Advisory Opinions - New Day for Pandemic Law

Episode Date: November 30, 2020

Over Thanksgiving break, the Supreme Court struck down New York Gov. Andrew Cuomo’s strict coronavirus related occupancy limits to 10 or 25 worshipers in churches and synagogues located in orange and red zones in the state. In a 5-4 per curiam decision, the majority sided with Roman Catholic Diocese of Brooklyn and Agudath Israel, who argued that Cuomo’s COVID-19 regulations treated houses of worship differently from comparable secular institutions, especially considering the religious plaintiffs in question went above and beyond in preventing COVID-19 outbreaks within their doors. “From the standpoint of the plaintiffs,” David argues, “it’s sort of a double whammy of good facts. One, expressions of animus from public officials and hypocrisy from public officials. And two, they’re coming to the court with clean hands.” Later in the episode, David and Sarah also dive into a host of abortion related lawsuits and the U.S. census case before ending with some thoughts on election litigation. Show Notes: -Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, Jacobson v. Massachusetts, South Bay United Pentecostal Church v. Newsom. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Conditions apply. Offer ends June 3rd, 2024. Visit TDAeroplan.com for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast, the first podcast into our emergency pod one week ago today. And the first work I've done in days, Sarah, days. We actually took Thanksgiving off. Good for us. Yes. Yes. We were just talking in the green room before recording that this was the first Sunday that there was no Sunday newsletter since October of 2019. So that's how committed I was to time off. And it was hard to get going this morning, except the knowledge that, Sarah, this

may come as some surprise to you. It will not come as a surprise to the listeners, but this might be the most powerful podcast in America. Why do you say that, David? Well, I mean, let's look at the empirical evidence. So we've had a lot of discussion on this podcast, for example, of the concept of don't dump Trump, but don't burn down the whole GOP, right? We've had that kind of conversation and that's what's happened. Now, I would say that that's probably unrelated to the podcast, that that's a little much to assume that the listenership executed on that plan to perfection and at scale. But then, you know, we've been talking a lot about this whole concept of pandemic law and that is it now time in the course of this pandemic for the court to apply conventional levels of legal scrutiny to constitutional claims? We've been talking about that. We've been talking about that. We've been writing about that. And what happened? The court just had a decision, 5-4, really kind of

5-3-1, that applied normal levels of constitutional scrutiny to a key constitutional claim in the middle of a pandemic involving a churches and synagogue in New York. And there's only one logical conclusion here. And that is lots of people are taking their cues from this podcast. We should dive into that case. That is, I mean, we did not do an emergency podcast, but we could have. Oh yeah, we could have. Yeah. So let's map out what we're going to do today. We are not going to focus that much at all on election litigation. I think we've reserved, what, three sentences for election litigation at the very end of this podcast? Pretty much.

Yeah. So we're not going to talk about election litigation. Honestly, there's not much to talk about in that regard. But what we are going to talk about is some really important Supreme Court stuff. We're going to talk about religious liberty case decided last week involving, as I just said, churches and synagogues in New York. We're going to talk about a battery of abortion-related cases that could confront the court with the decision sooner rather than later as to whether it is, in fact, going to directly address Roe. We're also going to talk about a really interesting census case that is being argued today, although our most frequent podcast guest has given us intel as he's listening to the oral argument that it's not that exciting so far. Nothing unexpected, I think. Nothing, okay, nothing unexpected. And we're going to wind up with just a few words on election litigation. So let's start with the big one.

This is this is one that caused debate, discussion, consternation, argument across the Internet, even in the midst of Thanksgiving festivities. And this was a Supreme Court decision striking down very, very strict, or at least enjoining, not striking down, enjoining very, very strict occupancy limits or attendance limits on church and synagogues in so-called orange and red zones in New York. And these were restrictions that limited attendance at worship services to 25 people or 15 people, regardless of the size of, or 10 people and 25 people, I'm sorry, 10 people and 25 people, people and 25 people, I'm sorry, 10 people and 25 people, regardless of the size of the church,

if the church or synagogue was in what's called an orange or red zone, sort of based on spread of the coronavirus. And what was notable about this case is that it's a per curiam decision per curiam essentially means there's it's not authored by any single specific judge justice. It was a per curiam decision with a couple of notable concurrences and the per curiam decision. What was important about this per curiam decision is it just applied normal constitutional scrutiny to this regulation it applied nor a standard precedent to this uh regulation and essentially said because they were not treating there was uh many other activities that were not that were similar that were not um had that did not have, in commercial activities, that did not have the same restrictions, that because the churches were not treated equivalently to other institutions and activities, strict scrutiny was going to be applied to this regulation. And strict scrutiny is, as we have said many times, what is it? Strict in theory, fatal in fact.

It could not withstand strict scrutiny. Before we sort of dive into it all, Sarah, your first blush thoughts. Well, there's a lot more if you pull back the curtain on this case than the merits. But I think we should save that because that goes to more... Oh, there's stuff there. There's stuff there. So just let's stay on the merits for a little bit

before we dive into the shenanigans. Something we knew would occur was that the deference, the pandemic deference, let's call it, was going to fade away. Yeah. And we saw it fading, and this is now faded. It is over.

Yes. Is that because the pandemic has taken so long? Is it because you now have Amy Coney Barrett on the court? I think you could argue both, right? The pandemic has taken longer. We saw it fading before she joined the court. Right. The pandemic has taken longer. We saw it fading before she joined the court. However, as you said, this was a I think it is accurate to call it a 5-3-1 opinion. I think we're going to see a lot of those because the chief will not join with the reasoning in the

dissent of the liberals, but he will nevertheless be dissenting. But let's call it a 5-4. Because of that, Amy Coney Barrett's opinion is really important. There's a little bit of a, you don't know how it would have come out if the chief had been the swing vote. Don't assume that because he's the dissent, he would have been a dissenter if he had been the swing vote. So, obviously, her vote is, though, important in terms of the reasoning that then the majority could have in this case and just how faded pandemic law is. Yes. And there's also, and you know, I,

I take what some of the criticism was on this opinion on the merits that they're then second guessing these elected officials over analogies basically so uh the court is saying the majority is saying that you don't compare churches to other not other restricted entities like movie theaters and say churches are similar to movie theaters, then in fact, you have to compare them to non-restricted entities. And why is that? Because the question is not, are there other sort of arbitrary restrictions? But if other things are free and open, why shouldn't churches be? They should always be in the sort of most protected class. why shouldn't churches be? They should always be in the sort of most protected class. And so in this case, they're comparing it to what getting your bike fixed.

