Advisory Opinions - New Supreme Court Frontrunner?

Episode Date: February 8, 2022

On today’s episode, David and Sarah dive into multiple issues. Is Ketanji Brown Jackson still Biden's frontrunner? Also, she wrote her first D.C. circuit opinion. What does it say about her jurisprudence? They also talk about an odd case about Yelp reviews before turning to more serious subjects--deadly no-knock raids and once more about NFL coaches, and how cultures can develop unfair systems.   Show Notes: -Reason: “Judge Ketanji Brown Jackson's First Circuit Court Opinion” -Politico: “Former clerk rewrites SCOTUS contenders’ Wikipedia bios” Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinion Podcast. This is David French with Sarah Isger, and we're going to cover a lot of different stuff today. We're going to start with a subject, honestly, kind of, not kind of, actually really grim, a police shooting in Minneapolis, and it's a result of a no-knock raid. We're going to talk about no-knock raids, right of self-defense. We're going to dive into some, those are some subjects we've talked about before,

but this is a shooting that's really roiling the city of Minneapolis right now. And so we're going to dive into that, dive into some of the legal issues there. We also have Katonji Brown-Jackson's first opinion. She is on the DC Circuit. She has authored her first opinion as an appellate court judge. And so we're going to look at that. And for those of you who don't know who Ketanji Brown

Jackson is, number one, that tells me this is your first advisory opinions podcast to listen to. So welcome. And number two, that's probably Sarah, are you still saying the overwhelming leading candidate for for President Biden? No, no, no. I think that Judge Michelle Childs in South Carolina has now within, you know, that using the Olympics and some speed skating like I do not think we have a body length between the two. I thought we had several body lengths as of the first, you know, when Breyer first announced. I think we're sticking our foot skates out in this finish right now. Wow. Foot skates?

That's not a term. Sorry. Well, everyone, everyone knows what you mean. I almost want to press pause and just stay right there for a second. But let me finish my preview. Yes. We're also going to talk about a rather amusing defamation case out of the seventh circuit about one star reviews online that some of you guys might find

interesting. And those of you who have any sort of inclination to vent on social media should find, I don't know, maybe to be a deterrent against that. We're going to dive into some of the comments about our NFL discussion yesterday. Oh, gosh. What else, Sarah? What else am I missing? If we get past those topics, because we've already hit pause because I want to talk about a whole nother thing.

Because I've got some I've got some let's a little potpourri grab bag at the end. Yeah. Yeah, absolutely. Okay. So let's press unpause, you know, why you think the leader is not the leader anymore, or maybe it's, you know, maybe Ketanji Brown Jackson isn't the Amy Coney Barrett level prohibitive favorite. So first of all, I do think it's different than Amy Coney Barrett at this point because there was just never anyone else who got a lot of momentum and the other female candidates that were being mentioned. And as I said at the time, I thought her number one competition was actually from Amul Thapar. He's a male judge on the Sixth Circuit. His parents immigrated from India. But look,

this was a replacement for Ruth Bader Ginsburg. I thought clearing the female bar was always going to be a hard thing for a male judge to do. And so that's why Amy Coney Barrett, I thought, at all times, was a few body lengths ahead of anyone else. In this case, we always had a list of Black female judges, so we knew the pool we were dealing with. And again, we've talked about whether that's a good thing or a bad thing, but set that aside because it is what it is. And the second Justice Breyer retired, unquestionably, Katonji was the leading candidate. Harvard, Harvard on the D.C. Circuit had just been confirmed with three Republican votes and she clerked for Justice Breyer. If you were creating a replacement for

Justice Breyer in a lab, I don't know what you would change on that resume. But it's always hard to be the leading candidate, David, because that's who you take the shots at, you know? Yeah. And it's always more fun to be the dark horse because it generates more enthusiasm. Americans love, you know, a Cinderella story. We're about to head into March Madness and there will be plenty there. And so I think that Judge Childs, Michelle Childs out of South Carolina has emerged as the leading dark horse, if you will. And she did pretty quickly. And I think she has only picked up steam over time. Let me tell you why, although there has been one detraction, so to speak.

OK, so first of all, a different type of diversity on the court. South Carolina undergrad, South Carolina law. So state schools haven't seen those in undergrad or law school on the Supreme Court in a while. She also, you know, when if you go to Harvard or Yale or some of those other law schools, they have programs where if you make less than a certain amount working in public sector law, they forgive your debt. It's like a certain amount each year, but basically, and I'll get this slightly wrong. If you work for nine years in public sector law under a certain amount of money, you basically got free law school and your debt's gone. That's not true

at a lot of other law schools, the vast, vast majority. And while I haven't checked South Carolina at the time that Michelle Child graduated from South Carolina law, that was certainly not the case. And so, yeah, she went to go work at a law firm because she had presumably to pay off law school and she worked in an employment law firm. And so she is getting criticized for sort of being in corporate law, so to speak, and being on the defense side instead of the plaintiff's side on some of these employment issues, you know, does that tarnish her progressive cred? I mean, maybe there's a slight scratch, but I don't think it's real. And I think it's so easily explained, like you can't be both, right? This is where progressive values simply come to a head. You can't say you're for state schools and working your way up to being considered for

the Supreme Court and then not understand that if you didn't come from a wealthy family, that that's going to mean paying off that debt in some respect. And that doesn't come from the plaintiff's side. That comes from the defense side and actually speaks, I think, to her legal credentials more than anything else. One other thing on that, you can't say to law firms, hire more black candidates and then say to the black lawyers that they've hired, you've got a ceiling on your career because you got hired at that law firm. I mean, at some point, come on. We've also had other little pieces flare up. So obviously on the Michelle Childs plus side, Jim Clyburn has now gone to bat for her. That is the person who is probably most responsible, single person most responsible for Joe Biden

