unistate aquifer water. But this is an aquifer

that crosses multiple states. And what was interesting to me is this is what the justices were obviously wrestling with. And lots of hypotheticals flew. One of my favorites was when Justice Roberts wondered if Tennessee could capture a herd of migrating wild horses while those horses were in Tennessee and prevent it from crossing back into Mississippi. But it seems to me that the fact that

this was a multi-state aquifer is going to be ultimately fatal to Mississippi's claim. I don't know. It was interesting. I like some of the wild hypos. Sarah, what did you think about it? Three observations. One, just shout out to SCOTUSblog's headline in the coverage, justices throw cold water on Mississippi's Claim to Groundwater. Yes. Charming. So their take at the end was,

the justices' eventual opinion in Mississippi v. Tennessee could be one of the shortest the court has ever issued in an interstate water dispute. The court may simply dismiss Mississippi's territorial claim with prejudice and save the more interesting decisions for the first original jurisdiction complaint that actually seeks equitable apportionment of groundwater, which is, in fact, the the current legal doctrine on this, which Mississippi wasn't arguing.

I think that's pretty spot on. I don't think they're going to get into a particularly interesting decision here. David, I think you're exactly right that Mississippi just loses and they lose under everything. I think they lose under their argument. I think they lose under equitable apportionment. And I think they lose under my legal standard, which is I drink your milkshake. They, you know, Tennessee stuck their straw into the aquifer. In fact, this was, I believe, Justice Kagan's question at one point. They stuck it straight down into Tennessee only. They didn't stick it at an angle.

And it was even a question, though, if you stick it at an angle, that might be okay, too. But regardless, your straw is in your milkshake. And then it's a question of apportionment, right? That's the equitable apportionment thing. But that's not what Mississippi's arguing. So, yeah, Mississippi, not so great. So here's the question, Sarah.

In the real world, on Saturday, October 16th at 6.30 p.m. Central Time, the University of Mississippi goes to play the University of Tennessee in football. Does this aquifer dispute add an additional layer of bad blood on the football field? I mean, if I were in Tennessee, I would pump water from that aquifer into a Gatorade,

you know, like the big thing, and pour it, pour their own water onto them. That would be, I think, what I would do after this argument. water onto them. That would be, I think, what I would do after this argument. A funny, just very, you know, footnotey thing on this. So arguing on behalf of the Solicitor General's office, the Department of Justice, the United States, which was friend of the court to sort of weigh in on how they think states should resolve these disputes. on how they think states should resolve these disputes was Fred Frederick, Frederick Liu. I know him as Fred Liu. So Fred Liu and I, along with someone named James Bear, were law clerks together in the Office of Legal Policy after our 1L year. And we had so much fun

in that office that I don't think I've ever heard Fred ever say a full sentence that was serious. I only know Fred being hilariously funny. And so to hear someone you only know when they were 24, like laughing all the time and then like very seriously and wearing a morning coat, uh, talking about riparian rights. It was, it was jarring. Fred did a great job. Um, super cool to see your friends grow up into wonderful, brilliant. He was brilliant at 24. He was so, so much smarter.

Um, sorry, James, he was so much smarter than me or James, um, Jimmy bear. sorry, James. He was so much smarter than me or James. Jimmy Bear. But it was very cool, David, to see a grown up SG who I knew when we were total idiots. And of course you knew him. Of course you did. Shall we move on to wouldn't be United States your favorite case? I don't know, David. I think this is going to make my top 10 even at the end of the term. And we have some huge cases this term. I don't know that it will come out at the end. I think this could be one of those that comes out in January. But I think it'll stay in my top 10 of interesting questions. Armed Career Criminal Act will result in a much higher penalty if you have three different felonies on occasions, quote, occasions different from one another. Right. So our dear Mr. Wooden committed 10 burglaries. He was indicted and found guilty of 10 separate burglaries,

but they were all committed on the same day in the same mini storage facility. And the factual, well, the factual part is it's all the same day. It's all the same mini storage facility. But in the state that he committed it in, the element of the crime is basically every time he knocked down a new drywall, he committed a new burglary. what we all think of as an occasion, which is one mini storage unit? Or should we actually rely on the elements of the crime? And in this case, under the state law, they were 10 different burglaries. Now, in another state, they may not be. They may have all been one burglary.