Acupuncture. Acupuncture. The acupuncture one was strange. Let's set aside acupuncture for a second. But a bunch of the criticism of this has come that like, yes, but when you go to get your bike fixed, you don't sit there for an hour and, you know, sing and hang out together. It is not for the purpose of communing with other people. It is for the purpose, you walk in, you drop your bike off, you pay for it, you walk out with a mask. And that you can argue whether that's safe or not safe, but that's not up to justices to decide. The only question is whether it is substantially different when it comes to this virus than a church or synagogue attendance. David, I totally understand where

the majority came out on this, and I understand why, and I think they have very good arguments. they have very good arguments. But I am somewhat sympathetic to the argument that they're saying that churches are the same as and should be therefore as protected as a bike shop. No, they're not the same. It's not the same in terms of what this virus we think does. And we're not totally sure still, which is, by the way, incredibly frustrating. But should there still be some deference to folks that are elected to decide which things are similar to other things? There's certainly an argument that, yes, there should be. The problem, I think, is that the justices, as we have said before, are humans like us. And they have seen the hypocrisy and they have seen the hypocrisy, and they have seen the animus towards religion, and that that is driving some of this decision-making, which is

an extra-legal factor here. Whether Gavin Newsom went to the French Laundry is not actually part of strict scrutiny, but it goes to this deference issue. You're deferring to them if they have either a closeness to the electorate or an expertise. And I think the justices are saying, like, look, we were sort of deferring to you because you said you were relying on experts. But clearly, you're both making this stuff up and you're making it up with a thumb on the scale against religion because you just happen to think it's not very important. Yeah, so there's this really interesting part of the opinion. So I think there's a couple of things.

We've long talked about bad facts make bad law. Well, if you're litigating before the Supreme Court, good facts can make good law. From the standpoint of a plaintiff, there's a couple aspects here where there are good facts can make good law here from the standpoint of a plaintiff there's a couple aspects here that where there are good facts for you as a plaintiff that are making good law for religious liberty and in and one of them is that you absolutely put your finger on sarah and that was that there's this illusion in the per curiam opinion to the anti-religious animus perceived, or perhaps anti-religious bias. And it says, citing a variety of remarks made by the governor, and I'm going to butcher the pronunciation of the synagogue,

Agudath Israel argues that the governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Huh. And then there's this next part that says, and they tell us, both the diocese and Agudath Israel maintain that the regulation street houses of worship much more harshly than comparable secular facilities. And then here's the next part. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25 or 33% capacity for months without a single outbreak. four months without a single outbreak. So this goes back actually to previous cases involving churches that have kind of fallen along a couple of lines. One is what you're seeing in a big church in California where they're challenging LA's regulations and they're not social distancing at all. They're walking in, acting like the coronavirus isn't a thing, doing all their normal stuff and challenging the regulations. That's not this case.

That's not this case at all. Here you have churches and synagogues that are applying public health guidance, and they have done it successfully, gone above and beyond, and have had no outbreaks, and are now having the clamps put on them. And I think that that's a situation where, from the standpoint of the plaintiffs, they have sort of a double whammy of good facts. One, expressions of animus from public officials and hypocrisy from public officials. And two, they're coming to the court with clean hands. They're not being irresponsible. And there are other religious institutions that are being irresponsible, by the way, but not these guys. And so they've been responsible. Public officials have been irresponsible. And that presents the

court with like, if you're a plaintiff, that's the dream case that you're walking into. You can say, we're the good guys taking on the bad guys, and we've gone above and beyond to protect our congregants and public health, and we're still being punished. And I think that was part of the background of this. I think it would have come out differently if you'd had people sailing into court, sort of hosting potential super spreaders every Saturday or Sunday when there's no distancing and no masking, et cetera, et cetera. I think that this is an example of good facts make good law and attorneys choosing a very good case to take to court.

Yeah. I mean, you had the rabbi saying that the drawing of the lines was anti-Semitic, that he drew the lines intentionally around Jewish majority communities. Yeah. Which has a bit of a history, David. Yes. It's not great. No. That doesn't look good. Um, but okay. So that's sort of the merits of the decision, but let's dive into the next level here. One, one, um, South Bay, which was that sort of initial pandemic law case, David South Bay's dead. South Bay lived a short life. It's over. So that is at best cabined to its facts and more likely just directly overturned by this.

It relied, well, depending on who you ask, it may have relied on a case called Jacobson. And that also has now been dead lettered. Yep. Okay. So. And that's where, by the way, this podcast is so powerful, Sarah. Because we have piled on Jacobson before the Supreme Court did. But anyway, proceed. Okay. Do you want to remind everyone about Jacobson? Yeah. Jacobson versus Massachusetts is a case that from 1905, it predates a lot of modern First Amendment jurisprudence. But it is a case, one of the few cases in Supreme Court jurisprudence directly addressing pandemics. And it was involving a mandatory smallpox inoculation in the midst of a smallpox outbreak in Massachusetts. And the court held that the mandatory inoculations were

valid and lawful. And there's a lot of argument about what Jacobson meant, but it appeared to be interpreted in the course of this pandemic as sort of saying, wait a minute, when a pandemic is, when you're in the midst of a pandemic, there's going to be a high degree of deference to public health officials. And we all knew that if that was sort of the interpretation of Jacobson, that Jacobson would fade at some point, that this sort of deference that some folks on the court seem to be applying to public health determinations under this case was going to fade, that that kind of discretion was going to go away. And as we learned more about the virus, and that appears to be what's

happening, and now we're into the phase of sniping back and forth about what Jacobson really meant. And now we're into the phase of sniping back and forth about what Jacobson really meant. And then South Bay, of course, is the case in California against Newsom, which held that church services could not exceed 25% or 100 worshipers, whichever was fewer. And that was upheld with the Chief Justice. That leads us to how this opinion came out aside from the per curiam. Yeah. You have Gorsuch writing a concurrence all alone, which is interesting, in which he pretty much just takes it to the chief. It's like Amy Coney Barrett joined the court.