being in the White House. I don't think he would have won the primary without Jim Clyburn in South Carolina. Without South Carolina, he doesn't, you you can you can trace all of these things down and like it comes back to Jim Clyburn and Jim Clyburn's like this, my girl, that has to matter a little inside the White House. I'm not saying that, you know, the thing that probably outlasts your presidency more than anything else is a Supreme Court pick. You don't return that as a political favor. But is it a factor? Sure. If you're like if it's a coin flip between two people and you can return a political favor with one of them, you know, that might add a little bit to it. You also have Lindsey Graham saying basically that

he would vote for her. He has not, I think, said that quite as explicitly as that. But he has said she's very well qualified. He thinks she'd be a great pick, all of those other things. And you have a current Democratic senator who had a stroke. He will be fine to vote for the eventual nominee when that time comes, it appears like. But it does tell the Democrats just how fragile their Senate majority is. And picking someone who's going to get Republican votes, not a bad idea. Of course, as I said, Judge Brown on the D.C. Circuit, she had three Republican votes for her D.C. Circuit confirmation. So possible that's a wash for either. And David, there's one other thing. And again, this is an atmospherics point. I don't think it affects, like, it just like affects your mental state thinking about them, not their qualifications.

But a law clerk for Judge Brown on the D.C. Circuit was busted recently editing Wikipedia entries, not just for his judge, which he has done throughout a number of years, according to the write-up. That to me seems, you know, a little silly, but fine. You're following her better than anyone else. Wikipedia is like a community editing board. But the problem is that since Justice Breyer's retirement announcement, he hasn't just edited her page.

He edited Michelle Child's page, Justice Leandra Kruger on the California Supreme Court. And the edits all kind of go in one direction. For his judge, Judge Jackson, he made her edits to appear more progressive. For the other candidates who are competing with his judge, he made their Wikipedia entries look less progressive. And it's interesting, Sarah. Okay, let's, you know, all of this, we should begin, if there's like some sort of music

or some sort of indication that this is like the reading chicken entrails portion of the podcast that we where we're just engaging in uh mildly educated guesses interesting you say this about moderation in emphasizing progressivism uh leander kruger got some major shine over the weekend in the New York Times. And here's the subtitle. Known for her elegant mind, the moderate judge, now on President Biden's shortlist to potential high court nominees, could be a mediating force in Washington.

Now, I interpreted that as this is, calling her the moderate judge. This is pushing her up on the scale. And maybe the clerk in his sort of amateurish reading of the politics believes that moderating a judge right before a nomination is pushing them down. And I question that clerk's political instincts, to be honest. If you're wanting something where you're going to pull at least one or two, you don't want to radicalize your own judge and moderate the leading competitors. But what do I know, Sarah? What do I know? I actually think it speaks to the like the the

schizophrenic aspect of how some of this is going to happen like imagine this were during the trump administration and this exact same thing would be happening yeah both would be happening on the one hand you'd have some audiences that you're trying to convince this isn't a radical fed sock crazy judge on the other hand you definitely want to tell the Fed sock people this is a radical Federalist Society judge. It's a you know, once you get rid of the filibuster, when it comes to Supreme Court nominees, you really are trying to do both a lot of the time. I think that it also speaks to the role that clerks can play. And so I certainly saw this in the Gorsuch and to a lesser extent, the Kavanaugh nomination fights before they were either of them were picked. Clerks matter, man. The political connection of these clerks matter.

And in that sense, without a doubt, we're seeing publicly we're hearing publicly from Jim Clyburn, who's a sitting member of Congress and has the ear of the president unquestionably. What you're not seeing is the clerk war going on. And Judge Childs' clerks, who I don't know, and I don't mean, I'm sure you're all super awesome. And so I could just be wrong about this, by the way. But Judge Childs, who sits on a trial court in South Carolina, is simply not presumably not going to have the clerk heft in D.C. political circles that Judge Ketanji Brown Jackson has being on the D.C. circuit now, being on the D.C. trial court before then, and her just sort of glitzy resume, her clerks are going to be in very specific pressure

points now, as were the Gorsuch clerks who battled with the clerks for Judge Pryor, who was on the 11th Circuit, who sat in Alabama. Look, there were Judge Pryor clerks in real positions, in real positions, certainly, but they just got, I think, outmatched by the Gorsuch clerks. And similarly, I think in the Kavanaugh confirmation or run up to the nomination as well, clerks matter and a well-placed clerk or two matters. And by the way, judges who are interested in becoming Supreme Court justices know that. And they hire clerks. They'll never say this, but I think there is always a little bit of thought given. You want to hire clerks who can get to the Supreme Court. You want to hire clerks that are just brilliant and maybe won't get to the Supreme Court because you know that they weren't on law review or whatever else.

And then occasionally you want to hire some clerks that you think, you know, might be sitting in the White House counsel's office someday. Yeah. Yeah. So it's so funny because we've talked about this before, but my experience was the reverse between Gorsuch and Kavanaugh. There is no clerk army like the Kavanaugh clerk army that has ever existed. Because, and my memory may be faulty on this, but there seemed to, there was more, there, as I recall, there was just a longer lead up from when the vacancy was known to when Kavanaugh was nominated, or there were more people who were so sort of clearly jockeying for position at that time. So Amy and Amy Coney Barrett had no clerk army at all. She was brand new to the court. You had, for example, Judge Kethledge on the Sixth Circuit. Judge Kethledge has a clerk army. He has some loyalists out there. would imagine that there's a dark alley somewhere in D.C. where the two were just squaring off in

person. But Judge Kavanaugh, it was not yet justice. He had a clerk army man. But I will say this. Some other clerk armies actually went to the lengths of drafting extensive memos. I'm not going to say which of those clerk armies, because there were more than two. But there were other clerks who went to the lengths of drafting oppo research on some other candidates. Which, look, I think is a dangerous thing. And to the clerk armies out there, follow the lead of your eldest clerks. You know, baby clerks like so, for instance, like this clerk who's editing the Wikipedia page, he did his judge far more harm than good. Yeah. By editing other judges pages, you obviously have a bias in that. There's no need. Just stay out of it for right now.

