Advisory Opinions - Presidential Stakes

Episode Date: May 14, 2024

Sarah and David start things off with a discussion of Trump’s trials and how he might respond to the outcome of the election. Are David’s concerns overblown? The Agenda: —Trump’s New York trial —Chilling speech over anti-Israel protests and one law school dean's private dinner party —Mocking Michael Cohen —Civil forfeiture SCOTUS ruling —AYER ruling —When prison guards shave a Rastafarian's dreads —Firing gay teachers Show Notes: —Trial of Ted Stevens Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur and that's David French and we're going to get through a lock's day. We just, we got gotta jump in David and I have to ask like do you ever are you just ever in a bad mood for no reason? Yeah it's it doesn't happen much but when it happens I'm in a bad mood and then I get in a bad mood because I'm in a bad mood for no reason like it just it spirals. Yeah I woke up in a bad mood for no reason.

And then everything in the day has confirmed my bad mood, which I think happens when you're in a bad mood. So we're gonna see how this podcast goes in a bad mood. Sarah, this will be nothing but joy as our podcast always is. Let's start. First of all, I did have a great time at the 11th Circuit Judicial Conference.

Judge Newsome interviewed me about the media's coverage of the courts. There was this awesome moment. Justice Thomas was in the audience and Judge Newsom asked me something like, what doctrines am I watching? Obviously, student speech doctrines are of a huge interest to us. I mentioned my favorite case from the last several terms is the angry cheerleader case. And then I borrowed that summary that we had read somewhere that said, you know,

the majority opinions at X, the concurrence said Y and justice Thomas's soul descent beat the children with sticks. And I got this huge booming justice Thomas guffaw from the audience that filled me with enough joy to last for days and days. I love that you did that so much. That's even better than, and Justice Thomas, you kids get off my lawn. Like that would be not enough. Like beat the children with sticks.

That's getting in the neighborhood. All right, well, we're not starting in a place of extreme joy for me, David, you wanted to do some updates on the Trump trial going on in New York. Yeah, so I just wanted to talk about it briefly, because a we haven't talked about it, be it's sort of the lead legal news every day, and see a few things are started kind of coming into view about the case.

And from the beginning of this case, I have had this kind of nightmare scenario about it in my mind, Sarah. The bad scenario was this. He is convicted because prosecution puts on a quite compelling case to the jury that there was a falsification of business records to cover up hush money payments. And then it just sort of says, and it was doing it in furtherance of these other crimes, federal, federal campaign finance crimes, state campaign finance crimes, a state tax crime, and the conviction is secured.

And the rest of the campaign is run with Donald Trump is a convicted felon. Donald Trump is a convicted felon. And then let's suppose the race is run and he loses. And again, he loses by a slight small margin. And about four months later, the New York Appellate Court overturns the conviction because of the linkage or the lack thereof

to this other crime. Because the other crime analysis has always been the weak point of this case, and that happens to be the one thing that makes it a felony and not a misdemeanor and the other crime. What's the other crime? What is the other crime?

And that's where the prosecution so far has really been focused, really been focused on sort of the nuts and bolts of the deception and the nuts and bolts of why the money was paid, et cetera, et cetera. But, and I think that the prosecution's putting together a quite solid case that there was a hush money payment, it was mischaracterized internally, et cetera. But I just keep going back to this, Sarah, that the only way this is a felony is this other crime. And to this moment, that other crime has not

been sort of adequately and in anything close to a bulletproof way been outlined to me as let me let's use an example, money laundering. Now, if you're accused of money laundering, you don't have to for say, or laundering to use a Breaking Bad analogy money laundering. Now, if you're accused of money laundering, you don't have to, for say, you're laundering, to use a Breaking Bad analogy, or laundering your meth winnings, or winnings is the wrong word, your meth profits, okay? So you're laundering your meth profits. Right. You don't have to go ahead and prove the whole meth conspiracy and the meth dealing, etc. beyond a reasonable doubt to get to be accused of to be convicted of money laundering. But nobody doubts that that selling meth is a crime. I mean, that's beyond the shadow of a doubt.

Whereas the second crime here, there's all kinds of doubt around it. If it's a New York state finance crime, isn't that gonna be preempted by federal law? And if it's a federal campaign finance crime, can you tie that in state court? Much less is this a federal campaign finance crime? I mean, we know Michael Cohen pled guilty,

but we don't really have good case law on this. You had the Edwards trial that ended in a mistrial. And so that's what I'm worried about, Sarah. I think that prosecution has done a good job of showing that there was an affair, that there was hush money, that it was mischaracterized. All of that is coming in quite clearly. It's this whole other thing,

and I just really think it would be very bad for our country if you had a felony conviction, a narrow presidential race and then a reversal of the felony conviction because it was legally flawed from the start. So tell me, am I wrong to be worried about this? You know, we've actually done a version of this before. So in 2008, in fact, we've talked about this case before. In 2008, Ted Stevens was on trial for corruption.

This was the senator from Alaska, a very powerful senator at that. He actually invoked his speedy trial rights to ensure that the trial happened before the election. It happened right before the election. He was convicted and lost by the narrowest of margins to Mark Begich. I believe the vote total separating them was something in the order of 4,000 votes total in the whole state of Alaska. Now, there's not that many people in Alaska, but still it was a really tight race.

