Advisory Opinions - Not a MAGA Court

Episode Date: October 1, 2026

Elie Honig, CNN’s chief legal analyst, joins David French fresh off jury duty to discuss his piece for New York Magazine on how worried we should be about election challenges ahead of the midterms. The two also discuss the Supreme Court’s 6-3 decision on third-country removals, do some level-setting on the civil lawsuit against Cornell University over an alleged gang rape, and participate in a Star Wars SCOTUS draft.  The Agenda: –Jury duty hangover –Immigrants ask Supreme Court to leave ruling in place preventing Trump administration from deporting them to third-party countries –The Supreme Court Won’t Be Trump’s Election-Theft Lackey –Jane Doe v. Cornell –We’re having a draft! Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

My name is Siyaya and I live in the most beautiful place on Earth. Seven months ago, I blew up my life and a lot has shifted since then. Everyone is moving forward. I'm still working on that. And that's me. Welcome to Ice Cove. Where are the penguins? That's Antarctica. We're the other one. North of North, stream all episodes available on CBC Gem. Ready?

I was born ready. Welcome to advisory opinions. I'm not Sarah Isker. I'm David French. And I am sitting in the host chair once again, just for a week, only a week. So you don't have to wait too long for Sarah to come back. But while I'm in the host chair, I have the best guest host. Once again, coming back for the encore presentation, CNN's senior political analyst, Ellie Honig.

Now, Ellie, fresh off of jury duty. Tell us about that. Yeah. Okay. So this is, I loved this experience. So I've picked many juries, right? I was a prosecutor at the Southern District of New York. I was a prosecutor in total, federal and then state 14 years.

So I've picked many, many juries. And I've never really been on the other side. I get the notice like everyone else does, but it feels like the last several times, every time you call the number the night before and they say, we don't need you. And you go, great. This time they said, we need you on Tuesday. Okay. So I go down, this is state.

level jury service, Middlesex County, New Jersey. I go down to the courthouse in New Brunswick, which I've been in many times because when I was at the AG's office, we supervised all the county prosecutors. And so it's my home base. There's 200, 250 people in the full pool. It's massive. It's packed. And they've obviously got jury trials galore. They're calling up a group of 30. They're calling off a group of 40. And nothing for me. And honestly, at a certain point, I started to feel a little rejected and a little left out. And so we go to the lunch break and the day's dragging and I'm thinking, eh, it's over. They're not going to need me. And at 2.30 p.m. or so, they need another panel. And my name's on the list. So I walk up to the courtroom and it's a criminal case. There's two defendants.

And the judge hands us the little questionnaire. And I realize it's a DCJ case, meaning the division of criminal justice, which I used to run for five and a half years in New Jersey. It's sort of the equivalent of, you know, most federal cases are going to be prosecuted by U.S. attorneys in the field, but one out of 40 is going to be by Maine Justice, right? And we were the equivalent of Maine Justice. This happens to be one of those cases. So I'm looking at the witness list, and it's 10 or 15 detectives, most of whom I hired. And then I look over to the table. I actually don't know the prosecutors, but I hired and promoted their bosses. So the judge is calling down the names and he gets to me and I go up and I say, Your Honor,

you know, look, I could definitely be fair. Like, I could absolutely be fair and impartial, but you should know I used to run the division. And immediately this look of recognition comes over his face. I used to run the division of criminal justice. They're a party to this case. I know most of the witnesses on the list. I don't know these prosecutors, but I know their bosses. And the judge goes, oh, yeah, yeah, this won't work.

And then he goes, and I like you on TV also. I was like, okay, thank you. It was very nice. So, you know, look, there was no way they were going to seat me. Someone was going to strike me between. But I want to say this, I would have absolutely been a fair and equitable juror. And even if in my heart of hearts, I believed the defendants had done it, and they were charged with racketeering and carjacking and drugs and aggravated assault, not murder, but a lot of other serious crimes, even if I thought at the end of the evidence. Yeah, they did it. Like, I kind of know they did it. Obviously, they did it. But the prosecution had not carried its burden beyond a reasonable doubt. I would absolutely come back,

not guilty. And there is a misnomer. I think I said this to several other of my former prosecutor colleagues, and they all said the same thing. Like, it's sort of roughly akin to when one of my former colleagues at SDMI would become a federal judge. People go, oh, awesome, you drew Rich Sullivan, who used to be a supervisor of mine. I'd be like, no, that's terrifying. Because Rich Sullivan is going to be way harder on me and on us than otherwise because he knows what we do and he holds us to a high burden. So anyway, it was a really good experience that the clerks, the marshal, not marshals, the sheriffs, because the clerks, the sheriffs, the judge were all professional. They made it smooth. It was organized.

It was a cool experience. It's an important part of civic duty. So if you get that, notice, do your job, show up, be honest, and don't try to wrangle your way off a jury, even though I did. I'm desperate to serve on a jury. I want to serve on a jury so badly. And literally the only time I in my entire, I'm 57 years old, as Sarah likes to remind everyone, and then exaggerate.

But I'm 57 years old. I've received one jury summons in my life that conflicted, and I had a great excuse. I was about to be deployed to Iraq. So, yeah, so pretty decent. I couldn't come back for that, you know. And so I'm desperate to be on a jury. I would love to be in a jury.

I feel like I could be. fair. But, you know, honestly, Ellie, you're trying a case. Do you put me on a jury? Knowing all that I know about you? Yeah. I do. Well, yes, if my case is good. Okay. If my, I mean, definitionally, the case should be good if you've brought it as a prosecutor. But yeah, I would, I would want you as a juror, David. And I would not hesitate to tell you no if the answer was no. But I think you have the ability to sort of put aside emotionality and to judge based in a sort of clinical way on the evidence. And by the way, your excuse, of I'm about to be deployed to Iraq is definitely like upper 1% of excuse tiers. But let me just

tell you, picking juries in Manhattan, so you would get people who would go, I'm an oncologist at Sloan Kettering, and I have patients and we would go, get out, your excuse. And we have people who say, I'm a K through six special needs teacher. Go, go, go. But you would also have this special breed of finance bro who would come in and go, well, Your Honor, I'm with, I'm not going to say, I'm with Deutsche Bank, and we have a huge deal close. And the judge, so obviously I'll be making my way out now, and the judge would always go, sit down. Like, judges had no tolerance for that.

