Advisory Opinions - Reading the Founders’ Minds

Episode Date: February 1, 2024

Judge John K. Bush of the Sixth Circuit Court of Appeals joins Sarah to discuss the method and merits of the "history and tradition test." But first, Sarah and David dive into some Supreme Court gossip. The Agenda: —Addressing Justice Sotomayor's comments —David's gross speculation —More immigration talk —The problem with Remain in Mexico —Why we have hate crimes —Tiers of scrutiny —The problems with "history and tradition" —How to become a clerk for Judge Bush —How Judge Bush judges judging Show Notes: —Judge Bush's profile at the Federalist Society —Turner v. United States —R.A.V. v. City of St. Paul Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isker, that's David French. And a little housekeeping today. We're going to talk about some stuff that Justice Sotomayor said recently, some additions to our last podcast on immigration law. And very excitingly, we have a conversation with Judge John Bush of the Sixth Circuit. A little text history and tradition out in the field, how it

really works and what it's like to be a judge trying to find that balance. David, hi, friend. Hello. So Justice Sotomayor was at an event at the Berkeley School of Law. Yes. And she actually said quite a few interesting things. I mean, anytime a Supreme Court justice is out in the wild and talking, something they say is going to be interesting. and talking something they say is going to be interesting. The headlines were when she said, quote, I live in frustration. And as you heard, every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting.

How can you look at those people and say that you're not entitled to despair? You're not, I'm not. Change never happens on its own. Change happens because people care about moving the arc of the universe toward justice. And it can take time and it can take frustration. So that was sort of the headline comment. Yeah, I can see why. Yeah, I can totally see why. But she has another comment here and that I want to use this as a springboard for

grossly irresponsible speculation. Exciting. Okay, so I'm really glad that CNN and their write-up of this included it because then a listener sent it to us because they've been listening to advisory opinions and thought that perhaps we would have some thoughts on this line. I can't tell you how often I'll look at Justice Neil Gorsuch and I'll send him a note and say,

I want to kill that lawyer because he or she didn't give up that case. Because by the time you come to the Supreme Court, it's not about because he or she didn't give up that case. Because by the time you come to the Supreme Court, it's not about your client anymore. It's not about their case. It's about how that legal issue will affect the development of law and how you pitch it. If you pitch it too broadly, you're going to kill the claims of a whole swath of people. Ah, indeed, Justice Sotomayor. I think we feel you on that. Yes, yes. So I have two responses to this.

But first, can we have the fun of the grossly irresponsible speculation, which is not irresponsible because we're saying it's irresponsible, if that makes sense? Okay, okay. Yeah. So this is just a fun speculation because the question I saw online

was what oral arguments could she be talking about? Obviously there's a case in her mind or some instance in her mind. So what could it possibly be? And I have a theory on this, Sarah. and I have a theory on this, Sarah. It's 303 Creative. No. Yes. Listen to my theory on 303 Creative. Okay.

Okay. My theory, if you get, and the reason why I have this on my mind is it's actually fresh in my mind because I talked to some people about it over the weekend and about this very topic and that was 303 Creative, there were legal decisions made in 303 Creative

that put Colorado behind the eight ball. And this case should not have been at the Supreme Court. And so here you have a case where the underlying issues are obviously quite important to everybody involved on both sides of the ideological aisle. And Colorado is taking this case to the Supreme Court with a couple of things in the background. One is essentially kind of falling into the plaintiff's trap.

So first, Colorado signals that, oh yeah, this business that you haven't started yet, we're gonna to be watching you, right? So there's this decision made about a business that doesn't yet exist, or it's just in its infancy, that we're pointing their fingers. And again, this is after Masterpiece Cake Shop. So they've already lost once. Colorado is still putting the pressure on this website designer. And then when you look at the stipulations in the case, Sarah, the stipulated facts in the case,

amazing they kept going with this thing. And when you also look at how bad the circuit court decision was moving up towards the Supreme Court, I mean, this is the kind of thing where if you didn't want 303 Creative to come out the way it came out, this is the absolute worst case for you

from a procedural history standpoint. So this is the thing, that's what came to my mind was, wait a minute, here's an important case. Decide that Sotomayor is on, has really botched the litigation, I mean really botched the litigation to this point. And that was my, so that's my grossly irresponsible speculation, Sarah. So I think you're wrong.

