Advisory Opinions - NCAA Meet the Supreme Court

Episode Date: December 17, 2020

The Supreme Court agreed on Wednesday to hear a case concerning whether the NCAA’s eligibility rules for student compensation violate federal antitrust law. Should the NCAA have the right to create a universal regime of amateur athletics? Is this dispute more of a legislative problem? Or is it an antitrust problem that should be resolved by the courts? In their penultimate podcast before Christmas break, David and Sarah discuss whether private employers can mandate COVID-19 vaccines, some hypothetical legal scenarios related to double jeopardy, and the culture wars surrounding Vanderbilt kicker Sarah Fuller. They also respond to a 3L listener’s email about Supreme Court original jurisdiction. Show Notes: -NCAA’s cert petition to Supreme Court, 9th Circuit ruling for NCAA antitrust case, and Supreme Court reversal statistics. -“The College Athletes Who Are Allowed to Make Big Bucks: Cheerleaders” by Tess DeMeyer in the New York Times. -NCAA v. Board of Regents. -Trans World Airlines Inc. v. Hardison -“Can Private Employers Mandate COVID Vaccines?” by Josh Blackman in Reason. -End of Discussion: How the Left's Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (and Fun) by Guy Benson and Mary Katharine Ham. -Miracle on 34th Street. Learn more about your ad choices. Visit megaphone.fm/adchoices

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New Umbrella Daily UV Moisturizer, now available online or at your local retailer. You ready? I was born ready. Welcome to a barely election-related edition of the Advisory Opinions Podcast. We're almost there, y'all. We're almost past the election legal analysis. In fact, it's just going to be a whisper, a hint of it in this podcast. Instead, we're going to deal with, I would say at this point, far more interesting things because we've talked the election to death.

We're going to talk about the NCAA. The Supreme Court took an antitrust case against the NCAA that could have some real ramifications. We're going to talk college sports, both on the front end and the back end, because we're going to talk about Vanderbilt's use of the first female football player in a Power Five conference. And that's going to launch into a discussion of outrage culture that you're not going to want to miss. But in between NCAA and NCAA, we're going to have also a discussion of vaccines, a discussion of vote fraud, vote suppression, and an interesting hypo regarding double jeopardy. But before we get to that, Sarah, did I introduce this podcast

already or did I say this is the Advisory Opinions Podcast? In case you're clicking on, you thought you're clicking on Joe Rogan and you heard my voice, this is the Advisory Opinions Podcast with David French and Sarah Isker. Good. Well, now you've done it. Now I've done it. Okay. But before I get to that, we need to clean up a correction. So in the last podcast, I erroneously asserted that if you're raising an election objection at the congressional counting of the electors on January 6th, that the objecting senator and the objecting congressman, and you need at least one objection from Senate and one objection from the House,

need to be from the same state. We pulled a timeout. We talked about it. We looked at it. And we said, wait a minute. It doesn't seem to be the case in one sentence, but then the next sentence seems to make it a little bit more ambiguous.

But it turns out, Sarah, it's not ambiguous. In fact, you do not have to be you do not have to have a senator and a congressman from the same state to raise an objection in the counting of the electors. You just need a senator and a congressman. Yeah. So that sentence says when all objections so made to any vote or paper from a state. So it's referring to the elector slate that the state sent in. So you're objecting to the elector slate from a state. And so it is not referring to the House and Senate member being from a state. And while this is an incredibly poorly written Section 15 of 3 U.S.C., that part seems relatively clear. Thank you to all of you who wrote in on Twitter or email. We appreciate it. Yes, indeed we do. And so that raises the interesting question

before we dive into the NCAA. Is anyone going to object from the Senate? We feel pretty confident that there will be objectors from the House. Will there be any objectors from the Senate? And that brings up another mistake I made. And I think one I've been making for years that is utterly inexcusable because I am a SEC football fanatic, born in Auburn, Auburn football fan. But I got a deluge of emails saying, stop saying Tommy Tuberville. It's not a potato.

It's a bath. It's a Tuberville. And I know that. And the funny thing is, I've just always still said Tuberville. I don't know why. It's like I have this short circuit in my brain, Sarah, when I see T-U-B-E-R-V-I-L-L-E that I think, that's Tuberville. Grammatically, that feels like Tuberville, but I guess it isn't. I don't know. You're not the only person to pronounce it that way, first of all. But you are among people who pronounce it incorrectly. I know. I know.

It's just there are certain words that have a block. I mean, every time I fly into Las Vegas, Nevada. Oh, my God. And I'm reading about Tommy Tuberville. I just... Yeah, I just have a middle block. Okay, so Tuberville. I just, uh, yeah, I just have a middle block. Okay. So Tuberville. So Tuberville has left it somewhat ambiguous as to whether he's going to, um, object, join an objection to any of the counting of any of the States. Um, I, I would expect that

there's going to be some considerable pressure running both directions with, I think Mitch McConnell not wanting any objections. He's already acknowledged the outcome of this election. And there's going to be pressure from the grassroots, from talk radio, from segments of cable news, that who is going to be the senator who takes a stand. What's your predictions, Erin? And then we'll move on to the NCAA. I think that Mitch McConnell, sorry, let me back up. I think that the Senate majority leader generally actually doesn't tend to have that much persuasive power over his caucus when it comes to things outside of the caucus, if you will. I think that Mitch McConnell is a huge exception to that because of the rocky

terrain he has led them all through for the last four years in particular. And I will even include the six months previous that involved Merrick Garland. So I think he does have a lot of persuasive power over the Republican caucus in the Senate. Interesting note, though, I think that Tuberville is going to be one of those senators to watch. A freshman senator, generally, not that interesting. But when, for instance, Ted Cruz got elected back in 2012, people were like, huh, this is sort of the first real Tea Party senator. I wonder what that will be like. And indeed, I think you can sort of see the rise, the transformation, the fall, the next

transformation of the Tea Party in the Ted Cruz as Senator zeitgeist, if you will. Tuberville gets elected as a Donald Trump senator. That was the whole race in the primary between Tuberville and Sessions. Tuberville wins using, to I think a good extent, Donald Trump's endorsement, and then runs as being like a voice, a vote for Donald Trump in the Senate through the general, remember, against incumbent Senator Doug Jones, which was unusual, obviously, to have an incumbent Democratic senator in Alabama. He had won that special election to replace Jeff Sessions against the terrible, terrible candidate, Roy Moore. Okay.

