Advisory Opinions - Pressing the SCOTUS Panic Button

Episode Date: April 30, 2024

David returns after a brief food poisoning hiatus to discuss two oral arguments heard before the Supreme Court: Trump’s immunity case and Idaho’s case on abortion bans. But first, a request from The Dispatch’s resident Wilson-hater. The Agenda: —Are solo podcasters sociopaths? —Proposals for changes on the Israeli Supreme Court —Absolute immunity for presidents —The role of the executive vesting clause —Reviewing Idaho’s abortion ban —Time, place, and manner restrictions on college campuses —Answering questions and issuing corrections Show Notes: —Previous AO episode —South Dakota v. Dole —NFIB v. Sebelius —Dr. Martin Luther King on “civil disobedience” —Columbia University banned student protester over saying “Zionists don’t deserve to live” Learn more about your ad choices. Visit megaphone.fm/adchoices

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and mix it with the other. And you can shop that whole world right here in our aisles. Find it all here with more ways to save at Real Canadian Superstore. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur and David French is back from the brink of food poisoning,

just being laid out, David, welcome. We're so happy to have you. Oh, Sarah. So I do, you know, when I do speaking engagements, I often speak during a meal, like lunch, and then often have a meal with people who've organized, which is always a really enjoyable experience. Really love that.

But when you do that, you end up talking a lot, so you don't always end up eating all your food necessarily. So I was a little hungry. I guess, yeah. And went down to the hotel restaurant right before it closed, and they had a little clam chowder, and I was in Boston at the time. No, you did clam chowder.

At like nine o'clock at night or 9.30, whatever. And I think it was 15 minutes after that, there were repercussions. There were repercussions, Sarah. And by the morning when I called- It echoed through the night and the morning. Yes, when I woke, well, didn't wake up in the morning. When the alarm went off in the morning,

I was checked my stats. When you have a smartwatch that has those stats, it said no sleep detected. So yeah, bad times. Okay, well, we've got a fun episode today now that you're back, because we're gonna have to get your take on the immunity oral argument.

And I saved the Idaho abortion oral argument to discuss with you because it's a doozy. Also, we are going to start from the very beginning on time, place, and manner restrictions on college campuses, public and private, and do some first principles stuff on that. I have two corrections I'm going to issue at the end. We got a question from a listener about what happens after oral argument, sort of what's going to happen between now and opinion hand downs in some of these cases. And David, just for future place marker, we got two interesting requests from our friend Jonah Goldberg. He would like an episode dedicated to beating

up on Oliver Wendell Holmes. And to me, it feels so appropriate because he's really dedicated his podcast, The Remnant, for those who don't know, because this is the flagship. There's this like other little podcast that Jonah does. Yeah, right, right. Like that podcast subtitle could be The Ongoing Hatred of Woodrow Wilson.

Yes. And if our podcast had an ongoing subtitle of beating up on Oliver Wendell Holmes, it would really be two sides of the same coin. Right. But we have our subtext of Congress do your job. Can you have more than one subtext? No, not in my view, but I think we'll try it someday. Also, we had this on our agenda months ago and it was overtaken by events, but I would

like to come back to the proposals that Netanyahu made on the Israeli Supreme Court and why not having an independent judiciary is a real problem. This can fit under a category of like, you and I may feel strongly about Israel versus Gaza, but we also feel strongly about Israel versus Gaza, but we also feel strongly about Netanyahu. Right. Like that's a nod dog from me and David on the Netanyahu administration. So those, I just wanted to put flags in that as we wait for more opinions to come out that

those are two things that we may want to spend some time on. So first up, David, I did a solo podcast for the first time. Did I tell you how glad I am to have you back? So glad. I have to say, and I mean this as a direct subtweet of Jonah, anyone who can talk to themselves for an hour on a podcast and like does that for a living, also subtweeting Joe Rogan, like that's a sign of, well, that's a mental state that is very specific, let's say, and maybe not a good one.

Now, now I love Jonah's ruminants. I think they're, I think they're a great. I know, no, that's the thing. He's really good at them, but it's sort of like how I say people running for president, you kind of have to be a sociopath to want to run for president, to run for president, to be successful at running for president. No, not all sociopaths are evil. They don't all kill people.

But like, yeah, I kind of think you do. And like, maybe the same thing applies to doing solo podcasts. I've tried it before like way back in the day in national review days and it is not, I mean when I do it, when I do it, it is not compelling podcasting. I will say that I admire those people who can pull that off. Well and I'm just saying like you can admire the content, but maybe those people, um, lack some human capabilities. Okay. So in this podcast that I did, uh, where I tried to channel my inner Jonah, I

was laying out a lot of the questions because I think the questions highlight why the Supreme court had to take this case and that the complaint, that they never should have taken it, that they're delaying it past the election and that's election interference. I really reject all of that. And I think part of that is because these are the same people who were cheering so loudly when the DC circuit came out with a sweeping ruling against Donald Trump that wasn't like, was so specific to Donald Trump. It wouldn't work for any other president, you every president from that perspective, could have been charged by a state district attorney, this idea that we were

relying on the sort of, well, it's never happened before. That's not how I run my railroad. And then I ended with my prediction, which is only that, right? Sometimes I think we say like, this is obviously turning out this way. And like, maybe it won't, but like it definitely is. This is not that prediction.

I just thought it was important to like say my best guess. And my best guess is that it will be a unanimous opinion holding that no, there is not absolute immunity for presidents for their official acts while in Congress and that instead it will be a qualified immunity that in some ways mirrors quite closely current qualified immunity. Was a crime committed?

And then was it clearly outside the authority of the president? Now, this is different than clearly unconstitutional that is current qualified immunity. It's much more like that common law qualified immunity. And the example that they were giving in 1871, which I think will be helpful for people, is a probate judge who then conducts a murder trial. That is clearly outside the authority of the probate judge. The probate judge knew it would be outside his authority because he's a probate judge. So in that case, you don't have an immunity for holding that murder trial. So this isn't going to be necessarily always the easiest test to apply. But I think in the Trump case, it's not going to be that hard either.

The deciding whether to replace your attorney general for political reasons, that's going to be plausibly and therefore I think covered inside an immunity of what a president's and therefore I think covered inside an immunity of what a president's authority is. Suing the Georgia governor because they didn't find enough votes? No, that's not within your authority as president. So you're not even remotely immune. And then there's gonna be this stuff in between

that's gonna have to get hashed out. But I think by and large, you won't be immune from that stuff either. Yeah, I'm largely with you on the ultimate outcome of the case. I think there were a few things that stood out to me she won't be immune from that stuff either. Yeah, I'm largely with you on the ultimate outcome of the case. I think there were a few things that stood out to me about it.

One was a part, you know, where they talked about all of the private conduct that wasn't covered, which happens to be the vast bulk of the indictment, which then did raise, you know, one of these questions, Sarah, that we've been talking about from the beginning, if a priority was to try Trump before the election, these cases were not streamlined to try Trump before the election. And...

On several fronts, DOJ didn't bring the case soon enough. But you're right, they also didn't narrow the charges so that there wouldn't be these type of fights. Which is not to say that there wouldn't be other objections raised. I mean, remember when Clinton was under investigation by Ken Starr, I mean, you talk about throwing the kitchen sink of arguments up the chain during that era to try to block it, stall it, delay it. So the kitchen sink still would have been thrown,

but with much less credibility. And so, yeah, there were choices made before, and we talked about both of them, both of the delay in bringing the charge and also the scope of the charges. And believe it or not, I mean, if you look at the scope of the charges. And believe it or not, I mean, if you look at the scope of the charges, Smith actually filed a kind of narrow case on January 6th.

He could have gone bigger. A lot of prosecutors go really big. They throw charges into an indictment like croutons on a salad. And- There was no incitement charge for instance. No incitement charge for instance, but there was definitely.

