Advisory Opinions - Officer-Created Danger

Episode Date: January 28, 2025

Sarah Isgur and David French discuss a case before the Supreme Court that challenges the Moment of Threat Doctrine. They predict concurrences all the way down. The Agenda: —Are police reasonable in high-stress situations? —The youngins’ are advocating —Dicta and slut puppies —OPM, Oh No —Justice Jackson’s fashion choices 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 Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Conditions apply. Offer ends January 31st, 2025. Visit td.com slash DI Offer to learn more. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. We have got a lineup for you. We had a fun Supreme Court oral argument on the moment of threat doctrine, whether it exists or not. Then we actually got an opinion from the Supreme Court

where David and I will talk about slut puppies. Finally, the Birthright Citizenship Executive Order was enjoined and boy was it, but was it sanctionable to even bring it to the courts? Law reviews, good or bad, Justice Jackson's jewelry choices in the spotlight, and then a few notes, corrections, etc. from the previous episode.

David, here's where I want to start. Assume with me some facts. You are the head coach of an NFL team. The momentum is not in your direction. It's the fourth. The momentum is not in your direction. It's the fourth quarter, momentum's not going your way. You have a chance at this point to tie the game and go into overtime, or to go for the two point conversion. Also, not a high likelihood of success.

Again, assume my facts are correct here. Right, right. What do you do? Oh, I go for the two point. You always go you do? Oh, I go for the two point. You always go for the two point. I go for the two point. Well, am I on the road? If I'm, am I on the road?

Yeah, I'm going for the two point. I'm going for the jugular man. Like I'm like the NBA player that when you're down two, I'm gonna shoot the fade away three with the hand in my face and go for the win because let's be legends, man. So I think most lawyers fall into that category in like times a thousand. What made the Supreme Court argument in Barnes v. Felix that happened last week so interesting to me is that the

petitioners council had a choice to go for the two point conversion. And David, we've criticized lawyers for going for the two point conversion when there was no chance of getting the two point conversion. For instance, in the Trump immunity case, we were like, why are you way over here? They're never gonna do that thing way over here. And sometimes they've opened up the Overton window or they've

gotten maybe some concurrences that they liked or even a dissent that they liked. What really stood out to me about this oral argument, this was about just going to overtime. And I thought Nathaniel Zelensky was the petitioner's attorney. This is his first time arguing at the Supreme Court. I thought it was one of the best arguments of the term so far. Maybe the best argument of the term so far because of the way he threaded this needle of like, nope, we're kicking for one point.

Yeah. We just want to tie this game and we want this to go back. We're going to concede anything we need to concede about what might happen when we go back because we're just going to live to fight another day. So let me tell you the facts of this case. We've talked about it before. Mr. Barnes had borrowed his girlfriend's rental car and was driving on a Houston freeway. The police officer ran the license plate and saw that it had outstanding unpaid tolls. He pulls him over, there's, you know,

like where's your registration? Where's the car? Oh, I don't know, it's a rental, but it's not in my name. Like looking for his license. There's a lot of sort of suspicious-ish activity at that point. He tells him to turn off the car. He goes back to his squad car.

Here's what's gonna be important. At some point, the car gets turned back on, the foot is on the gas pedal, and the car starts moving forward. The police officer jumps on the sill of the car, the running board, whatever you wanna call that, and now he's in a terrible position, right? Because it's, he is, the police officer's now

between the car and the barrier on the freeway and the car is accelerating. His life is very much in danger. He shoots Mr. Barnes. Mr. Barnes does not die immediately. The car comes to a halt. Then Mr. Barnes dies. So his mother brings this 1983 claim on excessive force. There's nobody questioning that this was a seizure, obviously. The question is not even whether it was a reasonable or unreasonable seizure. The question is, what time frame are we looking at? Because the Fifth Circuit said basically, you just look at the moment that he does the seizure, in this case pulls the trigger. Was the police officer's life in danger? Absolutely, yes. And the Fifth Circuit was like, that's enough for us. In dissent, Judge Higginbotham said that in fact,

the Fifth Circuit was limited by this moment of threat doctrine where they weren't allowed to look at what happened beforehand and whether unreasonable things happened beforehand, whose fault was this? None of that. So the question reaching the Supreme Court is, do you look at the totality of circumstances or do you look at only the moment in which the seizure happens? So we had, as I mentioned, Nathaniel Zelinski arguing for petitioners,

Zoe Jacoby from the Solicitor General's office, Luke McLeod from Williams and Connolly, and the Texas Solicitor General, Lenora Pettit. So we had four advocates, and David, you know what they all had in common? What is that? As best I can tell, I can't think of any other time this has happened,

though I'm sure it has. All of them are under 40. Oh, interesting. So this was a real, a battle of four incredibly talented credentialed lawyers, all under 40. And I really enjoyed the generational shift, if you will. Interesting.

I, that thought would not have occurred to me. That's fascinating. Okay. Well, I started seeing, I was like, wow, that person's young. Oh my gosh, that person's young too. So yeah, we have a 2018 Yale grad, 2019 Yale grad, Harvard 2011 and UVA 2010. So fun times. So okay, here are your three choices, David.