Yes. So now we have a Trump senator coming into office as Donald Trump will no longer be in office. be in office. I think that the same way that Ted Cruz represented the Tea Party, and I don't mean in every single way that Ted Cruz is the Tea Party, but I think there was some stuff to watch and learn from there. I think Tuberville represents the Trump electeds, if you will. And so it'll be interesting to see with Trump leaving office on January 6th, when this vote will all go down, what Tuberville both says and what he does, which I think could be pretty different. I think it's one thing to leave the door open and to say, you know, Mo Brooks is right to raise this. I don't know, folks. I don't know.

Again, I'm not saying that it's a good thing to say, but it is not the same as signing your name onto an objection that then will be debated and forcing every Republican senator to take a vote on whether to certify the election results from these states. So I'm going to be watching Tuberville in particular very, very closely for the first six months or so of his Senate career. I predict that he does not hem as closely to Donald Trump's coattails as you would otherwise think. I think that Tuberville will kind of be his own thing going on, but we'll see. Yeah, you know, I've kind of, a lot of these

sort of Trumpian personalities, they're like satellites orbiting a planet and without the planet they don't have enough independent mass to be really anything. They, and Tuberville, he's sort of like all of, well, not even all of the attitude of Trump, like some of the attitude of Trump with none of the real fame and sort of background reputation

for success and very unclear as to whether he has any kind of substantial charisma. And so people like that don't necessarily build independent brands outside of orbiting the larger planet. And when the planet is gone, or when the planet is sort of tweeting from Mar-a-Lago, I'm not quite sure that that sort of satellite brand is going to have as much staying power. But we'll see. We shall see. NCAA, Sarah. So the Supreme Court granted cert this week on an antitrust case against the NCAA for all of it. All the things you know about the NCAA that you either think are okay or you don't like, this would pretty much cover it in this lawsuit. The Ninth Circuit found

against the NCAA, found that it was an antitrust violation, and the Supreme Court has accepted the case. David, before we get into any of the merits of this and why it's interesting, the case. David, before we get into any of the merits of this and why it's interesting, I will note for you that the Supreme Court overall, once they accept a case, that case has a 71% chance of being reversed. And the Ninth Circuit in particular has a 77% chance of being reversed. This is from 2007 to 2019 that I'm using. So just by taking the case, that's a good sign for the NCAA, a bad sign for the plaintiffs in this case. I will say that the brief filed for cert was pretty funny. So first of all, the question presented, the QP, as we say in the biz, whether the Ninth Circuit erroneously held in conflict with decisions of other circuits and general antitrust principles that the National Collegiate Athletic Association eligibility rules regarding compensation of student athletes violate federal antitrust law. antitrust law. But really, you go to the table of contents, and most of their argument is that the Ninth Circuit is the cheese that stands alone, and it is just way out there in its own

antitrust law that it's making up. And their argument is that NCAA's amateurism rules are presumptively pro-competitive. That's what it kind of boils down to, David. What are your thoughts? Okay, so full disclosure to everyone, I loathe the NCAA. I really, you know, there was years ago when I was a much younger man. Not a grandfather. Not a grandfather. I was fine with the NCAA. I was completely fine with it. I sort of bought this amateurism line,

hook, line, and sinker that these are student athletes, et cetera, et cetera. Then as I grew older, I began to realize, no no what we have is a giant business this is a giant business the ncaa vacuums up billions of dollars in revenue the coaches in top line ncaa programs almost without fail are the highest paid public employees in the United States of America. So for example, Gus Malzahn, who is the recently former coach of the Auburn Tigers, my birthplace, Auburn, was recently cashiered from Auburn, despite the fact that he'd beaten Nick Saban and the Darth Vader of college football more than any other coach in the SEC,

but he's out. He only won two-thirds of his games. He's out. And he got a buyout. $21 million, Sarah. $21 million. So you have this enormous business. And the people who actually create the product,

in addition to the coaches, of course, coaches are indispensable. Yeah, they get a free education. They get a very, very modest stipend. Wait, I want to footnote that though. They get free tuition. True. That is not the same as being able to take advantage

of the educational opportunities they're presented. That is very true. That is very true. They are expected to work more than a full-time job to keep up with their athletic requirements. And so, yeah, they are, in fact, also required to attend class, things like that. But the idea that they're getting the same level of college education that the rest of the students are getting, sometimes, but sometimes not.

I would say usually not, especially if you're playing, again, at the top tier, top line programs. It's more than a full-time job. And it's not even close. I mean, especially once you include all of the travel, et cetera, et cetera. And so essentially what you're getting is less educational opportunity, no real compensation. And you're not just prohibited from direct compensation, as in the University of Alabama paying you. as in the University of Alabama paying you. I also essentially don't own my own name or likeness for the years that I'm in college.

So if a shoe company says, hey, on your Instagram, will you wear our shoe and we'll pay you some money, I'm out. Or to take a case from Ohio, I'm sorry, the Ohio State University to our Ohio listeners, the Ohio State University, even like free tattoos, Sarah, I'm out. And so what ends up happening is student athletes are treated differently and worse than virtually every other category of student. And none of this was more starkly illustrated

than there was a recent New York Times story about cheerleaders. Cheerleaders. So cheerleaders, because cheerleading is not an NCAA-regulated sport, cheerleaders own their own name and image and likeness, and some of them make quite a bit of money while cheering for a school. Fine, great, more power to them. And you know what? They still cheer for the school.

They still do a tremendous job. They're still ridiculously good athletes. Cheerleading does not suffer from the fact that a cheerleader can take an Instagram photo of her, you know, wearing some shoes and make money doing that. But if I am a basketball player that the cheerleader is cheering for or at the game with, I can't do that. And so this is, to me, there's a fundamental unfairness. And here's where the antitrust aspect of it comes in, to me. What the NCAA seems to be doing is saying, wait, college sports is amateur athletics. We get it's your amateur athletics argument that it's the amateur athletics that is the monopoly. The starting presumption that the NCAA has is that we're allowed to create a universal regime of amateur athletics.