It's not that many people in the state of Alaska. Only 50% votes. 200 max, 200 total. But Ted Stevens' conviction was famously not just overturned, but like overturned with gusto. Extreme prejudice. So just a few months after the election, there was an FBI whistleblower who claimed that prosecutors and FBI agents had conspired to withhold and conceal evidence. This all, you know, percolated

up to the point that a few months after that, so April of 2009, so we're looking at approximately six months after the election, US attorney Eric Holder, along with prosecutors submitted, quote, a motion of the United States to set aside the verdict and dismiss the indictment with prejudice. This was pretty bad. I mean, as Ted Stevens, defense attorney said that the DOJ dropped the indictment because of quote, extraordinary evidence of government corruption that they had, you know, basically suborned perjury false testimony in court. I mean, this was like really bad, David. This wasn't just like a weak case. Really bad stuff. It was bad, bad, bad. Yeah. And then, fast forward, of course, the Senate is going to be 51 Democrats, with one of them being Mark Begich because of that seat that they won by 4,000 votes

because the Department of Justice got this conviction. So on the one hand, the stakes were much smaller. And on the other hand, now imagine that at a presidential level. Oh my gosh. Oh my gosh. Now, and let me just say, I fully recognize, and I have heard from a number of New York attorneys, they say, no, no, David, your concern is overblown. This is a broad criminal statute that has been upheld in its breadth, you know, and that I am that my concerns are overblown and I acknowledge they might be they might be overblown concerns,

but they're the it's what's interesting to me, Sarah, in many ways, as the prosecution nails down the sort of the story of the hush money very thoroughly that it's that other crime element, however, that it's still hanging out there. And that's it just hasn't felt as nailed down nearly as tightly as the underlying falsification of the records. Yeah. Can I tell you my concern, which is if you're in appellate court getting this after an election that Trump narrowly lost, for instance, don't you feel like that's a thumb on the scale to not overturn the conviction itself? You know. Talk about some institutionalist concerns, ones that shouldn't adhere to a criminal process, but nevertheless, how would you not subconsciously consider the results of what would happen if you

said that the conviction was not legally sustained. Yeah. No, you're exactly right. You're exactly right. And I have, from the beginning, felt differently about this prosecution because of that step two than all the other prosecutions. And that step two to this day, there's more clarity than there used to be, but it's pretty clear that the prosecution is really centering this around the, quote, election interference theory. And so therefore, he's really centering around the campaign finance and the disclosures and things like that.

And that's... But I'm oddly going to steel man the other side of this. So on the one hand, I firmly believe that there was no federal election crime here and I've gone over that a million times. Obviously the Department of Justice declined to indict Trump for it. And yes, Michael Cohen did plead to this,

thing that I'm saying is not a crime. But someone pleading to something that is not actually a crime would not be the first time. And you certainly can't use that to then say, see this other person did it. Like, yeah, it's not precedent. Right that that dog won't hunt. Okay, but I said I was going to steel man this. So I'm laying all that out to tell you that in some ways, none of that matters, because they don't need to prove that he committed a crime. Yep. They don't have to prove any element of the federal election crime beyond a reasonable doubt or anything like it. What they have to prove is that Donald Trump was concerned that he might have broken the

law and was therefore concealing evidence, concealing this, you know, using the falsification of business documents to conceal evidence Of a crime that he may or may not have actually committed. That's I think it's still very messy. I think it's legally still very messy but to the extent Um that you know, they can get there That is possible to do without needing to prove the federal crime Right, right. Yes. Now I do agree that that is the steel man. That is that is absolutely the steel man case. And it may it may prevail.

You know, this is not like the situation with Chemerinsky's house where steel manning wasn't even enough to make it like credible. No. Did you know, though, that she filed a title the protester filed a title six complaint against Professor Chemerinsky arguing that he by stopping No, did you know though that she filed a title, the protester filed a title six complaint against Professor Chemerinsky arguing that he by stopping her from protesting at his house at a private dinner, he was discriminating against her on the basis of her religion. And they opened up an investigation into this.

Yes, I saw that and that is wild stuff. And won't that chill speech, like chill professors rather from, I mean, all sorts of problems with it. I'm hoping as I think as you are probably about to say that the result of this quote unquote investigation will potentially be student discipline and certainly a strongly worded statement

of the university's policies that no, you do not have some sort of preexisting right to spout off at your professor's house. And then if they try to stop you, it's because of your religion, no. Yeah, can I go on a quick tangent about that real fast? Yeah, definitely. Okay, have you noticed, and this is something about

not just the person involved in this case, because I don't wanna pick on this one person, because I don't want to pick on this one person. But I don't know if you've noticed sort of more broadly in these far left student movements, there's this really interesting way in which they speak, where they speak as if their assertions are so obviously true that it's almost boring to say them. You know, that in other words, it's just such obvious truth here. You know, when you had the Columbia protesters saying,

we're entitled to humanitarian aid, as if, you know, she was appealing to the international law of armed conflict in a takeover of administration building. And then just a total lack of curiosity about any sort of opposing viewpoint. Just total lack of curiosity. And it just really reminded me of how much in a very important, almost like cultural ethos,

since the far right and the far left are so similar in that regard. It is just such incredible certainty of their position, just unbelievable certainty, rock-solid certainty, followed by just total, almost boredom at best, and just sort of vicious hostility at worst, at any sort of contrary argument or information, even contrary information.