I probably am. But that is fun. So there's a few things. One, we've gotten lots of like, well, why Neil Gorsuch? I think there's a few reasons for that. One is you've only got two people you're sitting next to. It's true.

So let's start with that. You don't have a ton of choices. There has been, I mean, speculation's a weird way to say this, but Neil Gorsuch and Sonia Sotomayor have long been known to be real friends on the court. You know, there was that whole thing in 2020, I guess heading into 2021, where about Neil Gorsuch not wearing a mask and then Sonia Sotomayor not showing up to argument.

And like Neil Gorsuch was the bad guy and he wasn't letting Sotomayor show up to argument. And for court watchers, that never made a lot of sense because they're actually friends, like real friends. So no. And we talked about that at the time. So first of all, why Neil Gorsuch? You only get to sit next to two people and the justices sit radiating out

from the chief justice in seniority, if that makes sense. So right, you've got Chief Justice Roberts in the middle, then Thomas on one side, Alito on the other side. Now, radiating out from the Thomas side. Right. So it's the Chief Justice, Thomas, Sotomayor, Gorsuch, Barrett. Okay. On the other side, Chief Justice in the middle, Alito, Kagan, Kavanaugh, Jackson. So getting back to Sotomayor, her choices are Gorsuch and Thomas. Now, you may think she doesn't have a lot in common with Gorsuch. Let me introduce you to Justice Thomas.

Although she has said very nice things about him. She says very nice things about him. He's like the nicest person and he loves to laugh. So if she's got something funny to say, I promise you she's sending that note to Justice Thomas. But when she's going to be frustrated with something, chances know, not traditionally conservative, it's criminal justice issues. So that's why I think when she's sending that note, it's most likely actually on something they agree on, which is going to be a criminal justice issue. Good point.

Now, here's where textually you've got a bit of a point and I could be wrong. Well, it could go either way. There's ambiguity, if you will. Chevron, deference style. Yes. I love this wild speculation here. That's right. She'll send him a note.

She says, I send him a note and I say, I want to kill that lawyer because he or she didn't give up that case. Now, I read that to mean give up the argument. But that's not actually what she said. She said give up the case. Yep. And so that's where fine, you know, she's got Thomas on the one side and Gorsuch on the other. So she can't send a note to, you know, her allies on the same side of the case if it's 303 creative and so while the liberal advocate on 303 creative the colorado advocates arguing and she knows the gorsuch is

on the other side she's like basically saying i know you've won this because he or she didn't give up the case now i still think there's some ambiguity because i think't give up the case. Now, I still think there's some ambiguity because I think not giving up the case could in context mean giving up the argument. Yes, it could. It could. But when I think of a case, that's why I thought 303 Creative.

Fresh in the mind, emotional issue where her side did not put on its best case. Like, I wrote an amicus brief in 303 Creative on the side of 303 Creative, and I could have made a lot better argument than Colorado made, but I couldn't make it after they entered into their stipulations.

Once they entered in, they stipulated away all of their best arguments. So that's why the case, I mean, that's why the Gorsuch majority opinion, which is interesting, he wrote the majority opinion if he was the recipient of that note. But again, all this is speculation. But that's why his majority opinion was really pretty short and straightforward. It was just once the stipulations were there in the record, this was a straightforward application of precedent. This wasn't a groundbreaking case in any way, shape or form. But it could have been more interesting had Colorado not stipulated away its best defenses.

So that was my assessment of it. There's one other case, though, that you haven't mentioned from this term that might be very, very fresh in her mind. Okay. Yeah. Rahimi. Remember, David, you and I thought that the argument for Rahimi himself probably should have been made by someone else with Supreme Court experience. Remember, the guy stands up

and he doesn't actually even give an opening statement. It's a pretty muddled argument. He's like standing his ground a lot on other things and then conceding away the town on the other stuff. So, David, there's one major problem with this. Sotomayor is not on the side of Rahimi here, who's arguing that it needs to get struck down to the Second Amendment. Huh. Now she could just. I'm winning you over. I'm winning you over. I can see. She could just still be frustrated that like. Yeah. You know, you come up here with an interesting argument and you should have given can see it. She could just still be frustrated that like, yeah, you know, you come up here with an interesting argument and you should have given away the case. You are winning me over

a little. You're winning me over in real time. It's so painful. My oral argument. I can see it's making progress here. You know what? I'm sick, guys. And my mental faculties are not where they should be. So, David, I'm I'm vulnerable. This is This is when I pounce. Yeah. All right. So anyway, really interesting comment. Because look, David, to be very honest, you have a case that gets to the Supreme Court. Now, I take your point that some cases shouldn't go to the Supreme Court, but like you've got a client to represent. Your client has an argument.