The chief was no longer the swing vote. And Gorsuch was like, let me tell you what I think about you for reals, though. He calls it out by name a couple times, a little name checking.

And the fun little tidbit, David, if you are referring to a former justice's opinion in a Supreme Court opinion, it's in regular case, the font, whatever. If it is a current justice on the court, it's in all caps or small caps, whatever you want to call it. It stands out is my point. So the chief justice appears in all small caps a couple of times and you like it pops out of the page. Yes. So here's a sentence. Not only did the South Bay concurrence address different circumstances than we now face, that opinion was mistaken from the start.

And then it goes on paragraph after paragraph, just ripping the South Bay opinion apart, mostly on the Jacobson front. And then, tellingly, no justice now disputes any of these points, nor does any justice seek to explain why anything other than our usual constitutional standards should apply during the current pandemic. In fact, today,

the author of the South Bay concurrence even downplays the relevance of Jacobson for cases like the one before us. All this is surely a welcoming development, but it would require a serious rewriting of history to suggest, as the chief justice does, that the South Bay concurrence never really relied in significant measure on Jacobson. That was the first case South Bay cited on the substantive legal question before the court. It was the only case cited involving a pandemic, and many lower courts, quite understandably, read its invocation as inviting them to slacken their enforcement of constitutional liberties while COVID lingers. Sarah, we're on such the same wavelength that I had highlighted that exact same portion

of the population and tell the people what's really going on right there because that's spicy. Oh, yeah. Like, the chief isn't the swing vote anymore

and they don't have to be nice to him, which I think is a dangerous game. I got to tell you. Mm-hmm. Let's go back real quick to Casey. Remember that decision, David? This is the undue burden on abortion standard that comes after Roe.

And according to books, obviously I wasn't there. According to books, Kennedy was originally in what turns out to be the dissent, which would have been the majority, to overturn Roe v. Wade. Right. And then he flips and he joins O'Connor and Breyer

creating this undue burden standard. And so, by the way, the Casey opinion's odd because it's authored by all three of them, Breyer, O'Connor and Kennedy. So you can just tell from the start that weird things were happening in the court. And so Scalia writes this dissent that just lights Kennedy on fire. It is it was read as deeply personal.

Now, I want to be clear, if you go read the Casey dissent by Scalia, I'm not sure you're going to read it as deeply personal, but it was taken as deeply personal. Now, I want to be clear. If you go read the Casey dissent by Scalia, I'm not sure you're going to read it as deeply personal, but it was taken as deeply personal. Kennedy and Scalia, from that point forward, the relationship was not particularly mended. And what happens, David? Kennedy becomes the swing vote on the court for 20 years. Yeah.

And so Scalia has no power of persuasion over the swing vote because he blew him out of the water over Casey. Now, you could argue that maybe Casey was worth it. That was such an important opinion to Justice Scalia, to the court, to jurisprudence, that you know what? Who cares?

Damn the torpedoes. Blow him out of the water. I don't think that this is that case. And I just would have perhaps noted that the chief justice is going to be on the court a very long time. Justice Gorsuch is going to be on the court a very long time. But there are some other people who might not be. And the chief could very easily become the swing vote again in the next four years. And so this, to me, seemed a bit unwise, perhaps,

to make it quite such a point-by-point takedown of the chief. And the reason that I especially think that is because nobody joined him. Kavanaugh wrote a separate concurrence. It was very mild. Very mild and really just, you know, for instance, for those reasons, I agree with the chief justice that New York's numerical capacity limits

of 10 and 25 people seem unduly restrictive and that it may well be that such restrictions violate the free exercise clause. I part ways with the chief justice on a narrow procedural point regarding the timing of the injunctions. The chief justice would not issue injunctions at this time. As he notes, the state made a change in designations a few days ago, and now none of the churches and synagogues who are applicants in these cases are located in the red or orange zones. As I understand it, the chief justice would not issue an injunction unless and until a house of worship

applies for an injunction and is still in a red or orange zone on the day that the injunction is finally issued. But the state has not withdrawn or amended the relevant executive order, etc., etc. I therefore see no jurisdictional or procedural barriers to issuing the injunctions now. I therefore see no jurisdictional or procedural barriers to issuing the injunctions now. I mean, that's someone who thinks the chief is going to be a swing vote either now or in the near term future. Oh, and can I make another projection? That's somebody who's going to be a swing vote with the chief. True, true.

Good point. Yeah, so you have this Gorsuch opinion that is, I mean, we called Alito spicy in the previous term. When we say spicy, we're now going to have to say who. I know. Because that was. Well, you can just. The frustration with the chief here is showing. Yeah.

They're very frustrated with him. They're watching someone who was a reliable vote on the right move to the left. Not in a suitor way. Not for the same reasons a suitor.

Not to the extent of suitor. But they're just so frustrated that he, they think, is being political. They think he's being institutional. And they thought they were

on the same page it's why they're not frustrated with uh kagan or sotomayor but they're so frustrated with the chief and it's showing in their writing yeah yeah i mean i i interpreted it as almost like you have it when you have the gorsuch opinion then in in the cavanaugh opinion and the chief's opinion, like Kavanaugh's in the middle. And he's like holding back Gorsuch going, I'm with you on this man, but you're getting the chief all wrong. You're getting them all wrong. And then what was interesting to me about Justice Roberts' dissent, where it seems to be, he was like, I'm with you on the merits, but I just think that now is not the time because the governor had lifted the restrictions. And he says this very interesting thing. Aha, here it is. To be clear, I do not regard my

dissenting colleagues as, quote, cutting the Constitution loose during a pandemic, yielding to a, quote, particular judicial impulse to stay out of the way in times of crisis, or sheltering in place when the Constitution is under attack. That's quoting Gorsuch. They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the constitution so that is justice roberts saying to gorsuch chill out yep chill out and a little uh a little bit of like patronizing in like a you know okay we yes we hear you're frustrated do you need a nap okay why don't i think you need to go take a nap.