And it's one of the things that, there are many things that frustrate me about this campus protest movement. And one of them is, take these folks very, very seriously. Oh, and by the way, they're also just kids. And when they violate the rules, you gotta let them off because they're just kids, but you gotta take them seriously, but they're just kids. And when they violate the rules, you gotta let them off because they're just kids, but you gotta take them seriously, but they're just kids.

I mean, make up your mind on this. But the other one is, why would we take them seriously when they're so obviously incurious? And so obviously just going by rote talking points. And it's anyway, that's a tangent, but it's an aspect of this that has really bothered me from the beginning. OK, back to the Trump trial.

You know, another thing that's coming up is that I wanted to steel man, or at least sort of give the both sidesism of, is Michael Cohen testifying. Because on the one hand, I think it's very easy to, frankly, mock Michael Cohen as a witness. Remember, this is the guy who has admitted to lying in court, pleaded guilty to lying to Congress, and evaded his taxes for years.

So when he says, you know, I was lying then, but I'm telling the truth now, it's going to be really hard for them to say, OK, but like, what about this should make us believe you? Well, I'm under oath. Well, you were under oath all those other times too. But here's my, my Michael Cohen steel man. I can't believe I'm saying this. This is the guy, by the way. Lots of steel manning going on. This is the guy who during the 2016 campaign, if I'm remembering this all correctly,

went on TV and said that you couldn't rape your wife, that that wasn't a crime. This was a lawyer. And I remember at the time being like, he has a law degree? And then here he is so many years later. Anyway, it's interesting to me and worth pointing out that in so many criminal cases, especially, the witnesses are themselves going to be messy. Yes. And the best example is going to be mob cases. Like if you want someone to testify against the mob boss who actually knew what was going on,

it's not going to be like the perfect girl scout and then the happy grandmother from next door. They're going to be mobsters. And so you're going to put them on the stand and they're going to have to admit to being really bad guys who lied all the time. So it's just part of criminal law have to admit to being really bad guys who lied all the time. So it's just part of criminal law

that if you're trying to get a bad guy, you're going to have to rely on bad guy testimony. And let me give a different version of it that I think has taken our culture a really long time to deal with, which is, for instance, victims of sexual assault and rape. They're often not great witnesses. They were often groomed by their victims or picked, sorry, groomed by their abusers or

attackers or picked by them because of some inherent weakness, maybe they're strippers, maybe they're promiscuous, you know, etc, etc. And so for a long time, you know, these cases weren't brought to trial because the prosecution would say, well, that's not going to be a reliable witness on the stand. So I think Michael Cohen is the worst witness I could possibly imagine in a criminal case, where the truth of really matters, like you really all have to rest on Michael Cohen's credibility. But you go to war with the army.

And if you the our prisons are full of people who are convicted on the testimony of other convicts. Yeah, it is. And so much of it is actually how you do it. So, you know, if you're setting up Michael Cohen as some sort of, you know, a fine upstanding citizen and then that's exposed in nine seconds on cross that this guy's bad.

Which frankly, I feel like the left, like when I'm tuning in to, you know, cable news stuff, I am sort of stunned. They're like, well, no, it's proof that he's telling the truth now because he's turned against Donald Trump. Yeah. What? No, that makes no, it's proof that he's telling the truth now because he's turned against Donald Trump. Yeah. What?

No, that makes no sense unless you already think Donald Trump's a really bad guy. I mean, remember, Michael Cohen had a pro-Trump book deal. Then he got into legal trouble. Then he published an anti-Trump book deal for more money. Like, this guy's a grifter. And I don't know why you would trust anything he says just because now he's saying the thing that you like him to be saying,

therefore it must be the truth. That is some weird logic. Yeah, I think, you know, the prosecution's done a pretty good job of setting it up as, okay, this guy's a crook. And that's why Donald Trump was drawn to him. And you don't actually have to take his word for everything. His testimony is actually buttressing

all of the other testimony. And so this guy is not so key. Everything does not depend on his testimony, but his testimony is consistent with the other evidence that you have received. He has, and so I think there is a way in which you manage it, as an intelligent prosecutor manages it, and they do it all the time.

They manage this all the time. And I'm actually much less of the view that Cohen's obvious dishonesty is a problem for the prosecution because of all of the other evidence in the case. But Cohen's testimony, one way or the other, has not so much to do with my underlying problem with the case, which is the second crime element.

That's the part that I've got my most beef with. All right, let's move on. We got two Supreme Court opinions at the end of last week, both of which were six three opinions, except they were both kind of unanimous also in their own way. And the six threes were in different directions, as in the three middle justices flipped with one group and then with another group. They were interesting on their own. They're interesting for the court dynamic. So let's dive in. The first one, Justice Kavanaugh delivering the opinion of the court, joined by, and I'm going to group them in their three threes for what that's worth. So it's

Kavanaugh, Roberts, and Barrett with Thomas Alito and Gorsuch. So the dissent is Sotomayor writing with Kagan and Jackson. This was a civil forfeiture case. So basically in the state of Alabama, they pulled over two different young men in cars who had borrowed their cars. We'll focus on Mr. Cully. So his mom gave her college-aged son a car to borrow, and he was pulled over with marijuana and a loaded handgun in the car. Obviously, they arrested the college-aged

son and charged him, but they also seized the car under a civil forfeiture idea because the car was being used for illegal activity. Now, there's an exception to civil forfeiture idea because the car was being used for illegal activity. Now, there's an exception to civil forfeiture laws, which is if the owner had no idea that their property, in this case the car, was being used for criminal activity. This all turned on whether the hearing to determine if the car was properly eligible for civil forfeiture seizure was enough, or whether you needed to have a preliminary hearing to determine whether they had sort of the probable cause,

if you will, to take the car in the first place. And look, the six justices said, no, you're asking for two different hearings that are gonna cover the exact same stuff. And the hearing, the thing that is gonna happen, they moved to do that basically within two weeks. Now, the mom didn't answer back and forth, back and forth, basically for a year until she finally said like,