So going to Iraq, you know, you're good. Well, I know we've got lots to get to, but my one Manhattan jury selection story involves we were in, my very first federal case I was ever a part of, and I was a very small cog in the machine. I mean, you know how it is with the big firms versus big firms. And I was a first year associate. yet in that case, as long-time advisory opinions listeners know, I argued my first ever motion in federal court in front of district judge, Sonia Sotomayor.

So I could say I have argued in front of Justice Sotomayor. But she also, we had that very, that's so funny you raise that, we had that very same incident arise. We had, we were swearing in a jury or we were picking a jury before a civil trial that ultimately settled. And there was a finance bro type guy before we knew they were called finance bros. and she was not having it. But we could talk about this for a while. We got a lot of stuff. So here's our order of operation.

We're going to talk Supreme Court first. We're going to talk about very briefly this 6-3 ruling that just came out, which is really not to even call it a ruling is a bit much. But what are going to talk about a decision on third country removals, very briefly, we're going to talk about Ellie your piece in New York Magazine about the Supreme Court as we're approaching the midterms. And I want to really spend a minute on this because the question of the Supreme Court and the election challenges is probably the number one question I get anywhere in the country when I go speak or talk or anything like that.

Then we are, after our discussion of true crime, we're going to dive in and talk about this terrible situation in Cornell. And we're not going to adjudicate it. We're going to talk about how to approach it. how to think about it, like do some level setting. And then we're going to end with a little draft, a little draft Star Wars original trilogy, in other words, episodes 4, 5, and 6.

If you could pick three Supreme Court justices from the cast, who would they be and why? I'm very much looking forward to that. Hi, everyone. This is Zach Shemtob, the executive editor of Skodas Blog. Scotus Blog is hosting its first ever live AMA on Monday, October 5th, the first day of the new term at 7.30 Eastern Time with Sarah, Amy Howe, and myself. We'll be taking your questions about the cord and what we're likely to see this upcoming term.

The AMA is one of the perks of being a SCOTUSBlog plus founding member, which is open through October 9th. So sign up before October 5th to join us live at scotusblog.com slash join. Hope to see you there. All right. Well, let's start. just very quickly on this, because there's not a lot to say, but I do have a kind of a specific question for you. So there has been a challenge by immigrants to, right now to the Trump administration's practice of deporting people to countries that are not identified in their removal orders. This is a procedure known as third country removals. Can the Trump administration take an immigrant

and remove them to a country that will accept them that is not their home country? And some of these countries are pretty rough. They're pretty rough. And so lower courts had enjoined it. The Supreme Court is going to allow, and an unsigned order is going to allow to the Trump administration to continue these third country removals until there's a hearing on the merits. And so I'll just, I'm going to read for this. This is very short. The application for stay presented to Justice Jackson by her referred to the court as granted. The February 25th, 2026 order and judgment of the U.S. District Court of Massachusetts are stayed. The application is also treated as a petition for a writ of certiorari, and the petition is granted. So that's really the key thing here. This is a cert grant.

Now, here's where it gets interesting. The parties are directed to brief and argue the following questions. One, whether the district court had jurisdiction over the respondent's claims. Two, whether the district court had authority to enter a class-wide declaratory relief, which is going to be one of these follow-up. on to the nationwide injunction kinds of cases, class-wide relief, whether the district court had authority to interclass right, declare a notary relief, an APA vacature, whether the government's guidance on third country removals is unlawful. And number four, and this, L.A. is so interesting to me, number four, such other questions that the government determines are appropriate for the proper

disposition of this case. What does that mean exactly? What's going on there? I have no idea. I mean, I would ask, I would ask you, I noticed the same thing. Like, how often is it that in the question presented, there's a ABC and also anything else that might occur. I thought the whole purpose of question presented was to narrow the question. Like, I've never seen a miscellaneous question presented. The other thing that I think is interesting there is, I think it was the second one you said, you know, about the appropriateness of class-wide declaratory relief because this follows

on really, like, you know, it was the first birth race. It was not the substantive birthright citizenship, but when the Supreme Court basically said, we're not going to do these nationwide injunctions anymore. And since then, I have sensed, in some of the opinions, concurrences, and dissents from the conservative justices a little bit of frustration, I think, that this is not really being followed. The district court judges are just end running this and they're too readily granting the thing that we said they should almost never grant. There was a recent opinion. It was within the last month or so, one of the big ones, maybe having to do with the election,

I think it may have had to do with the Trump's mail and ballot EO. And there was some frustration voiced by the conservatives of like, you're kind of ignoring the thing we said you shouldn't be doing. I remember very vividly talking about the nationwide injunction case. And Sarah and Iber both kind of gave it a bit of a shrug, to be honest, because we could immediately see all the workarounds. You had workarounds through the Administrative Procedures Act. have workarounds through class-wide relief,

grant, you know, class certification and class-wide relief. So it's one of those things where it wasn't a, I felt like the Supreme Court did not issue a barrier to nationwide relief. It issued a speed bump to nationwide relief when the reality may be that the Supreme Court actually intended to create more of a barrier than they did. And so I was very, just like you, I was very interested on the emphasis on class wide relief there, that that phrase class-wide relief. And my view on the whole nationwide injunctions by district courts is I absolutely understand

why they're bad. I don't like them. But I also don't have a great solution to them. You know, and I think the Supreme Court sort of came out in the same way. Yeah. No, I agree with you. It's, I never like the nationwide injunctions going all the way back to when they first started to get a little bit more popular and say the Obama era.