And we flagged it, you flagged it from the very beginning. There was a one of these things is not like the other element to part of it with dealing with the potential appointment of Jeffrey Clark, which clearly brought it into this argument about official act immunity. And the second thing about it that I thought was really interesting was for an originalist court and for a court really centered on text, it really is interesting how little textual discussion there was and how much more of a discussion there really was about kind of policy,

what will happen here. And I feel like that was a deficiency because, you know, right at the beginning, Justice Thomas says, asked this question, Mr. Sauer, to your last point, could you be more precise as to the source of this immunity? And he's talking about the textual source. The source of this immunity, this is Sauer response, the source of this immunity is principally rooted in the executive vesting clause of Article 2, Section 1, Thomas. And how does that happen? That's the source of it, Justice Thomas. I think is, as you described in your separate opinion in Zavosky, for example, that the executive vesting clause does not include only executive powers laid out explicitly therein, but encompasses all the powers that were originally understood to be included therein.

Now, this is a really interesting thing to me, Sarah, because here is the executive vesting clause. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of, that's not the vesting clause really. The executive power shall be vested in a president of the United States of America. And that's the textual support for the absolute immunity argument. And that's remarkable to me

for interesting historic reasons because the, I just, you know, I've mentioned it before, I just finished this teaching this just really fun lifelong learners class through Lipscomb University and we're talking about the origin of the separation of powers. And one of the things that we talked about

was how comprehensively the founding fathers used the constitution to dismantle the sovereignty of the chief executive. Because what they were trying to remove us from, they were trying to remove us from this situation where you had this king who operated and lived with impunity in many ways. Now he was already being limited by parliament to some degree more than he was, I say, 100 or 200 years before, but they were very comprehensively dismantling the traditional vestiges of sovereignty. And so it's not a

sovereignty vesting clause, it's an executive vesting clause. And I was wondering about the leap. I can see a situation where the executive vesting clause, if Congress, for example, criminalized a classical operation of an executive. I can see where you're getting there. But for the absolute immunity argument, what? That's where right from the get go, I wanted them to dive into the historic background that's saying, no, no, no, they were intentionally dismantling all of that from the nation's chief executive with just vestigial things like the pardon power. So this goes to the heart of one of the criticisms of originalism, which is what things were they trying to take from British common law and what things were they trying to

reject from British common law when they don't tell us really explicitly. So, and we've talked about this a lot in the first amendment context, because you have the alien and sedition acts within, I mean, less than 15 years of the ratification and implementation of the constitution into a form of government. And we're all like, oh, obviously that violates the first amendment. And then at the same time, we also point to things within that same timeframe as being like, and this is evidence of what they meant. Yes, by the constitution. So your argument that they were rejecting sovereignty is part of that criticism of sovereignty or originalism because it doesn't really tell us, right?

Because we don't have evidence on this specific question. So, first of all, I agree with you that the vesting clause would certainly bar Congress from criminalizing certain core executive functions. Well, not even core. It would bar criminalizing executive functions like the Tenure of Office Act that Johnson was impeached for after he took over for Lincoln. He tries to replace Stanton. So Congress then passes the Tenure of Office Act saying presidents need advising consent to remove cabinet officials as well. And Stanton bars himself in his office

as the Secretary of War. Dividly portrayed in Manhunt. Yes. Although he was leaving all the time, I guess. Just no one really cared. Anyway, Johnson gets impeached for attempting to violate the Tenure of Office Act. He survives impeachment by one vote. There's a great book called Impeached

about Andrew Johnson's impeachment, which shows pretty definitively that he bribed his way out of that impeachment. But that's an example of something that I think we would all agree today would violate the vesting clause. Right. Especially if they'd made it a crime, for instance, in our hypothetical. I assume you would also agree that the vesting clause, because of the same conceptual text of the vesting clause, would also bar the indictment

and trial of a sitting president. Yeah, that's the best argument, I think, for, yeah. Without question, because while he's president he has that executive authority. So then I have a question so what about the Nixon case from 1982 that had absolute found absolute immunity from civil lawsuits for a president after leaving office I I assume based on your theory here, you'd have to reject that. Yeah, I do reject that.

I had forgotten that that was five, four. It's sort of talked about like, well, everybody knows. Yeah. It's a five, four decision. I mean, this is something that is, again, the way you frame this is sort of a two-part analysis when it comes to criminal law, that there is not absolute immunity, but there is some sort of core executive function element that has to be addressed. And once we're outside of that core executive function, then you're talking about potential criminal prosecution.

I think the same for civil. I think the same for civil. And the interesting thing to me is we have lots of models for being able to prosecute, for example, chief executives, governors in the United States of America, and it's not been terribly destabilizing. We also have ways of dealing with liability through, you know, various mechanisms that

could protect a president from personal financial ruin when facing civil liability, in much the same way we protect a lot of other public officials from personal financial ruin when confronting civil liability. So this is where I want to wildly agree with you. All right. Wow. Yeah. Well, I want to wildly agree with you in the sense that I think you're right about what the court is deciding between over enforcement and under enforcement. Right. And a lot of the oral argument was about that.

John Sauer, Trump's lawyer, was making the argument that like, yes, what I'm advocating for is under enforcement because that's what sort of the practical implications of Article 2 power means that you don't want to chill the use of executive power and therefore, yeah, we want under enforcement when it comes to civil or criminal liability. And you had the, well, the government didn't really say they wanted over enforcement, but they were fine with it. And you had Justice Jackson making the point that like, you'd have a crime center under this under enforcement argument and therefore, yeah, if we're going to lean one way or the other, let's do over enforcement and we can correct it on appeal.

We can correct it here at the Supreme Court. If there's some runaway prosecutor and jury, fine. We have mechanisms for that. And I think you've laid out some of the mechanisms we use in the rest of our legal system. I think both have really compelling evidence on their side. I think what's frustrating to me is very few people are willing to talk about it in terms of the trade-offs.

It's like, no, we just get Trump and everything's fine and this will never happen again and don't worry about it. God! And like, no, I'm very willing to talk about the under enforcement problems or the over enforcement problems. And as long as you're willing to acknowledge that we're kind of gonna have to pick one or the over enforcement problems. And as long as you're willing to acknowledge that we're kind of gonna have to pick one or the other.

Yeah, and here would be, let's take an extreme example to just make sure people understand what we're talking about. So let's say you had a president and we were talking about commander in chief authority, sort of core commander in chief authority. The reason why I objected to sort of the DOJ back in the lower court,

conceding that you could not prosecute, say, a president for ordering a drone strike on an American citizen is whoa, wait a minute. I could easily imagine somebody who's so thorough, thoroughly and completely and totally corrupt that they would use their commander and chief power to just order a straight up murder. I could imagine that. Guess what? Tyrants and authoritarians have done that around the world. And why would we think that the flesh and blood human beings

that we elect to the presidency of the United States would not one day be capable of such a monstrosity? And so the idea that you're going to have a constitutional system where you can abuse your commander in chief authority so much that you're going to order a murder, no. But here would be an example of where Congress would not be able to restrain commander in chief authority. Let's say there was a dispute between the president and Congress over operations in the Red Sea, that Congress had with sunsetting funding and then

rushed through with a veto-proof majority and or a law criminalizing any order to launch a missile from a warship in the Red Sea. In other words, any order from the commander-in-chief to initiate a military act, that would be criminalizing the executive function itself. In other words, they're sort of criminalizing even the ability to exercise traditional executive authority. That would be a situation, or imagine a situation where Congress passed a law

that said with a veto brief majority, all future vetoes will be criminalized. No, you could not. I mean, these are obvious affronts to the actual delegated powers. Criminalizing part of the pardon power. Yes. You pardon someone who has donated to your campaign,

whatever, whatever. Exactly, so those would be categorical attacks on the executive authority of the president. But when the executive uses existing authority in such a way that meets, including the mens rea elements of criminal law, the status as president should not be an absolute bar, shouldn't be anywhere close to an absolute bar. Well, this is why I'm glad you're on this podcast, because we didn't get to get into any of this

because you weren't here. I don't think the court's gonna decide the way that you suggest, but I think that is a rational and reasonable decision that a different Supreme Court could make. Right, I don't think they're gonna decide the way I suggest either. And we'll take a quick break to hear from our sponsor today, Aura.

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plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. The other thing that I would say, can I just say about all of the commentary following this? I interpreted the oral argument a little bit differently from some folks.

