Advisory Opinions - Not the Trump Apologist Podcast

Episode Date: October 17, 2023

What do the 6th, 9th, and 11th circuit all have in common? Well, they're all part of this episode's circuit palooza! But don't fret, there's also: -One city manager's revenge -a gag order for a former president -David makes Sarah regret asking the difference between a clip and a magazine -California’s magazine ban has no likelihood of success -There’s levels of scrutiny to this -Sarah’s judicial writing crushes -a listener's question! Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at PHYS.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Iskra, that's David French, and it's Circuitpalooza here at Advisory Opinions. I'm Sarah Isber. That's David French. And it's Circuitpalooza here at Advisory Opinions. We're going to talk about the Ninth Circuit, the Sixth Circuit, the Eleventh Circuit. And don't worry, we're going to mention a little interesting cert grant along the way and a gag order. So it's not only circuits. And then a question from

a listener on why circuits seem to retain their ideological bent through different administrations. David, welcome. We're recording together today. We are live and in person in Washington. Well, not in greater Washington, D.C. But unlike the last time where we had a live audience of Georgetown law students, today we have a live audience of Frannie, a gray cat. I don't even see Franny, though. Franny? She's hiding. Oh, okay. She doesn't like people. Okay. Good to know. I thought we might as well start with the cert grant from the Supreme Court on Friday last week,

because I thought you would be really into this case, and I also thought maybe you might have missed it. And I did. I'm so excited to tell you about it. Okay, great. I've been looking forward to it. All right. So this 72-year-old woman runs for city council in her small 5,000-person town in Texas. And against all odds, she wins. And she wins because she went door to door explaining that she believed that the city manager was corrupt. And that, you know, if she got elected, she would have a petition to have him, you know, removed as city manager. A non-binding petition. Just sort of like, you know, at your school where you have a petition for more candy in the vending machines type thing.

So she gets elected against all odds. 72-year-old woman, small town in Texas. She circulates her petition. She presents it to the mayor, the city council, et cetera, at the next meeting. But there's a bit of a problem here, David. The mayor is the one who hired the city manager. Okay. And the city manager then hires the whatever commissioner

who then hires the sheriff and blah, blah, blah. I hope you can see a little bit where this is going. So at this meeting, it's very contentious. It turns out the mayor didn't actually make a copy of the petition and they're sitting next to each other and she leaves to talk to constituents after the meeting, you know, across the way of the petition and we're sitting next to each other and she leaves to talk to you know constituents after the meeting uh you know across the way of the room and and someone walks over and says mayor wants to talk to you so she goes back over to the table to talk to the mayor and he says where's the petition and she's like i don't know don't you have copies of it he says no i didn't

make any copies of it. She goes, oh, well, maybe I accidentally picked it up with my stuff when I just bought it together. I thought there were a bunch of copies of it. And it turns out that she had taken the petition that I guess maybe was in between them and it was now in her binder. Okay. Okay.

You don't seem outraged by this behavior, David. Okay, so she takes the petition. Put it in her binder. Put it in her binder. And walked a couple feet away from the table to talk to those people for whatever that was, five to 10 minutes. Okay. So she obviously committed a felony of hiding and concealing a government document. Oh! Is that what she did? Maybe. Okay. So they do a few interesting things.

First of all, they do a month-long investigation, at which point the actual police officer dude can't find enough. So then they hire a special officer person. They do find it, but they don't run it through the DA's office. They just go straight

to the magistrate and they get a very, because they don't run it through the DA's office or any of the regular channels, the type of warrant that they get

instead of a summons is like actually an arrest warrant where you spend the day in jail. Okay. The second the DA, by the way,

sees this, they dismiss it because... Of course, yeah. Uh-huh. DA, by the way, sees this, they dismiss it because... Of course, yeah. Okay, long story short, I think you can see where this is all going. She says that she will never run for office again. This has been so traumatic and horrible. But she sues them for First Amendment retaliation.

Interesting. Normally, the law would say that if the police officers had probable cause that a crime was committed, you can't get 1983 damages against them. Right. But there's an exception. I'm going to mispronounce the exception, but Nevis

v. Bartlett is this exception that basically says, if you can prove that they don't bring this case against similarly situated people, if you can prove that they don't bring this case against similarly situated people, then you can, regardless of the probable cause. Because here, of course, there is probable cause. Obviously, a magistrate signed it. She did conceal a government document in her binder. Okay. So interestingly, the Fifth Circuit says she cannot bring, she doesn't meet that standard. Because while she brought evidence that they never bring this charge,

that in fact it's for, you know, destroying evidence and all sorts of other things, they've never brought something like this, that what they need to show is that they do bring this case, but not, basically, it's like the jaywalking example, right? You need to show that all these people are jaywalking and that they're not charging them.

Here, you need to show all these people are concealing government documents in their binders when the mayor is sitting next to them and messes up their paperwork. Right. And they don't bring cases against them. It's the analogy problem. The same one that we're going to have

with some of this history, text and tradition stuff. Why do I always say that instead of text, history and tradition? I don't know. So anyway, there's this dissent by Andy Oldham on the Fifth Circuit that's like an, are you kidding me?