And then they just kept, kept ramping up and ramping up on a bipartisan. basis. You know, it just depended on where were you filing for it. Northern District of California, you know, one of the districts of Texas, didn't love it. But I also knew that you could slam that door shut, and there were multiple other inviting doors to walk in for nationwide kinds of relief. And we're going to have to settle this. This is one of those things where how easy or hard should it? Because, you know, I have some tangential relationship with class, with class actions back in the day. to work for some energy companies that were out of Kentucky that were subject to class action litigation involving, of all things, radon, radon related to oil drilling. And so an oil extraction.

So I have some familiar with class relief and this kind of litigation. And often it takes a long, long, long time to get the class certified, to get the thing off the ground. But what we're seeing out there is sort of immediate class certification, immediate class-wide relief. And that feels like where you've got the Supreme Court maybe raising some side eye. Yeah, I think they may be regretting leaving that avenue open. But I mean, what are you going to do? You can't say there's no such thing as class action. I mean, they serve an important function.

And I think the bottom line takeaway from this case is it looks quite clearly like the Supreme Court is going to go the administration's way on this. This is going to allow these third country removals as evidenced by both the blocking of the district court and the granting of the cert. and the recent history, just in the last couple months, the Supreme Court has delivered sort of a string of wins for the Trump administration on temporary protected status and on the asylum policy of blocking people, you know, one step in front of the border.

So this court, and we'll talk in a bit about whether this court just does everything Trump wants. I don't think they do. But on immigration, they give him very much close to all of what he wants. All right. Well, this is a good opportunity to take a break. Let's take a quick break. and we'll come back and we'll talk about the question that I think you and I may get almost more

than any other when we're out and about and around the country. So, Ellie, when I'm out and about around the country and I'm talking, I get a lot of questions about a lot of topics, especially advisory opinions, listeners. They'll come and they'll want to talk more about birthright citizenship. They'll want to talk more about, gosh, Trump immunity case. I probably get, of any single case, I get more questions about Trump immunity because I'm kind of known as a defender of the court, and that's one case that I've strongly disagreed with. But above everything, over everything, is the following question. How safe are the midterms, and can we rely on the Supreme Court to protect the midterms?

It's a two-part question. I get it all the time. Obviously, you get it too, because you've got a great piece in New York Magazine about this very question. So let's talk about it. Let's talk about your piece. If I'm, if I'm walking up to you after speech and I ask those two questions, how secure the midterms, Ellie, and how much can we count on the Supreme Court, take it away? I do get that question quite a bit and variations of that as well. How safe are the midterms? I think there's real reason for concern. I mean, we've seen there's a cottage industry now in these articles. And they're good. They're interesting about how is Trump going to

try to steal the 26 midterms. And if you had to put me on a scale of concern, one to 10, I'd be a seven. I mean, I think it's quite, first of all, I think it's a virtual certainty. Democrats take the House. I think it's close to 50-50 now. They take the Senate too. And is Trump going to just accept it? No. When is he ever? I say in the article, my New York magazine piece, this guy has claimed fraud in elections. He has lost 2020 and won. He still claims it was fraud in 2016. He should have won by more. He has claimed elections. in, claimed fraud in general elections and primaries, primaries of his own party when he lost the Iowa caucus in 16 to Ted Cruz. He claimed that was fraud and Cruz should be investigated. He claims

fraud in Democratic primaries when Abdul Al-Sayed won in Michigan a couple weeks ago, Trump said that was fraud. So the guy has never and will never accept an outcome that he doesn't like. I'm not sure it's a harder mechanism to steal a midterm because there's going to be dozens and dozens of elect. He's going to have to overturn however big the margin is. I mean, the closer the margin, the easier it's going to be. It's not going to be easy. But the bigger the margin, the harder it's going to be. Let me put it that way.

So if the Democrats win the House by 30 seats, I don't know what he's going to do. If it's got to help us, though, if it's a two or three seat, margin. And so I have little to no faith that Trump. will accept an adverse outcome. I have very high belief that he will try to upset it through fraudulent or improper means. Will the Supreme Court save the day? Now, of course, your listeners know, the Supreme Court does not police. They don't swoop in and say, we don't like this. They can only be in a reactive posture. But if Trump tries to steal parts of the midterms, it certainly will end up in court and very likely will end up making its way up to the Supreme Court in an emergency posture.

I know the easy answer, the popular answer, according to the poll numbers, is, no, they're going to let him do it whatever he wants. They're always going to back him when push comes a shove, six, three court, that kind of thing. I argue in the piece, if you look at the court, especially over the last two terms, let's say, 24 and 25 October terms, that really doesn't hold. The reality is, if you take a look at all their decisions, he's had some big wins and he's had some big losses. And I would even argue the losses outstripped the wins. I saw a thing the other day with John Stewart, who I love and admire, where he was criticizing the court and he goes, oh, I know you're going to say, oh, buddy, struck down tariffs. You know, he did it in that voice.

It's like, yeah, John, you can do it in that goofy voice, but it's not just tariffs. There's to me a longer list of cases, big cases Trump has lost than one. Birthright, tariffs, National Guard, Miffa Pristone, mail-in ballots, post-voting, counting of mail-in ballots, his executive art. I mean, it goes on and on. There's big ones he's won, immunity being number one, you know, slaughter, whatever. Okay. It's at a minimum a mixed bag. Okay. And if you think you're entitled to win all of them on either side, I don't know what world you're living in. Okay, that's number one. Now let's narrow the aperture to election-related cases. Trump has a very bad record. He is lost. I mean, okay, he won Louisiana versus Kelle, although that wasn't exactly him, but Republicans and conservatives won.

Louisiana versus Calais, which basically said the Supreme Court said, you can't rely on race at all to try to harm or help minorities, whatever, you just can't consider race when drawing new gerrymander lines. Big win on that side. And then there was the thing the other day, the decision the other day that was really misreported where it was like Supreme Court allows voter purge database. This is a database that has been used for 20 years where state and local and federal officials can run a person through the database to see if they're a citizen or not. The Trump administration said, we want to increase the inputs into that database to include social security information, and you're not allowed to use that database for systematic purges

within 90 days of an election anyway. So very, very minor win there for the administration. On the other hand, think of all the huge election losses Trump has had. He wanted to strike down state laws that allowed where states have decided we're going to count mail and ballots that are postmarked by election day, but arrive whatever number of days it varies by state after. Supreme Court said, no, those state laws are fine, that they're allowed. States run their election. The Supreme Court, very importantly, a few weeks ago, struck down Trump's wild executive order, which would have had DHS and the Postal Service essentially dictating who can get bad. That would have been chaos if they let that one go.