And you thinking you're super clever as part of the clerk army and that you're doing your part like don't. And I think that the Gorsuch prior battles that went on, look, I mean, Justice Gorsuch is on the court. So I think the Gorsuch clerks feel vindicated, but it leaves bad blood out there too. And I don't know that there's anything to prevent it, but I would just say to clerk armies out there, just be thoughtful about it and don't freelance. Freelancing is, I think, where a lot of clerk armies get in trouble. And I feel like I really like your find your elder clerk. Find your clerk Obi-Wan. Yeah.

And let him or her apprentice you. So, yes. In our clerk family, in the Jones clerk family, we've had a few Obi-Wans. And you don't move without your Obi-Wan telling you that it is okay. And by the way, this is long after Supreme Court lists for our judge. I mean, literally, if she has a major birthday, go to Clerk Obi-Wan and get approval on your plans. clerk Obi-Wan and, you know, get approval on your plans. Yeah. Yeah. No, I like that. That's a good that's a good formula. See, we didn't even plan for that. But Sarah, your your instincts required us your instincts in the race. And one other thing I may I may be hallucinating this, but I'm pretty sure I not only saw Clyburn and Lindsey Graham group photo over the last couple of this, but I'm pretty sure I not only saw a Clyburn and Lindsey Graham group photo

over the last couple of days, but a Tim Scott in there as well. Yes. Yes. So they are going to try with that angle to get Michelle Child's foot skate, as I now will call it, edging out Judge Jackson. I think as of right now, Judge Jackson is just a couple inches ahead, but it's going to be a photo finish. And I think all of the momentum is on Judge Child's side. And again, do I think it really matters what this clerk did on Wikipedia? No, of course not. But it adds to sort of this overall feeling about momentum. And it feels like the Judge Jackson crew is feeling less secure than they were. If you knew she was the pick, then you wouldn't be doing these things. Now, of course,

it's worth mentioning. He was doing this from the second Breyer announced that he was retiring. So this is just poor freelancing by a clerk. Um, but look, let's talk about something that will substantively matter. As I've mentioned before, um, you know, there's sort of three, four, let's call it four buckets of people furiously sweeping the ice right now to switch Olympic sports. One is the president himself. He is the final decision maker. His chief of staff will be in the room, no doubt, his White House counsel. But the end of the day, really, from any time you go back and ask how that justice got picked, it really is, at the end, the president himself. So that's one bucket by itself.

And they're thinking, right, I bet he goes to sleep every night thinking, who would it be? Gun to my head right now. Who would I pick today? Yeah. Okay. Next bucket that we talked about is the clerk bucket. They are all sweeping that ice out there, some helpfully, some unhelpfully. Next bucket is White House counsel's office. That's the political bucket. They're looking, they're following that picture of Tim Scott and Lindsey

Graham behind, you know, with Jim Clyburn, presumably signaling support for Michelle Childs. Like that's what they are thinking about. And then you have the Department of Justice. The Office of Legal Policy is pulling every single thing that all of these even potential justices have ever written, said, everything, any perking tickets, truly all of it that they can find. And they're putting together binders and they're having teams of lawyers read all of those. And so one of the things that was missing, as we mentioned, Judge Jackson has only been on the D.C. Circuit for roughly six months. We didn't have any opinions from her. And lo and behold, David, we got to now since Justice Breyer announced his retirement.

One of them is deeply uninteresting. And there was a joke online that a memo went around from Judge Jackson. This was a joke. Like, not this did not happen. That said, hey, guys, is the most junior judge on the D.C. Circuit. Why don't you take all of the constitutional cases? And I'm happy to take Arisa.

Yeah. And like, look, that's a joke. But she is the most junior judge on the D.C. Circuit. She doesn't get to pick which cases she writes on. They are just more likely to be quite boring. And so one of them is super duper boring. But the other one, David, is on the Administrative Procedures Act, which, look, you know, it's not the sexiest topic,

but it's getting sexier. Well, it's not. So here's the thing about the Administrative Procedures Act. The substance of the law is not super sexy, nor is the actual topic here at hand. But the Administrative Procedure Act itself has been instrumental in some of the most contentious cases that we've seen. Shall we list some of them? DACA, DAPA, Census. Oh, I don't know. Husband of the Pods work. That's true.

I've got a comparison. I've got a metaphor, David. See if you like it. You know, lingerie is sexy on its own, right? Like lingerie. Here we go. But silk sheets by themselves, like not that sexy. But if you see silk sheets, you're like eyebrow rays.

So I'd say the APA is silk sheets. Okay. I rays so i'd say the apa is silk sheets okay i was wondering where that was going it still stay it stayed my it stayed uh pretty strong fine pg fine pg david though is taking an awkward sip of water and his face already turned red so i was i just just wondering just wondering but yeah the administrative procedures yeah, the Administrative Procedures Act is sort of the the the clay that you that you manipulate to mold into some really contentious policy, often challenges to the wall construction, you know, challenges. I mean, you name it, all kinds of issues. So this one was, OK, not not super exciting, but this involved whether or not in a Trump era change to the federal by the Federal Labor Relations Authority is to win collective bargaining. Bargaining would be triggered. By a change in workplace, the conditions of workplace employment. And the law used to be that

personnel policies, if there was more than a de minimis change, then collective bargaining would be triggered. The FLRA in September of 2020, new thresholds, collective bargaining, only when there's a, quote, substantial impact on a condition of employment. bargaining only when there's a, quote, substantial impact on a condition of employment. Now, for those of you who followed this, you know that this standard, there has been a renewed amount of judicial scrutiny over administrative actions. And that has occurred not necessarily by overturning, it has not occurred by overturning Chevron, which is this 1980s era precedent that grants deference to administrative agency interpretations of statutes, but rather by just bulking up, in effect, not necessarily formally, but by outcome, consistently bulking up arbitrary and capricious review. And so essentially what's happened is courts are just using existing legal standards and using them to enact greater scrutiny.

And so imagine you take an existing legal standard, an existing level of judicial discretion, and you just feed it a bunch of HGH and steroids, and that's where we are. And so Judge Jackson wrote an opinion striking down this change as arbitrary and capricious. And it's not super, the reasoning resonates, and the reasoning is exactly in line with previous cases in the last several years striking down regulatory actions as arbitrary and capricious. And I just found it interesting that this case is just absolute. It used to be, Sarah, arbitrary and capricious meant you win. If you're on the regulatory side and your regulatory action was subjected to arbitrary and capricious review, you're feeling great about it.