Right. Dissent. The Supreme Court has taken cert in that case. And I am so pumped for that oral argument. I'm so ready for that as well. I cannot believe, well, I know why I wasn't paying attention because a lot happened last week in the world. so ready for that as well. I cannot believe, well, I know why I wasn't paying attention because

a lot happened last week in the world, but that's a fascinating case. So the question is, what do you do? Can you have a retaliation charge when there is no similarly situated other person? Correct. But there is arguably some form of probable cause that's been found. Take for granted that the probable cause exists. Okay. And use the jaywalking example. You normally can point to all these other people who are jaywalking and say, so why was I charged? Because I told the government to go F themselves. But here it's actually that they never even bring this charge. Or sorry, there is no one else who jaywalks, so they never even bring this charge or sorry, they,

there is no one else who jaywalks so they don't bring jaywalking charges. So why did they pick her out? Right. There's no similarly situated person for the very, like that is the retaliation claim. Yeah. It seems pretty obvious to me. And of course I know people don't,

uh, always look or give credence to these statistics, but if the Supreme Court takes the case, coin flip, it's more than a coin flip, they're reversing it. Yeah, which I think they should. I mean, there's not a lot here that, and the other judges say like,

they're following what they believe is the Supreme Court's precedent. In this other case, that is also very fun, dealing with what amounts to like Burning Man of Alaska, where it's like this um i don't know athletic sort of competition but it's in very rural alaska and everyone drinks a lot and the police have their hands full and it came down to this guy who gets arrested for resisting and it was like, maybe he told the officer that he didn't want to talk to

him. And then a few minutes later, the officer sees him doing something and yada, yada. The guy claims that the officer says, I bet you wish you'd talk to me now. And what's sort of interesting about that case, of course, is that everyone there was in theory, you know, resisting arrest and being drunk and disorderly. So why him? So that's where the Nevis case, the actual precedent comes from, which is also just fun fact. Oh, interesting. So this strikes me as the kind of case, you know how you talk about there is a kind of case that the doctrine, underlying doctrine is bad man stays in jail. This strikes me as the kind of case where the underlying doctrine might be bad man pays damages.

These people do not look good. Now, of course, at this part of her case, you assume all of her facts are true. Yeah, right. Of course. So these are the worst facts. Yes. This is her story that is a transparent attempt to prosecute her for harassment. I mean, just to harass her with a prosecution.

That being said, we do know that the facts are that they arrested a 72-year-old woman for concealing a petition that was her petition to begin with. Her petition, right. That she presented to the city council. So, yeah. It's blocked by a judge-made legal doctrine currently that makes some facial sense, but not in this circumstance.

Correct. So look forward to that. Needless, by the way, is a recent case. It's like the Roberts Court, at least recent. So this will be revisiting something that they've sort of just been working on. May have some little avenues and cul-de-sacs left to build in that neighborhood. No, I like this case. This is a good one. This is one of my fun kind of Supreme Court cases, like Angry Cheerleader, that doesn't have some huge culture war valence to it, but

is important nonetheless and has fun facts for us. Not fun facts for the 72-year-old woman, though. That's really a tough thing to go through. And I feel very bad for her. But from the standpoint of outside analysis, it's so crazy as to be kind of a fun case to talk about. Exactly. All right. We can do this quickly. So Judge Chuckin in the federal election interference case had a hearing actually just before we recorded this to determine whether she should issue a similar gag order related to Trump basically not disparaging court personnel, witnesses, things of this nature. And I don't think anyone would be shocked. She did issue such an order, though there were some interesting exceptions. I don't know anyone would be shocked. She did issue such an order, though there were some interesting exceptions.

I don't know what to call it. Like, so obviously Mike Pence, for instance, is a witness in this case and is also running against Donald Trump for the Republican nomination. And so she did talk about that and said, you can talk about Mike Pence and criticize Mike Pence, except as it relates to this case.

So what did you think, David? Yeah, I mean, it was narrow. So you're talking about taking, don't take on the witnesses, don't take on the prosecutor, but you can criticize the Department of Justice. You can criticize Joe Biden. You can criticize Mike Pence on everything except his specific testimony related to this case. The interesting thing here about this is, Sarah, when you dive into the case law surrounding these gag orders, usually they're entered in to protect the defendant. They're protecting the defendant from the prosecution talking a lot about this case. And one of the key cases involving this is a case where a person was accused of killing a family of six, a very sensational case. And there was a very broad order entered into to sort of say, stop talking about how sensational the facts are of this case because you're protecting the defendant from a tainted jury pool. Here you're protecting the jury pool from the defendant, the witnesses from the defendant. It's much more of kind of a

witness intimidation type order. It's different. I have an unpopular opinion, which I don't think is going to shock you. You don't like this gag order. I don't like this gag order and I don't like the other one. And you've basically outlined why. Bring a witness intimidation claim or don't. But here, for instance, I thought that the Trump team made a pretty compelling argument to me, which is, look, Mark Milley and, well, I'm forgetting some of the names, but like they've written books

criticizing Donald Trump. And you're saying that he can't respond to that because it has to do with this case? He's running for office. And again, you're just audience members. You're going to have to imagine this guy's name isn't Donald Trump, frankly. I'm very skeptical of it as well, Sarah, because of the very reason I said,

because when I started diving into the case law on this, what's the Supreme Court said? Again and again and again, you're protecting the defendant's right to receive the fair trial. And there are, as you say, there are prohibitions against witness intimidation. If he's done that, if he's crossed that threshold, you can do something about it. So, you know, if a John Gotti said any witness that shows up is going to have a very short lifespan, well, maybe you can do something about about the key witnesses in the case, that's, you know, a lot of defense attorneys do that. It's a little less common to have the actual defendant do it, right? It's a little less common to have the defendant pitching the fit.

But defense attorneys will take on and very aggressively take on witnesses in public. It does happen. Now, I do feel differently about court personnel. Yeah. I'm not sure I feel differently about the judge or the prosecutor. Maybe. Those are closer. So, for instance, a gag order about court personnel, no problem.