I interpret it less as we've got something definitely in mind that we're pushing towards and more as we're pushing the positions of both advocates. And- You mean what oral argument's always for? Right, exactly. or as we're pushing the positions of both advocates. You mean what oral arguments always for? Right, exactly. And I didn't interpret it as a nine alarm. I listened to it and then began to read

some of the commentary and there was a mismatch. Everyone thought Justice Alito had five votes on the court. Right, no. It was the panic button was being pressed because I think what they wanted- Even though Justice Alito, as we've pointed out before, is more likely to be in the dissent

than almost any other justice on the court, with the exception of Justice Thomas. Like they're the two most likely to be in the dissent. Right, exactly. I should have said that on TV yesterday. Yeah, I mean, people forget that. It's fascinating. But I think people wanted something like the reverse of the 14th Amendment oral argument. It was very clear in the 14th Amendment oral argument that they were not buying the disqualification from the Colorado Secretary of State. What

was less clear from the oral argument was under what circumstances would they buy a disqualification? That was unclear, but what was very clear was they were not buying the disqualification from the Colorado Secretary of State. Now on this to me, what's pretty clear to me is they're not buying absolute immunity. That much is clear. And really, John Sauer really wasn't pushing absolute immunity anymore. Now, there was a nuance that I didn't get into on the last episode where he was saying, no, there's not

absolute immunity, but if your criminal charge relies on something that would be an official act, you can't use that official act as evidence in the trial for the crime, which is a weird argument that basically no justice was nibbling on even. But for those who are curious about like, wait, he just totally abandoned it? No, he just nuanced the crap out of it in a way that I also don't think will be relevant to the ending opinion. Although you can see a concurrence about that evidentiary argument because, and right, this would be the idea that, and I'll take a little bit from the oral argument here from what I remember, yeah, he files this lawsuit against the Georgia governor, but in doing so, they would need to show

evidence, basically, that he was president at the time. Nope, you can't do that. And the justice is like, well, then how would you bring the case if you can't mention that he was president at the time, you know? And like, nope, you can't do that. And the justice is like, well, then how would you bring the case if you can't mention that he was president? Like why he wanted to sue the Georgia governor? And so I was like, yep, I don't think you could. Therefore, yeah, you probably don't have criminal charges. And it's like, okay, that doesn't make sense. Right.

To your point, we're so far afield from any constitutional text or norm. But okay, David, we gotta do Idaho. Oh, I know, I know. So this argument was last week and it was one of the hit parade cases of the season, but it got overshadowed by the immunity case. It was argued just the day before.

This is really one of the more interesting follow-ons to Dobs. So Idaho has a law that makes it a crime to provide an abortion except in some narrow circumstances including to save the life of the mother and what will not be relevant here, but in cases of rape or incest. Okay, so it's only life of the mother exception. It does not have serious health consequences, serious bodily function impairment, anything like that.

Okay? Well, there's a law on the books called IMTALA. And IMTALA stands for Emergency Medical Treatment and Labor Act, passed by Congress, I don't know, a long time ago for our purposes. Yes. IMTALA is passed when, you know, you had people going into emergency rooms who maybe didn't have the ability to pay, didn't have insurance, and emergency rooms were turning them away. And then they were dying on the sidewalk outside the emergency room, or they were dumping them

on some other crappy emergency room. So EMTALA's passed by Congress to say that any hospital which participates in Medicare, which gets money from the federal government, must provide necessary stabilizing treatment. Necessary stabilizing treatment, okay? So, the question in the case is, what about when abortion is a necessary stabilizing treatment? Does that preempt Idaho law? Therefore, Idaho laws gone because of the supremacy clause and Idaho emergency rooms must provide abortions when it's necessary

stabilizing treatment. And you know what, David? Um, it was a weird oral argument in my view. And I'll just lay out a couple buckets for us to talk about. One, there was sort of a lack of factual dispute. Like there was a difficulty coming up with hypotheticals where Idaho solicitor general would say that Idaho would not provide an abortion and the government would say that they had to. So like Barrett's like, what are we doing here at one point? Like you guys can't come up with a world in which you're not agreeing,

to which the government said Idaho is lying and Idaho said the government's lying. And it was like really oddly sort of personal at that point. That's bucket number one, the lack of a factual dispute, even though on the face of it, I got to say like, I see a factual dispute. Number two was the sort of Dobbs hangover from the justices. And you could see the 333 court kind of coming out from

where they felt about Dobbs, I think. And the last bucket, which is the one I'm most interested in, is the spending clause bucket. Because remember, this is if you take money, this is an if then. If you take money from the federal government in the form of Medicare, then you must provide stabilizing care. And yet, so first of all, is that a viable use of the spending power? But second and relatedly, the US here, the Department of Justice sued Idaho. They didn't sue a hospital. So if your complaint is that you didn't get your bargain, you gave them Medicare funding

and now they're not providing stabilizing abortions, you've got a beef with the hospital that's taking your money. Why do you have a beef with Idaho? Idaho can pass their law, the hospitals can take Medicare funding, and the hospitals have got to figure out which they want. Do you want to follow Idaho law or do you want to accept Medicare funding? But that seems like a choice for the hospitals, not really a DOJ suing Idaho situation on preemption.

What's getting preempted here? Medicare spending? So that's bucket number three under that spending clause, which like kept popping up and then coming back down because it felt like the justices really wanted to talk. The justices that will be the deciding voices potentially in this case, wanted to talk about the other two buckets

more than they wanted to talk about my bucket. And how dare they not want to talk about my bucket, David. So let's start with bucket number one, which is the factual dispute question mark. Yeah, this was the by far the most confusing aspect of the case to me because on its face, EMTALA and the Idaho statute conflict. I mean, they just do. Because if, stabilizing care has never really been just to save your life. You know, if I have a serious, if my arm is broken and I've got a fracture and what is stabilizing care? It'd be setting the arm and putting it in a cast even though they wouldn't say,

well, you're not going to die from that unless it gets really infected. Come back to us then. That's not the way that would work. This idea that stabilizing care cannot include physical health, I think, is wrong. Then for Idaho to come out and say, well, there's no real conflict here because we have some state interpretations that remove the conflict.

But they said, so Idaho said there's no conflict on the sort of parade of horrible examples on placenta previa, atopic pregnancies, all of this stuff. But then they said there was a conflict on the mental health because they argued that stabilizing care, if you came in and said, I'm going to kill myself if I don't get an abortion, that the government would say that that was still stabilizing care to provide the abortion. And Idaho would very much say that mental health was not for the life of the mother. And then the government was like, no, no, no, no,

we agree that mental health is never going to be, an abortion for mental health reasons will never be stabilizing care because if you come in and are having suicidal ideation, we need to take care of the mental health aspect of that. The abortion is not the stabilizing care. The drugs that you need for the anxiety or the depression or anything else are the stabilizing care.

And then Idaho's like, yeah, but look at this standard of care from this organization that says that it is. And it was the exact same mirror of the argument over the placenta previa treatment. So you go in with placenta previa, which means basically you will not have the internal structures, placenta, the amniotic fluid, to carry this baby to term. And because of that, because there's not then the sort of sealed sac situation, you're very likely to get infection, you get sepsis, you can die eventually from that. Well, so then we got off to the races on like, yeah, but what if you're not going to die like right now, you might die, you might get an infection in two weeks.

Yeah, they have to perform the abortion in two weeks. How serious does it need to be? How reasonable is the life of the mother in jeopardy need to be? Does the infection need to already happen or just a likelihood of infection or just a maybe infection? To which Idaho was like, no, no, no. Like the fact that this can turn into a deadly condition is enough for us.

And they're like, no, it's not, stop. It was weird. And Barrett was just like, what are we doing here? Do you guys need to go down and work this out amongst yourselves and come back later? I'm so glad you said that because it did remind me of like an, hear an oral argument before a district court.

And if I'm the district court judge, I'm going stop, stop, stop. I'm gonna- Go out my hallway. You've got an hour. Yes. You've got an hour and you're gonna come out of that room- Come tell me what this case is about.