You have a responsibility to ask for certiorari at the court. And it's not your responsibility to worry about the swaths of other people. I mean, literally, it would be you would be violating your code as an attorney and your representation. Now, let's get to the like what I think is the harder question, which is you get your case to the Supreme Court. You know the facts better than anyone. You know the record and you really are the zealous advocate for your client. But you haven't argued at the court before, and you don't have a lot of appellate experience, let's say, do you then have a responsibility to give up the case? I think that's really hard.

And I think the answer sometimes is absolutely yes. Because as we've said before, but it bears repeating, the Supreme Court doesn't decide cases, they decide questions. That's not me being glib. That's literally what it is. Yeah. And so you knowing the facts better and the record better actually isn't the point. You being able to make those sort of first principle arguments is why the Supreme Court has taken the case. So oftentimes, I think your duty to your client would lean in the area of giving up the argument. Can I tell you a real life? This is actually a fun conversation about what is an attorney's responsibility to a client. And so I had a real life incident where we won. We had a case with two prongs to it. We won on prong one and we lost on prong two.

So we were prevailing parties. It was a case where he struck down a speech code, big victory. It's a precedent. It's a precedent to this day, but we lost on another element to the case. And the question was, do we appeal the part of the case that we lost?

And my counsel was emphatically no. Take your win. Like, yeah, take your win. Do not take this appeal. In fact, we know the other side's gonna appeal their loss. And we're very strong there. And I just think that we'll muddy everything if we bring it all up to the court. Let's fight where we're strongest. You know, the hidden subtext was, I don't see the court of appeals reversing on the part that we lost. honest conversation. And then depending on the strength of your argument, you can even go so far as to say, I think it's such a bad argument that I won't represent you in making it. Like

there isn't really grounds for appeal. That's an extreme, that's an extreme response. But no, in this one, it was, I strongly advise against it. And, you know, the client agreed and it was appealed by the other side. We got an affirmance on the part that we won. It was, it ultimately ended up working out well. But yeah, sometimes you do need to go to the client and say, you know, you might want to fight again another day on another case with other facts.

This one's not, this one's not set up for you. This is not your day. This one's not, this one's not set up for you. This is not your day. This is not the case. And sometimes you got to have that conversation with your client and, and hash it out and, and do it as bluntly as, you know, bluntly and, you know, as, as possible, but so that there's no ambiguity. So that could, so those moments do occur. But I also think that if you're a Supreme Court justice, you may not necessarily be thinking through the same things that you just said, Sarah, like, hey, the client wants to appeal.

They have a right to counsel. I mean, come on here, you know. Well, there's also, I don't like the consolidation of Supreme Court arguments around seven people, which is basically where we are. Yeah. I don't think that's great, but I don't know what you do on the flip side. Like, I wish everyone had four arguments instead of seven people having 50 arguments. That's what's getting frustrating is that we've actually got it too concentrated. I don't know what you do about

that. But obviously, Justice Sotomayor, she's pretty frustrated with y'all, Supreme Court practitioners, either because you've taken up cases that are weak or because you're taking arguments that you should have handed off to, you know, the cabal, basically, of people with a zillion arguments. Yeah, I don't know. I don't know how I feel about her statement overall. Even though, of course, when you're on one side of an issue, it can be very frustrating. But also, I'd argue it's not her job to feel like she's on one side of an issue. If you brought a bad case, well, that's how it works.

Well, and the other, so I think we both zeroed in on that conversation about the note to Gorsuch because it's so insidery. Yeah, it is. That it's like, what's she talking about? But in some ways, I think if you're not a lawyer and you're reading that story, you might be interested in what,

I didn't know Supreme Court justices should express frustration like that. Yes, right? Like, maybe not. Now, this is pretty different than an appellate court because the Supreme Court, of course, gets to pick which cases they hear. I know, footnote, except for original jurisdiction.

Do not send me original jurisdiction hate mail, y'all. So, you know, and this is an overall interesting trend, David, that is worth remarking on. If this were really a 6-3 conservative court, what you would expect in a court that can take any case at once or not with four votes. It only takes four justices to want to hear a case. If there were really six conservatives on the court, you would see an uptick in the number of cases that the Supreme Court is taking.