That's the monopoly. There is no real ability to compete in high-level college sports at all unless you buy into the amateur athletics model of the NCAA. And that's your monopoly right there. on these two least restrictive alternatives, which is kind of an antitrust thing, of what the plaintiffs wanted. So, you know, Big Ten versus Big 12 versus SEC, like sort of breaking it up to the baby bells. Remember bell telephone stuff? So creating a system of baby bells, if you will, for compensation.

And two, in joining NCAA rules that restrict both non-cash education-related benefits and benefits that are incidental to athletic participation. That's, of course, the biggest one, I think. Right, right. Yeah, I think, so, now here's the inherent tension,

I think. So the NCAA here is making a legal argument, but it's also grappling with political tensions, both internal to college sports and external to college sports. So the external to college sports is California, for example, has passed a law that is paring back the NCAA's ability to restrict compensation to student athletes. I can't remember who else has done it. I know it was at least under consideration in Florida recently. So there are various state laws that are being contemplated that are going to restrict the ability of the NCAA to regulate compensation for student athletes in their states. the ability of the NCAA to regulate compensation for student athletes in their states. The NCAA,

of course, could then say, well, schools from that state cannot be eligible. If they don't comply with our rules, they can't be eligible for an NCAA title. So you begin to get into a back and forth between states in the NCAA. So that's sort of an external political pressure. All you need is a few of these SEC states to get in on the action, and the NCAA is So that's sort of an external political pressure. All you need is a few of these SEC states to get in on the action and the NCAA is hamstrung. Also external is there's some congressional momentum for regulating the NCAA. Mitt Romney, for example, has come out in favor of greater compensation for student athletes. So that's external political pressure. But then internal political pressure is that the NCAA

and some of these big conferences, they're kind of frenemies, Sarah, because the NCAA's got to have these big conferences. It's got to have like the P5, the Power Five, the five big conferences to be really anything. If it doesn't have those conferences, then it doesn't really have real championships at the elite level of college sports. The conferences kind of like the NCAA and need the NCAA because

it's going, you know, that's, that provides, you know, a ton of cachet for their titles that they win. Um, there's a lot of relationships and infrastructure and a lot of these colleges aren't necessarily super fired up about paying players. And so there's all of these give and take and, um, and where I think that the, you know, I, I think that the, the answer here, I would like to see a legislative answer, but I also think that there is potentially an antitrust answer here. Yeah, so I think you're getting at actually the heart of the whole thing, David. Is this a legislative problem or is this a legal antitrust problem? And so the Ninth Circuit case ends with, to repeat my observation in a previous antitrust case against the NCAA,

the national debate about amateurism in college sports is important, but our task as appellate judges is not to resolve it, nor could we. Our task is simply to review the district court judgment through the appropriate lens of antitrust law and under the appropriate standard of review. For the foregoing reasons, we hold that the district court properly concluded that the NCAA limits on education-related benefits do not play by the Sherman Act's rules. So that's what's going up to the Supreme Court. And as I said, 70% chance just by taking the case that the Supreme Court will reverse it. Slightly higher chance because it came from the Ninth Circuit, because we all know the Ninth Circuit likes to march to the beat of its own extra legal drum from time to time. But this will be really an

interesting argument. I think on the one hand, it will get into the weeds on antitrust precedent a little, stuff that we aren't that interested in talking about on this pod on the other hand i think it will also get into the weeds on what amateurism really means and that is interesting for this pod you know there's also an interesting battle within conservatism on this um so there's a kind of a contest between small c conservatism which sort of says i don't want to see these things change the ncaa is a you know an institution of long-standing college sports have been a successful institution within american life in the sense that they're very very popular um we don't need to be messing with the ncaa and sort of this kind of ideological conservatism

that talks about- Restraints on- Freedom of choice, fair pay, economic opportunity, removing restrictions on your ability to earn, arbitrary restrictions on your ability to earn income. And so there's, when I used to write about this at National Review, I would always get this really interesting blowback because I was saying, wait a

minute, you know, if you're talking about my ability to earn a living for a lot of these guys, especially some of those who are top level college players who don't have a pro career, which is most of your top college players do not have a pro career. If you don't have a pro career, which is most of your top college players do not have a pro career. If you don't have a pro, you're missing out on some of your prime earning potential in your life, in your life, because of these NCAA amateurism rules. And this is falling on disproportionately on kids who don't come from a lot of economic opportunity to begin with. And so not everyone, of course, there's rich kids who play NCAA sports and middle-class kids who play NCAA sports, but disproportionately falling on people who don't come from a huge amount of

economic opportunity. And they're missing out on some of the best year earning years of their lives by these rules at the same time that an enormous amount of revenue is being generated by their efforts just enormous and so there's sort of this fundamental fairness issue and economic opportunity issue there's a liberty issue um at stake and all of those collide against sort of the small c conservatism that says, I don't want to make a change here. So you see a lot of interesting splits in the conservative world about this. So in 1984, there was a case called NCAA versus Board of Regents of University of Oklahoma. That kind of is the controlling Supreme Court precedent going on right now.