A gag order about public sort of court figures like the prosecutor and the judge. Great area for me. A gag order about witnesses who are out there talking about it themselves. Yeah. Yeah, I have a problem with that. I'm with you. I have a problem with that. But again, you know, we are in a situation where, for example, as was pointed out

in some of the court filings, jurors in one of the January 6th cases were, can you make sure that does the defendant have our names? Does the defendant know who we are? So there is a real concern and there have been threats. So there is an interest in preserving the integrity of the process itself. I'm just not sure that the Trump words are explicit enough to implicate that. Also on the witness intimidation front, the witnesses need to actually be intimidated. And Mike Pence doesn't look very intimidated to me. It may be unpleasant and all, and I wish it didn't happen. I hope that goes without saying at this point in our podcast. Right, right.

At this point, we are not the Trump Apologist podcast. No. Come on. Right. But you either have it for witness intimidation. You can't do pre-witness intimidation. Yeah.

I know it's relatively narrow. I am not confident that survives an appeal. If they do it. If they do it, right. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Alright. Now, let's move on to Circuit Palooza. Everything after this point

will be circuit related. We're going to start with the Ninth Circuit. Fascinating case on large capacity magazines. And the Ninth Circuit, en banc, upholds a law banning large capacity magazines in California

that's defined as more than 10. 10 rounds, yep. Now, the majority opinion is incredibly short. Shockingly short, yes. The dissent written by Judge Bou bumate has all sorts of nuggets like for us i mean it felt like it was it was written for you and i david like it honestly did i'm not gonna go out and say he did it a judge bumate did it but it was really like what's the difference between history and tradition for example example? All right. So four judges dissenting from the majority upholding the law.

And it's Bumate writing and then judges Okuda, Nelson and Van Dyke joining. Worth noting also that the district judge in this case struck down the law as violating the Second Amendment under Bruin. And they actually skipped the panel here. Very unusual. Yeah. Very unusual. Okay. So, David, why don't you walk us through the gun part of this

before we get to the fun conservative intra-war stuff? Yes. So, what's really interesting about this is you have a lot of conversation about assault weapon ban or, you know, and that is the assault weapon ban. The thing that's interesting and frustrating from a gun standpoint, the real issue is the magazine. The magazine is the issue because an AR-15 is just a semi-automatic rifle like a lot of, for example, deer rifles are. What makes the AR-15 something extra is that it usually comes with a bigger magazine. So a 20 round or a 30 round magazine, which means you can fire 20 or 30 times without changing magazines, makes the weapon far more deadly. So the real issue here, whenever you hear assault weapons, it's not really the rifle,

it's the magazine that they're talking about. So this is a really, really important issue when it comes to firearm regulation. magazine, that is less than the standard capacity for a lot of semi-automatic handguns that you would purchase in the United States. So a Glock 19 or a Ruger SR9 or something like that, depending on where you are, the standard capacity magazine for that might be 15 rounds, 17 rounds, 19 rounds. So what this actually is doing is it's limiting a large number of weapons sold. It's limiting the magazines to a smaller magazine than is standard for a lot of weapons sold in the United States. Can I ask a really important vocabulary question? Yeah. What is the difference between a magazine and a clip? important vocabulary question. Yeah. What is the difference between a magazine and a clip? Okay. Well, this is, oh my gosh, if I don't state this exactly right, Sarah,

they will, I will be lit on fire in the comments. So Sarah, the quickest and easiest way to think about the difference between a clip and a magazine is that a clip usually is used to load a magazine, but the magazine is the thing you insert into, say, the AR-15, usually metal, sometimes plastic, usually metal, almost always metal. I don't know if I've seen a plastic magazine going into a handgun, but not saying it doesn't happen. So the magazine is what you insert into the weapon.

Some guns have an internal magazine, but just think of it this way. Clip helps load a magazine. Huh. So they're not interchangeable words, but in a lot of contexts, they would be interchangeable words. Not really. The only time where you look at a clip functioning very much like a magazine was the M1 Garand rifle in World War II. They would put the clip straight into the weapon and then you'd fire it. And then when the magazine was empty, there was a pinging noise and you can hear it on Band of Brothers. It's very period accurate. They'll fire, fire, fire, fire, fire, ping. And it was interesting as sometimes Germans would

actually try to take advantage when they would hear the ping because that was a symbol that whoever was firing the M1 was out of ammunition for the moment. Okay, we're having very different conversations when I say that they're interchangeable. I mean, like on a TV show when someone says he unloaded a clip into him. Oh, yeah, yeah, yeah. Except for the real gun aficionados who are screaming at the television. And they're, because they're saying, he unloaded the magazine. He put the clip, he used the clip to load the magazine and then he unloaded the magazine.

I'm not sure if I'm happy I asked this question or not, but moving on. And I was dumb enough one time, years ago in National Review, even though I know that when you're talking about a Glock or an AR-15, you're talking about a magazine. moving on and i was dumb enough one time years ago in national review even though i know that when you're talking about a glock or ar-15 you're talking about a magazine although i'm less certain

about the precise definition of a clip i am certain about the death you know magazine and one time i just used the word clip and my gosh the comments you know and yeah so thank you for that cul-de-sac okay okay back to it yeah so when you're talking about here are and i think it's very important for the whole rest of the conversation to define this because what you're not talking about are unusual items okay these are very common a magazine that is more than 10 rounds is extremely common. I'm talking millions upon millions upon millions of these things are in circulation. So why is this important? It's in common use for a lawful purpose. Okay, self-defense, for example. And so that is going to be very important to the dissent in this case. It's common use, lawful purpose. And so a lot of these acts that say we're banning like large capacity magazines, they kind of are misleading in that they make you think they're unusual capacity magazines that would ban truly unusual magazines. There are some

custom magazines that you can get, for example, for AR-15s. It's like a drum style that holds a huge number of bullets. But this is normal. These are very, very normal magazines. And that's very important for all that follows. Okay. So what judge Bumate is going to do here in dissent is apply the Supreme court's text history and tradition test to the California law, which again, it's sort of interesting because the majority doesn't do anything. They literally are just like, obviously this is constitutional. We're moving on. Huh? Yeah. It's amazing. They just, it's the most conclusory thing I've ever seen almost. So I want to read this portion of Judge Boumete's dissent