Maybe this is me projecting baby time, but my baby desperately needed a nap today and that's sort of how I sounded talking to him. And then here's the other part. The concurrent spec, because he then goes back to defend the citation of Jacobson. And he says, and then the sentence, what did our one sentence say he talks about jay that but

while jacobson occupies three pages of today's concurrence it warranted exactly one sentence in south bay what did the one sentence say only that quote our constitution principle principally entrusts the safety and the health of the people to the politically accountable officials of the states to guard and protect. It is not clear which part of this lone quotation today's concurrence finds so disconfitting. The concurrence speculates that there is so much more to the sentence than meets the eye, invoking among other interpretive tools, the new first case cited rule. But the actual proposition asserted should be uncontroversial and the concurrence must reach beyond the words themselves to find the target it is looking for.

Huh. Yeah, that's the end of the Gorsuch-Chief relationship there. You just watched it wither on the vine, turn brown, fall off the vine, on the sidewalk, and get crunched under some feet. You know, it's so funny because we live in a world that is used to interpreting Trump tweets. Yeah. Where there's actually no interpretation necessary.

They're just, they say what they mean and often in all caps. There's interpretation necessary here. And this was what I would almost call the Trump tweets version of a judicial opinion. I mean, look, the chief being sarcastic, the new first case cited rule. I mean, that's funny. It's a joke. Like, it's meant to be a joke. It's meant to be a joke. It's meant to be funny.

It's meant to be sarcastic, but you don't get a lot of snark in Supreme Court opinions, usually. Yeah, usually. Especially, you don't get as much snark. Now, you might get the blistering Kagan dissent, right? But the snark amongst friendlies, that's what's really interesting here to me.

And they're not friendlies anymore, I would say. So to break this down, you have the per curiam majority saying that, no, you can't have this 10 or 20 people red zone or orange zone situation out. You have Gorsuch talking about levels of scrutiny that need to be applied, that pandemic laws over, that South Bay is dead, that Jacobson is deader than dead if it was ever alive. You have Kavanaugh saying, just discussing the timing, right? Do you need to wait until a party comes before you that is currently under unconstitutional pandemic law? Or does the fact that these things are

changing so quickly, is that enough? And he says, it's enough. This could change back again, so we need to move forward on this now. It's not fair to make these churches come in every other week, depending on whether there's been a surge in coronavirus outbreaks. You have the chief saying the opposite of Kavanaugh, which is, yes, I do think this is unconstitutional, but it's moot now, more or less, because the governor undid the orange red zone thing for these specific churches. We need to wait for a party to come to us who is under currently an unconstitutional pandemic rule.

And then you have the three dissenting opinions which say it's not an unconstitutional pandemic rule. It's a pandemic is basically what the dissent is saying. And it's like these three voices in the wilderness

that no one's spending much time on, including us, because until they have a potential fifth vote, they're basically just sitting there working together, row said you saw online over the weekend, which is essentially that the court is giving permission, special permission for churches to host super spreader events. No. Let's remember back to the start of this opinion. You were talking about entities that were coming before the court in a posture of masking, social distancing, and dramatic capacity limits. Correct. Limiting capacity to 25 or 33 percent. And even South Bay, remember, was 25 percent or 100 people. This, as the PC pointed out, was 10 people, which in the Orthodox Jewish tradition would mean that no women could attend.

was 10 people, which in the Orthodox Jewish tradition would mean that no women could attend. Right, right, right, exactly. And so this is not a anything goes for churches rule that is articulated here. And that has to be made very clear. And that has been, I think, misinterpreted. This is based on the facts of these litigants. And I think that's very, very important. And this was 25 to 33% capacity. This is masking. This is social distance. So this is not a situation like the big church in California, among many big churches that are just letting it all hang out. They're

going to lose. They're going to lose at the Supreme Court. If they're going to seek protection from masking and social distancing rules, they're going to lose. So because masking and social distancing rules, they will pass strict scrutiny. Yeah. And I think a version of South Bay, even though I've said South Bay is dead, South Bay is dead after this. But South Bay, like a zombie, can come back to life pretty easily. Another church with bad facts, as you said, David, who's like, we don't want to wear masks and we want to all be in here.

You'll just have another South Bay and you'll have Kavanaugh joining with Roberts, joining with the three to reanimate a version of South Bay. Yeah, I even wonder if you had churches, if a church comes and says, we're not social distancing, we're not masking, do they get a vote?

Like if they're not looking at, say, the attendance restrictions, but they're looking at the masking social distancing requirements, I don't know, do they get a single vote? Because the masking social distancing requirements, there's not going to be any real argument that there's any singling out of a religious institution there. Good point. So maybe I should use an example where there's still percentage attendance caps in a couple months and there's not percentage attendance caps at law firms or something like that. Right. Right. Exactly. Exactly. Let's take a moment and thank our sponsor, Headspace.

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go by the way? Did you ask about Rebelsis? Actually, I'm seeing my doctor later today. Did you say Rebelsis? My dad's been talking about Rebelsis. Rebelsis? Really? Yeah, he says it's a pill that's... Well, I'll definitely be asking my doctor if Rebelsis is right for me. Rebelsis. Ask your doctor or visit Rebelsis.ca. Order up for Rebelsis. All right, so should we move from one hot button issue to another? Ooh, the next hot button issue is a hot one. Hot, hot, hot, hot, hot.

All right, how do you want to start? Do you want to go fifth circuit first? Yeah. Because. Yeah. Yeah, yeah. No, I'm interested to hear your first blush take on this, Sarah. We have not talked about each other's takes on this.