You're walking in thinking, unless this thing was written in crayon, I feel pretty good about it. turned into a standard that's essentially really tough to know if you've met it. Because it seems as if if you do one thing, they'll say, well, you could have done this other additional work. And if you do this other additional work, then they say, but then there's still more work you could have done. It's almost become like intermediate, how we've talked about intermediate scrutiny as this is the judge's call. So, yeah.

I love the way you explained that because that's exactly how I feel about APA review under chief justice Roberts. It's either a really low bar to clear arbitrary and capricious, right? Well, this wasn't arbitrary and capricious. No problem. arbitrary and capricious, right? Well, this wasn't arbitrary and capricious. No problem.

Or you have to read every justice's mind on the Supreme Court and what they would have done if they were writing whatever legal analysis tried to change this policy, which is impossible. And somewhere in between those two is where the APA is right now. And you're like, that's not a standard. That's not even intermediate scrutiny in my mind. At least intermediate scrutiny, it's just a balancing test of whatever the judge feels is more important. I'm not saying that's great and I don't like it. But in this, it's like you can do all of the things. And if the justice can think of one more thing you could have considered. And I think that Jonathan Adler on the wallet conspiracy, I thought, wrote up his view of this opinion in the way that made it, of course, the most interesting with an otherwise relatively boring opinion. But it had exactly a little piece of that.

And again, I don't think this is a progressive judge versus a conservative judge. I think it is simply a fault of current APA legal analysis right now that goes across the spectrum. If anything, I think she's following the chief justice here a little bit. But I will try to make this even more interesting and shorter than Jonathan Adler did, which will be hard because I really liked his write up. But she's summarizing the previous Supreme Court majority opinion on this written by Justice Scalia, by the way. The agency must also show that, quote, the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better than the previous policy. Left out of that formulation is that an agency's, quote, conscious change, of course, adequately demonstrates that the agency believes the new policy is better than the old one. As Jonathan Adler says, look, this this little point that he's going to make is only one part of why the opinion came out the way that it did.

It doesn't hang on this. So it's it's like we're trying to make something very, very interesting that also didn't really matter in the end. Probably there were sufficient alternate reasons to come out. But notably, in the dissent from that Scalia opinion, the 2009 Scalia opinion, guess who wrote the dissent, David? Well, I'm not guessing because I'm looking at it right now. Justice Breyer. Oh, that's right. So her previous justice wrote the dissent in this. And look, it's one of those dissents where it's a good dissent and that you're like, yeah, actually, that also makes perfect sense. That could have been the majority opinion. It happens not to be. So let me read a little bit of Justice Breyer's dissent. To explain a change requires more than

setting forth reasons why the new policy is a good one. It also requires the agency to answer the question, why did you change? And a rational answer to this question typically requires a more complete explanation than would prove satisfactory where change itself not an issue. And so Jonathan Adler's point is like, again, let's not blow up this opinion too much, but she seems to be slightly tweaking the previous Supreme Court precedent to include a little bit more of what the dissent's point was, again, her former justice, that simply saying that you like policy X is not sufficient if you're changing from policy Y. You also need to include at least something acknowledging that policy X is better than policy Y with more than just a

assertion that it is. You actually have to give a reason why X is better than Y if you're changing from Y to X. That's not really what the majority opinion says. But again, it's hard to say like, well, ha ha, this proves that she's an activist liberal judge when in fact, I think the APA standards across the board have turned into, as you said, David, Rorschach test, intermediate scrutiny. How did you feel about this policy matter to begin with? And it has defied really across administrations as well. This is a Trump policy that's being overturned. But as we've seen, like the Supreme Court ditched DACA or the ability to I mean that we don't need to revisit DACA. But right. It's the Trump administration tried to rescind DACA and that wasn't rescinded correctly. So APA litigation, I think it's silk sheets right now. It's suggestive of sexiness any time you're writing about it, even though it in and of itself is not sexy at all,

because you know what? Even that fitted silk sheet is going to be a pain to put on. You've got to get every corner over. It is the thing that I don't make my husband do, but I wish I did, that I made him always put the fitted sheet on the bed after it's been washed. I hate putting fitted sheets on beds, David, but I do love folding fitted sheets. It is something. That's not possible. You cannot fold a fitted sheet. Oh, yes, you can.

Yes, you can. And I want to credit. I can test it. Mary Catherine Hamm turned me on to the joy of folding a fitted sheet, even though her method didn't exactly work for me. I then watched a lot of Martha Stewart and others on YouTube, and it was my COVID, my earliest COVID hobby. And now I don't know that there's anything else in housework that brings me more joy than correctly folding a fitted sheet.

Although folding a crib sheet, a fitted crib sheet is like really easy and fun. Folding a king fitted sheet, that's a little harder. That's just, that can be still pretty annoying so while others were watching tiger king early covid you were folding fitted sheets and like and cursing i mean at one point scott came up when i was learning the skill and i was like this is gd impossible and f this sheet. Like I was having a full on nutty about folding the fitted sheet. And he was like, you know, this is not something that I have asked you to do.

Nobody has asked you to do this. Like on the planet, this is nothing that anyone will know. Nobody's ever going to go through our linen closet and check whether you have folded our fitted sheet. And I was like, I will not, I will not be outdone by this fitted sheet. Like if I can take the LSAT, by God, I can fold a fitted sheet, even though those two are not

related, but they are to me. You know what I mean? They are to me. Yeah. Wow. Wow. That went in an unexpected direction. One last thing on the Administrative Procedures Act going back to legal nerdery. Okay, so one thing about this sort of bulking up of arbitrary and capricious review, it does halfway accomplish a longstanding conservative goal, which is to de-escalate the power of the executive branch. Because what it means is there are now greater scrutiny applied to executive branch regulatory actions. But the longstanding conservative goal was to increase the power of the legislature so that the statutes mattered more. This is kind of a halfway there. It's the presidency is less powerful, but you know who's more powerful? The justices.