And this case found that NCAA eligibility rules were very much in line with the Sherman Act because league sports are, quote, an industry in which horizontal restraints on competition are essential if the product is to be available at all. Whoa. NCAA rules should be evaluated for antitrust purposes under the rule of reason rather than deemed illegal per se. So David, first of all, this is where I get to like, antitrust is made up. There's then this three-step burden shifting framework that we don't need to go through here. But I do wonder for, in terms of like thinking about what the Supreme Court's going to do, 30% of cases that

get accepted by the Supreme Court aren't reversed. And the reason that they're taken is for the Supreme Court to set a new standard or overturn previous precedents. And one wonders whether since 1984, our views on the NCAA have changed. I certainly think public opinion on the NCAA and college athletics has changed, but I also think what these student athletes are doing, what's expected of them and their commercial viability outside of college sports is very different than it was in 1984. I mean,

just think of the NCAA basketball tournament, March madness. Yeah. That has taken on 1984. I mean, just think of the NCAA basketball tournament, March Madness. Yeah. That has taken on a, I mean, a life of its own. All of the television, cable television stations dedicated like the Big Ten Network. The whole thing is so different. The amount of money that the coaches are being paid,

the amount of money that the schools are making on these athletes. It's a whole different is so different. The amount of money that the coaches are being paid, the amount of money that the schools are making on these athletes. It's a whole different world from 1984. So if you were a betting person, yes, 70% of the cases that are accepted get reversed. The Ninth Circuit is sort of standing alone on this. But when you're looking at a 1984 precedent, you do wonder whether the Supreme Court

feels like it's time to rediscuss what amateurism means. Yeah, and the numbers, Sarah, you raise a really good point. We're in a new era of numbers here. Okay, trivia question. How big is the NCAA contract with CBS and TNT for TV rights to the Division One Men's Basketball Championship? Is it a number that we even have words for? We have words for, but it's $19.6 billion. I mean, that's, I, by the way, folks, just fun footnote. When we talk about how there's too much money in politics, let's just bear in mind that for the entire 2020 election

cycle this time around, I believe that the number was about 6 billion spent by all parties at all times on all races. So just for the month of March, you're saying it's not even the whole month. So just for those three weeks or so in March, David, 19 billion? It's unbelievable. 19.6 billion. And there's a Forbes magazine article from 2019,

of course, before the 2020 March Madness was canceled, saying that it's the most profitable post-season TV deal in sports. In sports. So these numbers are just staggering, and it's an order of magnitude different from what it was 30, 40, 50 years ago. Just an order of magnitude different. And the other thing to remember here is these athletes bear a very profound, especially in basketball and well in basketball and especially in football, they fare, they bear a real injury risk. And I'm so glad you said that.

I don't know if you were, if you've been watching college basketball right now, we have it on in my house quite frequently, but you know, that Florida player, this was not an injury. This was a, you know, that Florida player, um, this was not an injury. This was a, you know, he, he collapsed, um, on the side of the court as he walked off and was last listed that I saw

yesterday in critical, but stable condition, you know, he may not ever be able to play basketball again. And he was their number one recruit, I believe, as a freshman to Florida. Tua's injury, if you remember in that Alabama game, could have been career ending and certainly was career trajectory changing. get insurance, but their insurance will not pay out at the rate of some of these pro contracts. And then others, they're not even pro prospects, but they're very good athletes who rip their bodies to shreds. And again, they don't have opportunity to gain compensation outside any meaningful compensation. And the last thing I'm going to say on this is I have a lot of people who come to me and they say, well, wait a minute. If you allow for compensation, you're going to create a competitive imbalance

because the big programs will either pay directly or they're going to have the network of boosters who are going to hire people to do car commercials and things like that. And it'll create a competitive imbalance. And my response to that is, oh, so you mean we'll have Clemson and Alabama play for the championship every year? I was just going to say, isn't the answer to that Clemson and Alabama? Yeah. I mean, college football has a competitive imbalance problem right now, right now when people can't get tattoos for free. It's, you know,

the idea, I think in an interesting way, you may actually be able to open up the field a bit more because you could have some kind of like real competition for top athletes. Because right now that the way a top athlete is approaching a college choice is they're wanting to go in, if they're going to have any pro dream at all, they're wanting to go into specific feeder programs. And it's a little like when our law school discussion. Yeah, if you graduate from the top of your class at a lower ranked law school,

you've got a shot at a clerkship. But if you just do pretty well at Harvard or Yale or Stanford or Chicago, you've still got a shot at a Supreme Court clerkship. And so when you consider their four years or five years, I suppose, if you include the red shirt year of college athletics as one giant audition for pro sports. Cause for them, that's basically what it is. Then. Yeah.

You should go to the school right now. The two of them really, uh, that are the sort of, you know, Harvard and Yale where, you know, you could have a bad game or something and you can still get noticed by

scouts. Um, and it's, I think it would actually very much open up competition if that weren't the case. It has the hope of it anyway. It has the hope of it. I mean, it's just so- By the way, on that Supreme Court,

sorry, no, you finish what you were saying. I was just gonna say, by the way, as a symbol of how freaking hard it is to break the Alabama Clemson stranglehold, LSU last year had arguably the greatest football season in the history of college sports in the sense that of the level of competition that it beat and how badly it beat that competition every step of the way. And then this year it just fell off dramatically. Why is that? It is really, really,

really, really hard to build a program that is going to have enough high-quality recruits to compete with the kind of recruiting classes that Alabama Clemson get every year. And the machine that Dabo and Saban have built of developing this talent. So yeah, spare me the competitive imbalance objection when we don't have competitive balance

now, and it's actually hurting the game. So I'll note that the case that I was talking about, NCAA versus Board of Regents of the University of Oklahoma, none of the justices who were on that court obviously are still on the court today, but the majority was Stevens, Berger, Brennan, obviously, are still on the court today. But the majority was Stevens, Berger, Brennan, Marshall, Blackmun, Powell, O'Connor. And the dissent was White and Rehnquist. Hmm. Interesting. So you had some conservatives raising their hands back in 1984. I wonder if anyone's going to pick that flag up and run it up the hill. Let's take a moment and thank our sponsor, Gabby. You know you're probably overpaying on car and home insurance. Sure, you'd love to save money, but is spending

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Can private employers mandate COVID vaccines? Very good question. Can private employers mandate COVID vaccines? mandate COVID vaccines? And the answer is the EEOC has recently released guidance stating that private employers can generally mandate that employees get a COVID vaccine. And that they're, and this, you know, I'm relying on a really nice post, very short post, but really I love it when a short post packs a big punch. And this is from Josh Blackman at Reason. And he talks about that EEOC has released guidance saying that private employers can generally mandate.