But this case puzzles me. Oh, interesting. You're puzzled? I'm puzzled. So let's back up a little. If you remember from 2015, there were those videos that came out about Planned Parenthood undercover videos

about selling body parts from aborted fetuses. And this made a whole bunch of news. Uh, it was very controversial at the time. Um, David, I remember this because Carly Fiorina, who I was working for at the time,

made a pretty impassioned statement about these videos during the California debate that was at the Reagan library. I remember that. And not surprisingly, a lot of folks in the media took her to task for what they said was mischaracterizing the video. And this just plagued her in interviews because they would just assume that Planned Parenthood said these videos aren't true. And so they would just say, well, the videos aren't true. So how don't you regret citing them at a debate and stuff like that? And as things tend to happen, David,

fast forward to 2020. And as this opinion will note, Planned Parenthood does not dispute the contents of the video, does not say that they were edited. All the things that they have said publicly about those videos, they did not say in court. It's the exact same thing we've talked about in the election law context with the Trump campaign. I was just going to say that. It's exactly the same. Just because you say something at a press conference and a press release, you are not held to a standard

of having to say it before a judge. And so when we see these things in court and they're unwilling to testify under oath, to sign under penalty of perjury, that it was edited, that it wasn't true, that it's not accurate.

Whoa. So nobody has really noticed this case yet. It came out over Thanksgiving, as we discussed. This is the actual facts of the case are whether Texas can decertify these Planned Parenthood operations from receiving Medicaid funds. Because of the facts articulated, found out, or because of the facts discovered in those videos. Correct. That they're saying that means that they cannot, they're not a qualified provider. So what is qualified? For the state to provide that Planned Parenthood is not qualified to be a Medicaid provider,

they have to find that they are, quote, no longer capable of performing medical services in a professionally competent, safe, legal, and ethical manner. But David, this case comes up on kind of a weird interlocutory posture. Do you want to go into that real quick? Yeah. So there were two kinds of plaintiffs here. There were individual plaintiffs, people who wanted to receive medical services from Planned Parenthood, and then there were Planned Parenthood providers themselves. So you had two kind of different groups. You had the providers who were suing to block Texas's rule, and you had the individual plaintiffs. And that's how they're referred to in

this case. You had the providers, and they had the individual plaintiffs. And that's how they're referred to in this case. You had the providers and they had the individual plaintiffs. Now, what's weird is down at the district court, the district court judge who blocked Texas's rule says, and this is a quote, the court need not conclude all plaintiffs have a substantial likelihood of prevailing on the Medicaid Act claim for a preliminary injunction to issue. If plaintiffs satisfy the elements needed to show a substantial likelihood of success on the merits on the individual plaintiff's claim only, so long as the other factors are met, a preliminary injunction is appropriate. Accordingly, because this court holds that the individual plaintiffs have a right of action, it need not decide whether the provider plaintiffs also have such a right.

So, the district court granted the injunction on the basis of the claims of the individuals. It did not determine the claims of the providers. So, what came up to the Court of Appeals in this en banc decision was, did these individual plaintiffs have standing to make this challenge? Could they make this legal challenge? And the Fifth Circuit said, no, they do not have standing to make this challenge. But the providers might, but we're not deciding this so it's a weird case so the headlines are like fifth circuit allows uh defunding of planned parenthood uh well in in one sense yeah but in another sense maybe not and here's the really key part of the opinion.

It says, because the district court did not consider the provider's claims, no aspect of those claims is before us in this interlocutory appeal. Accordingly, we do not reach an issue addressed by Judge Higginson's, that's the district court's opinion, concurring in part and dissenting apart, which is whether the Medicaid agreements of the entities were properly terminated okay but let's get into one of the concurrences here because we don't i mean you and i don't need to talk about standing in 1983 standing it's sort of interesting there may be another time to talk about it. I don't think today's that day. But here's the concurrence. Now, as I mentioned, this is an en banc court. So all of the Fifth Circuit judges hear it. It was 16 for this one because two of them were not part of it. That

means there's 18 judges total. For this concurrence, there are seven judges on the concurrence. And I will just, you know, we can skip ahead on this part. The two judges who didn't join this time, who make up the 18, they would have joined this concurrence. So you have what I would consider nine judges voting for this concurrence when this case comes up again, which it will, out of 18. That's a tie, David. Yeah. And that means that the district court's opinion out of 18. That's a tie, David.

Yeah. And that means that the district court's opinion would hold. But anyway, let's continue. Because when you take a case en banc, you've vacated the panel opinion. So the panel opinion

of the appellate court disappears like it never happened. So if an en banc court ties, similar at the Supreme Court, if the Supreme Court ties, the appellate court's opinion is now holding decision. At the en banc court, because the panel opinion's gone, the district court opinion then holds. So this concurrence says, I concur in full with Chief Justice Owens' excellent majority opinion, standing blah, blah, blah, even without standing blah, blah, blah. Thus, the preliminary injunction entered in this case must be vacated. why the Supreme Court's spending clause opinion foreclose any contention that the Medicaid Act's

qualified provider provision confers such a private right, who cares, I also provide a third reason why the preliminary injunction must be vacated, colon, even if the qualified provider provision did confer a private federal right enforceable through 1983 to contest a state's qualification determination, the plaintiff's claims would fail on the merits. Fancy way of saying the state absolutely can decertify Planned Parenthood for Medicaid based on the competent, safe, yada, yada language. That's a big deal. That means that when this case comes back up, you've got nine votes for that. By the way, Owen, the one who wrote the majority opinion, isn't listed as one of those. She will be the swing vote on that.

Yeah, this is where, so opinion, the main opinion was sort of less to it than meets the eye in a sense. Yeah. In the sense that, you know, you had these big headlines and it's like, no, it was a standing decision that didn't even deal with the standing of a whole section of the plaintiffs. So that means you go back, you figure out that standing that's going to go up. This concurrence, on the other hand, hmm, interesting. If that is the ultimate outcome of this case in the Fifth Circuit, if, if, because you've broken down the numbers, if it is, well, then that's a really big deal? Because a huge amount of the public funding that Planned Parenthood gets is through state Medicaid, not just federal Medicaid dollars, state Medicaid dollars. And so that would open up the possibility of a lot of states that have a lot of red states to defund Planned Parenthood. So that's sort of the big deal aspect of this case. But I don't know, I'd say we're years from knowing that outcome. I mean, there's a reason that they wrote this concurrence and included it. A,

it may not go en banc. It may go straight to the Supreme Court. And so they want to sort of put their legal thoughts down on paper in case it doesn't. And two, you know, obviously this made a lot of news. And we'll make more as people discover what happened over Thanksgiving.