because this is the part that looked like it was addressed to us. Finally, before, so he talks about the text, which I think it's hard for even those who believe that laws like this should be upheld under the Second Amendment to argue that the text certainly covers this. Now, which way you come out then after that can be debated, I think. But the text of the Second Amendment covers magazines. There was some argument by the

government that like, no, it only covers the guns themselves. but of course then governments could just ban triggers. Right. You know, if you ban the ability to load the weapon. Right. Okay. So the text of the Second Amendment covers magazines. And so now we move on to history and tradition. So reading now from the dissent. Finally, before turning to the application of the law to this case, we address a criticism often lodged at the court's so-called text, history, and tradition approach, the confusion between history and tradition. What do history and tradition mean in this context? Do they mean something different? Well, when assessing analogous regulations under the Second Amendment, it is relatively straightforward. History means that analogous laws must be sufficiently

long-standing and from the relevant time frame. That's because not all history is created equal. History's role in this inquiry is to help establish the public meaning of the Constitution as understood when the people adopted it. Thus, historical events that long predate ratification may not illuminate the scope of a constitutional right if linguistic or legal conventions changed or became obsolete in intervening years. Likewise, we must also guard against giving post-enactment history more weight than it can rightly bear.

The further we depart from ratification, the greater the chance we stray from the original meaning of the constitutional text. Thus, the court tells us that the public understanding of the Second Amendment from only two historical timeframes is relevant, from the adoption of the Second Amendment in 1789 and from the ratification of the 14th Amendment in 1868. And just Sarah footnote here, the reason that the 14th Amendment is relevant is because that's when it's going to be applied against the states. Actually not when it actually becomes applied against the states because that's 2012 and McDonald versus Chicago. But when we use the 14th Amendment to do do it and so that's why that's relevant for those who are

not lawyers listen to this podcast okay thus laws enacted after the end of the 19th century must be given little weight tradition on the other hand connotes that the comparison must be to laws with wide acceptance in american society. Take territorial restrictions. The court considered them unhelpful for historical analysis because they were transitory and short-lived. Such passing regulatory efforts by not yet mature jurisdictions do little to show what is part of an enduring and broad American tradition of state regulation. This is all the more true because territorial laws govern less than one percent of the American population at the time. Tradition thus demands that we don't justify modern regulations with reference to outliers, such as a law from a

single state or a single city that contradicts the overwhelming weight of other evidence on the meaning of the Second Amendment right. On the other hand, laws that enjoyed widespread and unchallenged support form part of our tradition. David, that's the best explanation of history and tradition I've seen yet. That's a great 10 out of 10 no notes. Now, it doesn't address some of the other problems with looking at historical analogies, particularly in the Second Amendment context. the idea that in order for any of this to work, you have to assume that the government, and the governments here referring also to states, at the time of the Constitution's original ratification in 1789, and at the time of the 14th Amendment's ratification in 1868,

the governments were using their powers to their maximum. Because if they weren't, using their powers to their maximum. Because if they weren't, then we're now reading into it like, oh, well, they only did, you know, let's do it on a 10-point scale. They only passed a two law. Therefore, it's unconstitutional to pass a seven law.

Well, no, no, no. It's actually constitutional to pass up to a 10. They just didn't want or need to pass up to a 10. So they were only doing twos and threes at the time of ratification. At the 14th Amendment, maybe they were doing fours and fives. But it turns out they meant to include up to a 10.

Nobody really has had to grapple with that yet because they don't know how you do. I have no clue. And it becomes really important in this example because if you're looking at, by the way, I love one of the subheads, California's magazine ban has no likelihood of success. I did notice that. great way of stating it. When you're looking at text history and tradition, when you're talking about something that just flat out did not exist in the time when you're looking at text history and tradition, you start reaching for absurd analogies. And so a lot of this is, well, how much of this, how can we compare this to so-called trap guns? Well, there's so little in common between a trap gun and an AR-15

with a 20-round magazine. You just look at fighting knives, carrying a fighting knives and certain blunt objects. Everything is so strained because nothing like this existed. And so it becomes completely strained and you're trying to search for the closest analogy when there isn't a close analogy at all. Which is why I would prefer if the court went back and sort of at least had the

starting presumption of at least let's go with kind of the way heller framed this and the way heller framed this the the key quotes there are um the amendment protects the kinds of weapons that are ordinarily used for quote traditionally lawful purposes and so this is this is a much more helpful framework than what kind of firearm regulation did we have that we can compare to firearms that did not exist then It's not a hard inquiry to say, is this in common use, ordinary use for a lawful purpose answer absolutely 100 yes that can end the inquiry right there instead of searching for well what did we think of bowie knives in 1878 and how does that compare with an ar-50 i mean it's it's kind of crazy making in a way when you're when you're trying to draw these precise analogies when these weapons literally did not exist in this form, period. But don't you think it's also a problem that some of this now looks to whether they're widely used? Because the fact that something is in wide use doesn't tell me a whole lot about its constitutionality and here i'm thinking beyond the gun debate um you know you've mentioned that there's obviously millions of these magazines in

circulation because they come standard with the gun they just come with the gun right yeah uh and so that is used as some of the evidence that like, therefore, because it's widely used now, and we look at the history, which the Second Amendment didn't ban things in widely used circulation, therefore, because this is now widely circulated, I don't know, that isn't satisfying to me. Well, that's where also you have levels of scrutiny.