And so, yes, the imperial presidency is getting a little nick in the breastplate of its armor, but with the judiciary strengthening itself. So this opinion is quite in line with that trend. So in my view, somewhat interesting. Yeah, conservatives should be cheering on the ratcheting up of APA standards. The problem, of course, is that you want them equally applied to policies that are, I don't know, have support in different types of communities. You don't want it to depend on the policy. And right now, I do think a little bit it has depended on the policy, although I like the overall trend because unquestionably, regardless of the policy, the overall trend has been

increased scrutiny under arbitrary and capricious review. And as you said, that is good for decreasing the power of the administrative state. And as for the legislative branch, man, we like have the horse's head. We haven't just led the horse to water. We are like, I'm holding on to the neck of the horse with all of my weight, trying to pull its neck down and stick its mouth in the water. And still, David, the horse will not drink. Now, the horse is thinking it's got a Fox hit or MSNBC hit to get to. And it will. So it cannot find the time to drink at the moment all right let's do another Seventh Circuit case real fast um this case is a um a

little bit a little bit amusing did I say another Seventh Circuit let's try another court of appeals case this time the Seventh Circuit um this is just interesting because it applies to one-star reviews from people who have pretty obviously not sought the services of the individual they're deluging with one-star reviews. Here's what happened. On a late September day in 2017, David Frieden, a Chicago lawyer, posed a question on Facebook. Oh, Sarah, what was going through his mind? Did Trump put Ukraine on the travel ban list? Question mark, exclamation point. We just cannot find a cleaning lady, exclamation point. A few people got upset at that. So rather than saying, sorry, you know, drunk Facebooking won't happen again. Shouldn't have said that. He doubles down, doubles down. My business, my business with Ukrainians will be done when they stop declaring bankruptcies. Why nine out of 10 cleaning ladies we've had were Ukrainian and nine out of 10 of my law professors were not.

Until then, if you don't have a recommendation for a cleaning lady, feel free to take your comments somewhere else. Okay. I love how the opinion says it, how the court's opinion immediately follows it as with this. As sometimes happens on social media, things escalated quickly. True enough. Yes, yes. So Frieden's law firms, his page,

Facebook, Yelp, Google pages, just furious one-star reviews, dominated by anger. It is, quote, hatred and disrespect towards the Ukrainian nation. He was called a hypocrite, a chauvinist, racist. He has no right to practice law. He's not a professional. He discriminates against other nationalities, told not to waste your money. He's biased and unprofessional. Drum roll, please, Sarah. The outcome of the case,

Drumroll, please, Sarah. The outcome of the case, was that defamation or not? We should do a game show. Defamation or not? Absolutely not. Although, so absolutely not. Protected by the First Amendment, everything you just said. Opinion after opinion after opinion. We're just not going to, in our modern society, allow you to go around suing in that exact scenario. However, I do think it left

the door open for a defamation lawsuit for the right type of one-star Yelp review. right type of one star Yelp review. Now, it'll get complicated here, but as we've said before, bad facts make bad law. These are bad facts for the plaintiff. Bad lawyers make bad law. We've said that before, too. There's some particularly bad lawyering that the Court of Appeals references in here, you know, failing to state how you would amend your complaint and how your amendments would change the underlying factual deficiencies in your complaint. That's just bad lawyering. You know, look, they didn't write a good lawsuit. They didn't have good facts. When they then tried to amend their complaint, they did not meet the standards necessary. The district court says it's time. I'm going to paraphrase because I don't have it right in front of me, David.

But the district judge says, they're like, judge, do we have leave to amend our complaint when you dismiss this? Or was it dismissed with prejudice? And the judge just says, it's time for this case to end. Like that's not, that's a statement on your lawyering and your facts. Yeah. So I say all that because I think in fact, it creates a roadmap for what type of one star Yelp review could potentially survive that sort of early motions practice and get to a trial. That being said, David, worth mentioning. So it would need to be a factual review. Yep. That is not true.

Yep. Like here'd be an example. In 1978, Sarah Isker shot a man in Reno just to watch him die. I think that one actually would not be because every like a reasonable reader would know that that was a reference to something and not factually true. Darn it. Okay. But for instance, there's libel per se in, what was this, Illinois? The original, yeah. So one of them is to state that someone has a sexually transmitted disease as a fact. So there could be that. However, David, I do think it's worth mentioning here where there's two different types of law that would intersect and that is the stolen valor case oh right okay you do have a first amendment right to lie and i could imagine part of the factual elements that needed to reach the libel part would also still be protected by the stolen valor case, potentially.

So, for instance, I don't think you can lie and say that this lawyer has herpes. That will not be protected by stolen valor. But if your lie is that you had obtained the services of this lawyer, that's the only part that's a lie. And then the rest is opinion. That is an interesting stolen valor intersection for me. Because you're lying about yourself. Interesting. You know, that's an interesting point. But I'm just still obsessing with this idea that they're lying about STDs. So let's just make this concrete. So if you're a monster, that's protected. But if I say you're a syphilitic monster. Not protected. Not protected. Man, such fine distinctions in the law, Sarah. Such fine distinctions. Yeah, a monster is not specific. That is an opinion.

Unless, I guess, you add to that that by monster, you mean like Bigfoot going around. I don't know what Bigfoot's accused of doing aside from scaring people, but regardless. But syphilis is a specific diagnosis. Yes, correct. Correct. But I would say overall, David, this doesn't tell me a whole lot about one star Yelp reviews or libel or defamation. It tells me a lot about bad facts and bad lawyering. True. It is, though, a mildly amusing case to discuss. But I, I, I, I do think it is also an interesting issue from the standpoint of what is it that is there a recourse when you go ahead and when, when somebody just decides to sort of just to flood you with one star reviews, is there some sort of legal recourse? And this is not a great V case is not a great vehicle for deciding that. But, um, the

answer is it's gonna to it's it's kind of rough. It's kind of hard. You can try to persuade the Yelp or Google or Facebook or Amazon, whoever, to try to take them down. But as far as a legal recourse against the reviewers themselves, that's going to be tough. All right, Sarah, we've had some more lighthearted conversation until now. We're going to change course pretty dramatically, but we're going to change course pretty dramatically to a really important issue. And this is the conflict between gun rights, especially in a country where records have been set, especially during the recent crime wave. Records have been set for new gun ownership and police tactics. And what's happened is a case not terribly dissimilar from some other shootings that have led to contention all around the country.