They have been, the court has been very consistent that they are hands off when it comes to gerrymandering, whether it's pro-Republican gerrymandering in Texas, pro-democratic gerrymandering in California. The Missouri case, you and I talked about three times the court said, no, it's up to Missouri. If they want to go with the more favorable map to Democrats or Republicans, that's up to them. And most importantly, let's not forget the final word, the final nail in the coffin of Trump's effort to steal the 2020 election came from the Supreme Court. They rejected the Texas v. Pennsylvania case. So I think if push comes to shove and Trump tries to steal the election and he does it through illegal means, which he will, I do not think the Supreme Court is going to facilitate that.

I think it's much more likely the Supreme Court is a guardrail against that. What I found so helpful about the piece is you did something that I think is absolutely necessary whenever you're writing for an audience that you know is Supreme Court skeptical. And that is you just brought all of the receipts of all of the ways in which the court is ruled against him. And look, I follow this as closely as anybody. I mean, I follow this very closely. And your list was so comprehensive. I was like, oh, yeah, for some reason that case had left my mind, right? You know, because there's a long, a long list of cases. And I think that the analysis that Sarah and I have made for years is still very sound. And that is this. How do you harmonize, say, for example,

the Calais voting rights decision and the mail-in ballots decision, for example, and, you know, the mail-in ballots executive order. Well, I think there's an easy way to harmonize these things. The current Supreme Court is a pre-Trump conservative court. And so if you bring in pre-Trump conservative arguments, you tend to do well. You tend to do well. It is not a MAGA court. So if you come in with legal theories that have sort of been developed in the MAGA legal universe, they tend to flounder. They tend to falter. Not always. Not always. I mean, we could talk about immunity. But even that had some pre-Trump and post-Trump overlap to it. But the more exotic MAGA legal theories, especially around elections, which are sort of post hoc generated to try to flip outcomes rather than

a really fully thought through set of legal doctrines, they've just failed. They have failed. But, Ellie, here's the area where I'm most concerned. And I really would love to get your thoughts on this. Because I think you're very correct that if this is a big, clear result. And by big and clear, I don't necessarily mean huge landslide. I just mean enough clarity nationally that you don't have two to three people coming in or four to five people coming in with one to two percent margins. That's our nightmare scenario, right? But if you have it where it's broad enough, it's clear enough, and then, and then, I don't think

we're going to have a problem. However, here's my argument for the flashpoint. There is eligibility who actually sits in the house, for example. It is not decided by the court. It's decided by the house. It's decided by the house. The question then becomes, if the house engages in shenanigans, whether it's through the clerk or a majority of the outgoing house, what guardrails could potentially exist? Yeah, it's a great question. I mean, I guess there's a threshold question that you raised that I hadn't thought about. Like, could that, let's say the clerk, let's say they put in Alina Haba, they name her

the house clerk, and she says, I refuse to seat this new Democratic majority. I find there was fraud, and therefore I'm not swearing them in. and then that case would certainly result in litigation, would there be standing in justiciability and, you know, could you overcome political question and all that and get the courts to take it? I would guess that if you could get over those jurisdictional hurdles, the Supreme Court would say this can't stand. This is not the way. But I think there's an interesting threshold issue there that could be a complexifier. Yeah, that's my nightmare scenario. My nightmare scenario has nothing to do with whether or not I can trust the court.

I think I can trust the court. My nightmare scenario is something along the lines of what was attempted on January 6th. I'm not talking about the riot. I'm here talking about the legal maneuvering, the Mike Pence part, which was to try to create, in essence, a non-justiciable political question that is resolved by the chambers, by the House and the Senate, where the Supreme Court cannot intervene or interfere, or historically has chosen not to intervene or interfere.

And that's my scenario that if there's anything that keeps me up at night, that's the scenario for me. I do think ultimately, if the Supreme Court is able to rule on any of these, they're not going to tolerate this type of BS. And I also think that if they tried that type of a coup, the Alina Haba as Clark coup, I don't know. I've been wrong when I've said this before. This is why I'm a legal guy, not a political guy.

But I feel like that would not be X. Now, I feel like even the Republicans, even the right would turn on Trump, would not allow that. I think that's too far. But I don't know. I mean, not enough people turn on them in 2020. So yeah, yeah. And by the way, just one quick, I think it's a really interesting way to think about the court as a pre-Trump conservative court. If you look at Trump's three nominees, right, Gorsuch, Kavanaugh and Barrett, they could have been nominated by Richard Nixon or George H.W. Bush or Reagan or George W.

Those are the type of people and resumes that would have been nominated to the court pre-Trump. Now, if Trump gets another or another two, if Thomas or Alito or whoever, if there's a vacancy by whatever means, I would guess he's not going to go back to that establishment conservative type. I think he's going to go way more extreme. Whether he gets it through is a separate question. But what do you think? Do you think he would go back to that sort of, you know, D.C. Circuit, you know, credentialed conservative. or do you think he would go for a, you know, again, I'll just pick on Alina Hava here. Yeah. So it all depends on if he has the Senate. I think if he has the Senate and he will, he would go for, you know, and if he, and the thing is if he keeps the Senate, just the political dynamics with all these headwinds, if he keeps the Senate in this election cycle, he's going to feel empowered and emboldened. He absolutely will because right now a lot of the smart money is saying the Senate is slipping away. But if he, and so keeping the Senate, and so keeping the Senate, and so keeping the.