And there are two types of exemptions. There might be a disability-related justification that would exempt a person from a mandate. And the other one that was really interesting is what about a religious-related justification that would exempt a person from a mandate? And the other one that was really interesting is what about a religious-related justification that would exempt a person from a vaccine mandate? And why is this so interesting? Well, there's sort of the obvious reason of, hey, wait a minute. Let's suppose I'm very happy about the vaccine, want to get the vaccine myself, the vaccine, want to get the vaccine myself, want to see a healthy workplace and herd immunity.

And a colleague of mine raises a religious objection. What does my employer have to do? What's the response? And what's really interesting about this and what Blackman brings up is there's a couple of things at play here. One is under existing law, that religious objection is probably not going much of anywhere. Because under existing law, all an employer has to prove is that by granting the objection, they would be bearing more than a, quote, de minimis cost. So they're going to only be required to grant a religious objection if there is a de minimis cost to granting the exemption. But if there's anything more than a de minimis cost, so for example, worried about employees losing time because of illness or potentially spreading illness within the workplace. You're out. You've got to get it. The exemption is not going to apply. But at least three justices

have raised an objection to that test, that de minimis cost test. And so it's, and there's in fact a petition, I hadn't been tracking it, but fortunately Professor Blackman has been, that is tested, that has been, that does question this de minimis cost test. And so it could be very interesting to see if actually if this de minimis cost test survives, and if it does not survive, is that going to result in perhaps greater accommodation for religious

objectors to COVID-19 vaccines? I just wanted to flag it as pretty darn fascinating. Under existing law, you're going to pretty much have to take the vaccine if your employer tells you to. But how long will existing law last? Sarah, your thoughts? Yeah, so the existing law is this 1977 case called Transworld Airlines versus Hardison. And this is a mechanic. He's a member of the Mechanists and Aerospace Workers Union. And his religious beliefs prohibited from working on Saturdays. And attempts were made to accommodate him because, and actually this isn't really an attempt to accommodate him, it's just that as it turned out, he was senior enough in his initial job that he didn't have to work Saturdays when he put in for time. But then he's transferred and he's no longer sufficiently senior. And so then his bids to have Saturdays off aren't going to be met every time. So he sues. in the end that TWA had made reasonable efforts to accommodate respondents' religious needs,

did not violate Title VII, and the suggested alternatives would have been an undue hardship within the meeting of the statute as construed by the EEOC guidelines. Okie dokie, that seems kind of out of step with all of the current cases that the court has decided recently. And as Josh points out, there is in fact a case pending right now for cert called, and I will butcher this, Dalbariste versus GLE Associates Inc. What do you think, David? Did I get anywhere close?

Anyone want to go? I'm just glad you're the one who probably mispronounced this time and not me. Dalbarist, Dalbaristay, any number of options, really. So this was distributed for conference, which is the term for when justices sort of would get to vote on cert

on October 9th. It has been rescheduled three more times. So what that actually means is nothing. There's people try to read tea leaves into that. And if you remember, you and I talked about those qualified immunity cases that had been held over for conference after conference after conference. Some of the second amendment cases have been held over for many, many conferences. And in the end, they were all just summarily denied. Nothing was happening. And in the end, they were all just summarily denied. Nothing was happening.

We still don't know why they were held over that many times. There is a higher chance if it's been held over quite a few times that it could get granted or that someone is writing a denial, sorry, a dissent from the denial of cert. But fun fact, as Josh points out, is that Hardison was written by Justice Gorsuch's former boss, and he is not aware of any justice who has expressly voted to nullify a precedent of his former employer. That's interesting. The closest example I'm reading from Josh's thing, the closest example I can think of is Dames and Moore v. Reagan, in which Justice Rehnquist watered down Justice Jackson's Youngstown framework. That's the steel seizures case from the Korean War that

created sort of when the president's power is at its zenith. Perhaps Justice Gorsuch and Kavanaugh will one day reverse a Kennedy precedent. I think you can almost count on that, by the way. Or ACB could overrule a Scalia precedent. I don't think there are any Goldberg or Marshall precedents on the chopping block for Breyer or Kagan. So that's just like a fun, squirrely, squirrely thing

not to worry too much about, but it is cool. Well, you know, I do think one thing, and this raises the origin of the legal issue here is from Title VII. Title VII, which prohibits workplace discrimination on the basis of race, sex, and religion. And there's not actually a huge body of case law around discrimination on the basis of religion. Not a huge body. And the question here in some of these cases has been whether or not a failure to accommodate religious practice is anti-religious discrimination. discrimination. As America secularizes, and especially as parts of America secularize, say, more than others, you're going to see more Title VII litigation around religious discrimination.

And so it's not at all surprising that I think that some of the justices who've been sort of most alert to religious liberty issues have raised this TWA versus Hardison standard, which is pretty employer-friendly. But the interesting question, there's something different, Sarah, between saying, I don't want to hire a Christian versus saying, I'm going to have to grant to Christians specific accommodations I don't give to anybody else. if observant Jews then get to have Saturdays off and observant Christians get to have Sundays off and none of the other employees do that and they have to work weekends, you could then see a lot more observant Jews and Christians all of a sudden in your workforce.

It's a weird incentive, and I think that's why the TWA case almost has to come out the way that it does because what do you do then when this one person gets to have Saturdays off? Everyone would like to have Saturdays off. Religion versus your family versus all sorts of things. And so I think just from a practical standpoint, TWA looks like a pretty good opinion. The problem is from a legal standpoint,

it's kind of messy. It's messy from sort of a textual standpoint. It's messy from... So essentially, you can see what the court is trying to do is it's trying to strike a compromise. So it doesn't want a facially neutral rule that says, for example, every employee has to be available to work weekends to turn into a de facto act of discrimination by against people, say, Seventh-day Adventists or Sabbath-observing Christians or observant Jews. And so then that starts to, it looks like a sort of a de facto ban on specific religions. So you don't want that, but at the same time, you don't want to cripple an employer. So they've come up with this de minimis rule

that just is a, it's a judicial compromise is what it is. And that would probably cover for what it's worth. You know, a rule that says there's no beards allowed at work and you work at Chipotle and they don't want hair in the guacamole it is de minimis to provide uh someone in an observant religion that uh encourages facial hair or requires facial hair to get them a little um instead of a hair net to get them a beard net right that's de minimis under twa you would be required to do that You just wouldn't be required to give that person priority over what time slots they want based on their religion.