So I wanted to get to levels of scrutiny here, David. Because our criticism of the sort of feasibility at lower courts to use the text history and tradition test has been like compared to what? And your argument has been tiers of scrutiny was working just fine. Yeah, they had just chosen the wrong tier of scrutiny. Correct. Yeah. Chosen and or sort of it just become the. tier of scrutiny. Correct. Yeah. Chosen and or sort of, it had just become the- Backed into it.

Stepchild of- Yeah, exactly. The Constitution. Okay, so there's a few problems with this. One, text history and tradition is at least trying to look at the Constitution itself. Tiers of scrutiny are nowhere to be found in the Constitution. Text is looking at the Constitution itself. Sorry, history is looking at the history of the Constitution. Fine.

History of what legislatures do, which is not necessarily looking at the Constitution. Okay, fair enough. Which is my beef. passed a constitutional amendment tomorrow and the first big legislative enactment relevant to that came from the Tennessee legislature, I'd be like, guys, I don't even know if they read the amendment before they enacted this. And the idea that 100 years from now, somebody's going to look at this Tennessee legislature. Oh, Lord, help us. Sure. I think one of the hardest parts of that is the Alien and Sedition Acts, which are passed within just over a decade or less. No, less. I think the technical term is super fast.

Super fast. Yeah. example of what they thought was constitutional to the First Amendment? Or do you look at it as an example of, OMG, that's obviously not protected by the law allowed under the First Amendment. And it certainly, I think, is the strongest argument for the

common good constitutionalists, for instance, that you can ban blasphemy laws. They look at the Alien and Sedition Acts the same way that I think the text history and tradition folks are looking at some of these Second Amendment laws and saying like, look, they clearly thought this was constitutional at the time.

But the tiers of scrutiny are at their core a balancing test. Strict scrutiny is to look and favor a constitutional right and balance that against whether the government has a compelling interest to overcome that right. It's a balance. And it's up then to the judge to balance your constitutional rights against the government's interests. That doesn't feel very conservative under the legal ideological framework that we have been raised. Oh, it's super conservative on two grounds. One ground is obviously when you're talking about strict scrutiny,

you have your thumb on the scale of the text in a very strong way. And so you are absolutely privileging the text, especially when you're talking about strict scrutiny, intermediate scrutiny. You're privileging, as we've said, the judge and then rational basis, we're privileging the legislature which would be a reasonable thing to do depending on what the text says and then there's another small c conservative reason for tears of scrutiny chesterton's fence um before we go berserk on saying that we originalists have discovered that we can sort of mine for gold in the historical record that gives us sort of an objective reading of the constitution.

Then what you're doing at that point is you're saying, you know, look, it's not certain to me that when you're talking about text, history, and tradition, that you're actually getting to a real original public meaning, especially, for example, like here, because you're talking about a kind of device that just didn't exist. And that's not to say it's therefore not protected. I'm not in this person saying, well, obviously, you know, the second amendment was enacted when there are muskets only. There's a certain principle behind the right to keep and bear arms. But when we're looking at these state legislatures as the

original public meaning, and then we're going to say, for example, okay, well, what about all of these like really bad gun control laws that were enacted to keep guns, for example, out of the hands of Black Americans? That's part of the history and tradition of gun regulation. But no, we're not going to do that. It just strikes me as it's not actually necessarily getting to original public meaning, Sarah, because I just don't trust the sources who are saying that, oh, this is so obviously. So, for example, when you're looking at the state legislatures and the aftermath of the passage of the 14th Amendment, it's far from

clear that these guys thought that the 14th Amendment was even going to incorporate these amendments in the Bill of Rights. Yes. Okay. But let's come at this from a different angle. Which test better protects my constitutional rights? Strict scrutiny. Ooh, make that case. rights? Strict scrutiny. Ooh, make that case. So strict scrutiny, which we've always said with slight overstatement, which is what's the state strict in fatal in fact, what's the first

part of that strict and strict in theory, fatal and strict in theory, fatal. In fact, it is hard to overcome strict scrutiny. It is hard. It is not impossible, but it is hard. So, for example, if you had, if a gun is in common use for a lawful purpose and the ability of the state is then you cannot restrict access to that weapon in the absence of a compelling governmental interest advanced by least restrictive means, yeah, it's going to give the state, let's say, for example, you had a insurgency pop up over the 2020 election, and the insurgents were using AR-15s, and one of the emergency measures you passed to deal with the insurgency would be banning AR-15s in that jurisdiction. I think that would meet strict scrutiny, for example,

because you have a compelling governmental purpose, the suppression of an insurgency, least restrictive means, you're talking about dealing with the weapon of choice of the insurgents, it might, you know, that would pass constitutional muster. But I don't think that when you're looking at this historical record, which is so difficult to square with the actual facts of the case, scrutiny seems to make so much more sense to me. And when are we going to rename this podcast Text History and Tradition Delinda Est? Because we have talked about this so much.

I know, I know. Okay, I think this is interesting. Now on this specific case, this is coming as a stay petition. Yeah. Uh, so what do you think happens now? Obviously they'll appeal to the Supreme court, but this will go on the emergency docket, i.e. the shadow docket. Um, I'll tell you, I think the Supreme court doesn't touch this on the emergency docket. I'll tell you, I think the Supreme Court doesn't touch this on the emergency docket and waits for one of these to come up on the merits. There are magazine restriction laws popping up all over the place. I don't know that this would be the first one. It might be because obviously the litigation itself shouldn't take that long.