Senate, weirdly enough, would be considered overperforming right now, even though this is not necessarily the Democrats' best map. That would be considered overperforming. I think he'd feel emboldened. I think Republicans in the Senate would feel that they're still just under Trump's thumb. And he could nominate whoever he wanted to, and he's going to get that 50 plus one with the J.D. Vance, you know, breaking the tie. If he loses the Senate, the smart thing for him to do would be, and there's a vacancy that comes unexpectedly, the shrewd thing for him to do would be to nominate maybe one of the most well-respected, conservative jurists in all of America and then use the inevitable unwillingness of the Democrats to hold a vote as a political club to beat them with. And so I think it's kind of a binary choice.

I don't think he goes full Emil Beauvais or Alina Haba if he loses the Senate, because that's just super easy for Democratic senators to go. It's a layup for them. If he nominates one of the leading lights of the conservative, you know, legal movement, maybe even somebody who's demonstrated independence from Trump at the circuit court level. And still, I think Democrats, either way. If the Democrats, here's the question for you, Ellie, if the Democrats win the Senate, how many judicial nominations are approved at all, at all? Does this just keep escalating. Okay. I'm going to take your question for me and remind you of a time when I asked it of someone who's actually relevant to that decision at the SCOTUS blog summit a couple

weeks ago, I asked Senator Dick Durbin. I moderated this panel with Senator Durbin and Representative Darrell Issa, one Democrat, one Republican. And I asked Senator Durbin essentially if your party wins, the Senate, as I know you hope, and Trump nominates a qualified conservative, if there were to be a Supreme Court vacancy, would you give that person an up or down vote? Or would you do a McConnell, basically, right? And, you know, that was the. And Durbin's answer is, you know, it's a politiciany. It's a little hedgy. But he was kind of like, yeah, we'd give a, you know, the vibe was we might give the person an up or down vote, but it will probably be down. Like, they're going to get revenge for Merrick Garland. I don't think if, I think if the Democrats win, I'm reading into what Durbin said, you can

find the clip, it's out there, we can put it out. There is power within the control of the Senate, particularly in the majority situation, that you cannot deny. That's part of it. If you're asking whether I think there should be a vote, yes, I do at some point. I think there ultimately should be a vote on a judicial nomination. But I think if you read into Durbin and if you talk to other Democratic lawmakers, they will do a McConnell for as long as two years if they have to.

They just feel so burned over the Merrick Garland incident. and how can the Democrats face their voters and their base if they confirm as the majority, even if three of them join over with 48 Republicans, they'll never be able to look there, other than John Federman, they'll never be able to look their constituents in the face again. I mean, the Democratic base would spontaneously combust.

It would just, I mean, I can't even imagine. I can't even imagine. Okay, I want to leave enough time to talk. about this awful situation at Cornell. And the reason I want to talk about it is really twofold. One, it's just the perfect follow-on. What I think is, you know, we talked about true crime last podcast, and that's not just a lark.

That's not just a pop culture lark to just divert into talking about podcasts and TV shows and all of that. This is stuff, as we talked about, you know, from your experience, Ellie, that this really does impact the real world. The true crime phenomenon impacts the real world. And as if we needed more example of that, we just had this blockbuster horrific to read lawsuit filed over an alleged gang rape. And I just want to go ahead and say right now, I know there are people who listen to this podcast with their kids in the car. This might be a really good time to just not keep going. We're not going to be lurid.

but just in talking about this, it's middle school and younger, maybe not. So, okay, so she basically alleges there's a blockbuster lawsuit filed, and I'll set the stage, Ellie, and what I really want to do is sort of, how do we guide our listeners in navigating this situation? All right, so here's the basic setup. A lawsuit is filed. The complaint hits the internet, and it is horrible. horrific. It is horrific. And basically it says, and a young girl, a Cornell student,

she has had multiple drinks, goes to a frat party. At the frat party, she sees a guy, starts dancing with the guy. She's invited, you know, invited to a sexual encounter, shall we say, that then grows from a duo to a threesome. And she keeps during this process drinking more and eventually starts snorting ketamine, where she becomes very, very, very high and drunk. What then follows is heavily, heavily disputed. Now, in the lawsuit, essentially what she says is after this sort of initial journey into the back, everything that sort of flows from that gets non-consensual fast. And there's even a very awful screenshot of a Snapchat conversation within the fraternity, where essentially somebody just says out, hey, I'm not going to use the exact

language, but free access to this woman at this particular spot, just dreadful stuff. And over the course of the night, as the lawsuit alleges, multiple men up to seven raped her when she was not capable of giving consent. So this hits the internet like an atom bomb. And one of the things that then emerges is that the district attorney had already taken a look at this case some time ago and had chosen at least at that point not to charge the case. And so very quickly, the district attorney, who's under an enormous amount of pressure, starts to release parts of the witness statement that she gave. And it turns out that there seems to have been some conflicts between the initial witness statement and the lawsuit. And the initial witness statement, it indicates

there was some enthusiastic consent about the initial threesome, that there were some, there was potentially consent at other stages of the night. And then also, it also indicates that the consent stopped at some point, that the consent stopped. But the witness statement initially and the lawsuit following on are not an exact alignment. But the Tompkins County District Attorney, that's where you have the, that's where Cornell is, is reopening the investigation. So we've got a lot of people running to conflate two things at once.

One is, well, we've got, of course, the people who are adjudicating it in public. Like they're deciding who's guilty and innocent based on what they see on social media. We also have a lot of people conflating immorality and legality. Is the way that the boys behaved, the way you would, was that wrong? Yes, was it illegal, gets more complicated. And so, and this is all happening against the backdrop of a number of campus incidents where a lot of the initial story and the initial outrage sort of fell apart under greater scrutiny, like Duke LaCross, UVA fraternity case, that many, there are other examples. And so this is just coming right on the heels of our discussion, Ellie. And so break,

break down for us how you're approaching this. It's a great example of the good and the bad of what we what we've called sort of true crime media coverage. On the one hand, I have very serious criticisms of the DA, of the way he handled the case then and now. And had this gotten no attention, had Jane Doe filed her lawsuit and just didn't make it into the media, I promise you the DA would be doing nothing right now. He'll go case over, storm clouds over, who cares?