Right, right. So we'll put a pin in this issue because it is going to be very interesting. And as controversial as the COVID vaccine is in some quarters, I've already seen a lot of people who are otherwise quite solicitous of private property rights beginning to preemptively raise objection to, for example, can I require proof of vaccination for you to enter my establishment? This is once the vaccine has been fully distributed through the society. You know, is that too much to ask? Is that... But David, can I ask you a question about that?

Yeah, I don't really get it. So, um, as you said, we're assuming that the vaccine is now everyone has had the opportunity to get a vaccine and that is understanding financial restraints, logistical restraints, all of that. So we're now in late summer, let's say. So not just when it's sort of like, look, if you're really on top of your stuff, you maybe can get in line to get a vaccine. Like, nope. Everyone has truly had a reasonable opportunity to get a vaccine. Okay. Why at that point do you as a restaurant owner care whether people have a vaccine to enter your

restaurant? Isn't it just sort of at their own risk at that point? Whereas right now, for instance, each of us is endangering someone else. And that is a huge problem. That's why we have mask mandates. Right. You're not simply endangering yourself. Once the vaccine has been available, made available to everyone,

you're only endangering yourself by choosing not to get it, right? Not entirely. Not entirely. Not entirely. So the vaccine is mostly effective. It is not entirely effective. It's more effective, apparently, according to the trials, than the flu vaccine.

It seems to have more preventative effect than the flu vaccine, but some of the indications are that it is least protective against severe disease. Now, again, a lot of this stuff is in flux. And so, you know, there's no such thing as a riskless environment. Sure. riskless environment. Sure. But if the vaccine is available,

I mean, what if an employer said, okay, or a business establishment said, proof of vaccine or wear a mask? Yeah. Proof of vaccine or wear a mask. You know, people would get ticked off about that. But I think we're going to see some of these kinds of complaints. But I think a lot of it is going to be, is going to melt away perhaps in these employer mandates combined with school mandates.

We're all used to school mandates. We're used to employer mandates with background normal, you know, the pre-COVID vaccinations. They're relatively uncontroversial outside of dedicated anti-vaxxer communities. relatively uncontroversial outside of dedicated anti-vaxxer communities. I'm hopeful this will become, I've been predicting a vaccine culture war for a while, but I'm hopeful that people are at long last so shocked by the loss of life and so weary of the restrictions that the vaccine culture world will not materialize as much as I fear that it might. But we'll see. But the bottom line is under existing law, your employer mandate for a vaccine is almost certainly going to be upheld. The question is, is how long will existing law last? All right. David, I got some mailbag to go through. Yes, let's do it. So if you remember, we talked about the difference between original jurisdiction and that Justice Thomas dissent,

how that applied to the Texas case and their statement on the denial of original denial of permission to review under original jurisdiction. And I said that there was this pretty good textual argument because the constitution says in all cases in which a state shall be party, the Supreme court shall have original jurisdiction. And I said that I might fall with Thomas and Alito on that. And you said you felt quite comfortable with the seven who did not fall under with them, that the original jurisdiction was mandatory. I got an email from a 3L. And I got to tell you, if this had been an exam, I would give this student an A plus or at Harvard and Yale, a high pass smiley face.

So I need to read some of this. I can't read all of it because it's too long, but, uh, K E you know who you are. And I just thought you did such a good job. There are citations included you guys. He even got the little section symbol in everywhere. He uses italics. It is blue booked. I'm telling you, this is the best law school exam email in our mailbox we've ever seen. So he says, I agree with you that this is a textually clear rule that SCOTUS shall have original jurisdiction over interstate suits, but I think you are conflating original jurisdiction with mandatory jurisdiction. The same section of Article 3 says that in all other cases before mentioned, the Supreme Court

shall have appellate jurisdiction. The grammar of the two clauses is exactly the same. In X type of case, the Supreme Court shall have Y type of jurisdiction. Surely you do not think that the Supreme Court is required to take every case over which it has appellate jurisdiction. So what is the difference between the two? He goes on to discuss Justice Thomas's dissent, calling it, his constitutional arguments, question begging applesauce. This is clearly a Scalia fan that we have here. I think, K.E., correct me if I'm wrong about your Scalia fandom. But anyone who uses applesauce, I have to assume.

And his statutory arguments only muddy the water by conflating constitutional rules with statutory ones. He goes through all of the dissent. It ends with, moreover, I think that Justice Thomas is wrong to say that equitable principles counsel towards an automatic exercise of original jurisdiction over interstate cases. Remember, the original jurisdiction grant was over all cases in which a state shall be a party, but a dispute must still therefore demonstrate a justiciable case or controversy under Article 3. Where it is facially clear from a state's motion

for leave to file a bill of complaint that the dispute does not present a justiciable case or controversy, as was true in Texas v. Pennsylvania, I see no inequity in denying the motion. And if it is even possible that equity does not require granting the motion, then equity cannot dictate that the court always grants such motions. Thus, the Constitution does not confirm mandatory jurisdiction in every case over which the Supreme Court has original jurisdiction, even exclusive original jurisdiction, QED. I swear to you, he wrote QED.

You know, as I listened to that, I just have one response. No lie detected. I'm right. I was wrong about Tuberville. I was wrong about a senator and a representative from the same state. But I'll own that victory. I'm not going to spike the football, Sarah, because I just had to confess to two errors in the same podcast. So I'll just hand the football to the ref like I've been there before. But I don't know. Are you persuaded? Are you persuaded? He raises some arguments that I want to go spend some time with about Cohen v. Virginia and some others.

But I am certainly persuaded that my glibness was incorrect, if that makes sense. Like, I was wrong to think I was right based on what I was saying. How about that? Yeah, that makes sense. That makes sense.