You have the moment of threat doctrine. Like you just look at whether the officer's life is in danger at that point. And yes, it was. Then on the other end of the line, you have the officer created danger doctrine. So this is like the use of force is automatically unreasonable if earlier in the sequence of events the officer did anything unreasonable. And you can kind of see the problem with either of these, right? In the moment of threat doctrine, you can't consider anything that happened beforehand.

That seems a little nuts. But in the officer created danger doctrine, if the officer screws up, all of a sudden he forfeits his life. Like he there's no self-defense available to him because he did something incorrect earlier. Or third option, totality of circumstances when there's a danger and the officer needs to protect themselves or the public, but they need to avoid situations like manufacturing situations where the use of force effectively becomes inevitable. And the problem with Totality of Circumstances, David, is, is that really guidance at all? Yeah.

Like, oh, you just look at everything. Thanks. Thanks, Supreme Court. Gee, thanks. Well, you know, it's interesting, though, you know, under the officer-created threat doctrine, I think there's a difference between civil liability and criminal liability. So if you're talking about can an officer go to prison for use of force under the officer created threat doctrine, where at the very end of the day, though, the officer has to

pull the trigger or it's reasonable for the officer to pull the trigger to preserve his life, then I don't think that's an appropriate test. Officer created a threat doctrine for civil liability. I think it's a different deal. But yeah, there were those three menu options. And it was very interesting to see which door the or the, you know, when the question came how aggressive how were you swinging for the fences were you kicking for the tie well these are mixed metaphors you don't swing

for the fences or kick for the tie did you go for the two or kick for the tie swing for the fences or try to bunt in the RBI yeah whatever analogy you want to use the petitioner as I said he could have gone for the two-point conversion and tried to end the game. Basically say, it's an officer-created danger doctrine, and this guy clearly created the danger when he jumped on a car for unpaid tolls on a rental car, which he at that point knew. So he knew this guy didn't have the unpaid tolls.

Why are you jumping on the car, man? He could have made that argument, but he didn't have the unpaid tolls. Like, why are you jumping on the car, man? He could have made that argument, but he didn't. In fact, he completely disowned that argument and was like, nope, we do not think that is the correct doctrine. We think the correct doctrine is totality of the circumstances. We think in this case, the Fifth Circuit felt bound by this moment of threat doctrine.

Whether, in fact, they were bound by it or not doesn't matter. You have at least one judge saying, that's the Fifth Circuit, I feel bound by this. So all we want is for you to just say, the Fifth Circuit is not bound by that. That is not an accurate understanding of the law. There is no moment of threat doctrine.

There is no officer created danger doctrine. There is only totality of the circumstances and send it back so that we can make the argument that jumping on the running boards was an unreasonable decision that then, you know, led to the inevitability of this moment. And they're like, so do you think it, you know, it was unreasonable? And he's like, yes, but irrelevant to your decision here. Yeah.

I don't want you to say it was unreasonable. I just want to be able to argue it was unreasonable. And we didn't get to do that because it was foreclosed by this Fifth Circuit doctrine. It was real needle threading. I thought this guy did just an incredible job. Even in his opening argument, he's citing Scalia. Scalia is no fan of the Totality of Circumstances doctrine. You have Scalia applying it in all of these cases, including the Scott case, where amazingly, David, in the Scott case, the guy ends up losing, right? You get the totality of circumstances, but the officer wins in the end also. And so you really, really have Zelinsky for petitioners

just trying to make it to overtime, knowing that he probably loses in overtime, that this is his only shot to win. And David, we've talked about the slight tension here before of pro bono cases like this, when a lawyer has taken on a case as a cause, if you will, rather than as the client. And I wonder if you see any tension in this. Like if this were a paid client who was like, you represent me and me only in my interests, then would you go for the two-point conversion? You know, I, that's a really good question because my interpretation here was exactly that this guy was representing the client and not the cause. Because if you're, in my view,

if you're representing the cause, you're going for that two-point conversion. You're going for the officer-created threat doctrine, whereas here he's going for what looks like the tie. But I think the argument would be, this is Patriots in the last few minutes of the Super Bowl game against the Falcons years ago, where the Falcons were out of gas. And the longer this thing, I mean, if you had just a set quarter, an additional quarter,

the Patriots and Falcons would have played in that game, the Patriots would have won that quarter by 20 points. I mean, like, the momentum was irresistible. So I think here, you're looking at a very confident lawyer that the totality of the circumstances, a reasonableness inquiry inquiry is absolutely going to be in his client's favor. There's not an argument for jumping on a running board

for an, or jumping on the sill of the car for an unpaid toll in a vehicle that's not his where there's no evidence of a rap sheet, violent crime issue here, no threat of life to anyone else. There was no one in the back of the car when it started rolling, a kidnapped person or anything like that.

So this to me, Sarah, was the argument of a supremely confident oral advocate. When the facts are on your side, as they are, and seem to be so very clearly in this case. This is a case that when you recite the facts, you kind of have this sick feeling in the pit of your stomach because the loss of life here is so obviously unnecessary. It's so obviously incredibly tragic that I think he doesn't... Swinging for the fences would have presented an unnecessary risk for him.