But that's not true. In fact, the number is ticking down. As in, it's harder to get four justices to agree to take a case. And why would justices vote against taking a case? Fine. If you think the three liberal justices are just voting no on everything, they don't want this Supreme Court hearing anything. Fair enough. You've still got six votes then that are at least in play, which doesn't seem to be true either then, because at least two of those votes, no, sorry, three of those votes are not sure how the case will turn out. So that's my evidence,

my further evidence for the 333 court. But it gets to why Justice Sotomayor saying that and that frustration makes some more sense. Because you didn't have to take the case in the first place and now it's a hot mess of a case. And you're making what amounts to bad law because the facts of this case were so bad, messy, poorly argued. But the resulting precedent will be much broader than perhaps the case law, the case facts should have made it. So I was really interested that she openly expressed such

frustration. Now, maybe I shouldn't have been as interested because she expresses frustration in dissenting opinions. So, you know, it's, is it okay to express frustration in dissenting opinion, but not okay to express frustration in a speech? Yeah, it seems like an arbitrary distinction. in a speech, it seems like an arbitrary distinction. You're not breaking news here. But there's something about it that strikes me as not ideal, Sarah, not ideal, that expressing that sort of level of frustration. And I wouldn't even have that kind of concern if that level of frustration was expressed by a member of Congress, you

know, a member of the House or Senate. I'm so sick of being in the minority. I get it. Totally understand. But the frustration expressed there, it just, I don't know. Am I wrong, Sarah? Am I wrong to be kind of pinged that that felt a little bit too transparent? So, David, I didn't read the whole transcript.

I'm going off of what CNN said. So this is a little bit unfair, but my frustration is in the context of how CNN put it, it makes it sound like she's frustrated by this 6-3 court that she's, you know, stuck with only two other people who agree with her when in fact, the three of them, taking out the unanimous cases the three liberal

justices voted together in fewer than a quarter of all of the remaining non-unanimous cases yeah that's going to include a 7-2 case where it's you know her and jackson and Kagan's in the majority. But like, I wish it were more in the context of it sucks to be in the dissent a lot, which she is definitely. But it's not the three of them in the dissent all the time and the six in the majority all the time. The six conservatives voted together only 17 percent of the time last term, for those who are curious. And, you know, it was a 6-3 court in only five cases. 8%. Right.

So anyway, I wish it were more just like, yep, I'm in the dissent a lot because I'm a dissenty person right now. Right, right. But okay, David. Yeah, it's interesting. I get it. Right, right. But OK, David. Yeah, it's it's interesting.

I get it. And I hope but I do wish there was greater acknowledgement that it is not. She is not in the frustration seat all the time, including on really important cases like the Alabama voting rights. And sometimes when she's

in the dissent seat, it's her versus Kagan, like in that Andy Warhol dust up, whatever that was. My goodness, there were a lot of feelings there in footnotes. Kagan in the majority, Sonia Sotomayor in the dissent.

So like, yep, she was in the dissent against Kagan. Yeah. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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when we were breaking down all immigration law last time and we didn't. And I got a few emails that were like, hey, why not bring up the Flores consent decree? And I was like, oh, because it's messy and weird and but worth a few seconds. Then you've got a few things as well, David. So, yeah, the Flores consent decree comes from a case called Reno v. Flores in 1993. And it basically just says that. Well, here's the actual holding. Alien juveniles detained on suspicion of being deportable may be released only to a parent, legal guardian or other related adult.

other related adult. And as a result, it included all sorts of rules on how long you can detain a child. Right. This is how you're going to end up with the family separation policy at the border, because you're not allowed to detain family units if they've got a minor child because of the Flores consent decree. So if you want to charge the parent with a crime, you can't keep their kid with them. So your choice is either let the whole family unit go, which incentivizes, as I said, cartels to make sure that there's a child with every group and then say it's a family unit because then they can't be charged with a crime or charge the adult and separate the child. This, you know, happens every time that we arrest someone for a crime in the United States. We don't let you take your kid with you. We have to find somewhere else for that kid to go if you're a single parent, for instance, and you get charged with a crime. In fact, we don't even consider it in whether you should be charged with a crime.