But do you think the Supreme Court takes this in a stay posture? I don't think so. It doesn't just get to the merits. We've had this before, right? And the Supreme Court, frankly, is still struggling with it. What is the status quo that you're trying to maintain during litigation that you stay or don't stay? And in this case, the government has passed a duly enacted law to ban this thing that implicates people's rights. On the one hand, you're looking at the irreparable harm. Who's going to be irreparably harmed if this stays in place? On the other hand, you're looking at likelihood of success on the merits, where I think they're very unlikely to succeed on the merits for all the reasons you've laid out. You've got those two two intention. What do you do for the course of the pending litigation? That's a great question. And

when you also consider that there's the Rahimi case pending, which may have a lot to say ultimately on how to do text history and tradition, I doubt it will reverse, it will undo the Bruin text history and tradition test, but I could imagine them giving a lot more guidance on that and maybe just remanding the case for reconsideration in light of the outcome of Rahimi, possibly. But it's pretty clear to me that the Supreme Court is wanting to back away from the emergency docket. At least a few justices. A few justices.

At least a few justices. A few justices. And you know that Jackson, Kagan, and Sotomayor are not going to be jumping up and down to take this case. So then it's going to take just a few of the three emergency docket skeptical conservative justices to say, not yet. I would bet that's what they'll do, but I could be totally wrong. All right, let's move to the Sixth Circuit. Oh boy, this case. I know. So this is on state laws banning gender-affirming care for minors. Yeah. And Sixth Circuit Judge Sutton writing the majority opinion with Judge Thapar joining.

And there is as well a dissent from the chief judge of the Sixth Circuit, Judge White. David, I just, I know that you know that I have a, in terms of the circuit courts, I have a judicial writing crush on Judge Sutton and Judge Newsom. They're probably my two writing crushes at the circuit court level. You know, at the Supreme Court level, and I think I've said this, but maybe

not as bluntly as I maybe should have at various points. I think that Justice Kagan is the best writer on the court and maybe of the Supreme Court's entire history. Obviously, I don't agree with any number of her decisions or what she's writing. She's just good. She's just a good writer. So anyway, I'm putting Judges Sutton and Newsom in my pantheon of great writers. So if you're just looking to become a better writer, I think you should read this opinion. But also, not just for its clear writing, but also its very empathetic writing here. He's not trying to, you know, quote, own the side that's losing or anything. No.

While upholding these laws that ban gender-affirming care for minors. He has several reasons for doing so. We'll walk through a few of them. But remember that this is Judge Sutton, who literally has written the books, plural, on the importance and majesty of state constitutions and sort of these laboratories of democracy that we have running. And so at the end of the day, a lot of his decision is based on the idea that this is a contentious issue. There's nothing banning states from banning medical procedures that they don't think are safe. And we're going to have to let this play out because in the same way that some state legislatures are absolutely allowing, and even in some ways protecting or encouraging gender affirming care for minors, you've got to then allow some states to ban it. We've got to let this work itself out at the state level rather than having judges step in and say one side wins and one side loses at this relatively early stage in this discussion. And I just thought he handled it with such care.

Yeah. And real empathy for the losing side, frankly. This is such a well-done opinion. And one of the reasons why I thought it was so well done is we've talked about these cases before, and I've always said the most compelling case, the most compelling argument is the parents' rights argument. It is not the equal protection argument because this is, the equal protection argument to me has, has from the beginning struck me as specious. The parents' rights argument is the more compelling. And it has just a really

interesting discussion of, you know, that whole concept of parents' rights and medical care and the ability of states to, you know, state authority over children's activities versus state authority over adult activities. And, you know, there's a line that he has in here, which I think is the key line. And it says, parents' rights do not alter this conclusion. And the conclusion is that there's greater ability to regulate actions of children than adults. Parents' rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children. banned treatments for their children. So you have a right of access, for example, to legal treatments for your child as a general matter. I mean, there's a lot of details here, but as a general matter. But the state also has a general power to ban or regulate access to certain kinds of medical treatment. So for example, if a state says no one under 12 can get a tattoo, period, and I want my 12-year-old to get a tattoo,

my parents' rights don't trump that. But if it is legal, for example, for my child to get a tattoo and my child gets a tattoo and then the state, I go to a state across the border, get a tat for my child to get a tattoo and my child gets a tattoo and then the state, I go to a state across the border, get a tattoo that's legal and then come in. The state wouldn't have an ability to separate me from my kid because I availed myself of a legal procedure for them. I know it's a bad, you know, there's a lot of imperfections in this analogy, but hang with me. But I thought that that was, he really had a very thoughtful discussion of where does the state's ability to regulate medical care for children collide with and interact with the parents' rights to seek medical treatment for their child.

I do think it's worth a moment on why Bostock doesn't apply here because the dissent very much is looking at that equal protection claim under Bostock doesn't apply here because the dissent very much is looking at that equal protection claim under Bostock. Remember, this is the employers can't discriminate against someone because of their sex, quote unquote, and that sex will include gender orientation, sorry, sexual orientation and gender identity. And what Judge Sutton says in the majority is, yeah, but they're not being discriminated against because of their gender because it bans these treatments for all minors, regardless of the gender that they were assigned at birth or the gender that they are trying to take medications to be closer to, um, the dissent of course is saying, well, no, because

in particular, if you are a, you know, uh, assigned male at birth who has low testosterone levels, you can take testosterone. But if you're assigned female at birth, you're not allowed to take testosterone. And how does that not look a lot like Bostock, where they're saying whether you can wear a skirt at work seemed to depend on whether you were male or female, and that that violated Title VII. So what Judge Sutton is going to say is like, no, you have to do it at a higher level of generality. It bans it for all minors, and it's the type of care that you're seeking, not the specific drug that you're seeking type thing in that testosterone example. I think that's right. But again, I think it's worth pointing out, once again, the analogy

matters. And the level of specificity matters and all of that in these fights. So reading here the end of the dissent, Tennessee's and Kentucky's laws tell minors and all of that in these fights. So reading here the end of the dissent, Tennessee's and Kentucky's laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their birth and their failure to conform to how society believes boys and girls should look and live. The law further deprive the parents, those whom we otherwise recognize as best suited to further their minor child's interests, of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners. For these reasons, I dissent. There's like a few problems in that argument though, right? Cannot undergo medical care because of the accidents of

their birth and their failure to conform to how society believes boys and girls should look and live. But that's exactly the difference between Bostock and this case. Nobody can tell you what you have to wear, how your hair looks, makeup, all of those things. But we're talking about pretty invasive medical treatment here. Major medical treatment. And here's what's very key about this. That is not, it is not for the purpose that these drugs were approved by the Food Drug Administration. So these are off-label uses of these drugs. At least in part. Right.