But should we rely on that elements factor? So the United States obviously wants the elements factor. They're like, look, we need a bright line test here. And this is the best bright line test. Is it going to result in, you know, two different defendants in different states potentially getting wildly disparate sentences? Yeah, it might. But it's a lot easier than what Wooden's team wants, which is, by the way, the number of the times that the word textual was used by Wooden's counsel. And full disclosure, Wooden's counsel, Alon, who argued the case, is my husband's co-clerk from his Justice Kennedy days.

Can you please, Sarah, just in the future, it would be easier if you just said, I don't know anyone in this case. Oh, okay. Okay. We'll just make assumptions otherwise. Okay. Alon, Alon, I thought did a, I'd never heard him argue a case before. I don't know.

I don't think this was his first argument, but it could have been. Anyway, fabulous job. Laying out, like saying the word textual, every other word, you know, when you have a criminal defendant that you're representing, you're already, you know, leaning on the liberal side, maybe. So like saying textual a lot lets you, you know, it's not even a dog whistle. It's just a regular whistle,

a human sounding whistle to some of those justices. And his point was, look, occasions different from one another. When we use that in common parlance, when I'm talking to you, a human being, that clearly doesn't mean 10 units in a mini storage. No way. And this is all based on a case, United States v. Petty, where this guy, Petty, walks into a diner, holds up his gun, and then takes money from six different tables. Right. And what's relevant about that is it sounds really similar to the mini storage, right? He could have, in theory, been charged with six different robberies. But under that state's laws, it was the raising of the gun, which you only did the

one time, really. And that made it a single act, according like and that's what the the United States is arguing. But United States v. Petty is what leads to the Armed Career Criminal Act. So everything, whatever they decide on occasions different from one another, petty can't meet that standard. So robbing six people in a diner has to be one occasion. So that's an interesting twist on this whole thing, is that certainly in looking at the statute, petty has to come out a certain way. It's not just precedent. It's like part of the law itself. So that's kind of cool. Yeah. And, you know, let me let me just go ahead and reaffirm our previous endorsements of our good friends at SCOTUS blog, because they have a real nice flair for writing these argument analyses that they do. And I love the way Daniel Harawa and Daniel, if you're listening,

please forgive me if I mispronounce your last name. But Daniel Harawa wrote it up and he summed up some of the hypos here. Apparently the hypos were great. Yeah. Hypos flying just. OK, so here are some of them. If a streetlight is out and a person seizes on the darkness to commit a crime spree, does she commit different crimes on different occasions? Does it matter if instead of the streetlight being out, the night was dark and moonless? What if a multitasking crime boss is ordering different crimes using different phones? If outlaw Jesse James jumps on a train?

And by the way, can you ever say Jesse James without preceding it with outlaw? No, it's part of his name. It's like three. Yeah. If outlaw Jesse James jumps on a train and goes car to car robbing people, does he commit different crimes on different occasions? Let's say James's cousin Harry robs multiple people in one train car. Is the result the same? That seems like United States v. Petty.

You're on a crime spree and take a cigarette break before resuming with the crimes before and after be committed on different occasions. Really interesting. But as Daniel notes in his summary, Justice Alito seemed to say, and he said, quoting, you have a real problem, I think, with petty. That's the case that you just referred to, Sarah. To the United States.

Yeah. Yes. Yes, exactly. Yeah. I think this is probably it's probably nine zero. Even Justice Thomas was having some problems. Justice Thomas, by the way, is the one with the cigarette break. And then he says, what if they go to Starbucks?

I mean, Dunkin' Donuts. Like he was horrified that he himself had used such an effete example of going to get coffee, which cracked me up. But the question is whether they just, like, how do they make this rule?

Is it just occasions? You need to like feel it. The word that Alon kept using was episodes and then they went to some interesting uh textualist usage of the word occasions so for instance um if you interview with three people in an afternoon for the same job, was that one occasion? And most people would say yes. And then it got brought up, well, in each of those interviews, they ask you about whether you're a felon, a previous felon or something. And someone says after the interview, did it come up? And you say, yeah, it came up on three different occasions. Right? So both of those would be proper usage. But Alon's point was,

occasions different from one another. The different from one another is doing some work there. And that that's different than simply the word occasions. It's more episodic. Time itself isn't limited. So Alon's answer on the streetlight being out and then you rob someone at 10, 11 and midnight is that's all one episode. You're taking advantage of the streetlight being out. He gave actually a pretty similar answer with the moonless night, although that got complicated. You're taking advantage of the moonless night. You also need to be outdoors, but the facts kind of matter. The Jesse James example was Breyer's and it went off the rails because he was asking it to the United States and she was clearly not all that familiar with

Jesse James or maybe trains and it got too complicated. And Breyer himself said, OK, I've perhaps gone too far astray here. But in the end, there's no question, I think, that Wooden wins. But what kind of win? And I thought that Alon did a nice job. You know, he had a tough job trying to convince them that they should just make a qualitative rule. Nobody likes qualitative rules. But where I thought he did his best for Wooden was saying, yes, but let me tell you why the state's rule doesn't work. Take a kidnapping. OK, you kidnap someone and you, I don't know, rob them and rape them. And then they escape an hour later. Is that then all one thing?