"'No, it's my car, he doesn't own it. "'And I didn't know anything about this,' "'and she got the car back.'" And so they're like, "'Well, so the hearing isn't the problem. "'The problem is that you could have gone in much sooner and you didn't. The three justices on the dissent are going to say, no, we should, the burden should be on them to prove that they had the cause,

they have any idea who the owner of this car is before they impound the car for a year. But what was so interesting about the case, David, actually there were quite a few things, is the concurrence with Gorsuch and Thomas, Gorsuch writing, because of course it was Gorsuch writing. And Gorsuch basically saying, look, we're supposed to decide this super narrow issue about how many hearings you get and some burdens maybe on what those hearings would show. And I agree, as long as the hearing happens really quickly, we don't need two hearings that also happen really quickly. But this whole civil forfeiture thing is BS. And the second someone can bring me a case to challenge civil forfeiture, I'm all over

it. And David, I thought you might want to sing the song of the libertarians at this point on all the things that are wrong with civil asset forfeiture while explaining to people why it also exists. Civil asset forfeiture means that the drug dealer doesn't get to keep all his sweet stuff that he's using to sell drugs with, the, Maserati and the absurd like other stuff. But you know, who gets the profit of those is the police departments. And there's all sorts of shady stuff going on. Well, and also when law enforcement talks about civil asset forfeiture, they tend to talk about the cartels and the Maserati's, right?

So they they'll be like, look at this lineup of ill-gotten Ferraris here that we have taken from these cartels, dealing them, hitting them where it really hurts, et cetera. But that is not the day-to-day reality of civil asset forfeiture in the United States of America. I mean, the day-to-day reality of civil asset forfeiture is that if you are somebody who does not have

a lot of resources and you are arrested or family members arrested in your property, for example, then the day-to-day reality is often an immediate seizure of your property. And then because this is civil asset forfeiture, it's not like there's going to be that constitutional right to counsel that attaches when you have a criminal proceeding. They don't have to convict you of a crime. They don't even have to charge you with a crime.

They basically are charging your car with a crime, but they don't have to prove that your car committed a crime beyond a reasonable doubt. Yeah, and that's the civil asset forfeitures where you get these really weird case names like State of Alabama versus broken down Toyota Tacoma or State of Alabama versus grandpa's old shotgun. And that's I mean, that's a slight exaggeration, but it is State of Alabama versus 2014 Toyota Tacoma or State of Alabama versus $8,000 in cash. And so what ends up happening is you have a seizure of property, you then have a legal

process that often occurs only after the seizure, that's what this is about, for example, that can be extraordinarily costly with people with limited resources, and also provides law enforcement with an ability to supplement its budget, to bring in assets that it can sell or use for its own purposes. It's always interesting to sometimes see some of these converted cop cars out of these exotic cars. And so there's an enormous incentive because obtaining property through a civil process is just flat out easier than

convicting someone beyond a reasonable doubt in a criminal court. And there's this provision from there's this line from Justice Gorsuch. I would recommend all of Justice Gorsuch's opinion here. This is one of those Gorsuch opinions that you just want to inject straight in your veins. But here here here's Gorsuch. Not only do law enforcement agencies have strong financial incentives to pursue forfeitures, those incentives also appear to influence how they conduct them. Sub-agencies, for example, repeatedly place special emphasis on seizing low value items

and relatively small amounts of cash, hopeful their actions won't be contested because the cost of litigation to retrieve the property may cost more than the value of the property itself. That's what I just referred to. If they're showing you all the Lamborghinis they seized, they're misrepresenting the way civil asset forfeiture actually works. Other agencies seem to prioritize seizures they can monetize rather than those they cannot. This is fascinating. Posing, for example, as drug dealers, rather than buyers, so they can seize the buyer's cash, rather than the illicit drugs

that hold no value for law enforcement. So here you have sort of the desire for cash and stuff is then dictating how law enforcement conducts its business. And because much of this is directed at lower income Americans and not say the soccer mom down the street, then it's not visible to most of the Americans who are, you know, most of the Americans who are voting and participating in national discourse. And so it has become a significant problem of abuse.

But at the same time, Sarah, as you were saying, there is a real logic in the concept of forfeiture. There is a real, but my issue is why are we splitting out the civil asset forfeiture from the criminal case? Incorporate forfeiture as part of the criminal penalty and make you make the government prove it beyond reasonable doubt. So other stats from Justice Gorsuch's concurrence in 2018, federal forfeitures alone brought in $2.5 billion. And the way that federal civil asset forfeiture works is it's shared with the state

law enforcement agency that helped bring it in. So huge incentives there. Meanwhile, according to some reports, these days, up to 80% of civil forfeitures are not accompanied by a criminal conviction. So- That's stunning. It's pretty stunning. Stunning. So, while this was a 6-3 case, it was kind of 6-3 in both directions, if you notice. On the one hand, it was 6-3 saying there doesn't need to be this preliminary hearing. On the other hand, it was at least 5-4, civil asset forfeiture is BS, please bring us another

case, and we're going to undo this whole thing. And I'll go out on a limb and say that maybe there's a sixth vote there as well. And this is also Justice Gorsuch at his most Gorsuchy. If you want to understand Justice Gorsuch's judicial philosophy, I think that's another reason to read this concurrence and especially part three of the concurrence. Why does a nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have led to egregious and well-chronical abuses? Perhaps it has something to do with the relative lack of power of those on whom the system preys.