Yeah. And it talks about these videos, which has not been done before. And that's what I think, for me, was fascinating. As I said, what Planned Parenthood has said in press conferences is so different than what they have contested in court, which is to say they've contested nothing in court yet. Now, they could. There is a difference in that this was an interlocutory appeal, but oof.

Yeah. Yeah. Now, I'm very glad you brought that up because that is a very important aspect of this case, especially given the almost assumption, you know, the assumption that Planned Parenthood, that you heard in parts of the media that Planned Parenthood had exposed these videos as being doctored or wrong. And then when you get down to the brass tacks of court, not so much. So footnote eight, the plaintiffs, Planned Parenthood, the plaintiffs entered no evidence into the administrative record or the district court record indicating that the video was deceptively edited or otherwise unreliable. On appeal, the plaintiffs do not identify any evidence in the district court record showing that the videos are unreliable, and they admitted at oral argument that they provided no such evidence. And these videos, by the way, there's the part that was sort of famous that they were selling baby parts. That's actually not in particular the part that the court's

going to rely on here. The inspector general, the Texas inspector general relied on video footage showing the Planned Parenthood has permitted doctors involved in fetal tissue research to perform abortions to secure fetal tissue. That is against the rules. The doctor describing the video, the research director for Planned Parenthood Gulf Coast mentions a doctor who performed abortions and collected tissue for her own research. That director reports that the doctor would pick the abortion patients she wanted based on how beneficial that tissue would be for her own research. The doctor would then collect

her own specimens and quote, take it home with her in a cooler. Um, they, the same director stated that researchers connected to Planned Parenthood Gulf Coast have targeted specific fetal tissue in the past, and that Planned Parenthood Gulf Coast is willing to alter the abortion procedures to meet the needs of those researchers. In one part, she says they can, quote, get creative and alter a procedure to obtain a high volume of intact liver, thymus, and neural tissue. Hmm. Yeah. alter a procedure to obtain a high volume of intact liver thymus and neural tissue yeah yeah yeah those and these are the facts that plain parenthood is not contested yet in this litigation yeah um and then under the whether they're paying for it, the video part that she has not contested, she says, quote, I'm very particular about working with the language of the budget and contract to where the language is specific to covering the administrative costs and not necessarily the per specimen

because that borders on some language in the federal regs. It's a little touchy. The opinion says she also discussed how she creates a profit margin in a budget, even discussing how researchers can buy meals for the staff as a bonus for enrolling patients to donate fetal tissue under the vague category of meeting cost. So that's all to say there was a ton in these videos. so yeah that's all to say there was a ton in these videos uh five years ago it was just sort of accepted by the media that the videos were fake and edited etc according to the en banc concurrence of the fifth circuit

they are going into great detail outlining piece by piece by piece of what has gone uncontested in these videos, and that the Office of the Inspector General in Texas is very able to rely on those videos to decertify Planned Parenthood as a Medicaid provider. Yeah. And we should point out that Planned Parenthood has had multiple opportunities, if it did in fact have evidence that these were doctored, to present that evidence. Because there was an OIG investigation, a Texas OIG investigation, that occurred prior to this point. Then you had the administrative record in this court itself. So, yeah, I'm glad you brought that up. That is, I think that was absolutely key to the pet frustration on mine because I was ripped apart on Twitter multiple times for saying that we had no reason to believe these videos were deceptively edited or faked in any way. And it was just accepted that I was wrong. Um, and it's, you know, I'm, I take this a little personally, David.

I can understand because I remember this whole, I mean, I remember this whole episode quite well. And I remember the, you know, that there was this spin that these videos were, quote, deceptively edited, kept waiting for evidence,

kept waiting for evidence, never seeing the evidence. I remember you guys getting hammered i remember that moment that carly moment i think i tweeted about it and wrote about it at the time that i thought it was very powerful and the other candidates of course did not come to her defense right and so it actually it it really hurt our campaign because very few people on the right were willing to step into that fire. I remember you did,

but the other candidates did not and very few sort of pundits on the right did. And five years later, we find out that the videos, at least as far as Planned Parenthood is concerned at this point, not deceptively edited. They appear to be arguing that while

the videos are correct, that it is not enough to decertify them from being a Medicaid provider. They are not denying that that director said those things and they are not denying, it looks like, that that is the practice at Planned Parenthood Gulf Coast, at least. that that is the practice at Planned Parenthood Gulf Coast, at least. Yeah. Yeah, exactly. Exactly. Well, as talking about a trip down memory lane, I was such a Carly fan. I remember writing a... It's important to remind yourself of your sort of rank punditry that doesn't come to pass. Because I tried to make a case in mid-2015, mid-late, not late 2015, mid-2015, that the outsider that was going to come out, that had the better chance of coming out of the primary was Carly Fiorina and not Donald Trump.

That was my passionately made argument at some point in 2015. And Sarah, would that I was correct. How would history be different if I'd been right about that? Anyway, okay. Next up. Next up. So we're in danger of running a little bit long to cover everything we need to cover. But I did want to highlight a cert petition on the abortion issue.

And here's the reason why. If you guys have heard us talk about abortion cases in the past, then you know that we've had a lot of discussion over whether any case, the Supreme Court will take any case that is a vehicle for overturning Roe. Okay. Most of the cases that are coming up to the Supreme Court involve laws that sort of nibble at the edges of abortion rights, such as admitting privileges laws, or there's a case just decided in the Sixth Circuit involving prohibiting abortion on the basis of, gender selection or disability. And that these cases, each one of them could go, could be ruled, the court could rule in favor of the state

while still upholding Roe by, I mean, Casey, by saying this restriction is not an undue burden on the right to an abortion. Undue burden is not a self-defining term. There's judicial wiggle room there. So, you know, more progressive judges are going to find that a larger number of state restrictions are undue burdens. more progressive judges are going to find that a larger number of state restrictions are undue burdens. More conservative judges are going to find a larger number of state restrictions are not undue burdens, but they don't fundamentally affect the abortion right if something is found to be lawful under Casey. So you could, in theory, have a string of quote-unquote pro-life victories at the Supreme Court that are all based on the view that the limitation does not create an

undue burden on abortion. And that's where most of your cases, your cases coming up in the Supreme Court, they fit into that category. The court could take them and decide them and never decide The court could take them and decide them and never decide the underlying validity of Casey. Now, is it possible? How will you know that they might be willing to revisit the Roe-Casey formulation? If they take a case that is arguably incompatible with Roe and Casey, A heartbeat bill, for example, you cannot rule for a heartbeat bill and uphold Casey. I mean, I can't see a way to do that, Sarah.