Or what if the kidnapping lasts for years? And under the state, it wouldn't state's version of just elements of the crime. It wouldn't matter. And under his version, obviously, if you kidnap someone for years and rape them, you know, a month later, a year later or something, that would obviously be a separate episode. So I found that super interesting. Just the case itself, the argument was great. Two thumbs up from this movie reviewer. Yeah, it's fascinating.

It is a absolutely fascinating case. And one quick last thing, and I want to connect this, and this is a longer conversation, but I just want to do one quick last thing, and I want to connect this, and this is a longer conversation, but I just want to do one quick last thing, because what is interesting to me about a lot of these sentencing cases is they really do illustrate how difficult it is to have intelligent conversations about incarceration and mass incarceration in the United States. Because one of the interesting questions about a common misconception about mass incarceration in the U.S. is that there's a whole bunch of people in prison who have committed relatively petty nonviolent

crimes. So that's not true. As a general matter, i'm not talking about people who are in jail jail typically or it's often full of people who are who can't make bail or awaiting you know awaiting trial that's a whole different issue that's we need to talk about someday but a lot of the questions about incarceration in the united states isn't whether the person should go to jail or to prison, I'm sorry, but for how long. And one of the issues with mass incarceration isn't so much are people in prison who never deserve to go to prison, it's are people in prison for too long relative to the crime that was committed. And this is what is interesting here about the question. And just again,

reading from Daniel's outstanding summary, the question is, did the burglaries occur on occasions different from one another? If yes, wouldn't a subject to a 15 year mandatory minimum. Okay. If no, he has a maximum of 10 years, but the sentencing recommendation was 21 to 27 months.

So the difference between 21 to 27 months and 15 years minimum is enormous. And that's a lot of what we're talking about when we're talking about incarceration issues. Isn't so much should a person have paid a penalty that put them in prison for their crime, but the difference between 24 months and 15 years minimum is giant. And so that is a, that's just an aside. I thought I'd throw it in there. Well, it's so interesting that crime was so much worse. The murder rate was higher. The violent crime rate was so much higher when these laws were all being passed.

The Armed Career Criminal Act is of 1984. And so then you have this intervening period where violent crime starts really dropping. I mean, you can always use New York as an example, right? Times Square, where you would never go in the early 90s to Times Square in 2010, let's say, is amazing. And so then during that time, as crime is dropping to incredibly low levels, we're having a conversation about are we putting people in jail too long? Are we over incarcerating? And now violent crime is ticking up pretty dramatically. Since 2015, it's started to go up. And certainly with covid and the pandemic, it skyrocketed. And so I'm curious with those two forces meeting each

other as the criminal justice wave started cresting at the beginning of the Trump administration is now going to meet up with much higher murder rates in a lot of these major cities. How how will that get resolved election wise, legislation wise, even court wise? Because we're still at the beginning of the violent crime uptick. I think right now the criminal justice wave still has more momentum behind it. But give it a couple of years. If this continues at the same rate, I think you could see something pretty different. Yep.

Nope. Yeah, absolutely. People, you know, when you when you look back at some previous criminal justice measures, if you were not alive in the lady in the 80s, moving into the early 90s, a lot of it seems utterly mystifying to you. Why? Why all of this stuff? Why three strikes and you're out? Why all? And we were in the midst of a massive spike in violent crime that nobody knew what to do with. And if you're looking at what happened in 2020, which was a serious spike in murders, for example, even with that spike, we're still far below, far below the peaks of the 80s and 90s.

Far below, yeah. Yep, that's it. So interestingly, David, last week the House passed a bill to limit, or sorry, eliminate the disparity between crack and cocaine. So what, in like 2000, it was 100 to 1, the sentencing disparity, crack to cocaine. And then I believe it was 2004 was the Fair Sentencing Act. That changed it to 18 to 1. This would make it 1 to 1.