But basically what happened here was an officer with Minneapolis Police Department SWAT team enters in, the SWAT team enters in executing a no-knock warrant into a dwelling. When they enter in, and you can see the body camera footage of all of this, it's a very short incident. They use a key to They kind of kick it with their feet. And then in just a couple of seconds, the man kind of stirs, doesn't even really get all the way up. And you can see that he has a gun. The gun isn't pointed at the SWAT team, but they immediately shoot, hit him three times and kill him. And the question is, essentially, what can we do about this? Now, this victim, Amir Locke is his name.

He was not the target of the search warrant. He lawfully possessed the gun. According to his lawyer, his family's lawyer, he had a concealed carry permit. He owned the gun lawfully. And you're allowed to have a gun in when you are in a place where you're sleeping. I mean, there's no question that he had a right to carry this gun. That's not in dispute at the moment. The Minneapolis Police Department, however, was executing a search warrant that they had lawfully obtained. search warrant that they had lawfully obtained. It was a no-knock warrant. And we're just seeing this happen, Sarah, again and again, where police obtain a no-knock warrant. Again, no-knock warrant

is lawful. They come piling into a house. The residents of the house have guns lawfully, the house have guns lawfully, lawfully. And there's then this immediate, within seconds, sort of violent decision-making process that takes place, which often results in the police killing people who are A, not the target of a search warrant, or B, there's no indication in the moment that they shot and killed that the person had anything, was doing anything wrong. But at the same time, when a person's holding a gun and police are executing a lawful warrant, what is the legal standard you want to apply there? It's one of these issues that is extraordinarily difficult. And one of the things that I have said this again and again and again, that if we're going to be looking at the collision of rights between law enforcement officers entering a home without

knocking or announcing, and the right of someone within a home to be secure in the home. The thing that's got to give here, in my view, is the authority of law enforcement to come piling into the dwelling. As we know that more people are lawfully armed at home, that you can lawfully possess a weapon, you can lawfully defend your home. The no knock warrant, it seems to me to be, is absent truly exigent circumstances, seems to be a recipe for an increasing amount of disaster. And once again, I haven't, you know, in those states where there is a clear, absolute no duty to retreat, what ends up happening is

something like the Breonna Taylor shooting, where you can actually have a legal gun battle where the homeowner, as so long as they don't reasonably know that that's cops coming in the door, can shoot. And then of course, once the cops are shot at, they can shoot back. And so you end up with a legal gun battle in the United States of America, which is just a stunning fact all by itself. But I wanted to highlight this because once again, once again, in my view, I'd love to hear your view. This is another data point that says we got to pull back these no knock rates. We really need to pull these things back because people are dying. They're often being terrorized. People are

all too frequently dying and And we have to do something about this. I don't really have anything to add except that it wouldn't be that hard to create a new legal standard for no-knock warrants. You could do it in the same bill in which you revisit the standard for qualified immunity. But again, I'm holding on to the horse's neck. I'm pulling with all my weight, but horses have very strong necks and I can't force them to drink the water. Yeah. Yeah. And it becomes even more difficult right now because you have escalating crime, right? You have a rightful, decisive defeat of the defund the police movement, which was ridiculous from day one. You have strong support for law enforcement.

But at the same time, you know, so any reform, this is a very bad political environment for police reform along those lines. And yet it's never been demonstrated to me. I've not seen the data that says that no-knock raids are a material factor in decrease in crime or that the particular prevalence of the no-knock raid has much relevance to overall crime rates. I've seen a lot of data about presence of cops in the streets, saturated in particular saturation presence in, in high crime areas. The no knock raid on the other hand, um, is a, again, combine the no knock raid with the right of people to keep and bear arms. Uh, you're asking people to make, including civilians who have absolutely no idea what is happening in the moment,

in the middle of the night or whatever, to make split-second decisions about who is violently entering their home and who is not with their life on the line. And I think that's an unacceptable burden to place on civilian Americans. And quite dangerous for police officers. Extremely dangerous. Yes, yes. Because in the Breonna Taylor shooting, a police officer was shot and almost died.

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individual comments than anything else. So first, I want to start out with something. If you have a comment on something, comment, disagreement, factual point, joke, anything else that you would like us to discuss on the podcast, become a member of the dispatch, hop into the comments section. That's where we get our mailbag episodes. And so do that because it's great. And we read them all. We don't respond to them all, obviously, but we're reading them all. So when you say mean things about me, I do see it. And sometimes I do respond. Same. Okay. So here's the comment that we got. I don don't know david did we get it a hundred times

it was it was a lot it felt like dozens certainly dozens yeah sarah and david were wrong because they said that all nfl coaches were drawn from nfl players and that% of the players were black. And so this was per se proof of discrimination. Okay. Nope. We didn't say that, David, but I don't think people are crazy for sort of making that logical leap because we didn't explain our logical leap the other direction. And that was our bad for not explaining it. Although I will point out that as a podcast that likes to steel man, opposing arguments, I didn't see a lot of steel manning in the comments y'all of what we could have meant that would have been more accurate,

but nevertheless we can steel man our own arguments, David. Yes. So yes, obviously there are plenty of coaches in the NFL in particular that do not come from the ranks of NFL players. And so to say that simply the pool of potential coaches is 70 percent black is incorrect. on why it was interesting that the NFL players were 70% black as opposed to the general population and these discrimination issues that happened sort of out there, let's call it, is I guess in part because it goes to where you could pull your coaches from. Not that you are pulling all of