He's got this. So that's really interesting. You actually think he could win on remand and I don't. Oh, you don't, interesting. No, now, you know, in theory he'll probably get a new panel. So like, you never know what panel you're gonna draw. Right. But this maybe transitions us nicely

into going through what each of the justices thought and what the actual vote count on this will be. So let's start. Basically, our three justices we're going to focus on Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch. They're the three most interesting in this. Kagan, Sotomayor, Jackson, clearly totality of the circumstances. I would say Thomas even seemed very totality of the circumstances. Alito, yeah, pretty totality of the circumstances. I would say Thomas even seemed very totality of the circumstances. You know, Alito, yeah, pretty totality, like this is easy, right?

Like you just send it back down and say like, the circuit to the extent you have a moment of threat doctrine, that's incorrect, send it back down. Okay, but I want to focus on these three because I thought they had some interesting things to say. Let's start with Justice Kavanaugh, who could not disagree with you more, David. I know.

He is hot to trot. If this isn't a nine-zero case, it's gonna have Justice Kavanaugh in dissent. What's an officer supposed to do when at a traffic stop and somebody pulls away? Just let him go? Somebody's pulling away. It might be that they just don't feel like

they wanna be hassled for a traffic violation. But they could be, you know, about to drive down the street in New Orleans, you don't know. Or they might be on drugs and about to kill someone else who's, you know, on a bike on the side of the road. And I don't know what we want officers to do. And I don't know how that's going to get fleshed out. Officers, if they're held liable for jumping onto cars for anything that happens thereafter, are just going to let cars go.

It's pretty persuasive, David. I take, I mean, these are the most sympathetic facts you could possibly have. And if you basically have this rule that an officer jumping on the car is per se unreasonable, therefore it's a seizure, therefore they're liable, they're just not gonna do it anymore unless, I get it, you see a kid in the car, they're gonna do it, but like,

yeah. Taking from them the otherwise incredibly reliable method of stopping a car by jumping on it, which no doubt is instrumental in every police officer's training. No, it's a really bad idea. Yeah, it's like ridiculous. But if the point an officer is doing it,

I have to think they think it is more dangerous to let that car go into oncoming traffic, to speed away and hit other cars, or to drive recklessly and hit a pedestrian, or they think the person's drunk or on drugs. And I just feel like it's like a terrorist attack issue where you just don't know what would have happened. And so you only get hit for the things where you don't know the bad thing that could have happened otherwise.

We only know the bad thing that did happen on this side. But if this guy had driven off and killed someone in a car while he was pulling out, he pulls out into traffic, hits that car, that car careens out of control with a mother and her four beautiful children in it, wouldn't you have said that officers shouldn't have let him pull away? So, let him pull away is an interesting way to phrase jumping on a moving car, whether you're

letting him or not letting him pull away. Again, this is a civil liability determination, not a conviction for murder determination. And the idea, I would be very happy to go into a battle of the experts on the effectiveness of jumping on vehicles at stopping moving cars, or the reasonableness of jumping on vehicles for stopping moving cars as a course of action, especially when there's no evidence, at least from the record that we know of, of any suspicion of violent criminal activity.

I think that there is this sort of sense that you sometimes get, and you see this leaking through Kavanaugh, that if the moment is immediate or urgent, it's just not proper to evaluate it. Like, you just... Who are we to evaluate this? If the moment, well, who we are is people designated by the constitutional system to evaluate reasonableness. I mean, that's what juries do all the time is they evaluate reasonableness.

That's their job. I mean, so. But this is where I go back to the, something pretty close to the moment of threat doctrine. Like I get that. Let's assume that I accept your version that the officer made a mistake jumping on the car. Right. And this is something that the respondents, lawyer argued. We are defending the decision below and the moment of threat doctrine as it actually exists. The core premise of that doctrine is that an officer doesn't lose his right to

defend himself just because he made a mistake at an earlier point in time. The question should be, was there a legitimate threat that the officer is responding to? And in fact, what you see is even the Solicitor General, who really takes the side of Barnes, our first guy, right? Even they are saying, basically, this guy's gonna lose on remand because

it was not so objectively unreasonable to prevent this guy from pulling away. And then his life is in danger. And anytime an officer's life is in danger, there's going to be a very heavy thumb on the scale that what he has to do to protect himself is acceptable because and this gets to a really bad fact situation, David, that I'm sure you'll throw back in my face. It takes two to tango here, right? Like, you made the decision to pull away from the traffic stop, and then when the officer jumped on your car, you made the decision not to immediately hit the brake.

Now, as they pointed out, this happened so fast, there was really no opportunity for him to hit the brake. Right. Yeah. But nevertheless, like, this wasn't just, the officer is the only one with any ability to make decisions here. The, you know, Mr. Barnes made several choices of his own that were mistakes as well. So I will tell you why the,

we can't evaluate the officer in the moment of threat analysis is so unconvincing to me. Is these guys are trained, okay? There's training here. This is not, let's evaluate Joe Blow, armed with a nine millimeter, who is in a moment of panic. No, no, no, no, no.