It passed the House by 361 to 66. Yep. That's amazing. So that's where things are moving right now yeah interestingly that fair sentencing act 18 to 1 change from 100 to 1 was I believe Schumer and Sessions

were the sponsors of that bill interesting yeah I mean bringing in sentencing parity I think is an absolute it's just a it's a very substantial justice issue. That is 100 to one and 18 to one sentencing disparities were absurd, just absurd. And we'll take a quick break to hear from our sponsor today, Aura.

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great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Let's do Biden DOJ for a minute because this is something that burned up the internet. And I'll set this up a little bit. So, you know, Sarah and I have talked about and I've written about the arguments in the debates over critical race theory or what people believe is critical race theory or quote unquote wokeness happening in school boards across the country and what's happening. And I just, I think a lot of right wing tweeters, Sarah, they live in New York and D.C. and they don't know what's going on in the country.

But the following thing, what's essentially happening is you're having an array of different kinds of behavior in the school board settings. So some of it is super respectful, super engaged parents who are doing exactly what they should do when they have curricular concerns, which is show up and make their voice heard. And that's the majority. That's the majority. Then you have another group of people who are engaging at what you would call non, certainly non-criminal, but out of bounds, sort of the kind of behavior that if you saw it on a university campus, you'd say, let people speak, stop shouting people down that's another chunk. But then there's another chunk of people who are engaging in really threatening behavior. Some of them are out and out sending out death threats either through the mail or via email or doing things in person like happened down the street from me.

happened down the street from me that was really intimidating, where a couple of guys got in the face of some doctors and nurses who had testified in support of masks in public schools and were screaming in their face, we will find you. We know who you are. We will find you. Other things where people are saying, we know where you live. We're going to stalk you. We're coming to your house, people are saying, we know where you live, we're going to stalk you, we're coming to your house, which is then a whole nother level. And so the National Association of School Boards or National School Board Association sent a letter to the Biden administration outlining a lot of these things. And the letter, frankly, wasn't written that well because it mixed things that were more like intimidating speech or just aggressive actions that you shouldn't do but aren't unlawful with things that were actually unlawful, but then requested assistance to protect students, school board members, educators from

threats of violence. So the Biden administration then writes a memo and the memo says, and I'll just summarize it. One, there's been a spike in harassment, intimidation, and threats of violence. Yes. There's spirited debate about policy matters as protected under the Constitution. Yes. That protection does not extend to threats of violence or efforts to intimidate individuals. Correct. Well, although efforts to intimidate

can be, it's a little more squirrely. Threats are illegal. Yes. Department takes these threats seriously and committing to use its authority and resources to discourage these threats, identify them when they occur and prosecute them when appropriate. Fine. Coordination and partnership with local law enforcement is critical to this end. I'm directing the FBI, working with each U.S. attorney to convene meetings in each federal judicial district within 30 days of the issuance of the memorandum. These meetings will facilitate the discussion of strategies for addressing threats against school administrators, board members, teachers, and staff. So this was cast as the FBI is now being mobilized against

parents. So I have thoughts on this, Sarah. And one of the thoughts that I have is that, look, we have an atmosphere of threats right now against public officials that is out of control and unacceptable. Some of those threats are matters of state law that the DOJ doesn't have really anything to do with. For example, if a school board member is walking down the street and a citizen threatens them on the sidewalk, that is local law enforcement, that is not federal law enforcement. If, however, a public official gets an email or a mailed threat, all of a sudden that starts to escalate it to a matter of federal law enforcement. Now, does this mean, so yes, there are real threats. I wish people would acknowledge there are real threats. And I wish people would acknowledge it's not all a matter of state jurisdiction. Does that mean that this is an overbroad letter that is going to chill the expression of constitutionally protected speech? I'm really dubious about that. protect the speech. I'm really dubious about that. But I do wish people on the right side of the aisle,

because they're very keen to the existence of threats on the left side of the aisle, would recognize that what's happening at the local level, Sarah, is not just a bunch of awesome parents getting together and making their voices heard. That's happening for some of them, but there is an actual atmosphere of threat and intimidation against public servants and threats violate the law. What do you want law enforcement to do in those circumstances? So anyway, end minor rant. So I think I am more sympathetic to the parents than you are in this case, because it's not what the letter says. It's that the letter was sent and it's what the letter doesn't say. You know, they're not sending out these letters every time there is someone who

threatens, you know, someone on the right, frankly, or follows Kristen Sinema into the bathroom. They're sending this out, at least in part, I think you have to acknowledge because they don't like what these parents are protesting. And it does feel a bit like a shot over the bow when of the vast majority of parents going to school board meetings, a very, very few are making threats, which I agree are illegal and and also stupid, by the way. You're not, let me tell you how often those work. Never. People, I mean, you wrote this, David, but when you threaten someone,

they are far more likely to run into the arms of those who will protect them, help them, encourage them, and not to the people who are threatening to kill them and their families. So you're also just being counterproductive. But this is the point I think that they would say is. This is the letter that they chose to send out of all the things that are going wrong in the country right now and all the people who are being threatened. For instance, they didn't send a letter to UCLA saying this professor that you suspended has been getting all sorts of threats.