We don't, you know, say like, well, on the one hand, he assaulted someone. On the other hand, he's the sole caretaker of that child. So we're just going to let this assault go. We don't do that. But we absolutely do at the border. Now you can have all sorts of reasons why that's better and makes a lot more sense at the border than it does in an assault case, for instance. But that's the law as it is. And so, you know, one of the other fixes that people want is to change the Flores consent decree. Of course, that's been tried. The judge, the original judge, is very much still there. And nodogged any changes to the Flores consent degree back in 2018, I went to the

Ninth Circuit and the Ninth Circuit upheld that. So that's where that all ends up. Um, so you can't detain a child in sort of that detention area, um, for more than I, and I'm going to get this slightly wrong guys, but it's either 48 or 72 hours. And then a child must be released to a licensed care program within 20 days. That's how you get the really bad part of the family separation policy, because not only could they not be detained with their parents, but then they had to be in a licensed facility within 20 days. So all of a sudden, these children who were in El Paso are now being sent to an Ohio facility that has room for them through health and human

services. So you start with DHS sort of apprehending the parent and the, you know, with the child. DOJ is going to prosecute them. It's referred to DOJ for prosecution. The child is then sent to health and human services. Through those three agencies, literally children got lost. That's unbelievable. That's the Flores consent decree. Part of this is very important for the incentive system for why the cartels want to bring children.

Because the law basically as it stands right now is that if you have a child with you, your choices are really, really bad. Separate the child or parole the whole family and you can't charge them with anything. Just putting a pin on that for a second. I think one of the things that somebody,

a critic of that analysis would say is, okay, wait, I'm with you. If I'm arrested, I don't get to have my kid with me while I'm being booked and put in jail for however long while the booking and arraignment process happens. But if it's a misdemeanor, I'm being booked and put in jail for however long, while the booking and arraignment process happens. But if it's a misdemeanor, I'm out. Like if I'm arrested for a misdemeanor, 999 times out of a thousand, I'm out in a few hours

and I'm with my kids and at my home until you have the hearing, whenever the hearing is. And I think one of the critiques of family separation was, these are misdemeanors here and we don't actually break up families for misdemeanors. What we do is we say, oh, while you're in the court system, your kid can't be with you. But we don't separate children from families when somebody's got a reckless driving misdemeanor charge, right? And so it was the, not this physical separation during the booking process. It's the physical separation that endured beyond the booking process that was

the real issue. And so that, that's, I think the thing that is a lot of people look at and they say, of course, while you're booking somebody for a misdemeanor, yeah, fine. But then after you book them, they go back to their family. And so that was, I think, one of the things that people outside the system were saying, hey, I get you on the crime, but... That gets to the delay because there's so many of these cases, there ends up with this huge backlog. And so it takes sometimes two days to get them in front of a magistrate to do the misdemeanor booking and so then under the flores consent decree you can't have the kid there anymore um so like i i think part of that is then okay do you change the flores

consent decree so maybe it can be three days being held in a detention facility so that way you know yeah it won't take that long to book mom or dad for a misdemeanor. And the kid can wait those few days. And, or do you say, no, absolutely. Children cannot be detained in these facilities. And by the way, this isn't even touching the actual unaccompanied minors,

which is really what the Flores consent decree was initially supposed to be about. In fact, Reno v. Flores was about a 15-year-old unaccompanied minor, but the case has just spiraled to include all minor children crossing the border illegally. I think people can have all sorts of feelings about how we should handle children crossing the border, but I'd encourage you to think through the compassion on both sides, meaning the compassion when you incentivize the cartels to bring children in the first place, that's not compassionate either.

Yeah. I mean, we've just got a mess, just a giant mess. And the thing, I want to respond to a couple of comments because we were talking a lot about how we've got to have Congress fix, Congress has to fix the asylum system.

Congress has to fix it. And a number of people have pushed back and said, no, Biden can do what Trump did and make the situation a lot better just by doing what Trump did. Well, there's two interesting barriers here to that. One is the situation has changed quite a bit. So Trump had two big initiatives,

the Title 42 initiatives related to COVID. We talked about that and said, we're not in that same circumstance anymore. And then, but a lot of people jump up and down and say, remain in Mexico, remain in Mexico, which was the policy that Trump took and put in place that says, if you're coming from outside of Mexico, through Mexico to try to apply for asylum in the U.S., you have to

remain in Mexico while your case is pending. And that is something that I think it's pretty well established. And even in some court documents, the Biden administration has admitted that lifting remain in Mexico did, in fact, encourage additional immigration. And so why not just go back to remain in Mexico? Well, there's two wild cards there that sort of prevent you from sort of saying, that's something I can do whenever. One is it requires the participation of the Mexican government. So this is not something that we can just say,

okay, Mexico, we're going back to this. No, Mexico has to agree to it. So that creates a unsustainable, that creates a condition out of our control right there. And then number two was, and a lot of people have forgotten this, the Ninth Circuit struck down Remain in Mexico. It's not entirely clear.