So do we have more mailbag or should we move on to our Vanderbilt kicker? We have one more piece of mail. It's from, I have a question from the last episode of Magnum. A woman goes to jail for murdering her husband but he actually faked his death she gets out after 16 years tracks him down and kills him on the show they claim she can't be tried for the real murder because of double jeopardy and david of course um this person is talking about magnum i assume this is magnum pi you think i'm not totally sure. I don't know. I've never seen whatever episode this is, but there is a 1999 movie called Double Jeopardy with Ashley Judd and Tommy Lee Jones.

And yes, it is about a woman wrongfully imprisoned for murder. And while alluding her parole officer, Tommy Lee Jones, tracks down her husband who framed her. I won't ruin it for anyone who hasn't had the opportunity to see it yet in the last 21 years. Okay. So the whole concept of this is right. You went to jail for murdering Bob, your crappy husband, but you didn't murder Bob. Bob, your crappy husband, but you didn't murder Bob. So then when you get out, you can go murder Bob because double jeopardy says that you can't go to jail for the same crime twice. Right, David? Wrong. Wrong. That is wrong. Do not murder people that you've already gone to jail for thinking that you can't go to jail again. The Fifth Amendment to the Constitution prohibits anyone from being prosecuted twice for substantially the same crime. What it says is no person shall be subject for the same offense

to be twice put in jeopardy of life or limb. But same offense does not just mean murdering Bob, unfortunately for Ashley Judd or any of you considering such a crime. The same offense is pretty specific. It is substantially the same. There are some cases about this, the same. There are some cases about this, but in this case, you know, she was convicted of murdering Bob on, you know, Tuesday using a candlestick or whatever. Right. So if it turns out Bob wasn't murdered, that's a super bummer. And if there was something wrong with your trial or the prosecution framed you, you may have some civil remedies unfortunately one of your remedies is not to then go murder bob 20 years later on a wednesday with what else do they use in clue i feel like candlesticks the only one i remember but 12 gauge with a hatchet

a wood chipper as they did in right yeah the Fargo. Yeah. The offense would be in a fake murder one would be so, you know, on January 3rd with an ice pick, the defendant did blah, blah, blah. And then the next one would be on January 3rd with a 12 gauge, the defendant did. And they're different offenses. So it's a fun question though. It's definitely a fun question. It is. And it made for a great movie.

I mean, just mostly Tommy Lee Jones is a vision. I think it was a little too close to his roles in my favorite, of course, which is the fugitive. I mean, Tommy Lee Jones is at his very best in The Fugitive and even pretty good in the sequel, U.S. Marshals. But it was definitely a string in the 90s

where Tommy Lee Jones could only play the law. Yeah. You got to a point where you felt like Tommy Lee Jones is playing Tommy Lee Jones. Yeah. And not just the law, but like the law, but maybe a good guy, you know? Yeah, yeah.

But I've seen him in other stuff since that sort of wave of the fugitive. And he's got a range beyond relentless U.S. Marshal. Tommy Lee Jones is fabulous. He just is. Let's take a moment and thank our sponsor, ExpressVPN.

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That's E-X-P-R-E-S-S-V-P-N dot com slash opinions. Visit expressvpn.com slash opinions to learn more. All right, so let's talk Vanderbilt kicker. We can table the vote suppression versus vote fraud conversation because that's a bigger conversation and we're already kind of pushing an hour here. I agree.

And the reason why I'm bringing this up is because I've seen online and actually in real life, a lot of like angry argument over Sarah Fuller. So Sarah Fuller is a Vanderbilt kicker. I should say was a Vanderbilt kicker because her kicking career is now over. She was brought into sort of emergency use

because Vanderbilt was out of kickers. It didn't have any kickers. And so she played in two games. She kind of had a squib kick on a kickoff and Vanderbilt is so bad that in game one, she never had an opportunity to kick an extra point. Game two, she does kick an extra point. Now, she also won Vanderbilt SEC specialty she was named co SEC special teams player of the week she was the first woman to play in a power five college football

game power five again or the P5 those are the big conferences Vanderbilt believe it or not most of us can't believe it typically is in the SEC and so it created one of these sort of culture war moments. And it was kind of going in two directions. One, you had kind of your right-wing culture warriors going,

can you believe the woke people at Vanderbilt and this ridiculous stunt, and it made them all very mad because they knew that there were other, there were almost certainly other men on campus. They could have held an open tryout. Somebody else could kick farther than her. Can you believe this?

This was a woke stunt. I'm so mad about it. And then on the other side, there were people who were like, look at this amazing, super awesome moment. And we're going to give her an accol mean, it was kind of a small thing, but it reminds me of how we sort of have this minority of people who feed off of each other, who are driving an enormous amount of our culture war. And it reminded me, and we were talking in the green room of a book I read several years ago called End of Discussion by Guy Benson and Mary Catherine Hamm. And they were talking about attacks on the culture of free speech. And this is years ago, well before the rise of Trump, I believe even maybe around the 2012 election. I can't remember exactly. reviewing it for a national review and there was a part of their book that stood out to me and I've

remembered it to this day and they called for something they called the chill the hell out coalition that there's just needs to be a coalition of people who are saying can we just calm down a little bit just calm down on the one hand the sign that Sarah Fuller kicked an extra point is not that the woke mobs are coming after football. On the other hand, the fact that Sarah Fuller kicked an extra point is not some momentous breakthrough. It's just kind of an interesting story for a day. That's it. Can we chill out and so anyway those are those were my thoughts after after seeing this little mini tempest we need to get the chill the

hell out coalition activated so I so okay if you're taking let's call it the midpoint between the two culture warriors were sides and taking the chill the hell out I feel like I'm more in the, um, plus or minus two on a scale of 100. Okay.

Chill out, which is this a, I think, I think it's cooler than you do that a, um, woman for the first time played in collegiate football. I'm not saying she's Jackie Robinson. Right.

I'm just saying, I think it's cooler than I think you think it is. I think it's pretty cool. Okay. Two, though, my objection, by the way, this idea that like, oh, they could have found some man who could kick further.