And we will, you know, if appropriate, mobilize federal law enforcement to protect him. They didn't do that. And I think that the difference in large part is because they feel like the attack on CRT is incredibly unfair, which it may be or may not be. But using the arm of the Department of Justice in a letter that doesn't matter, right? The FBI can investigate, will investigate any of these that it wants to, that it has the jurisdiction to investigate. This letter was meant as a publicity moment,

as a shot over the bow moment. That's the difference here. The letter has no legal authority. Yeah, I think where I'm... I get you, and I do wish there would be a more, I do think that we have had an atmosphere of threats that has been pervasive for some time.

I do think, however, that when you're talking about the atmosphere of threats at public officials, it has been a character, it has been a character. It has been an aspect. The UCLA professor is a state employee. He is a public official.

Correct. So it's the same thing. And they didn't send a letter for him. And he was getting, I mean, the threats that you read were outrageous. Yes. Okay. But you didn't let me finish. Okay.

Oh, you want me to let you finish? I want you to let me finish. So one of the questions is, of course, you don't send a letter, a DOJ letter officially every single time there is a threat. I do think there's two things going on here at once. One that I agree with you and one that I don't agree with you. I do agree with you that the Biden DOJ is responding more promptly to its constituency. And so the National School Boards Association, I think they would probably see as generally more friendly. And I do think that is going on and that's a problem. I also know what is going on is that we have seen on the right side of the political spectrum, sorry guys, listeners, sorry.

Now, we have seen on the right side of the political spectrum. Sorry, guys, listeners. Sorry. We've seen on the right side of the political spectrum a wave of threatens of threats at public officials, whether it is everything from secretaries of state, members of secretaries of state offices to school board administrators. It is it is a it is not an isolated thing. It is a minority thing. In other words, that there is a minority of individuals who are doing this, but it is a pervasive thing. And that when you get involved and when you run afoul and you get in the crosshairs of some of these far right groups, the threats follow almost automatically. They follow almost automatically at this point. It is pervasive. Now, how about all

the police officers and their families who have been threatened after an officer involved shooting? How about the professors who are being threatened? I just disagree with you that this is a predominantly right problem. It's not. It's just not. And it hasn't been for some time. Both extremes have this problem. And the Biden Justice Department chose to weigh in on one of them.

That is the issue. That's the problem. Well, I agree with you on in 2020, for example, on the police officer issues and the pervasive violence in 2020, there was no shortage of DOJ prioritization of that. There was no shortage of DOJ prioritization of that in 2020. And there was an enormous shortage of DOJ prioritization prior to the Trump administration,

administration, before the Trump administration left, of the pervasive atmosphere of threats that was against Trump critics. And so what we do have- Oh, both sides. Let us then end on agreement that these letters, which have no legal effect because the FBI has the statutory authority it has, regardless of a letter from the department or the administration, are all about emphasis in the press. And that both sides choose to do that at a time and on a side of their choosing. of their choosing. And when the other side then is upset that there's not enough emphasis being placed on hate crimes or on police officers being threatened or on school board members, that frankly, probably everyone's kind of right. One other thing on this.

If the Biden administration thinks this is going to cool off anything, it is not going to cool off anything. No, no, no. And I don't think it's going to chill anything. In terms of chilling expression, it's not going to do that either. No, it is not. That's the thing is one of the problems that you have here when you send out a measure like a statement like this is in part because it actually isn't. So this guy Chris Ruffo says he's instructed the FBI to mobilize against parents who oppose critical race theory in public schools.