Perhaps government agencies increasingly dependence on forfeiture as a source of revenue is an important piece of the puzzle. But maybe too part of the reason lies closer to home. In this nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule. Yes, some exceptions exist, but perhaps it is past time for this court

to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions. Really, it's hard not to wonder whether some current civil forfeiture practices represent much less than a revival of the archaic common law deodand. Do you know how to pronounce that word? I have no, I saw that deodand is best guess for me

and never heard it in the wild. I've never heard it in the wild. Me neither. So we're gonna go with deodand. And then he's going to spend several paragraphs talking about deodand. The deodand required the forfeiture of any object responsible for a death, say a knife, cart or horse to the crown. Today, the idea seems much the same, even if the practice now sweeps more broadly,

requiring almost any object involved in almost any serious offense Today, the idea seems much the same, even if the practice now sweeps more broadly, requiring almost any object involved in almost any serious offense to be surrendered to the government in amends. And he's going to go on for a long time about stale dance. And he does say, by the way, at the end of his concurrence, in asking the questions I do today, I do not profess a comprehensive list, let alone any firm answers, nor does the way the parties have chosen to litigate this case give cause to supply them. But in future cases, with the benefit of full briefing, I hope we might begin the task of

assessing how well the profound changes in civil forfeiture practices we have witnessed in recent decades comport, but the Constitution's enduring guarantee that no person shall be deprived of life, liberty, or property without due process of law. David, I'll point out one other thing that might be of interest to listeners who don't care one bit about civil asset forfeiture. And how dare you listener, if you don't care one bit about civil asset forfeiture. So twice in his concurrence, Justice Gorsuch cites

Bishop's 1856 criminal law treatise for a proposition about a defense to forfeiture. Frankly, it doesn't really matter in the concurrence much, except again, if you're trying to understand who Justice Gorsuch is, a nerd who really doesn't like it when the government abuses its power. And that's what you're going to see the through line between so many of his opinions, whether it's Indian treaty law or criminal defense law. If the government is abusing its authority and power, Justice Gorsuch is pissed off.

Okay, but why is Bishop's 1856 criminal law treatise interesting? Because earlier in that treatise, Bishop had some interesting things to say about the privilege that high officers exercising discretionary duties had against criminal process. Mm-hmm. So for example, I'll read you a quote from the bishop's treatise. By the way, his name is Bishop.

He's not a bishop. Okay. Yet the doctrine appears to be sufficiently established that legislators, the judges of our highest courts and of all courts of record acting judicially, jurors, and probably such of the high officers of each of the governments are, as entrusted with responsible discretionary duties, are not liable to an ordinary criminal process like an indictment for their official doings, however corrupt.

I'm just saying, maybe there was a reason that Justice Gorsuch had Bishop's 1856 treatise so close at hand when he was writing his concurrence in this case, and that perhaps we might see Bishop's 1856 treatise coming up again in short order in the Trump immunity decision. So can I draw through line with Justice Gorsuch? So what's becoming very interesting to me is how much he is and is not like his mentor, well, his judge he clerked for, Justice Kennedy. He has some very strong Kennedy characteristics and then others are not. Kennedy, I don't think someone would call.

What are his strong Kennedy characteristics? I'm having trouble thinking of it. I'm getting there. Okay, I'm excited. Yeah. So of course, he's much more originalist than Kennedy, but Kennedy had a very strong anti-bullying kind of jurisprudence.

If you looked at Kennedy, what was an interesting through line is he was often finding who's the abusive one here or trying to find who's being mean, who's being cruel. And you could almost draw a through line in a lot of this jurisprudence is that he was, if he categorized you in that in that range of this person is a bad actor or there is a there is a bullying aspect. Kennedy absolutely swung hard in the other direction. And it's interesting, you see it in his LGBT jurisprudence.

So going from the beginning, he began to look at a lot of the legislation going all the way back to the Colorado case, where if he saw the state targeting LGBT folks, he strongly stood with them. But then interestingly in Obergefell, what does he do? In Obergefell, he flips around and says, well, we've ruled for you,

but don't turn around and bully other people. And then held to that because in Masterpiece Cake Shop, he's later in the majority on Masterpiece Cake Shop, where the dynamic was flipped around and it appeared, and the dynamic was this state entity bullying this Christian Baker and imposing double standards against him, et cetera. So anyway, that's an interesting through line

when you recognize that in Kennedy, you can just see it again and again and again and again. And you also see it in Gorsuch, but filtered through a very different judicial philosophy. That was fun. Thank you. You're very welcome. All right. Next up was another Supreme Court case that was 6-3. This is Justice Kagan delivering the opinion for the court.