your coaches from that. I did a little more research also, by the way, into, for instance, Major League Baseball coaches. Major League Baseball, of course, does not have the sort of wild discrepancy of having 70% black MLB players and then like no black coaches um that the nfl has a problem with and in fact if you read uh the 127 managers going back i mean this is like i'm looking at 1884 here y''all. 1876. Okay. So out of 127, how many major league managers did not play major league baseball? 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12. I count 12, David. Right. So 12 out of 127 didn't play major league ball. Why do I think that's relevant? Because you would need to now show me that there is something special about coaching in the NFL, that it is better. There's some other different way to become a coach in the NFL, aside from playing football, that is fundamentally different than baseball coaching, in which for some reason it is helpful to have played baseball. And of

course, David, there's a problem because those coaches that haven't played in the National Football League tend to have played in college football. And why is that interesting? Because all of a sudden, the racial pool in college football looks quite different than the racial pool in major league football. And again, I'm not saying there isn't some way to create a difference between why it is so much more helpful

to have played professional baseball to become a coach, but not professional baseball to become a coach, but not professional football to become a coach. Um, but that is, it is another data point that you would need to overcome in my view, or at least respond to not of course, that somehow, yes, all coaches need to come from football players. And therefore this is like proof of discrimination. I totally understand that the coaches don't come from football players. To me, that's a, that's the sign of the problem, but to y'all, it was a little different. Yeah, I would, I would put it like this. So number one, none of us were saying,

none of us, all two of us were not saying that if you have 70% black players, you'd need to have 70% black coaches or that's proof of discrimination. No, no, no, no. So I would look at it like this. If you're looking at a systemic issue, what you're looking for are there's going to be a number of issues that are a number of things that would raise your eyebrows. a number of things that would raise your eyebrows. And to your point, Sarah, 30 out of 32, now in the coaching carousel, they're in the middle of the coaching carousel, so these numbers can change. But as of just a couple of months ago, 30 out of 32 had either played NFL football or college football. So 30 out of 32 coaches and head coaches in the NFL had elite level playing experience. So if you have one black coach,

and I believe the Miami Dolphins just hired somebody, hired a new coach. So at the time the lawsuit was filed, you had one black coach. And then you have 70% black players. You have 30 out of 32 played before. And then I believe the percentage for college in general is like just less than 50%. Not sure about the percentage at like the P5 conferences, the big conferences. So that makes you kind of raise one eyebrow. huh what else is going on here what else is going on here and then you see all the nepotism okay so all of these things cascade upon each other and so you say oh okay huh okay so now we got a lot of nepotism amongst a pre-existing predominantly white group huh that's that isn't that a barrier isn't the fact that you've got a high degree of favoritism applied to the family members of sort of the preexisting structure?

Isn't that a barrier? Fascinating. And then you move on and you say, well, what about coaches who don't do very well? When do they get second chances? And you go, wait a minute, the ratio is there. And who gets second chances? That's not exactly the same either. That's interesting. And you go through factor after factor after factor, and what ends up happening is the things collectively say, and Sarah, by the way, this is why often the legal solution is difficult to achieve, that the legal solution is difficult. Because in a Title VII disparate impact kind of case, what you're typically looking at is a specific employment practice that leads to the disparate impact and that your lawsuit targets that. Here, it's more difficult to look at that other than to say, well, maybe the nepotism. The nepotism could be a specific employment practice that contributes to the disparate impact, but it's very unclear. That's not even stated in the lawsuit. That came up from a

different source was the nepotism. So when you begin to look at it and you say, wait a minute, you have the percentages that are, I'm not saying if 70% of players are black, 70% of coaches, but maybe more than, you know, three to 4%, five to 6%. I'm not saying that that's the, the dispositive statistic. I'm saying it raises an eyebrow. Nepotism raises an eyebrow, different kinds of, um know, different levels of sort of grace and second chances, raise eyebrows, all of these things together, raise eyebrows. And at the end of the day, you're looking at it and you say, I think we've got a systemic problem here. So it's all

of the things. And sure, you can put one of the things and you can, you might even be able to drill down on the nepotism and say, look, this is just the way thing. This is, you know, you hire people you trust and you're going to trust family. You're going to trust friends, family. You're going to try. There's there are tight bonds that arise and accountability structures that arise that are in degrees of trust in it. OK, I mean, nepotism by itself is not racist.

It's familyist. So you can pull on each thread and say, well, this thread, I can come up with a non-racial reason why this exists. But that gets back to the whole point from the beginning, which is when racists create racist structures for racist reasons over a period of time, there are often non-racist reasons why non-racists try to keep it in place. And so you're always going to be able to find the non-racist reason. And so you're always going to be able to find the non-racist reason. Because the definition is there are non-racists supplying non-racist reasons to I think people did, in good faith, grapple with the issues. But David, yeah,

so the question is then, all right, you had a racist institution set up by racists. Fast forward, forget what happens in the interim. There's an interim period of non-racist. But now you have non-racists doing things for non-racist reasons. How can that be racist? And I think we've tried our best to explain why it could be. But again, to the legal case in the NFL, it doesn't really matter because our legal system doesn't really look at that large arc. It's going to look, it can only look at the current legal issue in front of it. And as you said, right, there are non-racist reasons for drawing from a pool of coaches outside of players. There are non-racist reasons for hiring your son-in-law.

Although again, I just want to point out that those stats I was reading was not just biological. Someone in the comment section, I thought very cleverly said, yeah, well, like first of all, genetically, they might be better coaches. And also they were raised on their dad's knee, learning coaching. I don't doubt that Pete Carroll's son, yeah, got a leg up on everyone else. Again, not for race reasons, but because he was hearing about football games in a way I never learned about football games. The problem is that doesn't apply to the person your daughter married. And so at the point that all these son-in-laws are getting jobs, it throws that out of the window. But the point being, David, legally speaking, as long as race was not the motivating factor in all of these things, to some extent, yeah, as we said from the very beginning, this is a hard case to make.