No. No. Okay. So what ends up happening is in part because this isn't actually a major law enforcement mobilization against parents, it's because it's not. effect, this isn't going to tamp down anything. And what is going to happen is it becomes yet another rallying cry that spikes tensions even further. And so one of the reasons why I wrote about this is the big issue that we have to get our hands on right now, Sarah, is we have to get our hands around the fact that we are living in an atmosphere of increasing personal harassment and threats against not just public officials and not just high ranking public officials, but against people who almost anyone anymore who achieves a certain level of notoriety in a partisan, you know, whether you're opposing someone, opposing Trump or you're opposing the reconciliation bill or whatever it is,

we're beginning to get into a point where there is almost a pervasive effort at threatening, intimidating people as soon as they achieve a certain level of notoriety. And it's all over the place. certain level of notoriety and it's all over the place. And the thing that is particularly troubling is that every single time at any person in any side of the spectrum can point to people on the other side of the spectrum who are doing it. And each person can also point to an inadequate law enforcement response to those people who are doing it.

So this brings up an interesting, an interesting future AO topic that I want to discuss with you. Cause we brought it up on the dispatch podcast, or I brought it up and was met with some side eye from the guys where I would like to discuss the legal underpinnings of the tobacco litigation and how it could or could not be applied to big tech. Yeah, we that's a good that's a good discussion. We should have it. We should have it. All right. So last thing we I got back from my vacation. I was really underwater because I had

to do last week's work and this week's work. And there was a whole bunch of stuff. And I was just feeling really stressed out. And then yesterday, right after our podcast, I just found myself so burned out. I needed like an hour to not do everything all at once. So what did I do? I went into the AO comments on our website and I just answered them for like an hour. And it was super fun. And thank you all for your very, very smart comments. And it was super fun. And thank you all for your very, very smart comments.

But David, yeah, a lot of people who listen to this podcast and are members of the dispatch who comment on our website very reasonably, I thought, disagreed with our perspective on the UCLA professor who, as we mentioned in the last episode, got an email from a student asking him to grade students more leniently if they were black because of what had happened in Minneapolis with George Floyd. And the professor responded with an aggressive response because part of then what people disagreed with was whether it was sarcastic, whether it was unprofessional, and whether that's the reason that he was suspended. So I was wondering, David, if you wanted to tackle all three of those, which what are you most sympathetic that we were wrong about, that it was sarcastic, that it wasn't sarcastic, that it wasn't unprofessional or that that's not the reason he was suspended? Right. OK, so I don't think we were wrong.

I think, let me take it in this, and let me do four things real fast. Number one, the request from the student, he requested an improper and potentially illegal and almost certainly illegal grading policy. He can't grade people differently based on race. So number one, that to me, that's uncontroversial. That's difficult to dispute.

You just can't grade people differently on the basis of race. Number two. But if someone asked in the comments, by the way, they said, well, isn't that soliciting a crime? No. You know, asking someone to commit a crime out loud is not a crime. I can say, hey, David, I think you should rob the Bank of America on Pennsylvania Avenue tomorrow. I did not commit a crime.

David, I want you to rob that bank. I did not commit a crime. Correct. Correct. Sarah, I want you to threaten a school board member. No, you do not commit a crime. Number two, the response the professor wrote was the way I put it in a response to a comment. It's not a way I would have written a response. The response the professor wrote was

struck me as people argued over sarcastic or snarky. I think deliberately. We did have a good conversation over the difference between sarcastic and snarky. I don't know if you have an opinion on that. But in the end, I think we kind of agree that snarky is a subset of sarcasm that is both short and intended at humor, where sarcasm can be long, like a modest proposal doesn't have to be humorous at all, and that I do not, for what it's worth to all dispatch employees listening, I do not tolerate sarcasm or snark directed at me in a professional setting. So it is by definition unprofessional to me. Right. No, I did not think that was a professional response. And I don't think it was a professionally wise response. I don't think it was a professional response. So that's number two. Number three, the response was wildly disproportionate to the offense. In other words, the threats against him, totally unacceptable. The suspension, you really need to take a close look at the, you know, the school.

And the suspension, remember, was reversed, ultimately reversed by higher officials at the university. So you had number one, improper response, improper request, number two, inappropriate response, number three, that was wildly disproportionate, however, to number two. Now, the big question is, does the wildly disproportionate response occur if he gave a professionally appropriate, if he refused the student's request in a professionally appropriate manner? And that's an unanswerable question. I tend to think it would not be the same. It would that, that, and here's why I think it would not be the same. If you look at the actual GoFundMe, whatever it is, that petition site that asks for him to be fired, they quote the email in full. The wording of the email was the tool that was used to inflame people against him.