In a big part. Yeah. And so some of this is what you're talking about are rejecting off-label uses. Now, as Judge Sutton says, there are certainly doctors who say that the off-label use is fine, maybe even medically necessary. That is certainly not a universal position. It's certainly not one that European countries right now are doubling down on for certain. And so now it does raise a really interesting issue, Sarah. What if the FDA does go ahead and approve? Are you going to have a

preemption issue? You're going to have all sorts of issues. Yeah. Well, we thought this was worth discussing. It's a very thoughtful opinion. I think Judge Sutton has the better of the argument. opinion. I think Judge Sutton has the better of the argument. And literally, he's the guy who wrote the book on states having some say in that play within the joints of constitutional rights and things that aren't mandated by the due process clause, and that we should be careful in making things mandated, that we actually want more play in the joints. We don't want everything to be a constitutional right and shutting down the conversation. And frankly, I think the abortion conversation is a good example of that. Shutting down that conversation judicially didn't help end the conversation.

It made it worse. Well, you know, and the one thing that I'm, there's a couple of areas of constitutional law where I would really like the Supreme Court to provide more clarity. There's a couple of areas of constitutional law where I would really like the Supreme Court to provide more clarity. One, of course, is the Second Amendment, as we've been talking about a few times on the podcast. Another one is this whole, another thing we've talked about on the podcast a bit, which is when does the state's jawboning of a private entity constitute a First Amendment violation? In other words, when does the state trying to get a social media company to take down content? There's just not great Supreme Court case law on that. So you've seen, for example, the Fifth Circuit going to the Second Circuit and the NRA versus Vulo case. Here's another one, big one, parental rights. There's a lot of older Supreme Court case law, mainly in the education context around parental rights, but we just don't have very much beyond, you know, in recent decades that really hone in on some of these issues that have been raised and especially parental rights post Dobbs. And why do I say that? Because remember,

Dobbs basically was saying, hey, you know that whole substantive due process analysis that we use for unenumerated constitutional rights? They weren't overturning prior substantive due process precedent in total, but if you're making a substantive due process-based constitutional argument post-Dobbs, I would say it doesn't look great for you. And guess what? Parental rights are based in substantive due process. Now, you do have some Supreme Court authority that I don't think is going to be disturbed, but it doesn't reach situations like this. So there's going to be, I don't know, Sarah, do you think the Supreme Court weighs in on one of these cases? No. Really? Not for a while. Not for a while. Okay. All right. This next one is the 11th Circuit en banc court

just had an amazing fight. And it's really fun. And this, I do think the Supreme Court, I actually, I don't know. I don't know whether they're going to take it. I think nine judges on the 11th Circuit come out one way. And you had three judges come out the other way. And David, I know you didn't get the chance to read this. So I'm going to set this up for you in a fun way.

Okay. Okay. So this dude here did not file any federal income tax returns in 2011, 2012, 2013, 2014. But in 2015, he filed a return in which he reported 4.5 million in taxable interest income and claimed a refund in the amount of 2.7 million. The IRS warned him that his frivolous return could lead to a $10,000 fine. So he kept filing exactly that return and in fact sued the IRS commissioner and said that he wasn't an American citizen

and that the IRS owed him money and if they didn't give him his money, he would file liens against anyone who opposed his efforts to collect. So then he did. He filed 16 liens against anyone who opposed his efforts to collect. So then he did. He filed 16 liens against current and former government officials, including the IRS commissioner and the treasury secretary after they had left their positions.

Okay. So they're the former IRS commissioner and the former treasury secretary. He files liens against their homes, totaling, there were lots of liens, but the total of the liens, $33 million. Okay. So he's indicted on 21 counts, 16 of them for filing false retaliatory liens against federal officials in violation of 18 USC 1521. Okay. He agrees that they're false and he agrees that they're retaliatory. The question is whether 18 USC criminalizes against former federal officials. So I'm going to read you some relevant language here. Okay. Okay.

First, here's, by the way, he gets convicted, by the way, on all of this. Sentenced to 300 months in prison. That's 25 years in prison for false and retaliatory liens. Okay. Feels like maybe our resources could be better spent elsewhere, but whatever. Okay. Section 1521. Whoever files any false lien or encumbrance against the real or personal property of an individual described in section 1114, 1114, on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false, shall be fined to this title or imprisoned for not more than 10 years or both so again

he agrees that the lien is false he agrees that it was in retaliation for their official duties he disagrees that it's a person described in section 1114 okay 1114 is actually about something totally different and a little dark, but bear with me. 1114 is whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States government.

Blah, blah, blah. Here's the question. Is someone who used to have the job still, like, does this include former employees of the United States? Right. Former officers. So by the way, we are back to officers of the United States. Oh gosh. Okay. So just right off the bat. So whoever kills or attempts to kill any officer of the United States. Is that a person covered just based on that text in Section 1521? And the liens were only filed after they left office.

I mean, text, man. So you think it's only current officers of the United States. It does not include former officers of the United States? It does not include former officers of the United States. They should write the statute to say current or former officers if the retaliation was based on actions undertook while they were an officer. It definitely has to be based retaliatory, right? Yeah, it has to be retaliatory. You think no? That our dude here... I think no.