Either with a settlement or a stipulated list of disputed facts. Like- Yes. And this is what made the, again, this is something that makes analysis of these kinds of cases. What's the pro-life, what's the pro-choice position, et cetera, et cetera.

And so if they're saying, hey, if you're saying, hey, I very much am supporting this Idaho statute that does not include a health exemption, it only has the life exemption. And if Idaho wins, yay, we can only have the life exemption and not a health exemption. It only has the life exemption. And if Idaho wins, yay, we can only have the life exemption and not the health exemption. But that's not what Idaho's actually arguing for.

I even, did you hear this that like, so Sotomayor is giving this example where you're not gonna die from carrying this pregnancy to term, but it's going to hurt one of your kidneys so much that you will be on dialysis for the rest of your life. And I felt like Idaho's answer to that one was basically like, well, no, because if you're not then on dialysis, that could increase your risk of death. So no, we could still provide the abortion then, to which I just, obviously I wasn't in the courtroom to, this is the one time where I wished I'd actually been in the courtroom

because I feel like Justice Barrett's mouth must have been a gape at that point. Because your law no longer means what it says it means. You're asking us to ignore the text, go with your sort of, my interpretation here is the Solicitor General, but then the same thing was happening from the Solicitor General of the United States on the other parts of EMTALA, stabilizing care doesn't necessarily mean serious health condition, as you said, David. But at the end of the day, right, if the two are in conflict, to me, it's very easy, like preemption. If this were a normal supremacy clause preemption case, and perhaps you could even say that it's preempted in so far as it conflicts.

So, you know, Idaho would need to give an instruction that providing an abortion is a crime unless it is to save the life of the mother. Or you would otherwise be in conflict with Imtala, which again, sort of swallows the whole thing, but like, okay. which again sort of swallows the whole thing, but like, okay. And to the second bucket, you just had Kagan, Jackson, and Sotomayor just whipping the Idaho Solicitor General. And the examples to me were very persuasive. You had the dialysis example. You have endless examples where under Idaho law, as I read it, under those placenta previa cases,

Idaho, if it's not to save the life of the mother right now, but it might result in an infection in a month, let's say, but there is no chance for the baby to survive. This is the part that of course I get very worked up about because it's the same as ectopic pregnancies. And originally Idaho law did not include an exception for that. They then went back and amended it to make sure that ectopic pregnancies were not included. But the whole reason we don't include ectopic pregnancies is because there is no chance for that baby to make it to term. But the same

thing happens with other diagnoses. If you are leaking amniotic fluid, it's not going to make it. I'm sorry. Like that pregnancy is over. Whether there's still a heartbeat or not is irrelevant to the end result. Same with ectopic pregnancies. And the fact that Idaho is going to like one-off amend this stuff or something, or that it doesn't have any sort of balance. Like if you were a smart legislator, David, who's pro-life, I don't understand why you wouldn't say, if this baby will not live ever, then like we have a whole different thing here to actually have sort of humane, comforting care for the mother. And I've had friends, multiple friends, you guys, who go in and there's a weak heartbeat and they tell her how this is going to end. And then the next day, there's no heartbeat. But the next day, there's another weak heartbeat. And it's horrific. And again, with my situation

where they were like, look, we think this is a topic, we're not sure, you can't really be sure-sure based on like a 2D ultrasound, but we can tell based on your sort of hormone numbers, they're not high enough, this pregnancy is not gonna last. And I was like, no, no, I've heard crazy stories before. And 48 hours later I went in and they were like, the numbers are going down, we really think you should have the surgery.

And I was like, no, let's just, you know, but like it was inevitable at that point, like when you see the trend line of the numbers also, like it's done. So this is the like post-DOBS, the pro-life community, you know, is the dog that caught the car and is chewing on the bumper problem. Like Idaho is just chewing on a bumper

and can't figure out why they're hungry. Well, and again, it becomes very difficult. This is one of those situations where complex, compassionate legislation becomes extremely difficult to draft in a hothouse political environment where people are posturing about their toughness and posturing about this and posturing about that. And then you get into situations like this, where when the rubber meets the road and you're given specific hypos, you realize, well, it can't quite mean that.

It's gotta mean this, but that's not what the law says. And then similarly, as you were saying, the government, because the mental health argument was gonna be their Achilles heel. And so the government, from a tactics perspective, was, I think, quite wise to say that the mental health exception was not one that would trigger the MTALA requirement, that coming in and sort of saying, I'm in mental distress, therefore abort my child, was not something that would trigger MTALA.

Very sensible litigation concession, but not in the statute. Right. And so there was also a very practical evidence that they had that what in six months, I believe six patients have had to be air flighted by helicopter out of the state of Idaho to get abortions. And I really appreciated the fact that for the math nerd and me, I was like, compared to what? And eventually they did answer that compared to one the whole previous year before

this law went into effect. So like, yes, it's Idaho. And yes, some people are going to end up in situations where they do need to go to a bigger state, a bigger hospital system. But no, this is way out of kilter with anything that is simply based on Idaho being relatively small. So like, we already know how hospitals are interpreting this law, Idaho, and they're not interpreting it the way that the Solicitor General seems, the Idaho Solicitor General seems to be saying, but David, can we do spending clause, please, please? Oh, yeah, of course. I mean, I was thinking it's time. It's time. Spending clause. It's time. Okay. So this is the text of the constitution, article one, the Congress shall have power to lay and collect taxes, duties, impose excises to pay the debts and provide

for the common defense and general welfare of the United States. That's the spending clause. You'll notice that the word spending is not in the spending clause. And David, perhaps this goes a bit to your Article 2 point before. It's implied. If you can raise the money, you can spend the money. So we're not going to go through all of the history of how the spending clause has been interpreted, but like the commerce clause, it was interpreted very narrowly for a long time and then boom very broadly Congress can do

whatever it wants sort of largely and Then in 1987 you're gonna have a case that's square on on the idea of unconstitutional conditions This is gonna be the first Question of like what strings can Congress attached to this whole spending clause thing? So South Dakota versus Dole, this was federal highway funds in exchange for raising your drinking age to 21. And South Dakota was like, what? No, we want the money. But the drinking age? Our kids like to drink at 18. Right. We want our teens with booze. That's right. And basically, the court said, not an unconstitutional condition.

There was no surprise. You knew that the highway funds were tied to the drinking age money. So it was clearly stated. And that clear statement rule is going to come up again here, right? EMTALA does not have a clear abortion statement rule in it. But then again, it's not about abortion. It's about stabilizing medical care. So do you need a clear statement rule?

But that first part of South Dakota v. Dole is going to come up repeatedly. Second, the conditions must impose must be related to the spending in question. That was kind of an issue in South Dakota v. Dole. Like, is the drinking age really related to highway funds? But right, yes, drunk driving kills people on roads. Here, of course, no question that it's related. Medicare funding is related to emergency room care. And last, the incentive must not be so significant

as to turn cooperation into coercion. And that's gonna fast forward us to a bit of a problem because Medicare is so integral to the way hospitals and states work that remember in South Dakota v Dole 1987, they say that's not an unconstitutional condition, spending clause power, no problem. Fast forward to 2012 however, and it's going to be the other part of NFIB versus Sibelius that we don't spend a lot of time talking about. Most people remember the Obamacare case for Justice Roberts saying like, this isn't under Congress's commerce power. This isn't under Congress. I mean,

Congress is this power. But, and by that point, of course, a whole bunch of media outlets already had their banners Obamacare struck down. And then he gets to the, but it's taxing power. This is a viable use of Congress's taxing power to have the individual mandate. That's how most people remember the Obamacare case. But the second part of it was actually striking down Medicare expansion as an unconstitutional condition on Congress's spending power.

The idea was all of these states take Medicare money and what Congress was saying in the Affordable Care Act was either you take this more you know this money this Medicare money and massively expand Medicare and by the way we're not going to pay for everything. And in 2016, which this was, you know, 2012 or whatever, by 2016, we're like paying for like very little of the extra at that point, or you get no Medicare funding at all. And the court, interesting, seven justices on the court said that that was a no go

for them, but there was not a majority opinion as to why. Right. And that makes this Idaho case real weird in that sense, because it's still dealing with Medicare, which they've sort of already held is like so fundamental, but they're not trying to change the deal. And I think that for NFIB versus Bailey, as the problem was, they were trying to change the bargain with the states. Here, the bargain stays the same. It's just interpreting what the bargain ever was, the stabilizing care.