You know, look, and I made this point before. We got to a point for a while, Sarah. Thankfully, we've seen some juries hold some officers accountable, where we were treating officers as if they were just not trained and that if they just felt scared, whatever happened next was not to be analyzed because who are you to analyze how an officer acts when an officer is scared or frightened? And so we began to see these, we saw some of these horrific miscarriages of justice. So for, was it the Michael Slager case? I'm trying to remember exactly this officer who shot a man, running man in the back, a

50-something year old running man in the back a 50 something year old running man in the back and then was filmed on video apparently planting his taser By the body goes on the witness stand and talks about how he was feeling nothing but pure fear in the moment when this guy was running very slowly in a Not particularly athletic 50 something year old away away from the officer. And he got a hung jury out of this, in the Philando Castile shooting. Just to be clear, he did end up in prison. That was the hung jury in the state trial.

And then the feds came after him and he actually just pled out at that point. Right, he pled out then. You had this horrible Philando Castile shooting where the officer, it's a routine traffic stop, officer tells him to, Castille says, I have a gun in the car, officer says, don't reach for the gun, but also tells him to reach for his license, freaks out, panic shoots him, later on says he was scared to death because he smelled marijuana in the car and he knew if they had disregarded

the life of the toddler by there being marijuana smoke in the car, that they would, like what, gun him down in an instant? And so we began to see this, and wasn't any beginning, this was a continuation and amplification of a trend that was essentially, well, if an officer is scared, we gotta give them maximum freedom, freedom of action. No, no, no, it has to be reasonable. That's the predicate. There's a predicate requirement of reasonableness here. And your training, you are trained for a certain kind of acceptance, assumption, and evaluation of risk. And that is what,

to me, has been distorting a lot of this police, you knowing a lot of this police analysis. And I've said this, and I've said it before, I'll say it again. Our guys in Iraq in a war zone that was 100 times more dangerous and violent than even the most dangerous and violent part of any American city, exercised much greater trigger discipline than I have seen cops exercise in American cities. Not all of them, of course, but the bad cops have exercised far less trigger discipline than American soldiers overseas in far more dangerous circumstances and then fallen back on, but I was scared. Okay, well, everybody should be scared in a dangerous situation. Like fear is a normal thing.

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Okay, next I want to talk about Justice Gorsuch, because this was, it felt a little unlike Justice Gorsuch almost. Yeah. In some ways, you kind of think Justice Gorsuch is going to be a little David French here, a little anti-government. And Justice Gorsuch is a little bit like, this seems really easy to me, what's wrong with just sending it down to make clear it's not a moment of threat doctrine? And the attorney for the police officer in this case says, it'd be pointless. And Justice Gorsuch responds, the number of demands that we are told would be

pointless could fill volumes to laughter in the audience. So he's clearly just like, this is very easy. The question presented is, is there a moment of threat doctrine or is it totality of circumstances? It's totality of circumstances. My job here is done. Let's move on. Justice Alito asked very similar questions. So put the two of them like in a little bucket together. But here's Justice Barrett. And the reason that Justice Barrett is interesting, Judge Barrett is cited to Justice Barrett throughout this argument,

because there's an incredibly on point case that she was on when she was on the Seventh Circuit, David. So a mother calls the police and says, basically, I think my son is suicidal. The police go over there. And at first things kind of go okay. Long story short, he then pulls a knife out of the knife block and the police shoot him and kill him. Here's Justice Barrett from The Opinion. As the estate sees it, the officers created the situation that ultimately led to Begert's death by failing to make a plan for the encounter,

failing to secure the knife block in the kitchen, and questioning Begert aggressively. But none of these actions rendered the officers' subsequent use of force unreasonable, nor did the officers' creation of a dangerous situation constitute an independent violation of Begert's constitutional rights. The officers might have made mistakes, and those mistakes might have provoked Begert's constitutional rights. The officers might have made mistakes and those mistakes might have provoked Begert's violent resistance. Even if so, however, it does not follow that their actions violated the Fourth Amendment. In Starks v. Ennard, for example,

we held that an officer acted unreasonably when he jumped in front of a speeding cab, after which companion officers shot the driver to prevent the officer from being struck. The officer acted unreasonably, we explained, because he created a situation in which it was impossible for a person to react in a way that would avoid presenting a deadly threat.

Sled v. Lindsay is another example. In that case, we concluded that the officers acted unreasonably when they failed to identify themselves while forcibly entering a home to execute a search warrant in plain clothes, which resulted in their shooting a man who had armed himself thinking the officers were intruders. We explained that in a situation where a person has no reason to know that someone is a police officer and the officer's identity is concealed, the normal rules governing use of deadly force and right to resist are modified.

In Stark and Sled, the officers acted so far outside the bounds of reasonable behavior that the deadly force was almost entirely a result of the officer's actions. So that might be to me, David, the best description of a totality of the circumstances type test. And then on remand, I mean, you see Barrett's going to come down on this totality of circumstances as well. But on remand, you're going to decide whether this is more like Begert, where the officers make mistakes. They're talking really aggressively to this is more like Begert, where the officers make mistakes. They're talking really aggressively to a guy who has mental health issues, is probably

on drugs. They probably lead the guy to have a violent reaction. They didn't secure the knife block. He goes and grabs a knife, and then they have to shoot him. They said that wasn't unreasonable. On the other hand, if you jump in front of a car and now there's no choice but to shoot the driver of the car because you jumped in front of the car, that's on the other end of the spectrum. And then the judges down below are going to have to decide jumping on that sill of the

car, which one is it more like? And lastly, we'll end with a WWSD. What would Scalia do? In this case, there is a high speed chase. The speed limit, I think, is 55. The guy was going 75 when they put on their lights and sirens. And look, I mean, I've gone 75 in a 55. So, no shade. He's many times, many times.