It is lawful. Now the Supreme Court has, the Ninth Circuit struck it down, Trump administration appeals, that case was dismissed as moot because the Biden administration got rid of Remain in Mexico. But you've got two things hovering out there,

like two swords of Damocles hovering over Remain in Mexico. One is Mexico's consent to continue doing it. And number two is, is it even lawful? Is it even lawful? And there's a very strong argument that it's not. And so that's very, I think, for people who want to, quote unquote, preserve the issue, say, for the election. They will say he

could do remain in Mexico and take us back to the Trump administration. But it isn't quite that simple. It's not quite that simple. As of right now, the reporting I've seen indicates that Mexico is not amenable to recreating Remain in Mexico. Well, it created a huge problem at the Mexican border, as you can imagine, because once again, you've got a whole bunch of gangs waiting to basically victimize the people who are now in tent cities on the Mexico side. So then Mexico had to bring in all of its law enforcement. I get it. If I were Mexico, I'd be like, yeah, yeah, for money, for lots and lots of money, we'll

do this. Lots of money. Yeah, right. Which would require what? An appropriation by who? Well, this gets to, again, if you're Mexico, you don't want to be funding these cartels either. And the remain in Mexico problem, if you don't want to be funding these cartels either. And the remain in Mexico problem,

if you don't fix the overall asylum problem, you're just helping different cartels, actually. So you've got the cartels bringing people up to the border. That's, you know, the billion dollar industry right now. And then if you have remain in Mexico, yeah, fewer of them are getting into the United States. That's true. Not zero, by the way, but fewer. And then you're just funding also those cartels that are, it's like a whole little

ecosystem, right? Which predators you're feeding, you're feeding those predators as well. So again, it's a, it's a bandaid on a sucking chest wound of an asylum problem because that's the actual underlying problem is the asylum problem. David, I also heard about bringing the military to the border. Biden could do that. Well, so the problem here is to do what? That's right. So to do what? So this is not, despite what Fox News will say, this is not an invasion under the law of war, will say this is not an invasion under the law of war, under which you can deploy a military and a military capacity to repel an invasion. What we're dealing with is a law enforcement issue. It's a law enforcement issue because crossing the border is not an act of war.

Crossing the border without papers is not an act of war. It's a federal crime at the level of a misdemeanor. The 101st Airborne's job is not to enforce federal misdemeanor law. In fact, Posse Comitatus says, can't really do that. Can't use the military to help with construction projects and things like that. But bringing the military doesn't change the asylum system. I mean, I look at it like this. There are two giant magnets drawing people here. One of them is just we're the United States of America. We have a lot of opportunity. At this point, we're such a diverse country that almost no matter where you come from in the world, you can find a community of people from that country in this country.

So you can have the easier sort of integration than if you're just landing blind, you know, and there's no other community. So we as a country are just a giant magnet. And quite frankly, we should be proud of that. We should be proud that we have a country that is a giant magnet to people who want to improve their lives. So that's giant magnet number one, and it's supplemented by a mini magnet

that orbits the giant magnet, and the mini magnet is the asylum system. So you have a system that you can, in many ways, game, as we've described, that provides the federal government with really insufficient resources. It's an older law that's not adapted to the current moment.

I mean, we went all through all of that. But if you have the two magnets and one magnet, you want it to be like that. You want America to be a land of opportunity. But the other one is broken asylum system that only Congress can fix. Only Congress. Then if you're concerned about the if you're concerned about immigration, all this stuff about, oh, dear, Joe Biden, just do what Donald Trump did is not adequate. It is not an adequate response if that is your if that is one of your key concerns in

American politics. Last thing, David, there was an interesting development in that case where a Christian destroys a satanic display in Iowa's Capitol. Now, we've talked about how this works. There was a case quite recently that we discussed here on this podcast where the Boston City Council building, Boston City Government building, were allowing flags to be flown over their building. And like, yep, lo and behold, if you're going to let all sorts of random flags

fly over your building, you have to let all the random flags fly over your building. That's how you're going to get satanic displays in Iowa's Capitol. Once you say this is open to holiday displays of different religions, the Satanists always come, David. That's how it works. Yeah, they always do.