And does that include abortion? I don't see a clear statement problem here. The fact that it did say stabilizing care, including abortion, because we don't have that otherwise problem, David, where it says stabilizing care, including setting broken bones, removing ruptured appendices and other stabilizing care. And then it's like, does abortion fit in that? No, it just says necessary stabilizing care. It's whatever the standard of care is to stabilize a patient. Sometimes that's going to be an abortion. So but the spending clause issue is far more interesting, not on the unconstitutional condition side, but on the, did DOJ sue the right person?

Idaho can make something a crime, and then it's up to the hospitals, right? So why didn't DOJ sue the hospital? And I think that's an off ramp for some of the justices who may not want to decide this case at all, because you're not preempting Idaho law, because it's a spending clause case. And as Justice Alito pointed out, there's no other sort of criminal spending clause case out there where there's this preemption problem of a criminal law on the state where it's simply a deal that you made with a private party. Yeah, I would say, I mean, I still think Idaho is a, so the question is if the private party, if the private party says, okay, I want the Medicare funding, but the state law exists,

my doctors are going to go to prison. So why don't then the hospital can sue like, you know, like, these three parties can sue each other, but the, but the justice department can't jump over the hospitals and sue Idaho. Right. They can, DOJ can sue the hospitals, the hospitals can sue Idaho, or appeal a conviction, etc. Or ask for a declaratory judgment in advance, et cetera. But like, I don't see how DOJ gets to sue Idaho. Yeah, in other words, DOJ is essentially saying it's a direct affront to,

you have injured our, the federal government's rights by essentially telling every hospital in the state, you cannot take Medicaid funds or Medicare funds. You cannot take these funds. Right. But I think part of the problem here is that Idaho and well, Idaho wanted this case to get to the Supreme Court. So they didn't really press the spending clause issue the way they would have. Yeah. And it's why you saw the argument.

Them like they were like, well, no, the state's examples aren't the ones at issue. We agree those are stabilizing care, but we think the mental health thing is how we get here. And DOJ is like, well, no. And it's all because actually they wanted this to get to the Supreme Court and to make the justices resolve this question. When in fact, the spending clause issue is a real problem for this case.

Well, and so to me, the outcome is gonna be interesting on this basis because the question fundamentally I think should come down to this, which is if there is stabilizing care that would be medically necessary under any conventional circumstance, can a state carve some of that care out of mTala because it doesn't approve of the precipitating event or doesn't approve of the method of stabilizing care and the conventional method of stabilizing care. I think that if you look at it like this, which sort of, again, we're off the spending clause and we're back into sort of just the pure analysis of it, it would seem that you

couldn't say stabilizing care that would be medically necessary according to the standard of care, except in circumstance that the state wouldn't be able to come in and say, except in A, B, C, and D circumstances there, there you cannot give stabilizing care according to the conventional standard. To me, that seems like you're, in that circumstance, you're losing that case. That would seem to be a case that you are going to lose. And one other thing about this,

just the Reagan Republican, old school Reagan Republican, this, EMTAL is 1986. So, this was very fascinating. If you go back and you look at the Reagan legacy, Reagan provided this very, was this incredibly immigration friendly president and Reagan's MTAL essentially provides for universal access to healthcare.

If you go to an ER at a hospital that receives federal funds, you cannot be turned away from receiving that stabilizing care. It was an actual major advance in access to healthcare in the United States of America. And it happened under, drum roll please, Ronald Reagan. And so it is very interesting to, when you pull back from a lot of the give and take

of the ideological battles and partisan battles of the day and re-examining records, how interesting it is how some Republican presidents have some elements of their record that would very much resonate as Democratic today. And there are Democratic presidents who have elements of their record that would very much resonate as democratic today and they're a democratic president to have elements of their record that would very much resonate as Republican today.

All right. Next up, time, place and manner restrictions. So David, let's start with a private university who is not bound by the First Amendment on their campus. What restrictions do they have, if any, when it comes to protests on campus? I mean, they're in the driver's seat. They can say, we're not going to have any protests on campus. The quad is not open.

Now, let's have a caveat. In California, private universities that are not religious under the Leonard Law. So I've already pre-read your emails on that, but in 49 states, if you are a private university, you can say, hey, our quad is close to protest, or this quad is only open to protest for an hour a day, or this part of the campus is, and this part is not. The ability of a private university not. The ability of a private university to restrict expression on its campus is extreme. I mean, there's a great deal of ability to restrict expression. Why? Because the private university is actually a constitutionally protected actor here. It has its own First Amendment rights to set the terms of debate in its own institution.

own First Amendment rights to set the terms of debate in its own institution. But let's say they have a rule that says no camping on the quad for any reason. But they allow protesters who are pro-Israel to camp on the quad overnight for one day. But then when the Gaza protesters try to camp on the Quad, they have the police come and remove them and say, you violated the university's rules. Yeah, this is where things get very interesting because you're gonna have some, perhaps, some breach of contract claims here.

You're going to have good faith and fair. You might have essentially basically like state common law claims against your university depending on how they uphold the terms of the contract. Or if they now also remember these institutions are bound by civil rights laws. So they're going if they receive federal funds, they're not going to be permitted to discriminate in the provision of their educational opportunities on the basis of sex, race, national origin, etc. And so if they show some favoritism that sounds in the civil rights context, then for example allowing an all, you know, a

white pro, all, you know, like a white nationalist protest but shutting down black counter protesters, et cetera. You might be getting into your Title VI territory there, but as a general matter, when you're talking about a inconsistent enforcement of a private institution's policies, as a general matter, that redress for that occurs either in the court of public opinion

or in sounding in contract law or other kinds of state laws. Okay, so Northwestern and Columbia, go after yourselves. You can tell them like whatever's happening on that campus is sort of their problem, right? Well, and a lot of these guys, these private schools kind of create versions of the First Amendment time, place and manner. And then because they're private- But it's up to them. It's and manner. And then because they're private.

But it's up to them. It's up to them, but because they're private, they enforce it or they don't enforce it and yes. And as long as they're, for instance, not enforcing it generally, then your contract dispute's gonna pretty much go out the window too. Right, exactly. Okay, so let's move on to the public universities.

That's way more interesting here. So University of Texas, right? Well, we'll beat up on them for a little bit So they are bound by the First Amendment because it has been incorporated But to the states through the 14th amendment a long time ago. So it's not a close call hundred years ago Yes, you're definitely bound by the First Amendment however, we've talked about the different types of forums, a public forum, a limited public forum, and a not public forum at all.

So certainly like a classroom, you can't just like stand up and be like, free speech in a classroom. Right. But when it comes to the quad, let's just focus on the quads because that's where the action is. You're bound by the First Amendment. They are clearly limited public forums, meaning what David? Like they can limit who comes on their limited public forum. They can limit what type of speech, but not the content of

the speech. Like if you're going to allow political speech, you have to allow all the political speech. But in theory, you probably couldn't. But like there are certain types of speech you could say you wouldn't gonna allow on the quad. And some parts of the quad might even be a traditional public forum, if you're talking. That's somewhat of the problem here, like at Northwestern, the rock, if it were a public school,

would be a traditional public forum that anyone can paint. Right, exactly. So you're gonna have either traditional public forum or you're gonna have a limited public forum. And the cardinal rule in both places is no content and viewpoint discrimination. And the cardinal rule in both places is no content and viewpoint discrimination. Okay, cardinal rule. But there are time. Place.