And I think you and I were trying to distinguish between this legal case versus this moral or ethical case. Exactly. And the law will potentially find that, yeah, it'll toss out this case because there are non-race based reasons that you could do every single one of the decisions that you had, including, by the way, telling Bill Belichick that you've decided on Kate. What's his name? Mark Dayball. You've decided on Dayball instead of. Yeah, Mark Dayball. You've decided on Dayball instead of Flores.

Yeah, on Dayball. For totally non-race-based reasons. And you may even decide ahead of time, and the Rooney rule doesn't change that. By the way, the bill statement that, or no, the giant statement, that they hadn't made the decision at that point and it was neck and neck until the end,

you don't just get to say that. Like, that's not going to hold up in court. So the other thing was people were like, why didn't you mention their statement? Because it was pointless, legally pointless. The one side has receipts that the decision had been made, and the other side just has a statement that they put out not under oath that the decision hadn't been made. That's what depositions are for. Enjoy that. Hope you didn't email the Bills who then emailed Bill Belichick, because all of that is going to come out in that deposition. But it is much harder to create a legal system that promotes fairness, David.

I think that was part of the conversation. So just to recap here, yes, we are aware that lots of coaches don't come from the ranks of NFL players. And that is true across the board of every major sport. You are always going to be able to find some coaches that never played at the professional level. What I find actually really fun, and it doesn't surprise me at all, is that oftentimes the best coaches weren't great professional players. Like even if they played professionally, they tend not to necessarily be the elite players. Makes perfect sense to me in a way that we don't need to get into on a legal podcast. But it is relevant to me that 70% of NFL players are black. And it is relevant to me that in another sport, major league baseball, that does not have that racial

discrepancy. In fact, the coaches are being drawn from the major league pool. Again, not legally sufficient. Right. But I would like to hear an explanation of why it's different. And no doubt in the comments section today, I will get many. You know, it's funny because there are sort of two directions of of critique. One direction is how this isn't what you've just demonstrated isn't racism. But again, let's go back to the original assertion. The original assertion is not that the NFL is engaged in there. The evidence may show individuals or, you know, there might be individuals who have racial motivations, but the assertion is not that the NFL is consciously a racist

institution. That is not it is the assertion is the NFL is grappling with the legacy created. OK, which then goes to well, then people say, well, why aren't you for like really explicit race based hiring redress requirements? And that gets really rough and bad, too. I just have two words for you. Harvard admissions. Yep. Well, David, like, let me give you an example. If, for instance, we knew that the NFL banned all black players and black coaches in 1940.

And since then, the only way to become a coach was to be the biological child of a coach. Right. Obviously, that would be racist. Right. Even though, though by the way you would still have some black coaches today presumably because presumably along the way some coach would marry someone of a different race etc it would still be racist even though that's a race neutral policy so a race neutral policy by itself isn't sufficient but also numbers that show racial discrepancies also aren't sufficient. This is why this stuff's hard and why I don't doubt that the NFL will be hiring some excellent attorneys that no doubt we will hear about in the near term. Yeah, this, well, you just nailed, these are the, these are really, really hard questions. There's kind of a statement I've used a lot over the past several years to describe how, why life sometimes is, why justice and fairness are so difficult. And that is that vice often leaves virtue with few good options.

That when you have messed things up a lot, when things have been messed up a ton, there is no clear path. There's no easy path, especially when dealing with complex cultures, complex countries. There's no easy, clear, yellow brick road, as much as partisans may tell you, path to fairness and justice. And so that's why these conversations are so difficult. That's why we have to approach them and appreciate the comments about them with humility

because we can explain a lot of the complexities, but then the solutions often require a whole bunch of individuals to decide, I am determined to expand my horizons. I'm determined. I can't be passive in the pursuit of fairness. I have to be aggressive in the pursuit of fairness. And that's really difficult. And let me put this in terms I think a lot of conservatives will understand better. So it is by now a pretty darn well-established non-controversial assertion that academia is overwhelmingly left. The ranks of the professors in the United States of America

are overwhelmingly left. And I've been working on academic freedom issues for a long time. on academic freedom issues for a long time. Now, how often is it, do you think, that say an English department at like an Oberlin or a Williams or a Colby or a Harvard or a Yale or maybe even an Alabama or a Mississippi sees a conservative CV and says, nope, because they're conservative. I've talked to department chairs that have never seen a conservative CV.

So is the answer then, well, there's no discrimination against conservatives. Or maybe it's part of it that you have created over generations such a sense that this is a closed shop, that there's only one kind of sort of ideological disposition that is acceptable in this career, in this profession, that if you are someone who's more conservative and you're trying to make rational career choices, you're going to think that's not super welcoming. me. That is not an environment in which I can judge that I will fairly receive the fruits of my labor. And conservatives get that. They realize that it is not excusing a department chair or university if they say, well, we rarely or ever see conservative CVs. You know that a culture has been created. But then often when race happens, a race issue happens, we flip it and we say, well, you know, I haven't seen as many qualified black applicants. And then you just leave it there. You just leave it there and you don't say,

well, why is that? You know, why is that? Is something been created? Is something existed that has made that reality what it is today? And just as it is extremely difficult to turn around and say, or even it's extremely difficult to turn around and say, OK, well, what we need to do are cultivate pipelines of conservative PhDs and pry open the minds and hearts of progressive academia to accept these CVs. That's a really hard deal. Throw that into race with a much longer legacy and much more cultural contention. It's a hard deal.

It's a hard deal. So this is very hard stuff. Regardless, I really enjoyed the comment section and people on both sides really trying to grapple with this stuff and appreciated it. So thanks. And if you want to hop on in, if you have questions, comments, et cetera, even on something totally unrelated, like you read a news story and are curious what our thoughts are on it, hop into the comments section and we'll see if we can get it on the show. Yeah, absolutely.

And we didn't even get to potpourri. We didn't. We'll save potpourri. Yeah. Okay. Well, excellent. Well, thank you guys very much. As we said, comments, we love them.

We enjoy them. So yeah, please do hop in there. Please do keep on the campaign to rate us on Apple Podcasts. Please keep up the campaign to subscribe on Apple Podcasts. Spread the word about the universe's greatest legal podcast. And please also check out thedispatch.com. Bye.