Maybe, but I'm not going to take their word for it because I remember, you know, we had these fights in the 80s, right? Of like, any man could beat some tennis, female tennis player and blah, blah, blah. Like I'd like to see you beat Serena Williams. Um, so I think she's a pretty good kicker, but my complaint, I guess, is with the football team where, yeah. Okay. So in the first game, she didn't actually do any of the other kicks. That wasn't anyone's fault.

Great. But in this game, they did have her kick the extra point, but they didn't have her kick the field goal that was also an option. Now, mind you, Vanderbilt, by the way, had no chance of winning this game. None whatsoever, as they never do.

So it wasn't like, oh, the game on the line, you know, this is important to a lot of these kids' careers and stuff. We couldn't take the chance. So why didn't they let her kick the field goal? Because my guess is they didn't want to see her miss the field goal. Right. That's what I object to. If you're going to have her there and we're all

going to like celebrate this cool moment, which I very much want to do, and you're going to have her kick the extra point, then you also need to have the risk that she kicks the field goal and misses. And by the way, maybe she doesn't miss. And that would have been really awesome. But by not letting her do that, but then also giving her, um, you know, sec special teams, whatever of the week,

that's the lie, if you will. Yeah. They pinned in her risk because they were trying to protect an image instead of actually celebrating what it was and to massively oversimplify the Jackie Robinson example and why that is this moment in history that I think is one of the most inspiring stories in the United States. It's not that for the first time a Black person took the field in baseball.

It's that Jackie Robinson was flipping awesome at every step of the way he disproved the bigots yeah and that only exists because he was given the opportunity to fail as well and he put in the time and he didn't fail and over and over and over again the bigots had to contend with the fact that Jackie Robinson was effing awesome. Yeah. And that's my complaint about what's happening now on both sides of this culture war

is that we're not having a real discussion because we're not even having real moments. No. No. I mean, and the rule seems to be if the wokesters are happy,

I'm mad. Okay? So that's the rule. If the wokesters are happy, I'm mad. Okay. So that's the rule. If the wokesters are happy, I'm mad. And then part of the rule is if something happens that makes the wokesters happy, then fellow wokesters have to write think pieces that are faintly ridiculous, sort of rounding this whole thing out and amplifying this moment. To be fair, I have not seen people compare her to Jackie Robinson, but I have seen things like people say kicking an extra point is easy. It is not easy. Okay, it's not easy for me. I will grant that. P5 football and you're missing extra points, your name is mud. You're off the team. I mean, this is like baseline, baseline, minimal qualification for a Division I kicker is to make the freaking extra points. So spare me the, oh, this is a lot harder than you think it is.

But the bottom line is, I don't really care. I don't really care. There's that. Yeah. Yeah. And so it's like, and here's where I think that we have a problem. And because we've talked about this a lot about polarization and all of this is, and in politics, what we have seen is that all of the conversation or vast majority of the conversation is driven by highly motivated people on both ends of the spectrum. The political hobbyists, the people are just super motivated. And these people tend to be angry.

They tend to have more time on their hands and more wealth on their hands than the average person. And they're really driving the bus. than the average person. And they're really driving the bus. And the people who are driving the bus right now are engaging in these kinds of culture wars day after day after day after day. And it's enhancing all of this polarization. And then there's this other group of people.

And what, you know, the More in Common project that really identified this calls them the exhausted majority. So what ends up happening is you have a larger group of people than the ones who are driving the culture war who are sick of the culture war but they don't exert their majority status to say chill the hell out they just kind of retreat and they leave the field to the people who are like really going at it hammer and tongs and i think that that's one of the reasons why everything just feels toxic all the time

is that that chill-out coalition just shuts up. It just sort of... It just retreats. I just don't want to deal with this. And so it just leaves everything to the people who are, you know, fighting the woke versus the anti-woke.

It seems like there is no middle ground when there actually is a whole lot of, there is a big middle ground. They're just not exerting themselves as the middle ground. And like the chill-out coalition that we are, we also are going to leave this.

Yeah. Good for her. I'm glad she kicked her extra point. You know? Good for her. I'm glad she kicked her extra point. Good for her. Okay. Football's still the same. Nothing really changed. It was a nice story for her. you know a nice story for her Vanderbilt football is Chernobyl okay next story next thing all right well Sarah

I think we're probably going to only do one podcast next week I know unless I'm wrong unless my math is wrong that the next normal AO taping would be Christmas Eve and I don't know about you but I don't see a need taping would be Christmas Eve. And I don't know about you, but I don't see a need for legal analysis on Christmas Eve. Do you?

Well, there's always Miracle on 34th Street, but that has already been adjudicated. So it probably doesn't need us. That's true. That's true. And if you don't know what we're talking about, we'll include a link to Miracle on 34th Street in the show notes. If you don't know what we're talking about, we'll include a link to Miracle on 34th Street in the show notes. If you don't know what we're talking about, I'm concerned. That movie is on loop on television like all day. Look, we can't assume the younger generations know all of the references. Here's a sobering note that fame is fleeting.

I was driving my son to school when he was a young middle schooler. So this is sixth grade. And I said something about Bono. And he said, who's Bono? And I thought, wow, flame is feeding, fleeting. So, hey, there could be like a young 1L or a sophomore in college listening to this and they've never heard of Miracle on 34th Street

and that the existence of Santa has been adjudicated. So, yeah, we'll include that in the show notes. But we will see you on Monday. And as always, please rate us on Apple Podcasts and please subscribe to our feed. And as always, please check out thedispatch.com. We are ending a calendar year 2020 where I cannot tell you how grateful we are

for the response to the dispatch. It isn't just that we have so many more people reading us than we projected. And we did some conservative planning, but we've just blown through all of our projections about how many people are reading us, how many people have subscribed, both on our what we call the free list and fully paid members. But we're also blown away by the community of dispatch members that exists. Whether it's in the comment section, the unofficial renegade pirate ship discord chat that

is going on in a day-to-day basis, the emails that we get. So I am ending this year very thankful for this dispatch community. And if you're not a part of it, I would urge you to go to the dispatch.com

and check it out. Ditto times a hundred, all the hand, high-fiving a thousand angels. Yeah. Exactly. Exactly. So thank you for listening as always.

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