Many times. I was just a 75 in a 45, which led to a mild scolding from Nancy. Yeah, it happens. Yeah, it was a four lane divided highway with a 45 mile per hour speed. That's ridiculous. That's ridiculous.

Okay, so the police officer puts on his lights and sirens and then the guy starts going 85 and he starts weaving through traffic, crossing the double yellow line, all the things that are bad. So the police officer follows for some amount of time and then calls in, radios in, is like, can I take this guy out? And they're like, yeah.

And so he is basically, they agree to one maneuver for whatever reason, he doesn't do that. Instead, he hits his bumper and that sends the car out of control careening off an embankment. The guy lives, but he's a quadriplegic. And here's Scalia's majority opinion. After a police officer attempted to pull him over for speeding, Victor Harris fled in his vehicle, initiating a high-speed car chase. Attempting to end the chase, Deputy Timothy Scott rammed Harris's vehicle with his police cruiser. Harris crashed and was rendered a quadriplegic. In the end, we must still

slosh our way through the fact-bound morass of reasonableness. So David, I feel like this is 8-1. Maybe Justice Kavanaugh has a dissent, but I think it's probably just a concurrence. They all agree it's totality of the circumstances and it's just how much weight you put on the mistakes the police officer made, if any weight, and Justice Kavanaugh is gonna say basically no weight, and some justices are gonna say some more weight. So this could actually spawn quite a bit of concurrences if people feel like writing, but in the end,

we must all still slosh our way through the fact-bound morass of reasonableness. That is what is going to happen here, no question. Or little question, shouldn't say no question, but little question, that is gonna what is going to happen here. No question. Or little question. Shouldn't say no question, but little question. That is gonna, what's gonna happen here. All right, David, next up we have an opinion. We had not covered this for the oral argument.

This case is called Andrew V. White. This is the only woman on death row in Oklahoma. Her name is Brenda Andrew. She was convicted of murdering her husband. And the question for the court was whether the evidence that was introduced was so unduly prejudicial that it rendered the trial fundamentally unfair under the due process clause of the 14th Amendment.

That bar has to be so high, David. So this was a per curiam opinion with a fun descent by Justices Alito joined by Justice Gorsuch. I'll read you just a snippet of the facts here. Rob Andrew was fatally shot in his garage. By the way, this is in 2001 that shows you how long these death penalty cases go up and down and up and down and up and down. So 2001, he's killed.

Brenda Andrew, who herself had been shot in the arm during the incident, told the police that two armed assailants had committed the shooting. Andrew further explained that she had separated from her husband and was now dating James Pavett, but that she and Rob continued to see each other as they had two children together. Pavett and Andrew traveled to Mexico together after Rob Andrew's death and soon became suspects in his murder. Eventually, Pavit confessed to committing the shooting with a friend. Pavit denied that Brenda Andrew had been involved. The state thereafter charged both Pavit and Andrew with capital murder, and a jury convicted Pavit had sentenced him to death.

At Brenda Andrew's child, the prosecution sought to prove that Andrew had conspired with Pavit, an insurance agent, to murder her husband for the proceeds of his life insurance policy. Among other things, the prosecution elicited testimony about Andrew's sexual partners reaching back two decades, about the outfits she wore to dinner or during grocery runs, about the underwear she packed for vacation, and about how often she had sex in her car. At least two of the prosecution's guilt phase witnesses took the stand exclusively to testify about Andrew's provocative clothing. And others were asked to comment on whether a good mother

would dress or behave the way Andrew had. In its closing statement, the prosecution again invoked these themes, including by displaying Andrew's thong underwear to the jury. By emphasizing that Andrew had sex over and over again while keeping a boyfriend on the side. At both the guilt and sentencing phases,

prosecutors contrasted Andrew with the victim, who they asserted had been committed to God. David, this is an incredible per curiam opinion because you read it and you're like, oh yeah, this is outrageous. They're showing her thong to the jury. They're saying she's what kind of good mother wears a thong and like who she had sex with. Okay, please. And then you read the dissents version of the facts and the warring footnotes. Okay, so I'm going to read, I think these footnotes

really sum it up for me, David. Okay. I'm gonna start with the dissent's footnote. Brenda Andrew's briefing before this court alleges that the prosecution called her a slut puppy who is not a woman of God during its guilt stage closing argument. This accusation, which Brenda Andrew did not make

until almost 20 years after her trial, is entirely false. The prosecutor was not referring to Andrew. Instead, he was recounting an abusive phone call from Brenda Andrew to Rob Andrew, during which Brenda Andrew baselessly accused her husband of having an affair with a slut puppy before telling him that he can't be a man of God and the supposed paramour can't be a woman of God because she's sleeping with a married man and even if you're single that's adultery. What a slut puppy she must be. For all its efforts to portray Brenda Andrew sympathetically, even the majority