But because this hit so hard, now he is furiously backtracking. And the end result is this case will be reopened. And it wouldn't shock me if there are resulting charges. I think that's on the one hand. On the other hand, if you look at the response on the internet in the social media world, it is just everything Sarah was talking about. It is just force of emotion overcoming facts and nuances and the law. And anyone who wants to say there could be legal complications here, which there are,

and if you hate that, you hate New York law, but New York law is New York law. And I'm not so clear which way it comes down. But there are plenty of people on air who on air, not so much on air, but on the internet who don't want to hear it and just say, this is so horrible, they're all rapists. they should all be locked up for the next 40 years. But let me give you sort of the DA's position. Now, the incident happened on October 19th, 2024. About three weeks later, in early November, Jane Doe goes to the Cornell Police Department,

gives a statement. The DA has now released part of that statement. It's a six-page, single-space statement based on what Jane Doe said to the police. They then typed it up. She then reviewed it and annotated it by hand and clearly read it carefully because she made apparently 20 or so notes to it. And the DA has now released some, not all, but some of that initial statement. And if you look at it, you have to overlay that on New York law. And even if her later statement is different, which it is, the later, the complaint is quite different from the

original statement. And that happens. And I'm not judging which one's true or false. Nobody really knows except for a very few people. But let me tell you what New York state law. says about sexual assault and lack of consent. Lack of consent can be the following. One, forcible compulsion by the act of physical force, physically restraining someone. That's nobody's alleging that. Jane Doe is not alleging that here. Two and three are sort of related. Mental incapacitation of the victim and physical helplessness of the victim. Now, wrinkle number one, mental incapacitation of the victim does not include under New York law drinking something voluntarily yourself, taking drugs yourself. If you're drug, that's different. But if you yourself get completely drunk or

high or whatever, that doesn't count. And there's been plenty of criticism over the year of New York law for that. There's been plenty of movements in New York to change that law. Plenty of states have different laws that say even voluntary self-intoxication. That can negate consent. But that's not the law in New York. Physical helplessness of the victim basically means outright passed out. And again, these are not things that Jane Doe alleges in her original statement. The fourth one is if the victim clearly expresses that she does not consent, says no. Now, that to me is where there may be some play because the vic, there are ins, if you want to read the whole thing, you can find it.

It's, as you said, David, it's graphic and horrific and all this. There are a few points where she says no to that and then continues with this. And I don't know that consent can be parsed so thinly, right? there's an argument that once you said no a couple times to some things, that's no, that's I don't consent, right? So my, let me now get to my criticisms of, so my criticisms of the online universe are the typical ones that Sarah raised, that people are letting emotion sort of, and look, it is emotional. You're entitled to go have whatever emotional reaction you want, but it should not translate into, therefore, this is absolutely a crime under New York law. You have to

take a careful look at New York law. Okay, my criticism of the DR, he clearly blew this case off. He got the statement from the Cornell police and was like, eh, doesn't match case over. Could have done so much more. Could have interviewed the boys back then, the males. Didn't do that. Obviously, he's not going to be able to do that now. Didn't get forensics or a medical report run on Jane Doe. It would have been three weeks later because it took her three weeks, so it probably wouldn't have amounted too much. didn't ask for a receiver review, contemporaneous text, communications. What did she say to her friends the next day? What were her conversations?

Didn't do any of that stuff, didn't go, you know, take a look at the room in the fraternity, run a search warrant, whatever you may have, doesn't look for internal surveillance from the fraternity. Now some of that may be attempted, but some of that's going to be too late now, including you're not going to be able to interview the males now. You're not going to be able to do forensics now. And the other thing I want to criticize the DA for is his position. now is I'm going to just punt this to the grand jury. That's BS. That is grand juries are not there

to be your heat shield. If you think you have a chargeable case, you present it to the grand jury. If you don't, you don't just throw it into their court and say, well, it's on them, whatever they may choose to do. That is a cop out passing of the buck by the DA. So the DA, there obviously needs to be and will be much further investigation here. But understand legally under New York law, it's going to be a difficult climb. And again, also keep in mind that burden of proof beyond a reasonable doubt. And the existence of the first statement is going to be a problem, no matter what's said later, because that's going to be a credibility question for the key primary and maybe only relevant witness.

So it's horrific, but let's take it down a notch before we assess whether there's a chargeable, provable crime of rape here. Well, I'm very glad you brought up the standard in New York regarding intoxication because there is, you know, it's so funny. I mean, there's this commonality with the Lindsay Clancy case where there was a quirk of Massachusetts law where you had to prove, in essence, as we talked about it, once the defense of insanity is raised, you have to prove that you have to prove sanity by beyond a reasonable doubt. That is not every state, not by any means. here it strikes a lot of people in different states and also just sort of as a common sense matter

wait what if i voluntarily get really really really drunk then that doesn't count but if i'm drugged that does count that is something that is a quirk of the law as you said people have been critiquing it for a while have tried to change it but that looms very large in this in this case. And I don't want to do the thing where we kind of twist and turn through the available evidence that we have now. That strikes me as not productive. I guess the main takeaways, I would say, is try as best as you can to separate your moral judgment here of what happened from the legal judgment of what happened. Separate those things out. And then realize that the legality of what happen is often governed by some pretty quirky state-specific kind of rules that can often

sort of remove the case from what you might think of as like a the common sense way I would adjudicate this or the common sense approach to this. And I think the inability to remove yourself from that is often part of the cause of a lot of confusion and disillusionment with individual case outcomes when, you know, I would say, New York really does need to think hard about this intoxication standard. Like that, what on earth? What on earth is sort of when I look at that standard, but it is the law right now and it is going to loom very, very large in this case. I'm actually shocked New York hasn't changed their law. I mean, you would think of all states that would update their laws in New York. I mean, it's a, you know, it's actually New York has

past several laws that are to the advantage of people who've been sexually abused or assaulted over the years, but not this one. All right. Well, let's go from something incredibly grim to something a little bit more fun. This, David, this is what would be known in the TV world as a tone shift. So I'll take you behind the scenes a little bit. So sometimes, you know, on set, you're having something spontaneously funny happens. Or you're doing a sports section or whatever. And then, but the producer knows that the next segment is something very serious. And so a good. producer will say into the anchor's earpiece tone shift tone shift because they don't want you you know hamming it up and and cackling it up and then you have to go and now to the tsunami that

claim 4,000 lives and whatever you know so so tone shift approaching here so tone shift everybody after the break is going to be very dramatic because we're going from one of the grimmest possible conversations to something a lot more fun uh and lighthearted so So prepare for the Star Wars draft of SCOTUS justices. All right, welcome back, everybody. So here are the rules, as I understand them, Ellie. You tell me if I'm misstating the rules. Essentially, we're having a draft.