They always do. It's a trolling operation. And the ultimate goal is essentially to end all these displays. Correct. Which they then get to do. It's like a very effective heckler's veto, because since people don't want the satanic display, you then don't get the Christian display and they get what they want, which was not to have the Christian display. Not the Christian display. So the easy answer to this is just ignore the satanic display

if you want the Christian display. But this dude didn't do it. And he went and he destroyed the display. And the word we just received reporting that his crime was upgraded to a hate crime. So the dude who destroyed the Baphomet, little Baphomet statue, now is facing up to five years in jail. Okay, if he has no prior criminal record, etc, he's he's not going to serve five years in jail. But it's now been upgraded to a felony. And I thought it'd be interesting, Sarah, to give just a five-minute primer on the difference

between hate speech, which is not something that can be punished, and a hate crime that is something that can be punished. Teach us, David. Here's the basic quick way of saying it. quick way of saying it. Constitutionally, I cannot be punished for the viewpoint of my speech, even if it's extremely hateful. R.A.V. versus St. Paul, you cannot punish someone's hateful speech. Now, of course, if it's hateful speech in the context that meets the definitions of harassment, then you can do something about harassment, but not based on just the pure viewpoint of the speech. That's why people will say there is no such thing as hate speech in constitutional law, and they're right. But what about a hate crime? We do have hate crimes. And what the, essentially what has happened is the court has said, okay,

well, we're not going to allow you to criminalize a viewpoint, just a viewpoint. But if I commit a crime that is already a crime. And then there are upward sort of penalty enhancers if it is motivated by hate. And that is sort of the difference between a hate speech and a hate crime, so that there has to be that underlying criminal activity before you can have the penalty enhancer. And maybe this is a conversation for another time, but there are those who still think that hate crimes are unconstitutional. Here's the problem. To the extent you're criminalizing speech, of course, just like what you said, David, then it's not a hate crime. But we penalize people for what they're thinking all the time. So like the difference between first degree murder and manslaughter is what you were thinking. Did you want to kill that person? That's what you were thinking. So it's hard. Like on the one hand, maybe you may not like hate crimes, punishing someone more for why

they did it, right? Like this is the argument. Every crime is a hate crime. If you assaulted someone, why does it matter why you assaulted them? Like you assaulted them because you didn't like his face. You assaulted him because you didn't like his religion. You still assaulted him. That's the crime.

But I think the argument is the hate crime aspect of it was for the purpose of terrorizing a community. Yeah. And that's why there's the enhancement. Again, you may think that that's not a good reason to have an additional crime. may think that that's not a good reason to have an additional crime, but that's why crimes in theory are supposed to be mostly at the state level so that we can have political accountability. If you don't like that, don't vote for someone who's going to create something like a hate crime. Now, of course, we have federal hate crimes as well. And this gets to our over-criminalization of everything at the federal level. But, you know, this is the Matthew Shepard Act, right? Where they torture and kill a young man for being gay.

That got you federal hate crimes. You know, and I think there's a lot of, there are a lot of coherent reasons why you would have a penalty enhancer. Let's take it out of the, let's just take a hypo like this and pull it from sort of the hate crime context, but how two different criminal motivations can be different things. So let's suppose take a hypo like this and pull it from sort of the hate crime context, but how two different criminal motivations

can be different things. So let's suppose somebody just hits me in the face when I'm walking through the neighborhood, just winds up and hits me. Why'd you do that? Well, I really think you, I'm the attorney for Colorado in 303 Creative and I heard you.

I think you're a real jerk face. Yeah, I heard your podcast, man. You don't know anything. That's bad. He shouldn't do that. But then, like, same scenario, someone just hauls off and hits me and says, why'd you do that?

You're just the first. Everyone in this neighborhood needs to live in fear of me. Okay. I'm going to say the second one is probably worse than the first. Everyone in this neighborhood needs to live in fear of me. Okay, I'm gonna say the second one is probably worse than the first one. I think you could logically say that there is a greater, this is something for which there's a greater level of culpability, gravity of harm, et cetera.

So nobody else at West Haven is gonna be afraid because Colorado's attorney hit me. But if somebody hits me and the view is I'm sending a message to everyone in my neighborhood, then that's something worse. So I do think there is a definite logic to it, a definite logic and indeed a pretty compelling logic in certain circumstances.