stopped short of endorsing her accusation. So let's read the majority's footnote on this. Similarly, the dissent asserts that Andrew falsely accuses the prosecution of calling her a slut puppy in closing argument. Whether the prosecution quoted something it believed Andrew once said to suggest to the jury that Andrew herself was a slut puppy or simply to recite an alleged abusive phone call is a question of fact for the 10th Circuit to resolve. So the slut puppy accusation is that if she's accusing somebody of doing exactly the same thing that she did as being a slut puppy, that that's a confession to slut puppiness? I guess. Okay. I mean, look, the way the Justice Alito recited his version of the facts, I 100% believe that

she murdered her husband. Right. That, however, has nothing really to do for me with whether you can introduce this evidence. Right. At trial and in the guilt phase, those can both be true, that she definitely did this, and that you can't wave around her thong

to prove that she did it, that that's irrelevant. But also very interesting, David, that Justice Gorsuch joined that dissent with Justice Alito. They are having none of this lying slut puppy's excuses. Well, you know, what's interesting, because then we've walked through all of the facts. We've discussed whether or not the thong should be waved. I think that there's a general consensus.

It's like a waving the bloody thong. Waving the bloody shirt. No thong waving. Okay. But that wasn't really the issue in the case. I mean, the issue in the case was what's dicta and what's holding in a case. So this is one of those really interesting Supreme Court cases that you run across sometimes. It has extremely lurid fact patterns. And multiple Supreme Court justices having to write about slut puppies. Multiple Supreme Court justices writing about slut puppies, probably just as uncomfortable doing it

as I was reciting the facts of the hot, sexy and safer case last podcast, which I still can't believe I did. But then it gets into this. So the way this works is you have to overturn a state determination, a state law, state court determination at this federal level of analysis. You have to show that it's a violation of a,

there's a clearly established ruling holding that they're violating here. So the real question is, if you're looking at prior court authority for the petitioner to win, she has to show that the state courts violated the holding of a holding from the Supreme Court. So then the question is, what is the holding versus what is dicta? And that's really where this case is won or lost for the petitioner, is going back looking at a previous Supreme Court case and deciding what is holding versus what is dicta.

And the majority and the dissent had a difference of opinion on this, where the majority is saying, look, if we're saying we're holding one thing, if we're holding A because of B, we're holding both A and B. So in other words, if you can't, if a certain legal rule is wrong because another legal rule is right, declaring both the wrongness and the rightness is a holding of the case. And the dissent is essentially saying, no, if we say something is wrong, that's the holding. Offering a constitutional alternative is a dicta. And yes, it's that sort of pedantic is what we're getting at here. It really is, it is fascinating because it's a lurid case decided by some of the most

sort of pedantic parsing of what different components of Supreme Court opinions are. I feel like David, normally I'm the one who makes a Supreme Court case way less fun. I know, and I just did it. I just threw a wet blanket. I'm so excited about that. I will say, you know, I think listening to this,

you can think like, well, of course you should get a new trial. What with the thong waving and whatnot. It's important to remember now that it's been 25 years, it's going to be very, very hard to try her again. The witnesses are gone or dead. The evidence may or may not have survived in the evidence locker, for instance.

They've kept all that evidence until her sentence is carried out. But that doesn't mean it hasn't deteriorated or there's been some flood in that office or a fire or who knows what. So it's very possible they won't be able to try her again, no matter how guilty she is.

And no matter how overwhelming the evidence was at her initial trial, if they had kept to the relevant evidence and the non-prejudicial evidence. All right, next up, David, we talked about the birthright citizenship EO. Well, that thing got enjoined real fast. Yeah, as predicted. By a 1981 Reagan appointee, Judge John Kuhnauer was having absolutely none of it. He said, I've been on the bench for four decades. This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made? At one point, he asked Brett Schumate, who's currently the acting head of the Civil Division and will at some point be nominated

to that where he will stop them being the acting head. That'll be complicated. But basically, the theory right now is that they want him litigating these first flurry of EO cases and then they'll nominate him later and he'll have to sit in the paddock while they do that. He asked him, he's like, do you actually think this is constitutional? And Brad Shumane was like, yes. And then he just launched into him and raised the possibility that arguing in a court that a birthright citizenship EO was constitutional was in fact, sanctionable, David. So my question to you is, do you think it's sanctionable? Or do you think it's expanding the Overton window?

And where do we draw that line? I don't think it's sanctionable. But I'm not laughing at the argument that it is. But I don't think that it is. I mean, and the reason why I don't think that it is, is not a tribute to this argument. It is it is a symbol of how permissive we are of making stretch legal arguments. We allow for good faith arguments for the reversal of existing law. So this is rule 11, allows for good faith arguments for the reversal of existing law.

So if you're going to argue, if you're going to permit arguing for the reversal of existing law, right there, you're going to have to have a very permissive view of the quality of incoming arguments. Because not completely permissive, obviously. There are arguments for the reversal of existing law that are not in good faith, for sure. But if you're going to allow for the reversal of existing law, you're gonna have to have a pretty permissive view of legal arguments. And I think that's the sound way to look at this.