She's joined by Sotomayor and Jackson, and also the Chief Justice Kavanaugh and Barrett. So again, you have the two three pods joining together. And then you're going to have Justice Gorsuch filing the dissenting opinion with Thomas and Alito. This is a copyright case. And I'll be honest, the most interesting part about this case is it's over an underlying hook that was used in flow writers in the air. In the what, Sarah? In the air.

It's spelled A-Y-E-R. Air. In the air. Okay. Yeah. It was number nine on the billboard charts at one point and has been used on So You Think You Can Dance. Is it similar to In the Air Tonight with Phil Collins?

Very similar. Yeah, very similar to the Phil Collins one. And other samples were in Black Eyed Peas, Kid Sister. Okay, so basically these two dudes write a song. Nothing comes of it. Dude number one has a drug problem. He keeps going in and out of jail. Dude number two sells some of their stuff, their copyrighted material that's gonna get sampled

and all this cool stuff. So our little jailbird gets out and is like, wait, what the, I want some of that money. And so he sues, but 10 years has gone by. And under copyright law, you have three years to file your copyright claim. But the question is, is it three years from when the violation happened or three years

from when you found out about it the best you could? You weren't intentionally plugging up your ears, but the guy was in jail. Except that's not what the Supreme Court decided, the question in this case. They decided a different question. OK, let's assume that it's three years from whenever you found out. So three years from that it's three years from whenever you found

out. So three years from discovery, not three years from the violation. What about the damages? What's your remedy? Is the remedy only for the last three years, in which case this whole thing kind of falls apart? Or does the remedy also go back and is like the discoverable time period. And the sixth justice is basically you're gonna say, yeah, you get to go back if there's this discoverable exception to the three years, but we're not gonna decide that. It's like a super institutionalist opinion to me

in a lot of ways, but Justice Gorsuch's dissent is a, like, are you kidding me? What are we even doing here? What? How did this happen? And I'm sorry, I probably didn't do a great job of explaining the case, except if you're confused, that's right. And Justice Gorsuch is also confused.

I'll just read you a little piece of it. In one sense, the court's decision to pass over all this complication may be understandable. After all, none of the parties before us questioned the application of a discovery rule in the proceedings below, but joined issue only over how it should work, this remedies question. And the court may, as it does, resolve the parties' dispute while leaving for another day, de-antecedent question whether a discovery rule exists under the act.

But if that is a permissible course, it does not strike me as the most sensible one. Nothing requires us to play along with these particular parties and expound on the very details of a rule of law that they may assume but very likely does not exist. Respectfully, rather than devote our time to this case, I would have dismissed it as improvidently granted and awaited another squarely presenting the question whether

the Copyright Act authorizes the discovery rule. Better in my view to answer a question that does not matter than one that almost certainly does not. Because David, if there's no discovery rule, i.e. it matters when the violation happened, then there's definitely no remedies rule that's on discovery. So like, they answered the second question without ever answering the first question. And the Supreme Court does do this from time to time. But I'm kind of a Justice Gorsuch. I don't remember a time that's as egregious as this, where the first question is so dispositive, there's such a circuit split. Why are we answering a remedies question when we don't even know that there's a cause? I don't know, Sarah. I don't know.

we don't even know that there's a cause. I don't know, Sarah. I don't know. That's why I say in many ways, like, both of these are more unanimous, or at least more odd than the 6-3 alignment would suggest. And I mention that because at the end, we're going to do our little stat pack where we tell you all the statistics,

and one of the statistics everyone is going to care about are these 6-3 alignments. And the thing I'm going to be screaming in a few months is, one, not all 6-3 cases lined up 6-3 the way you think they should have. And yet, I think we're going to have quite a few 6-3 cases because of those pods of three. And that even in these 6-3 ideologically aligned cases, like we saw in the civil asset forfeiture case,

the 6-3 alignment doesn't show you where the divisions are within the conservative side and how actually Justice Gorsuch and Justice Thomas agree with the three liberal justices on all of the problems with civil asset forfeiture. It's just on this one specific question on hearings that was actually the one presented, they happen not to. So 6-3, not quite what you think it is. The other thing I'll note is that a bunch of people are like, well, you only, you know,

you use these statistics about all the cases of the term, but what about the big cases? Those are the ones that are ideologically, you know, aligned. This 6.3 case is ideologically aligned, the civil asset forfeiture case. And you want to talk about something that affects a whole lot of people every year? This one. But because it's sort of not front the news, it's not listed as a politically divisive case, even though it was in fact decided along ideological grounds. And that the forfeiture case, as you're saying, this is an extraordinarily important case for American public life.

It is, I was just at this meeting, Sarah, and we're talking, I've been to a lot of meetings in my life about American polarization. Oh, I thought you were just gonna say, I've been to a lot of meetings. Good for you, David. I've been to a lot of meetings in general. But specifically, I've been in a lot of meetings

about American polarization. And it's interesting how much of our polarization is driven by the very specific concerns of a very specific American constituency. And that is, by and large, if you look at the most polarized people in the United States of America, they're upper middle class white people disproportionately, not exclusively, not exclusively, but disproportionately. And so the list of things that really divide America in the sense of our political divisions is often the list of things that matter to this specific, this specific demographic. And then you have a huge number of people

who aren't in this sort of political hobbyist, upper middle class, disproportionately white, who are impacted a great deal by policy and law. But many of the cases that impact them just don't register with the polarizing class. And so therefore it's just like not part of the national discussion. It just comes and goes almost instantly except you know where Sarah, this podcast.