I can't imagine a heartbeat bill is consistent with Casey. Yep. Yeah. Now, here's a case, though, that's coming up from Mississippi. And this is, it's called Dobbs v. Jackson Women's Health Organization. And

why is this, why is this parked my attention? Well, because it has come up, it's been distributed for conference since September 2nd, 2020. It was rescheduled in September 22nd, rescheduled October 5th, rescheduled October 14th, rescheduled October 14th, rescheduled October 29th, rescheduled November 4th, rescheduled November 10th, rescheduled November 18th. Now, why is this case particularly interesting? Because it deals with a Mississippi law enacted in 2018 that prohibits abortions after 15 weeks of gestational age, unless there's a medical emergency or for severe fetal abnormality. Why is this potentially incompatible with the sort of Roe slash Casey?

Because 15 weeks is well short of viability. So you're talking about a law that is prohibiting pre-viability abortions in all but very limited circumstances. This is the closest thing. I think we have a case that is potentially incompatible with Roe slash Casey that the court is at least pondering. And so I wanted to highlight this. I also, Sarah, wanted to get your view. Do you think this, am I wrong? I mean, is this a case that you think pretty clearly could be decided even upheld in a Casey framework?

Or is this something that could possibly be a vehicle that confronts Roe head-on? Roe slash Casey. Well, let me put it this way. If the only way to do this is confront Casey or Roe head-on, I don't know that you have the votes for cert. If you have the votes for cert, I would say that they have found creative ways in the past.

They'll push sort of the Casey undue burden test to the red line if they're going to uphold this yeah or some other creative function right right yeah but i think i mean david you and i have talked over and over again there There are not the votes to overturn Casey, even with Justice Barrett. I don't think so. I don't think so either. I don't know so. I don't think so. But this is, I mean, this is at the cert stage.

It hasn't been granted yet. You know, where are your four votes? Yeah, that's a great question. I just find it fascinating. It just has been rescheduled so many times. I'm just... That happened with all of the qualified immunity cases. I know.

It happened with the Second Amendment cases. That doesn't mean there's not, you know, shenanigans behind the scenes that they're trying to get a fourth vote. I know. I'm just putting a pin in this because I think it is. If they grant cert, then I'll dive in with you.

Until then, nah. All right. All right. I'm just putting a pin in this as a. You've noted. Flag. Duly noted. In the ground.

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super interesting, because it's really a case of first impression. There's nothing else that's really been like this. But the bigger question for me is, will it matter? Because once the Biden administration comes in, this is not law. This is something that Joe Biden can just say, never mind. The court has been fast-tracking this litigation. Maybe they could even issue an opinion in December. That'd be really quick. Maybe in January. But even so, that would just go to whether a president can do it, not whether President Biden must do it. And there's an interesting background here, of course, that the Supreme Court rejected, with Roberts in the majority, rejected the administration's effort to add the citizenship question. Yeah, we've had some census litigation.

We've already had census litigation, yet the Trump administration, in spite of being frustrated in its aims to add the citizenship question into the census form, is still trying to figure out how many people in a state are there legally, not legally, who are citizens, who are not citizens, and then trying to exclude from the count illegal immigrants when the law requires the counting of, quote, persons in each state. That's the relevant language. Congress requires the counting of persons in each state. Do illegal inhabitants, illegal immigrants who are living there, not, you know, well, if you're not an

illegal immigrant, if you're just, is an unlawful tourist an illegal immigrant? I don't know. Yeah, we don't count diplomats, for instance, in that count. Obviously are not counted in it. Tourists are not counted in it. So we know that it doesn't just mean all human beings. Right. And it's typically been interpreted to mean inhabitants. Yes. But even there, what are inhabitants? So David, let's listen to the argument and let's dive in on Thursday.

Yeah, perfect. All right. Third Circuit Trump litigation. Yeah. Little judicial bench slap. So the reason why we didn't want to dedicate very much time to this is because there's really not much to say about it. If you tuned into our emergency podcast on Monday, If you tuned into our emergency podcast on Monday, you would know that there was federal litigation that had been filed by the Trump team to try to prevent the certification of the election in Pennsylvania.

Federal District Court judge, who was a member of the Federalist Society but appointed by Obama under a deal that's too complicated to explain, ruled in, and we even tried to come up with the name. We even solicited folks, there's a German name for the tone of the opinion that one of our listeners sent to us. And I just, and it was beautiful. And I can't remember what it was, but it was, I think what it meant

was sort of vicarious embarrassment for another person. It was as if the opinion was written with the judge being embarrassed for the plaintiff making the argument. So the case goes up to the Third Circuit, and guess what? The exact same German term that I can't remember, sorry, listener, applies. The exact same German term that I can't remember, sorry, listener, applies. It was a complete beat down, three Republican appointed judges, two George W. Bush, one Donald Trump. The Donald Trump appointee wrote the opinion, absolutely eviscerating in the same tone, with the same objections, eviscerating the Trump team's legal argument with the same tone

and the same objections as the district court below. I mean, just a complete judicial beatdown, which was, of course, spun by the Trump legal team as, yay, we get to SCOTUS. Although then the president

said that, no, it's really hard to go to the Supreme Court on Maria Bartiromo's show over the weekend. So I'm a little confused with their messages on that. But the first paragraph of the opinion, free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious,

but calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here. Ouch. Yep. Ouch. And as we said before, they appealed on this very narrow issue, not about fraud, not about whether the election was fair.