Place and manner restrictions. Okay, so time, right? You do not have the right to, and this is up to the school, right? They get to set the time, place and manner restrictions. But the school would not be violating the First Amendment if they said, there's no protesting after 10 PM because you don't have the right to disturb another student's sleep who lives next to the quad. That's a time restriction. A place restriction. You can only do

protesting on the quad. You can't do it on the sidewalks between classes because that disrupts classes, for instance. That would be a place restriction and a manner restriction. You can't use bullhorns. You can't camp. You can't have signage. You can't have a rock concert. All of those things could be manner restrictions. But David, one can see a world in which the time, place and manner restrictions are pretextual or are so onerous as to implicate someone's core First Amendment rights. The school has basically said like, yeah, yeah, sure, we're a public school and here's the quad. But you can only protest in this five-foot area. You can only do it between 2.15 and 17 p.m. And the manner in which you can do it is whispering. Congratulations. Your first amendment rights everyone. Like that wouldn't be a viable time

place and manner restriction. But why? Well, time, place and manner restrictions have to be reasonable and content neutral. So we already talked about you can't privilege one point of view over the other here. One kind of speech or, you know, one topic of view over the other here, one kind of speech or one topic of speech over the other here. But let's talk about reasonable, reasonable content, a reasonable content neutral time, place, and manner restrictions.

And since we're talking about universities, Sarah, we're talking about institutions that have brainstormed every possible way to suppress free speech. I think the free speech zones are fascinating because you presumably, when you were at FIRE, have sued about all sorts of free speech. I think the free speech zones are fascinating because you presumably when you were at FIRE have sued about all sorts of free speech zones. Oh yeah. Where they're like, you have this 10 foot space

that's away from every other part of campus and that's your free speech zone. And there's plenty of lawsuits saying like, look. Yeah. You're allowed to pick the place, but the place can't be so small, so out of the way as to basically negate the speech. Yeah, exactly.

And so my favorite example of a case that was a fire case was, gosh, I think it's Texas Tech, their free speech zone was a gazebo, a gazebo. Okay, and so. I am 16 going on free speech. It was a gazebo. And my friend, Greg Lukianoff, had a physicist friend of his calculate

what would happen if every one of the 20,000 plus Texas Tech students wanted to exercise their free speech rights at once. He said they would have to compress to a human flesh mass the density of uranium-238 to all speak at once. That had to be a fun, was that a footnote or was that actually in the brief? I can't remember, I can't remember.

But it's, so Georgia Tech is a case where I sued over a free speech zone and we compared the total size of the open spaces of the campus to the free speech zone and it was just embarrassing. It was so embarrassing that Georgia Tech just changed policy rather than deal with defending it in court.

So reasonable time, place, and manner. So an example of that would be, you can get a permit to occupy the quad all day for one day. And then another group has an opportunity to get a permit to occupy the quad all day for another day And so that there is no way and this is a I wrote a very long piece in the Times about all of this But there there is no way a reasonable time place and manner restriction would

Restrict one group from dominating the forum indefinitely Because if one group dominates a forum indefinitely, for example, by just camping out in it, then what does that mean? Other groups can't use the forum. So just to like put a real underline on this. Pro-Israeli students who have asked for a permit to also hold an event on these quads where the encampments are. The school has violated their First Amendment rights. Yes. Because they have not provided them an opportunity to use the public forum or limited public forum that has been given

to other students and they can argue based on content or based on an unwillingness to enforce the rules. but either way, the schools are in violation of their students' First Amendment rights, just not the ones you think. They're not the protesters' First Amendment rights that are being violated. It's the other students' First Amendment rights that are being violated if there's a pending permit, which, dear God, other students, if you don't have a pending permit, someone's parents a lawyer, right? Oh, for crying out loud. And if you don't have one yet, get one now. Okay? Go get it.

Go get it because this is where the rubber's going to meet the road. And then this also brings up, Sarah, civil disobedience, because one of the things that I am hearing a lot about is, okay, okay, this is not free speech, but it is civil disobedience. And we have a long history in the United States of respecting peaceful civil disobedience. Well, okay. But what is civil disobedience? And let's go back to probably the best person to articulate the principle

and the nation's foremost practitioner thereof, Martin Luther King, who in 1965, he's been grilled on Meet the Press. And by the way, we should put this link in the show notes because it shows you how Meet the Press used to be literally Meet the Press. There's Dr. King sitting there with a row of members of the press just challenging him, just challenging everything that he says. And so he says, look, when your conscience won't allow you

to comply with an unjust law, you break it civilly, you break it peacefully, you break it joyfully, you break it lovingly, and then you comply with the consequences, you accept the consequences. And so here's the formula, unjust law, your conscience says it's an unjust law that you then violate and accept the formula. Unjust law, your conscience says it's an unjust law that you then violate and accept the consequences. What we have now is people who are violating just laws and refusing to accept the consequences. And another

thing about civil disobedience, it's tough to pick out an example of actual virtuous civil disobedience that violated the rights of other people. So when Dr. King's, you know, when civil rights protesters were sitting at lunch counters, they weren't allowed to sit at. They were not violating anyone's rights. They were violating an unjust law. They were not violating someone else's constitutional rights. When these protesters are camped out in the quad, shutting down forums that other people should be permitted to use to speak, they and the university are together violating the rights of other people in the campus community. And when you then see these kids, and

I hate to use the term kids because I refuse to play this double game that says Take their concerns seriously and then and don't be too hard of them because they're so young and they're just developing No, if you want to be taken seriously, you need to be you should be taken seriously in full but So on the one hand they're saying they're violating just laws They're violating other people's rights and then they're desperately trying to escape any meaningful consequence at all. And that's not civil disobedience, that's just lawlessness. So in the end, I think that's a pretty good rundown of time, place, and manner restrictions.

I'd also just note there was someone in the comments section, this was many, many episodes ago, but who was arguing that nobody thinks that Israeli Jews all came from Europe and that that's like a red herring. We have now seen signs on GW's campus on the Quad that says, Jews go back to Europe or America or wherever you're from. I would just like to take a brief moment of personal privilege to point out this like Jews go back to Poland thing that is being yelled at Jewish students on some campuses that go back to Europe where you're from thing.

I mean, look, it's offensive on its face just already. I'm going to take it at face value though, because I actually think that there's a real like actual misunderstanding out there. Poland doesn't have any Jews left. They killed them all in the Holocaust. The Jews that escaped came to Europe and America and really America. So yes, American Jews tend to be former European Jews. But that's not true for Israeli Jews. They were escaping persecution from Arab and Persian countries like Iran, Saudi Arabia, what's now Iraq, that area. And so first of all, when you tell them to go back to where they're from Europe and Poland, that's just not accurate. But when you tell them to go back to where they're from, it just doesn't make a lot of sense in context because those countries kicked them out. So if Iran was like, yes, the Jews from Israel should

come back to Iran, like maybe yes, the Jews from Israel should come back to Iran, like maybe you'd have an interesting argument, but it's not like any of those countries are like, yes, all the Israeli Jews can come back, we're sorry we persecuted them. Those arguments don't make sense. And they're very, as I said, they're stupid and wrong. Just one quick thing. When you talked about, it was the Nazis who killed the Polish Jews, just to be very clear, because when you said Poland and then they killed the about, it was the Nazis who killed the Polish Jews, just to be very clear, because when you said Poland and then they killed the Jews, it was the... Yeah.

I mean, there was... The prime mover there was the Nazis. So anyway, the one thing, other thing that I would say about this is You can tell where people's priorities are often by what they do and don't tolerate in what circumstances and so for example We have seen campuses erupt. I mean erupt when you have had even for example off-campus racist incidents Or one or two very ambiguous racist incidents on campus, apparent like say a SWAT sticker in a stall

and then maybe racial effigy that's uttered by people in a pickup truck off-campus. This is one of the big instigators at the University of Missouri in 2015. And when you go back and you look at, if you remember the huge outburst of protest in Missouri in 2015, what were the racist incidents that precipitated that? They're eclipsed in any average one-hour period by the anti-Semitic stuff that you're hearing around the fringes and edges and throughout these protests. And yet consistently you're getting around the fringes and edges and throughout these protests and yet consistently you're getting smart, thoughtful, interesting people who are saying, hey, it's

still mostly good. You know, it's still mostly fine. Guys, this mostly word really needs, we need to really think a lot about how we choose to use this because I cannot imagine a situation in which somebody would wander around a protest or You know spend time in these protests here this here an equivalent amount of explicitly racist rhetoric and Explicitly racist chanting and say but most of this is all fine That is not the way people would treat this at all.