That was the tool. of the email was the tool that was used to inflame people against him. That was the tool. Can I also add, because I thought the part that I was most interested in really thinking about was, why was he suspended? Is it because he refused the student's request, or is it how he refused the student's request? And a lot of people said that they thought it was that he refused the student's request, and that you and I were too quick to assume it was the how he refused the student's request. But here's the problem. No professors graded students at the UCLA differently based on their race. Right. So if it were simply that he refused to grade his black students more leniently, then you would like that. That

doesn't make sense because then no other professors were suspended for not grading their black students more leniently. Therefore, it is not that he refused the request. It is his manner of doing so. Because the alternative doesn't work because no other professors were suspended. Right. And so that so one improper request to a response I thought was unprofessional. Three, a response to the end for professional response that was wildly disproportionate. And then the four number four part is what we spent some time talking about. What's the what are the. What's the legal atmosphere?

And that's what I find most intriguing about this case because as I said in the initial podcast, lots of free speech cases, including important good free speech precedents, are driven by people who said things that maybe they were provocative, maybe they were inflammatory, maybe they said things in a way that was not particularly polite and boom, the hammer falls down upon them and it wouldn't have fallen down upon

them had they expressed themselves differently. But the fact that they didn't, they expressed themselves in a way that was inflammatory, provocative or unprofessional doesn't by itself deprive them of their free speech rights f cheerleading yes exactly perfect but the difference there now of course she would not have been suspended if she had said i really disagree with not making the varsity team it was the f cheerleading that got her suspended the thing that we talked about in the last episode that, of course, is the whole reason that we talked about this is because this is an interesting example of a government employee and whether this was government employee speech or professor speech,

which is going to be actually potentially a very interesting distinction and a distinction that may be treated really differently. David, I have one other bucket that I want to discuss. Yeah, perhaps because I am a I am teaching both college and law school this semester. A lot of people in the comments said something to the effect of if that were my student, to the effect of if that were my student my response would have been even more aggressive or you know something about how how stupid the student's email was but also how much it deserved a slap back right and i guess i just want to make a plea to people to be more charitable toward our young people. That's the purpose of being in school. That's the purpose of paying a lot of money to be at these schools, is to be able to express an opinion that you think you may hold and have someone teach you the history of that. Generally, there's very few opinions that you

might express today that have not at some point been expressed or been tried in public policy or anything else. And it's not an 18-year-old's job to know all of that. That's why they're in college. That's why they have a professor. That's why the professor at that front of the room is called a professor, an honorific. It's their responsibility to take every teaching opportunity that they have. It's why they have tenure, in fact, to have the freedom to have that back and forth with students to create space for those teaching moments. So I know that a lot of you blame the student for starting this and for making a, you know, illegal request and that sarcasm is the appropriate response. And I guess what I would say to you is, first of all, sarcasm is never the appropriate response. It does not, when you're using it to belittle someone, to bully someone, it is not a teaching moment. It is not going to provide them the opportunity to understand why they're being belittled. And, you know, someone used the example of what if that student had written,

we should kick all the Jews out of the class, you know, something just obviously also illegal and stupid, but less of the cultural moment, perhaps of the zeitgeist on the progressive side. I actually still think that a sarcastic response in the same tone would have been really unhelpful if you have a student who is toying with anti-Semitism or very much believes in anti-Semitism, it might be a nice moment to talk to them about the different countries that have tried that, the results, and why internationally we rejected it, why we fought a war over it, and what Germany does now to teach its students about anti-Semitism. I mean, there's so many opportunities that you have there when you're dealing with, you know, a 22 year old or however old this person was.

I just I really, really disliked those comments. I loved all the other comments. I did not like the comments that were beating up on this student because it reminds me of all the people who were pissed off that students were crying when Hillary Clinton lost. What? It's OK. Use it as a teaching moment. Teach them about our democracy. Don't mock them and belittle them. What are you teaching them then? You know, you raise some really good points. And the one thing that I would say to those sort of mocking the student. I would invite you to read my inbox. I would invite you to read my inbox and it's all adults. And some of the things that these adults will say in my inbox about politics, about law, about law, about race, about you name it. And by golly, somebody has got to stop fostering the culture of the clapback that as soon as somebody says something that I think is out of bounds,

I am now relieved of my moral obligation to treat them the way I would like to be treated. And they deserve the clap back. And if there is anything that we, this circles right back to the threat discussion that we just had, Sarah. What do you think you're accomplishing? Honestly, what do you think you're accomplishing? It's just making you feel good to tell somebody off, that's it. Because what you're actually accomplishing when you tell somebody off is that you are driving them away. You are pushing them into the arms of your opponents. You are shoving them into radicalization when you are indulged in the clapback context. I mean, this is what I wrote. When you try to intimidate people,

when you threaten people, when you mock people, what are you doing? And this feels like, do we even have to say this? Because let's just imagine, for example, that you are a trial lawyer, okay? And you have a jury in front of you and you have a judge. And it is your job to persuade the jury and to persuade the judge to rule for your client. And you look at the jury. Are you going to start engaging in mockery based on their voir dire? You know, try to intimidate the jury? Are you going to clap back at the points of view that you know that they might share based on the voir dire?