So I'm not complimenting the legal argument to say that I don't think it should be sanctioned. What I'm saying is we need to have a pretty permissive view of arguments for reversal of law if we're going to, you know, look, the bottom line is we're going a functioning legal system has to accommodate arguments for reversal of law has to. And so that requires, I think, a permissive view of legal arguments before you're going to issue sanctions. So I just don't think it crossed that line. So if it's sanctionable, I think it's sanctionable to argue that a president through executive order can change that law. That is borderline sanctionable to me. Not that the 14th Amendment

doesn't include or rather, yeah, doesn't include birthright citizenship, I don't think that's sanctionable. As you said, is it stretching the law? Is it novel? All of that stuff, sure. But frankly, people have been arguing versions of that for decades, both in law review articles and even in court cases. I mean, look at Plyler v. Doe and the 1898 case on the Chinese Exclusion Acts. All of those are versions of this argument, not sanctionable. A president doing it through an EO? No. You got my attention on the sanctions.

Yeah. I mean, you're walking in that direction. There's no question. I would like fewer executive orders that purport to wildly change the law. And if sanctions are what's required, I'm not necessarily opposed. All right, David, just a quick moment if we can on Justice Jackson's sartorial choices here.

Josh Blackmon over at the Volott Conspiracy headline, Justice Jackson did not wear a dissent collar to the inauguration. She apparently wore a talisman to ward off evil. So at the inauguration, Justice Jackson's wearing her black robe, and over it, she is wearing a collar made of cowrie shells. And I have to tell you, I think it is beautiful, very judicial looking. It looks, it is the shape of the white collars that you used to see in sort of British judicial robes maybe you still do see them I'm not really sure yeah I thought it was quite quite lovely and remember her parents were

very into African art and history that's what her name comes from it means lovely one as she will explain in her autobiography if you'd care to read it this was met however with a lot of anger because, I guess, according to Vogue, the National Museum of African American History and Culture notes that in America, the shell is thought to be a totem used to resist enslavement. Justice Jackson herself is a descendant of enslaved people. The connection feels particularly prescient on Martin Luther King Jr.'s birthday. Beyond its status as a protective talisman, the cowrie is also associated with womanhood and

fertility. And then it, vogue for some reason, went on to talk about how Trump was found liable for sexual abuse and appointed Brett Kavanaugh to the court. That that was somehow related. And then of course Roe v. Wade overturned. While Justice Jackson has yet to explain the exact meaning of her inauguration collar, the Cowrie Shell's multiple meanings point to a sartorial expression of her descent. And then it talks about Justice Ruth Bader Ginsburg used to have different collars for whether she was

in the majority or in the descent. Vogue finishing by saying, Justice Contangi Brown Jackson's collar for President Trump's swearing in ceremony sent a particularly powerful message. Josh Blackmon is not amused with this. Even if Justice Jackson did not intend to convey this message, there is clearly the literal appearance of impropriety.

This is not just as I thought, a fashion faux pas. Yet there is not a word about whether this move violates any ethical rules. People praise Justice Jackson like they praised Ginsburg's political sartorial choices. Remember, Justice Jackson is attending the inauguration, only a few yards away from Trump. But she apparently deems it necessary to wear a talisman to ward off evil? Will Jackson face any recusal motions for all Trump-related cases? Jackson of all members should be grateful there is no binding Supreme Court ethics code. Meanwhile,

there are never-ending efforts to attack Justice Alito based on the non-political flags his wife chose to fly at their home. Remember, almost every single attack on legal ethics is just an interference, an attempt to force conservative justices to recuse. There is no there there. David, I liked the necklace. It feels like there's a lot of different messages the necklace could have, or it could just be a beautiful necklace that someone made for her. Yeah, I mean, why are we taking the vogue analysis of a necklace, which I would have looked at,

and not 100 days out of 100 would not have thought, oh, this is like, I don't know, some talisman against the evil eye or something like that. There's no way, there's just no way. And she has not commented. And so what you have is just some sort of a fashion magazine issuing declarative interpretations or potential interpretations of what just looks like

a pretty cool fashionable piece of jewelry. And I mean, what? If she was wearing an upside down flag, I'd be with Professor Blackman. I'd be like, what the heck is going on here? Instead, there's nothing at all that is communicated by that. The average person looking at that necklace is not receiving any message at all other than cool necklace or cool collar

or whatever you wanna call it. Yep, I agree. And I think that a criticism we get on this podcast is that we are too quick to give the benefit of the doubt to the justices for things that other people try to read into. You're right. I am because we have no, why are you reading into this? Why is Vogue reading into this?

What do they possibly know other than they like Googled cowry shells and then like went that's like, oh, they could stand for this or this or this. And no matter what we can somehow trace this to her disliking Donald Trump. That sounds like projecting to me. Next up, David, I want to issue a correction on what I said about Ross Ulbright. He was pardoned by Donald Trump. And in describing the various things

that he had been charged with as the founder leader of the Silk Road, I said he was convicted of hiring multiple hitmen. That was not correct. He was charged with that, and the judge at his sentencing did find by a preponderance of the evidence that he did that, but he was not convicted beyond a reasonable doubt of doing that. We got lots of emails about it from people who are clearly very, very into the trials

and tribulations of Ross Ulbright. And we do value preciseness on this podcast. So I wanted to correct that. Though next up, I will note that we got lots of emails as well of people in total disbelief that Joe Biden granted clemency to this guy, Genesis Whitted Jr., that that was like simply not possible. They were like, maybe it was his dad, Genesis Witted Senior, or it was this other Witted guy. Like, no, no. I mean, that would be really weird for me

to pick out something like that. Like, y'all, I talked to the prosecutor in the case. They got the notice from BOP. It's the right guy. His dad was let out of prison in 2013. It is not a different witted. It is absolutely this guy. And in case you needed more evidence that in fact nobody double checked the ACLU's list of quote unquote nonviolent drug offenders, he also gave clemency to a drug lord in Connecticut who murdered an eight-year-old boy and his

mother to stop them from testifying." Awesome. But this is a good moment, David, to explain the difference between the words clemency, pardon, and commutation. So clemency is the rectangle, right? Everything is clemency. Pardon and commutation are squares. So pardon means it's like it never happened. So pardon means it's like it never happened. Right. You were not convicted at all. Commutation means your sentence is reduced, but you were still convicted. You just no longer have to serve time.