I've pointed this out before, but I have to do it again. The definition just becomes totally circular because the politically, you know, oh, the Supreme Court, the big cases, the politically divisive cases are the big cases. And it's like, well, but how do you define those? And if you define the big cases as the politically divisive ones, then what are we doing here? An example, just for those who are looking for ammo as they head into Supreme Court season at their cocktail parties. Remember, you have the student loan debt forgiveness program that was struck down six, three along ideological lines, and that was considered a big case.

But the Supreme Court upheld the Biden administration's immigration enforcement plans and held that Texas and Louisiana couldn't sue to force the president to deport illegal aliens. That one was considered a big case when it was being argued, but then when it was decided eight, one, and it upheld the Biden administration's ability to tell Texas and Louisiana to f off, it wasn't politically

divisive anymore. Sorry, it wasn't a big case anymore because it wasn't politically divisive because it was 8-1 or I might also argue maybe because the Biden administration won. So if it had been 6-3 against the Biden administration, it no doubt would have been considered one of the big cases because then it would have been divisive because it would have ruled against the Biden administration. That can't be the definition. And then look at the race cases.

Obviously you're gonna have the affirmative action case. That was 6-3, but the Indian child Welfare case was 7-2, upholding it, and the Voting Rights Act Section 2 case was 5-4, upholding it. Why weren't those considered big cases? Because that Voting Rights Act case was absolutely considered one of the biggest cases of the term until it came out the other way, 5-4. And then we didn't talk about it anymore. We only talked about the affirmative action case.

They were three. So I could go on and on the religious liberty case. Same thing happened. It's just so frustrating, Sarah, because rarely do you encounter a situation where the well, not rarely is a common situation. So extreme as this. And the common situation is that people don't fully understand the institutions they're complaining about.

And therefore much of their complaint is off base, right? So this one is one where the motivated reasoning is so strong that even counter, this sort of classic conspiracy theorist stuff, even counterexamples become proof of the conspiracy because what someone will say is, well, yeah, when they don't really care about an issue, they'll cross the aisle and to deceive us

into sort of believing they're good faith operators but you see their true colors when well whenever they disagree with me you know and it is there there are certain there are certain topics where I feel like we're just beginning to leave the realm of reason to conversation I mean Israel Gaza is one of course we've talked about a lot. Abortion is one that's been a part of this for a long time. And now we're getting to the point where just discussions at the court more generally are beginning to leave the realm of reason to conversation.

And in spite of the fact that actually the story to tell here is one that is overall, not exclusively, but overall quite encouraging that you have, obviously, if you're looking at it through the right lens, obviously, the vast majority of the court are intellectually independent actors acting in good faith according to their judicial philosophies. And that's why you don't have it always falling out six, three,

six Republicans and three Democrats. I mean, that's why you now see with Kagan and more in the majority than Alito and Thomas. And yet you'll talk about this and it just rolls off everyone as if you're just moving your mouth and no sound is coming out. rolls off everyone as if you're just moving your mouth and no sound is coming out. All right, we have one surpetition that I wanna highlight.

I don't do this too often because there's, I don't know, roughly 10,000 surpetitions and maybe 70 will get granted and maybe 60 we might get opinions on. So your odds aren't ever good. But this one seems pretty good. I'll just read the beginning of the denial of rehearing on Bonk from the Fifth Circuit, in which again, it almost looked more like one of these unanimous cases. You had some of the

judges saying, we want to hear this again. And others saying, look, this is only the Supreme Court can do it. But we also agree this is Bonkers town. So it's just is it bonkers town and we should revisit it or bonkers town and let the Supreme Court do the work. Here's the beginning. Officials at the Raymond Laborde Correctional Center knowingly violated Damon Landor's rights in a stark and egregious manner, literally throwing in the trash our opinion, holding that Louisiana's policy of cutting Rastafarians' hair violated the Religious Land Use and Institutionalized Persons Act before pinning Landor down and shaving his head. Landor clearly suffered a grave legal wrong. The question is whether a damages remedy is available to him under Rilupa. That is a question only the Supreme Court can answer. So David, I mean, it's just,

it's such an egregious case. This guy's in prison. He's been growing his hair out, I think, for 20 years, so he has incredibly long dreadlocks. It is his religious right to have his hair that way. The Fifth Circuit rules in this case that it is his religious right to have his hair that way. case that it is his religious right to have his hair that way. And they literally pin him down and shave his head, knowingly violating his constitutional rights. And the question is, so what? Because he's now out of prison, and so you can't get an injunction, you can't, there's nothing to stop. The only question is whether you get damages. And that is an open question, although the Supreme Court has already leaned into that in its, the sister statute.

So Rilupa is the institutionalized persons. RFRA is the Religious Freedom and Restoration Act. They did say there were damages in that one, but they haven't ruled on Rilupa. So will they let Mr. Landor recover the cost of his constitutional rights and amazing dreads? I think so, Sarah. I think so. I think they're going to close the loop on this. They're going to bring Ralupa into a similar doctrinal environment as Riffra. And by the way,

isn't it interesting the two most important religious freedom statutes in the United States of America came out of a democratic administration. Yeah, they're both Clinton era. Yeah, both Clinton era, very interesting. And they both are really fun to say, Rilupa and Riffra. And they were passed overwhelmingly bipartisan. Like this was over both of them.