They appealed on whether they could amend their initial complaint. And we said that if the Third Circuit denies that appeal, they then can't appeal on all the other issues to the Supreme Court. So the only thing they can appeal to the Supreme Court is whether the lower court judge abused his discretion by denying them the ability to amend their complaint,

the Supreme Court's not going to take that. And if they do, there's definitely no abuse of discretion here. So they can't appeal on fraud. They can't appeal on whether election monitors were allowed in, on mail-in ballots, on whether mail-in balloting is unconstitutional all those things that they're talking about publicly they cannot appeal now yeah yeah it's it's really puzzling and i guess the other legal development uh since our emergency pod on monday is the kraken was released yeah it's sort of a sickly Kraken. It's like a little deformed. It might even be the malpractice Kraken.

For example, one of the plaintiffs put out a statement soon after the Kraken was released. This is Sidney Powell's big lawsuit in Georgia saying they never consented to be a plaintiff. Ooh. Yeah. Yeah. Yeah. There's a lot of sort of back and forth on Twitter about the typos in it.

The word district court is misspelled twice in the, in the headline. And people were like, Oh, typo, you know, you're not, you know,

engaging on the merits. Okay. You know what? Frankly, both sides are wrong. I don't care about the typo. It goes to perhaps the care in which the merits. Okay. You know what? Frankly, both sides are wrong. I don't care about the typo. It goes to perhaps the care in which the lawsuit was filed and the attention to detail. But also, they're right. It's just a typo. It doesn't go to the merits.

Not having permission from a named plaintiff to be a named plaintiff also doesn't go to the merits. It goes to whether there's a lawsuit. Right. Now, there are other plaintiffs, so there will be a lawsuit, but it's certainly, let me just say this, in my days of practice, it would never occur to me to file a lawsuit on behalf of someone who did not consent to be a party to the case. There's probably more to it those things are bizarre when you dive into them and i wouldn't want to get into that um but the district court sorry the the state lower court in this case has issued a restraining order i believe is the

posture david not to wipe any of the machines in three different counties, two won by Biden, one won by Trump. They're Dominion voting machines. That does not mean that the lawsuit has been successful. It doesn't even mean that they'll be able to inspect the machines. It is just sort of holding things in status quo while this litigation moves forward. The thing that I'm confused about, David, is that they did a hand recount and there weren't differences, meaningful differences that were caused by, for instance, malware or any problems in the software. There were human errors. And so they want to inspect these machines and what the state is saying is that no, we don't

want these random people to inspect the machines and be able to affect the security of the machines. So that's how the lawsuit will sort of proceed from here. So when you see all this stuff about how they got this restraining order, again, that's

just to hold things in status quo it is it is meaningless as to the merits yeah yeah completely meaningless as to the merits by by the way fun fact um i was just sitting there thinking about you know as we've been talking about these dominion systems i voted using a dominion system my county uses domin Dominion systems. And I was like, as we were describing it, I was like, wait a minute, hold on. That's exactly what I did. Well, David, I'm sorry to say, yeah, have you checked that your vote counted and that Hugo Chavez didn't come back from the grave on this one? But you know, what's interesting about it is when you voted with the Dominion system

and you realize you voted with the Dominion system, it makes the claim of fraud, especially after the hand recount, all the more ridiculous. Because it was as clear. It was clear as day. Yeah, as soon as I pressed the buttons, I got a receipt.

And on the receipt, it listed in black and white my vote. It was right there. It was a paper receipt. Now, the argument could be that the machine, of course, gives you a receipt correctly stating who you voted for,

but then counts it as a different vote. But that's why the Georgia hand recount disproves all of that because they only use the receipts. Exactly. And in those three counties, it turned out, again, more or less the same. And the differences were caused by human error, not by machine error. Yep.

And I remember distinctly when we switched, because I was impressed by the switch. I was impressed by the fact that previously, all when I had voted, and this was both in Kentucky and Tennessee, when I lived in Kentucky and Tennessee, we used electronic voting machines and I didn't get a receipt. It was an act of faith. You press the vote and you just assumed that it was Texas. Yeah. Harris County has that and I don't like it. Yeah. But then I got the receipt and I'd say, oh yeah, there it is. I didn't screw up. And that's why the hand recount knocks this conspiracy just completely out of the water. And why, ironically enough, you should be kind of glad if your jurisdiction uses a dominion system like that, because the hand recount prevents fraud.

like that because the hand recount prevents fraud. So, David, I don't anticipate they'll be talking a whole lot more about these election litigations. They may continue to sort of be the, you know, tail end thought bubbles at the end of our podcast, but kind of feels good. I'm kind of glad to be done with it. Yeah, yeah. I mean, we're obviously not done with the political rhetoric or I mean, Rand Paul, Senator Rand Paul just tweeted out some nice conspiracy thinking. Um, it's still very widespread, uh, uh, on the right. It's very deeply felt. Um, people are very sad and angry and desperate about it. And it's, it's incredibly troubling. And I worry that one of these sad, angry, desperate people is going to be violent. I'd really do worry about that. But I think as a matter of law, as a matter of legal analysis, there's just no there there. And so we're not going to, if, you

know, to the extent we're going to be analyzing this and talking about this, I think we'll be talking about it politically and culturally, not legally. Cause there's just, there's nothing there. There's no Avenue. The Kraken is not going to do anything for Trump. The Supreme court is not going to do anything for Trump. It's,

it's a done. I mean, as a legal matter, it's done. It's just sort of the mop up operations right now. Well, with that, David,

did you watch the season finale series finale finale of The Undoing last night? I did indeed. I don't think we should talk about it today. We're out of time. And I want to give listeners a chance to watch it. But I would like to also put The Undoing cultural conversation marker down for Thursday because I have thoughts. I will say after it was over, Nancy and I and Camille talked about it for almost a solid hour.

Yep. Yeah. So I'm very eager to hear your thoughts. Okay. I'll see you Thursday. All right. Well, I'll see you Thursday. Thank you all for listening. Again, please go to Apple Podcasts and rate us and subscribe

to us. Also go to thedispatch.com and at the very least become what we call affectionately a free lister to receive our partial content for free. And also think about becoming a paid member where you'll get everything that the dispatch does.

But we will be back on Thursday already, already talking about some census litigation that's going to be interesting, already talking about the undoing, which was a lot. And we will, no doubt, we'll have a lot more to talk about. So we will see you on Thursday. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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