Not at all. And so it's really, we need to have some consistent standards. And one day I just want to write about how much hardcore partisanship just rots our brains and rots our moral core and rots our moral center and our ability to see the world clearly. Because I just see double standards all over the freaking place in this discussion.

Yeah, I mean, you know, and I've said that I think allowing the Nazis to march through Skokie is one of our proudest legal moments, but the rest of the community wasn't cheering on the Nazis either. Or telling Jewish students that now classes would be held next to the Nazis. Right. To like learn about Nazis and how good the Nazis were. And this gets to Title VI, which we've talked about as well, that at some point even private schools have violated Title VI civil rights laws if the harassment is severe and pervasive

enough to deny a student an educational opportunity based on, in this case, their religion or ethnicity. But David, okay, I have one more question on this because imagine Columbia is a public school. Yeah. Because for our purposes, it gets more interesting. They barred a student from coming onto campus who had posted a video that said,

basically, Zionists should die. Zionists don't deserve to live was the video. Then when called in, well, actually, let's just take that. So you post a video that says, Zionists don't deserve to live, you're at a public university. Can the school punish you? That's not a true threat.

That's not a true threat. I agree. That's absolutely not. The school had no business punishing the student for that, again, if it had been a public university. Then they're called in to meet with an administrator. During that, the student says, I don't fight to injure or for there to be a winner or a loser. I fight to kill. The administrator says, do you see why that is problematic in any way?

No. These are all the same people. The existence of them and the projects they have built is real, it's all antithetical to peace. Just repeated that twice. And so, yes, I feel very comfortable, very comfortable calling for these people to die. What about that? Not said on social media, but said on campus to an administrator when asked, do you mean to say that you'll murder Jews on our campus? And when he says, when I fight, he says, when I fight. Correct, when I fight, I fight to kill.

So I'm gonna say yes. I'm gonna say yes on that. Because so this is where he gets, this is more, so I compared the first statement to somebody saying in my mind as I was hearing that first statement, because one of the ways to think about these things is sort of flip around the facts scenario. If somebody says carpet bomb Gaza, okay?

That's constitutionally, again, if we're talking about a first amendment protected, if we're talking about a public university, that would be first amendment protected speech. But in that circumstance, when I fight, I fight to kill. That's where you're getting into what I think of as much more like your situation where you've got a kid whose classmates hear him say,

when I fight, I fight to kill. And there's an ongoing conflict at the school. And the school would absolutely, in my view, be derelict in their duty to say, well, see you Monday. And so that one. So what if I throw in this last statement that he also said to the administrators, be grateful that I'm not just going around and murdering Zionists. Then you're you're you're out.

Three strikes. Yeah. Not First Amendment. Come on. OK. Yeah. On the flip side, on, man. Yeah. Okay. On the flip side though, the University of Texas saying that they were shutting down protests because they don't allow anti-Semitism on campus. Unconstitutional. Yeah. Unconstitutional.

Will they have to then allow, if they allow anti-Semitism on campus, quote unquote, do they need to allow white supremacists to walk through campus? Yes. I mean, this is- Yes. Yes, of course. I mean, this is sort of First Amendment 101. And besides, I mean, you've got RIVs versus St. Paul, you have all the line of cases saying hate speech is not an unprotected category of speech. The government cannot, you know, we do have certain categorical parts of, I even hate to call them speech, but sort of categories of communication

that are not protected like defamation, like child pornography, true threats. We just discussed, for example, but you can't carve out a new category called anti-Semitism or a new category called racism or anti-Catholicism. This gets to the Unite the Right rally problem, right? Remember the ACLU actually sues on behalf of Unite the Right so they can get their permit because, yep, they're going to say hateful things that people don't like, but they have a right to a permit. You can't just deny it based on the content.

Then, of course, they're saying things like, Jews will not replace us, and they murder someone during that protest. Joe Biden says this is an animating reason why he ran for president. And I guess, David, how am I supposed to think about these two protests? Because I've been told by people that it is totally inappropriate and wildly offensive to compare the two. And I'm not comparing sort of the moral underlying facts of the two, just because that's not how we compare speech. I'm comparing the law

and the speech of the two. The same reason you need to allow the Unite the Right rally is the same reason you need to allow this rally to walk through campus, but also vice versa. For all the people cheering on, at least at public universities, these encampments, you're gonna have to then allow the same rights for different content. Exactly.

And I don't think you wanna do that. I don't wanna do that. So don't do this. Yeah, exactly. And let me also say, this is another one of those moments that should be humbling for a lot of people who look over at the right and see giant amounts of cowardice, right?

Giant amounts of cowardice because you're not standing up to the far right. You're not standing up to MAGA. And yet when I see extreme far left violence, anti-Semitism, civil rights violations, pay attention to who on the center left is really standing up to it. Pay attention to that. And pay attention-

And there are some. There are some, for sure. Not as many as I'd like. Exactly. Okay, we have some corrections to make, and by we, I mostly mean me. First of all, in the last episode, I talked about Morrison v. Olson,

that independent counsel case at the US Supreme Court. And I think it said it was in the 90s. It wasn't, it was in 1988. I was also reading Morrison and Lopez, which for lawyers listening will be like, oh, that's nice. She was reading about the commerce clause and the brief moment that we thought

maybe the commerce clause would have restrictions. We'll talk about Morrison and Lopez some other time, but I got the dates confused. Morrison v. Olson, the independent counsel case upholding the constitutionality of the independent counsel case was in 1988. And it wasn't about an independent counsel investigating the president. It was just the independent counsel statute dealing with 1988. And it wasn't about an independent counsel investigating the president.

It was just the independent counsel statute dealing with the VA and some other stuff. Okay, that's the first correction. Second, the episode before that, David, we were talking about the female police officer and whether her being moved to a different unit was evidence of discrimination, like how substantial does

the harm need to be. And we talked about it, and I think I said summary judgment, where we assume the facts are true instead of motion to dismiss. So I thought this was actually a great opportunity to explain to everyone else what the difference between the two are, so that way everyone can write in corrections when I say the wrong thing on those. So motion to dismiss comes first. This is like a failure to state a claim. You assume the facts are true. It's before discovery. It's all about sufficiency.

Is your case sufficient? I liked this person's summary. In effect, the judge looks at all the allegations and concludes, so what? Right. That's perfect. That's a allegations and concludes, so what? Right. That's perfect. That's a motion to dismiss. So what? Yeah.

Summary judgment is after all of that. You've done discovery, you have all the evidence, and there's no facts for a jury. As in the two sides actually agree that there's no factual dispute. They're looking for judgment as a matter of law. So that's all about the evidence as in the evidence already done. We've already settled the evidentiary questions. There's nothing for a jury. You're going to see these most often in the constitutional law cases, except in Idaho, where they say they agree on the facts, but then they don't. Yeah. In a summary judgment situation, you could have a dispute of facts, but if it's not material.

That's also true. Right, so you've got all of this, you've had all this discovery, and what you say when you're writing a summary judgment motion is, okay, if you just narrow it down to the core facts that are not in dispute, you can settle the case as a matter of law.

All of the other stuff is just like nine geese flying overhead, a tractor outside the window, it doesn't really matter. Those are weird examples. But anyway, when it comes to any of these employment discrimination cases, we're almost always going to be talking about a motion to dismiss stage where we assume the facts are true and still we say that you didn't allege a sufficient harm,

for instance, or actual discrimination under the law. And so it's dismissed. Now, sometimes it's dismissed with prejudice, meaning you can't just refile it. Sometimes it's dismissed without prejudice, meaning you can change your complaint and file it again. We'll deal with that in some case down the road where it's relevant.