We're going to have three draft picks apiece for who do you think would be an outstanding Supreme Court justice in the original Star Wars cast and why? And I thought this is really fun. And it's not going to be obvious. I mean, there might be a couple of obvious ones. But it's not going to be super obvious because, to say the least, Star Wars is not a legal drama. So we do not have examples. We do not have examples of either rebel or imperial jurists to draw from. So let's let me just go ahead and start with you. And I've got two, I've got three. I think you're going to take one of them.

But I've got three and I don't think you're going to take two of them. But anyway, let me just start with you. So first of all, the impetus for this, David, is the way that Sarah unacceptably degraded you over a very salient Star Wars comparison you made at the summit. And on the episode, and she started going, which one is which? What are they called? And she was dismissive of you. And so rather than shame you, I'm here to encourage your Star Wars super fandom, which I share, but really, I may, I may, you know, the, I know they're not technically.

Star Wars Empire Strikes Back Return of the Jedi happened when I was, you know, perfect age. Born in 1975, it defined my entire childhood until I was 12 years old or whatever. And literally, I love those three movies. And so you have to be in those three. I also have three that I'm going to nominate and one that I think maybe you're going to,

I have won no vote, but I'm going to do the three. Okay, my first nominee is, I think, probably my most obvious one, Princess Leia. And let me make the case for Princess Leia. Okay, she's smart, she's gutsy. She cannot be bought or intimidated, right? I mean, the scenes were Darth Vader's interrogating her and she's like, piss off. She led a successful revolution.

I mean, I think she's entitled to some spoils of that. She should maybe even be the, well, she's a princess already. She watched her entire home planet blown up essentially for sport by the Death Star. So I think she has some sense of loss and empathy. I will say you might criticize her. She's been criticized for her underreaction to that. She would be like if you were put on some other planet and watch them blow up Earth and you were like, hey, that was mean. Also, this is important.

She has some force, the force, right? She has a little bit of it, but not too much. And so I like somebody who has some instincts, but isn't going to just totally rely on the gut. No offense to the force. I will say there could be a little bit of a speed bump at her confirmation because she did kiss her brother, but she didn't know. They didn't know. They didn't know at that time.

Luke Skywalker, her brother. That's very good. That's very good. So I knew you were probably going to go with the big characters. So I thought, who can I go with that like a true Star Wars officianto would say he knows ball? Like he knows, he knows. All right.

So my number one pick, Mon Mothma. If you watched Andor, you know who Mon Mothma is. She's one of the principal characters in Andor. She's in the part of the Imperial Senate. She gives perhaps one, I mean, watch, just Google Mon Mothma speech, Imperial Senate. Now you're thinking, but David, I told you original trilogy. Well, she's in the original trilogy. She's in Return of the Jedi.

She makes a very brief appearance as one of the head leaders of the Republic, I mean, leaders of the rebellion, who later becomes sort of the leader of the Republic that succeeds the empire. And so she's there. She's very brief, but she's a principal character in Andor. So see how I shoehorned that in? Well, so this is, despite the weird name,

this is a human character, right? A human character. She's a human character. I know who she is. She's the one who says many people died for this information. Yeah, right, right. She is a stateswoman. She is a brilliant political thinker.

She is adept with imperial and the law of the old republic. She is one of the more impressive figures, just as far as like in charisma. And so this is somebody, I feel like that's easily of the whole cast of the trilogy. To me, she is the number one draft pick, even though her total screen time in the trilogy might be 45 seconds. But hey, that's what I, you know, the rules were, the rules were, they had to be in the original.

No, you've abided by the rules. She is, she is constitutionally eligible and similar to, I mean, I feel like she and Princess Leia would form a block. I mean, right? They're, they're ideologically aligned and similar demeanors. So yeah. Yeah, yeah. And Monmouthma is a little more, a little older, a little more experienced and distinguished. But yeah, absolutely. We've got a block right there. Okay. My second nominee, to that point, we need ideological diversity on this panel. It can't all be good guys, okay? Now, hear me out. Hear me out. I nominate to the Supreme Court, Jabba the hut. Okay. Now, okay, first of all, Java the Hut is an independent. Job of the Hut is not good guy or bad guy. Jabba the Hut is a pragmatist. He's transactional. He's not interested in

grand theories one way or the other. If it works for him, it works for him. Also, I want to make this point. job of the hut is not vulnerable to the Jedi mind trick so if you have solicitor general Yoda Solicitor general Luke Skywalker and he tries the Jedi mind trick it's not going to work on job of the hut that is a virtue also two other things that I like about job of the hut one he'd have that salacious crumb the little monkey thing which would be awesome you'd have to get a little robe for salacious crumb and number two at oral argument If an advocate was making a boring or terrible argument, what would happen? Boom, trapdoor, you're down there, rancor monster.

Now, that might be cruel, but I would watch and you would watch. I mean, that is a form of sanctions. You know, I mean, you know, Rule 11 violation, you get the trap door. I don't see any unfairness there, Ellie. I mean, we know the rules. And if you violate the rules, I mean, you know, I mean, come on. So my second pick, my second pick, Admiral Akbar, the fish-headed guy whose famous line in Return of the Jedi is, it's a trap, yes.