No, of course not. Of course not. What you try to do is you try to get people, you don't just try to convince people in the head. You try to convince people in the heart to not just change their mind, but also to make them want to change their mind, to affirmatively desire. For example, if your goal is to demonstrate the importance of racial equity in grading, the goal is to make somebody want to embrace racial equity and grading and equality and grading, not to mock them because you have not changed their mind. You have alienated, you have radicalized. And it's almost as if this sort of ability to clap back on social media or to write the perfect screed on email or whatever is your preferred form of communication, it's become a value in and of itself.

And so that's why I thought it was really important, Sarah, for us to talk about irrespective of the professor's rights, irrespective of the professor's rights, which should be vindicated regardless of his manners, rights or should be vindicated regardless of his manners, rights should be vindicated regardless of manners that's worth talking about manners. Yes. So to end on one comment in my response, I would love to live in a society where stupidity was treated worse than being unprofessional, which I thought was such an interesting and thought

provoking statement that I really sat there and was like, how, why do I disagree with that? And so this is what I wrote. Disagree. Someone who is stupid, someone is stupid because they haven't been taught something or because they lack the ability to understand what they have been taught. When someone is rude, it is intentional and disrespectful. It is a moral failing, and I have no patience for that. And that's what I think it's coming down to. And I hope that we can very much distinguish between someone who doesn't know something and someone who is dehumanizing, disrespecting. I do think that's worse. I just don't. Yeah. And there's another, there's a difference between stupidity. However you want to define stupidity, stupidity can sometimes be a product of ignorance, right?

Stupidity and ignorance are different in things, and a lot of people mistake them. So if it is ignorance, that's the opportunity for education. If somebody actually has mental deficiencies, wow, what on earth is anyone doing mocking them, Right? I mean, that's the thing. But I love our comment section. And I'm so glad that people all jumped in because, by the way, if you're not a member of the Dispatch, you can go to advisoryopinions.thedispatch.com and click on any episode. But the Supreme Court is back episode is the one we're talking about. And go read the comments because I think you'll see people aren't sarcastic. They're genuinely trying to engage with each other.

And it's not just because I'm there in the comments, by the way. This is how it is every day. I do try to read all the comments sometimes, you know, for every episode. I just don't always get the time to sit there and respond in real time to people. But to me, our comment section is exactly how students, professors, school board officials, parents, how we all could engage with each other in a way that I think isn't always nice. I'm not trying to put nice as our highest ideal, by the way. I think the adjective sweet, when someone says that a girl, for instance, is sweet, nothing makes me more angry. It is such a vapid term.

But so people aren't always nice in the comments. They're pointed, but they're respectful. They're thoughtful. They're engaging with the other person's ideas. There's no snark. There's no belittling. And that's why I it actually it turned around my whole day yesterday to spend that hour in the comments section. I went from a very bad mood to a very, very good mood. So thank you,

everyone. It was really nice. Yeah. And I agree with you on our comments section. And in fact, a number of people have said they subscribe because of the comments section. And you're right. There is an important distinction between nice is not a synonym for respectful. The comments are, by and large, there are some rare exceptions. By and large, they're quite respectful. And sometimes there is a necessity, if you feel something strongly, for firmness in the expression of your view. I'd say you and I can express it. We express our views with firmness on the regular. But I do not think

that our comment section is mocked by condescension or mockery or cruelty in any really in any way that characterizes it. And by the way, if you are cruel to someone in our comment section, we remove you. Yes. This isn't a free speech forum. Yes. Yes, indeed. We don't remove you

for wrongness. We don't remove you for firmness or anything else. But if you are mocking or belittling or cruel, usually you get one warning and then that's it. Correct. Well, on that note, shall we end our podcast? Yeah, although I'm already pumped for Monday because we have topics already set up. Oh, gosh. Oh, gosh, we do. Absolutely. All right.

Well, thank you guys for listening. This is we've covered a lot of grounds. So that this has been fun. I hope you've enjoyed it and please, um, participate in the comment section when it comes out and also subscribe on Apple podcasts. Also, um, rate us on Apple podcasts and please check out the dispatch.com. Thank you.