But anyway, I think the court is gonna bring Rilupa into harmony with the RFRA. And I would, again, we don't highlight surpetitions, but I would actually be at least mildly surprised if this one isn't taken. All right, last up, will you tell us about this Fourth Circuit case on the ministerial exception question mark? Yeah, this is a really interesting case. So this comes out of the Fourth Circuit.

We don't have to spend a lot of time on it, but it is interesting. And so this is involving a teacher at, of English and drama at Charlotte Catholic High School, Lonnie Billard, sued for sex discrimination after the high school fired him because he planned to marry his same sex partner. The court found that his, fired him because he planned to marry his same-sex partner.

The court found that his job fit within the ministerial exception to Title VII. In other words, the ministerial exception, long-time advisory opinions listeners will remember this. This dates back to, or at least the modern jurisprudence about the ministerial exemption dates back to the Hosanna-Taber case during the Obama administration. This is where the Obama administration had tried to apply federal non-discrimination law. In that case, I believe it was the Americans for Disabilities Act, to a teacher at a religious school.

And what the Supreme Court found, nine zero in that case. So this is nine zero. It found that in that circumstance, they're applying non-discrimination laws to a hiring and firing decision made by a religious institution made regarding ministers at a religious institution. And so what the ministerial exception says is that between the push and pull of the free

exercise clause and the establishment clause, absolutely the hiring decisions of religious institutions and their ministerial employees and those people who are enacting the mission of the church institution that there is no role at all for non-discrimination law. No role at all, complete exemption from the application. Why would the establishment clause come in? Because can a court really say who should be a minister of a church? Isn't that getting very deeply entangled in the religious instruction of the church?

And so ever since Hosanna-Tabor, there's been the question of, well, who's entitled to the ministerial exemption? And the way that case law has evolved, it's been a choice between a formalistic test. In other words, do you have the title minister or pastor, or is it a functional test? Do you have the role that is very similar to title minister or pastor? Or is it a functional test? Do you have the role that is very similar to a minister or pastor? And the Supreme Court and the lower courts have leaned hard into as a general rule, the functional test more than the formalistic test.

It's not just a matter of what your title is. It very much matters what you do. And so this case was interesting because essentially what the court was saying was that all the teachers at the school have religious responsibilities. They are involved in the religious life of the school. They're involved in the religious instruction of the school, they're involved in the religious instruction of the school. So even though his subject may not have been teaching theology, he's still going to be subject to that ministerial exemption.

So it was a... the case is not that surprising at all, but it is very interesting in the sense that we're now seeing it fleshed out more and more. And this goes to this point that I've made many times about how robust the religious liberty protections are. This 9-0 Hosanna-Tabor decision filtering back through multiple other cases, both the Supreme Court and lower courts, is really giving church schools an enormous amount of hiring and firing autonomy free from non-discrimination law. Can I tell you a piece of it that I found most fascinating, which is that the judge writing the opinion was noting they waived this argument.

They did not argue that the school did not argue that this teacher was covered by the ministerial exception because he didn't like teach religious stuff. And what the court said was, this is not a waivable argument because it's an inherent sort of almost separation of powers, but in this case, not powers, but rather the separation of the government from religion. And therefore it is structural. It is not a normal defense and therefore, yep, we can bring it up on our own. We find that he is covered by the ministerial exception. See ya.

Yeah, it's fascinating. And that is exactly, I find, you know, bringing this up as a structural matter interesting, but it is now just very, very, very clear. And I, you know, I wish a lot of Americans who are people of faith and who are very anxious about religious liberty would just breathe a little bit, like just breathe a little bit. This is the level of autonomy now for religious institutions is reaching a point where, you know, if you go back 15, 20 years when I was in these meetings,

where we were talking about what are our stretch goals for religious liberty, we're like in the stretch goal world right now. Like we're, it's not just that you've taken care of some of the fundamental questions that were really at issue in 2004, 05, 06, when a lot of, when the religious liberty bar really got more potent. We're now beyond those basics. We're now into, okay, the autonomy of these religious organizations is at a level that it's a matter of law. It's never been, it's just never been there. So we don't need to be so anxious about this issue.

All right, David. Well, that's gonna be all the substance for today, but I do wanna tease what we have for the next episode. So first of all, we'll have whatever opinions come out from the Supreme Court. And I've got a war game that I wanna do with you. And I'll give you a hint. You're going to play the Senate majority leader,

and I'm going to play the president from a different party. And there's a Supreme Court opening. But that's not even going to be the best part of the podcast. The best part of the podcast is we're going to have our first AO debate. We have Judge Lee Rodofsky and Professor Oren Kerr, both friends of the pod, and they will be debating the proper role of judges as leaders in society. We will, we are still, we internally are still debating what the question presented will be worded as exactly. But don't worry, this debate will have formal rules and it's gonna be incredible because these are two of the smartest but maybe more importantly best

humans that I know and to debate the proper role of judges in society and as leaders in communities, I think is going to be a good time. Oh, I'm so excited about this. Both Judge Rudosky, Professor Kerr, just great folks, just awesome folks. And so it will also be really interesting to hear them test each other as ideas.

And then it'll be yet another example of what we try to bring into advisory opinions that you can disagree about important things and still be cool with each other. It can happen. Like the fundamental role of judges, and he's gonna say it to a judge. I can't wait.

All right, David, next episode, strap in. Next episode, strap in.