Now, why would I choose Admiral Akbar? So if you know your Star Wars lore, you know that Admiral Akbar is, you know, part of the Mon Calamari race. He's a brilliant commander. He has an analytical mind. He's somebody who is adept in a crisis. And so this is the person you want. receiving your emergency petition at one in the morning, right?

This is the person who can see around the corners who has moral courage and physical courage. So this is the person that's getting that 1 a.m. petition is able to evaluate it quickly, immediately and make the right answer. So Admiral Akbar. That's a great pick. I actually asked my son, and he suggested Admiral Akbar, and I really liked that one. I think that I was torn between him and Princess Leis. So awesome pick. Love that. Okay, my third nominee is also, I think, unimpeak. And that is R2D2. He is, look, who could possibly vote now on R2D2?

He's a war hero. He was wounded in combat, right? He gets blasted in the back of the ship that blows up the dust star. He is a master of intel and counter espionage. He carries the original message from Princess Leia that saved the entire cause, the entire rebellion. He is a key part of two of the most important missions ever blowing up both death stars. He is practical. He is smart.

He sees through pretext or subterfuge. And he can understand and translate any language. And in the Star Wars Supreme Court, you're going to have all sorts of whack languages being argued. And you need someone who can translate and bridge that gap. So R2D2 is going to get confirmed, however many people are in the Star Wars Senate, 10,000 to zero. And he's unimpeachable. no argument against R2D2. Also, his robe would be kind of odd. I don't know how a robe would fit on him because his body is this. It would be hard to get a robe to stay on him. You would need

elastic or something. There would be some sort of adhesive, I think. Velcro, Velcro around the barrel body. Yeah, I think that's the way I would have to go. So mine is probably not confirmable, but I'm going to reach for it anyway. Less than Jabba the Hut? I don't know. I mean, your point about like force, like immunity to the force is a very important. I mean, imagine you have a Jedi advocate who comes up and is like, you know, this is not the summary judgment you're looking for, you know? And so the, this mine is Lando Calrissia. Oh, boy. His most famous move was selling out his best friends, but okay. But here was my thinking. If there's anybody you would want arguing for you at the Supreme Court, smooth, kind of a chameleon, kind of, very

smooth, very eloquent. Like, this is a guy who is can, can turn on a dime. I've always had this thought, what if we had one of our best Supreme Court advocates on the court? Like, what if you plucked somebody who was just a, you know, a Canon Shan McGahn, a Lisa Blad, or whatever, and you put them on the court, what would that be like? So that's Landau Calrissian. Like, it's like Lisa Blad on the court, you know, the person who can represent many different sides, see all of the different sides, extremely persuasive, charismatic, would be a machine in conference after the, you know, after oral argument. I don't know. I don't know. If that person, if Cam Schemagan or Elizabeth Preligar had sold their best friends to their likely deaths, then yes. Exactly right.

That's the wrinkle and the confirmation problem. I'm just so, so I mean, you have somebody who just executes people who are upset him, right? So, I mean, is it okay? And look, I know Canon and Lisa and all of those guys, they would never sell out their best friends. I'm just saying the tool set, the skill set, not the moral framework, the tool set. That's what I'm going for here. Okay. So controversial. I was prepared to rebut you on Yoda because Yoda's the obvious, right? But let me make the case against Yoda. Okay. He believes just in entirely too much in the force, almost to the exclusion of all else. And you just can't have that.

You have to have somebody who, yes, take your force, take your ideology, take your gut, your vibes, fine. But it can't be like, I don't care about the facts. It's just force. Second of all, his syntax would be impenetrable and unbearable. He'd be like, wrong is appellant because appellant is wrong. And you'd be like, what the hell are you talking about? Third of all, we're going to have a life tenure problem with Yoda because he dies and then

it comes back and it's like, does he get to stay? He's kind of a ghost. Is he done? Is he on? Is he off? So that's my no on Yoda. So my no on Yoda is due to cheating. So my no on Yoda is I cannot, I cannot see Yoda or Obi-Wan in the same light after watching the prequel trilogy, where they are hand-in-hand side by side with the future Darth Vader the whole time. And then Darth Vader is turned in one blinding moment by Palpatine. I'm like, you're just too gullible, guys. You're too gullible. You're just going to see the good and everybody. You're not going to be cynical or skeptical enough. You were taken in. So yeah, we look at them as heroes in episodes four, five, and six, but they're cleaning up the mess they made. They made this mess. And so,

yeah, I'm just, I'm out on them. I'm out on them. Poor Yoda. I, I would, I think Yoda would be the first name to pop in everyone's mind. So let's envision. We have six justices on our court. Imagine you're standing in the well of the Supreme Court. And they say, Oye, Oye, and out comes justice is. Leia, Mothma, whatever that lady's name is, Hutt, Jabba the Hutt, Calrissian, Justice D2,

and Justice Akbar. That would be amazing. This was either the greatest or worst segment ever done on this podcast, depending on where you are in Star Wars. Yeah, and just like in the Bostok case, the oral advocates were aiming their argument at Justice Gorsuch. You could, you know, they were aiming it. I'm aiming my argument at Lando.

I think he would, I think he would always be the swing vote. He would always be the swing vote and the most eloquent member of the court. So he's my key, he's my swing justice. I'm just not going to let my son clerk for job of the hut, you know. That's where I draw the line. All right. I would say in the history of tone shifts, that's a hard tone shift. Oh, gosh. Well, thank you so much for sitting in. This has been a real treat. I know the audience has really enjoyed it, and I've really appreciated it. And never fear, guys, the true, the once and future host, the true host, is returning again next week. And sadly, we'll say goodbye to Ellie for the time being. But you are now officially, not just a friend of the pod, but B-F-O-P, best friend of the pod.

So we appreciate you so much. Thank you. What a thrill. It's been a blast anytime. Not that I want you or Sarah to ever be, to be, you know, to be ill or anything. But if you are or out of the country, you know where I'm at, I'm happy to come in and be the boy, Sarah, or the other David French. I love it, love it.

Thank you, L.A. Thank you, listeners. and we'll be back next week. That's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show

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that's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.