I mean, it seems present tense. The justices of the 11th Circuit agree with you. Yeah. I'm going to give you some more facts that are going to help you. Okay. So Congress, since they passed 1521, there's other sections that also refer to 1114, that officer of the United States language. Other sections that refer to 1114 have since been amended to include the word former. I win.

That helps your case. Yes. I agree. So do the nine judges. However. This cuts against bad man stays in jail. Oh, for sure. For sure. But this isn't that bad a man, right? He's not...

More of a crank. That's right. Yeah. And clearly a crazy person. But here's the argument against you. There's a few. So as the dissent points out, which was well done, I thought,

you know, when you say, I'm going to invite my bosses to my wedding, you could mean all of your former bosses. So like those terms sometimes do include former implied within them. And I'm going to throw in one as well, which is if the language is whoever kills any officer of the United States,

by definition, they're no longer an officer of the United States. They're dead. So clearly this language did include former officers. Well, but they're killed when they're an officer. Sure, but they're not. Because he didn't file the lien when they were an officer. Oh, okay.

That's fair. Yeah. So that's why the nine are right. Well, it's a really, really fun argument. And it's worth mentioning that Judge Newsom is going to write the majority and Judge Grant is going to write the dissent. And so this is going to be one of those textual fights in between conservatives that make it really interesting if you want to get into text fights. Okay, David, our last topic is brought up by a listener. Why does the Ninth Circuit feel like it stays liberal

and the Fifth Circuit feels like it stays conservative, even through administrations, when you should be able to fill about the same number of seats on any given court? And roughly speaking, we have Republican administration for eight years under W, Democratic administration under eight years in Obama, Trump for four years, Biden now for three years. Shouldn't that be the Ninth Circuit? Should it be 50-50 by this point?

Well, not if the blue slip process is still not with a blue slip process for much of that time. And I can't remember, is the blue slip process now gone for the circuit judges? I think it's gone for the circuit judges. Blue slips, by the way, everyone is that you can basically refuse to turn in something that's literally blue called a blue slip if you're a U.S. senator for those states.

So the fact that, for instance, you have two Democratic senators for California and they just refuse to turn in blue slips for your nominees means they don't move forward really. Blue slips were in effect through Bush and Obama. They basically fall off for circuit judges during the Trump years. They're still in effect for district judges.

Still in effect for district judges. So everyone knows that if you are abusing it, they could disappear at any point. So it's sort of the sword hanging is what's keeping the blue slips in place. Yeah. So that would be my main answer. And then a secondary answer is it's relatively recent since the blue slip process has been eliminated for circuit judges. And so I think there are judges who quite frankly do strategic retirements to maintain the balance of power in the court. And so you're rarely going to have, unless there's a health crisis or something like that, a Democratic judge on the Ninth Circuit retire during a Republican administration and vice versa.

And so if you combine blue slips with at least for the last few years, strategic retirements, and you've got, you've got your formula for different, different balances in different circuits. So I'll, my reasons the same, but different, which is up until, and even for a little bit after the Bork failed confirmation hearing, a lot of presidents weren't picking judges based on their ideological bent. It's true. It was like a friend of the senator. And the courts just weren't seen as that ideologically important.

And I know, you know, I'm going to get endless emails like, what the Warren court? First of all, remember, Earl Warren's a Republican appointee. He's the Republican governor of California. But yes, the Warren court is what's going to pave the way for a Bork to get nominated to the Supreme court in the first place in the DC circuit for that matter before then. But basically you're watching from, you know, the importance of the court rise and the temperatures rising really slowly. I did, I loved when I was on Legal Eagles with Judge Norris, and I sort of asked him the question of like, okay, so how'd you become a circuit judge? He told me a joke. Maybe it's not a joke.

He said, what's the difference between a lawyer and a judge? A judge knows a senator. Right. So a lot of that's going to be true. And so when you have Democratic senators or liberal is probably actually a better term because we're going to go back far where the parties actually don't quite mean what they mean now. a bunch of liberals on issues that weren't that important at the time that they were picked, basically, in the Ninth Circuit, and a bunch of conservatives that we would now consider conservative, but they weren't really conservative on the issues that mattered at the time they were picked. And then there's going to be strategic retirements that are going to keep those legacies in place. Yep. Well, you know, just as a district court, a district court example of that would be

in when I was in the 1990s, when I was in Kentucky, you know be in the 1990s when I was in Kentucky, early 2000s when I was practicing in Kentucky, there were three district court spots that popped open. One went to a senator's son. Another went to a person who had a personal relationship with the senator, the other senator. And then the third one went to somebody who had no preexisting relationship to either senator. And so two of the three had absolute relationships to senators. So that was not uncommon at all. seat at the Department of Justice. They're administration people who are really focused on these circuit court spots. That just wasn't the case always. It was senators. So when you have that legacy and then you have the strategic retirements, I'm not surprised that the Ninth Circuit and the Fifth Circuit have the reputations that they have had through administrations. However, I will also say, which David's hinting at it's changing the ninth circuit has become a lot

more conservative yeah then it used to be I mean used to have the Reinhardt that can't overturn them all yeah um I don't think anyone would think that now about the ninth circuit you are it's very possible to get a panel of very conservative judges on the ninth circuit um and less so at the fifth circuit the reverse reverse, I mean, on the Fifth Circuit, but it's possible. Yeah. And it will become only more so because strategic retirements can't save them all.

No, absolutely not. And if Biden wins another term, it's going to make a difference because then you would have 16 of the last 20 years would be Democratic presidents and that would make a difference. Our next episode will be live from the University of Virginia. We're going down to Charlottesville. So if you're in the Charlottesville area on Wednesday evening, come on by.

And otherwise, the rest of you are going to get to hear it on Thursday morning. Thanks for joining.