So in this case, Biden granted clemency to all these people. Trump granted clemency to everyone. Biden pardoned his family preemptively. He granted commutations to those nonviolent drug offenders. Some of them were to time served. Some of them still would have a couple of years left on their sentences depending on which sort of category they fell into.

So clemency is the broad term, pardon and commutation have more specific meanings. Okay, next up, David, we also got a lot of emails about how our take on the D-I-E-O not having any real teeth was like the worst take ever. And I just, it's worth, I think, clarifying. We're talking about legal teeth. We don't mean it doesn't have any effect in the world.

Right. Of course it does. Of course it does. It's having tremendous effect. That's why they did it. Our point was, it was illegal to discriminate, positively or negatively, on the basis of race beforehand. So if it has changing anything on the ground, either they were breaking the law before, which is not beyond my belief, or it won't have any effect and they just want an excuse

to pause these grants and everything else that people are talking about because they hate grants or they're being overly cautious. But basically, if you weren't already breaking the law, this shouldn't have had any effect. Right. So this really does get into what is DEI, right? So if you are I talk to a lot of people and when they think DEI, they think of it in one category, they think of it affirmative action. So DEI is affirmative action. Maybe DEI is affirmative action, plus like speech policing to make sure that nobody

says anything offensive by some pretty often subjective and shifting standards. But if your view is DEI is affirmative action, it's race-based preferences. Really, this doesn't have effect because race discrimination, both positive and negative, both by statutory law and Supreme Court precedent, is now pretty clearly unlawful after Harvard v. Fair and a lot of the subsequent lower court decisions. Look, if you have an explicit race-based preference in your hiring and your attention, in your promotion, in your granting of scholarships or admission, whatever, you're skating on not just thin legal ice, non-existent.

You're already falling through the legalized. This is, it's, it's unlawful. But if your view of DEI is any effort to try to increase racial diversity, regardless of whether it is engaging in unlawful race preferences, Then that's when you start to get into, wait a minute, is this order like banning teaching about the Tuskegee Airmen? Does this order ban recruiting at HBCUs? That's where you're getting into sort of your gray areas.

And so you saw, I don't know if you saw this, but Pete Hegseth, there had been some word that the teaching on Tuskegee about the Tusgseth, there had been some word that the teaching on Tuskegee, about the Tuskegee Airmen had been struck from an Air Force curriculum under the DEI order, and then Hegseth said no and put it back in, has apparently fixed that. So is any effort to increase diversity now banned here

or any training about diversity banned here? What is DEI? And so this is where you're getting into that level of confusion, I think. But look, under controlling law, they can engage in explicit race-based preferences. Also, by the way, under controlling law, they can't eliminate Title VII's protections in the federal workforce, nor can they eliminate protections

against discrimination on the basis of sex, discrimination, protections against discrimination on the basis of age and disability. All of those things are still there. And then, doesn't the workforce have to be trained on these legal obligations? So is anti-harassment training, is that quote DEI? So again, you're just getting into a lot

of definitional problems, but if your view is DEI is race-based preferences, well, that was already off. That was already gone. And to the extent people were doing that, they were breaking the law. So this doesn't change the law. It may enforce the law. I will give you that.

All right, a fun little note, David, by the way. All judges, law clerks, like everyone in Article 3 received this email last week, entitled Email Test from HR at OPM.gov, as in the Office of Personnel Management that's in the executive branch. I'm told through the grapevine that the Chief Justice is not amused. I'm also told that this was likely someone new to the Office of Personnel Management who has no clue what they're doing and basically hit Reply All on an email, not realizing that it was going to go to Article III people

and that no, they're not going to be on your press release list. Last up, David, we're gonna have to save our law review conversation. We are out of time for today, but let's just set the table for it a little bit. Basically, unlike peer-reviewed journals that you might get in the medical community or in other soft

sciences, that's not how law school works. To become a law professor, you really need to publish. And to be published, you have to be published in law reviews. And who selects who is published in law reviews? Not law professors, law students. And so to follow up on our academic conversation that we had at Catholic Law School, we wanna do a little deep dive into the pluses and minuses of law students determining that credential

for law professors that determines who gets to be a law professor, who gets to be a prestigious law professor, and all of those related questions. And I have an interesting email from someone who just left a top-tier law review and sort of their internal understandings of where the good parts are, where the rotten parts are and all that. So we'll save that conversation, David, to next episode of Advisory Opinions. Well, I'm looking forward to it

because I'm looking forward to hearing the case that there are pluses to that system.