So, sorry about those two errors. Lastly, we got a question from a listener. I was wondering if you could explain what goes on at SCOTUS after oral arguments end. When do they vote? How are opinions assigned? When are concurrences decided? Do they sit and talk or read the opinions? Do they vote again? Rumor is Roberts flipped Obamacare at the last second. Okay, so actually this isn't going to take very long because the justices hear those oral arguments in chunks, right? So it's like two-week chunks. And then they have conference. Conference is lunch that they all sit together and eat and vote. And it can last quite a while. Now, once they've sort of talked about the case, sort of said where they all are, remember

the justice who is most senior in the majority assigns the opinion. So if Roberts is in the majority, he's the chief justice, he's going to get to assign the opinion. When Roberts is not in the majority, you're going to go in the rest of the order. And I guess, like for instance, Justice Jackson, Justice Barrett, Justice Kavanaugh, never can assign the opinion because if there's five justices on a side, they'll never be the most senior justice. Justice Gorsuch, I guess, too. Right.

But otherwise it would go Thomas Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, Jackson, would be the order of seniority there. So what was the next one? Winter concurrences decided. So this is when it becomes kind of a free for all. So after conference and they have their long lunch and they've talked about all the cases and they voted on them and they've assigned opinions, opinions are going to start to circulate. And just because someone got assigned to write the majority opinion during conference, they've

still got to get five justices to sign onto it. And so other justices may circulate opinions that start as concurrences, but if they get five votes on theirs and the quote unquote majority opinion suddenly isn't getting five votes, that's where you're going to have this really fun tide coming in and out and swirl in eddies. There's dissents that are going to have this like really fun, you know, tide coming in and out and swirl and eddies. There's dissents that are going to be circulating. The majority is going to change their opinion to respond to the dissents. Then the dissents going to respond to the majority's response to the dissent. And that's going to keep going basically kind of as long as it takes. That's what takes so long for some of these opinions to come out. So no,

they don't vote again. They vote by saying, I am pleased to join your opinion. That now basically happens over email, but in theory, it can also happen from notes being passed to all nine chambers. And I note that because in a post Dobbs world, I don't quite know what the security level is for information flow between the chambers. Clerks, for instance, often have access to their judges' justices' email. So notes might be more secure. Who knows? So in terms of Roberts flipping, yeah, justices can also, who have not joined onto an opinion, what the theory would be in the Obamacare case is that in conference, the chief justice

said he was with the majority that was going to decide that the individual mandate was unconstitutional. But as this opinion starts circulating, he doesn't join the majority. He just doesn't say one way or the other. And then, maybe at the last minute, he says, I am pleased to join your opinion to the dissent. And it throws the whole thing into chaos. That's at least in theory how something like that could happen. And there's some evidence that it happens sometimes. I don't think it happens that frequently that you have a total surprise going on intra chambers. But I certainly think you see little surprises in concurrences, who's joining those, who's not. And in cases where we see plurality opinions,

there isn't five. So I mentioned that the other part of the Obamacare case, there's not a majority opinion on the spending clause issue and Medicare expansion. That's basically, they kept circulating opinions, they kept trying, what would I need to do to get you to join my opinion? And then they just gave up in the end. It's sort of like a hung jury. No one's moving, we're all stuck where we are, we'll just release it as is. Yeah. And I can only think, there's only two cases that off the top of my head, I feel like,

oh, there was a switch, maybe three. There's some, a lot of discussion over whether Planned Parenthood would be Casey back in the 90s There was apparently consensus that there was some switching sort of at the last minute the saved row for the next You know 30 or so years but Outside of that and Obamacare the only other one that I can really think of Sarah is the Fulton case From a few terms ago where it looked like Alito wrote

Tall appearances look like a majority opinion that turned into a dissent overturning Employment Division B Smith. And that's the only other one that I can think of off the top of my head. I bet listeners will have some of their own ideas. So that's what's going on at the court. These days, those opinions are moving fast and furious through chambers, lots of writing, furious late night writing. If you live in the DMV, the DC, Maryland, Virginia area, a fun thing to do is drive by the Supreme Court at two in the morning and see whose lights are on. Now, you don't know whether that's a justice or a clerk.

Everyone is mostly going to do their work in chambers these days, but still, it's a fun game. And if all the lights are on, you know it's June. All right, with that, we'll have more fun stuff for the next episode. I don't quite know what yet, David, but I feel like this week's gonna give us some stuff. Things are moving quickly. Just got the news that as of Monday, the Columbia protesters are supposed to be

off the quad by 2 p.m. I'm sure they will happily and merrily pick up all of their stuff and leave. We've heard this before. Northwestern said this before. Columbia said this before. I've just gotten so many emails from Northwestern students. That's where I went to school.

Really, really sad. And I keep trying to think of what I would do if I were there right now. And I would feel so powerless as my professor say that class will be held at the protest encampment. And like, do you skip? I mean, yes, I would skip class,

but also then that's just silencing yourself. Like, no, go to class and say how inappropriate it is. But just no matter what you do, if the school will not enforce its own rules and will not, you know, honor the permitting process that they said was the way that we speak, yeah. And how do you stand up for your Jewish friends on campus? And all of that. I just, these are the same kids who didn't get to graduate high school because of COVID. And now this is their senior year in college. It's so unfair. Yeah. And the amount of capitulating to hecklers' vetoes, unbelievable. At USC, that's totally unacceptable that USC has canceled their graduation because they

were afraid of protests from both sides, frankly. And totally unacceptable. This wasn't even content at this point. Columbia goes hybrid, goes on Zoom. I mean, that is raw capitulation. And the thing that is so frustrating, I've been involved in campus free speech issues. As I wrote in the Times, I have witnessed countless protests. I've represented countless protesters on, by the way, all sides of the political spectrum.

And I've been protested on campus. And the double standards, if you spend any time around this, the double standards and the way in which these universities are coddling these sets of protesters because of the sympathy for their viewpoint is incredibly overwhelming. David, this is the part that upsets me. We are in a place now where both the fringes, but the large fringes, the minority of each political side

believes that free speech is a tool of oppression. Pluralism is a tool of oppression. That only if they can run the country their way is oppression fixed and therefore self-government cannot exist. That's not self-government at that point. The fact that the left doesn't see that this is the same as what they decry on the right. It's the same authoritarian values. And I don't mean every single student protesting this, by the way. They have a legitimate protest. They have a legitimate beef.

Some of the students. Maybe even a majority of the students. I'll go that far. For sure. But when you say you don't believe in free speech, when you shout people down, when you're not allowing counter protesters because why should they get to speak? They're the oppressors. That's the exact same thing as what the right says. They just use different language. And

for each side to decry the other as the tyrants, as the authoritarians, boy, pot, kettle, stick in eye, what? I feel like I'm taking crazy pills. And of course, the rest of the country is looking at this, thinking somewhere along the line, we failed because we did. And this is where I will say that they're kids, David. They're representing the values that they've watched. It's our failure if we didn't inculcate them into the first principles of pluralism and free speech. Again, on the right and on the left, it is a failure of education, of society, of civics, of all of those things that this is flourishing now.

And it's not because they're children, it's because they're a generation that wasn't taught why those things are a moral good unto themselves. Free speech is white supremacy. Free speech is wokeism, like burning books, banning books. This is happening again in the minority of both sides. Yeah, it really is. And then I'll say this, I've said this a thousand times, left has to police left, right has to police right. Because when right goes over and crosses up and attacks left, what ends up happening,

now I'm not saying people on the right shut up about what's happening on the left and vice versa, but the ultimate accountability, the ultimate responsibility is really fundamentally internal because what happens in our highly polarized environment is anytime right criticizes left, the instinct becomes for everyone left of center to rally together, right?

And we have- And same on the right. And same on the right, exactly the same on the right. And so you have to be able to pull yourself out of that partisan mindset enough to say, is there something there, there? Is there a fair critique there? And if there is a fair critique of double standards of hypocrisy of special treatment deal with it

deal with it, but it's very difficult because there is you know one thing we know from these ideological disputes when there's a Revolutionary ferment in the air is the near enemy is treated always worse than the far enemy. And the near enemy is your ideological fellow traveler that you feel has betrayed you. And that's why it gets really, really hard for people the instant they raise an objection to something that their team is doing. Edmund Burke and the Marquis de Lafayette

are somewhere watching this getting very nervous. Exactly. All right, we'll talk to you all next time. Bye.