But yeah, that's how you can get a hate crime, even when there is no such thing as hate speech in a First Amendment sense. And with that, let's dive into our conversation with Judge Bush of the Sixth Circuit. Judge Bush, welcome to the podcast. It's great to be here. And really, it's more welcome back because you, of course, were on the very special episode from Legal Eagle's Gettysburg. Any, you know, residual effects from that trip? No, you know, tick bites that we should know about? No, I'm still here. And it was a lot of fun to be there. And I was glad to have a cameo appearance on that episode. Well, you and I stayed in touch since then. We've seen each other actually quite a few times for people who do not live in the same state since then. And you and I were having a bit of an email discussion on text history and tradition.

And I thought, boy, I think the pod would really benefit from a longer conversation. And so I wanted to start with this case that you were on called Turner. Okay, that sounds great. So tell us about the case. Tell us why it's interesting. I don't know, just like talk, walk us through this case that you had plopped into your lap. Well, it's interesting for me for many reasons, not the least of which is it was the first time I sat on bank with our court. It was back in, I believe, 2018 or 2017 when we had the argument. But it was, you know, a bit intimidating walking out there with 16 or 15 other judges. There are

16 active judges on the Sixth Circuit. So it was the first time I had been with a full court in the courtroom. And the issue was very interesting. It involved when the right to counsel attaches for a defendant. And the defendant in the case was arguing for a violation of the Sixth Amendment right to counsel because his counsel had allegedly not told him of an exploding plea offer that would explode with an indictment. And so he says that his counsel... Okay, so let's just break that down for a second, just for our listeners who are not already on bonk on the Turner case. Okay, very good. All right, let's just start with the text of the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. But look, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. A, this only applies to the federal government.

And so we need to like figure out how it got to the state level. And B, what about this right to counsel? Will you just back up a little and tell us how we get all that? Yeah. So it talks about the right of an accused in a criminal prosecution of various rights that an accused has. And one of them, it talks about a right to counsel, among other things. And it's it's applicable to the states through the incorporation doctrine. It's applicable to the states through the incorporation doctrine. So of cases that are pretty clear, I thought, saying that the right to counsel doesn't arise until you're actually indicted, until you have formal proceedings against you. And of course, in this case, the defendant had not been indicted. The claim was he had been given this opportunity to plea before he was

indicted. I went along with the majority in holding that he has no right to counsel pre-indictment, but I decided to dive into some of the history of the Sixth Amendment and the right to counsel to see whether that was actually aligned with what I think the original understanding of the Sixth Amendment and the right to counsel to see whether that was actually aligned with what I think the original understanding of the Sixth Amendment was. in Virginia, before he went on the court, had represented individuals in proceedings that were called examinations of county courts that were not actually, they were pre-indictment proceedings. So essentially, an accused would be brought before an examination court, the local magistrates would determine whether the person, there was enough evidence for the person to proceed to the grand jury for an indictment. And so I knew from that, from having just read that generally in history, I knew that existed. You actually have to have an indictment before someone is considered an accused in a criminal prosecution for purposes of the Sixth Amendment so that the right to counsel arises. And I argued in a concurring opinion that, in fact, there was a lot of evidence that there could be this right before someone is indicted.

And I also borrowed from the Aaron Burr case, which dealt with the right to compulsory process. And Aaron Burr, this may be getting too far into the weeds, but in Aaron Burr, he was being indicted for treason. He was going to be indicted for treason in Virginia, in the Richmond court in front of Chief Justice Marshall. And before he had actually been indicted, he went to Marshall and said, I need to get a letter from President Jefferson, which would help exonerate me at my trial. So will you order President Jefferson to produce this letter? And lo and behold, Chief Justice Marshall ordered Jefferson to produce the letter. And this all occurred before Burr had been indicted in the proceeding.

And so I argue by analogy that if Marshall was viewing the compulsory process to be available prior to indictment, that that was support for also viewing the right to counsel to arise before indictment. for also viewing the right to counsel to arise before indictment. Because if you look at the Sixth Amendment, the right to compulsory process and also the right to counsel are together in that list of things to which an accused is entitled under the Sixth Amendment. So that's a long-winded way of saying it, but... No, I love this. Various ways of arguing, arguing that there actually could be a right to counsel before you're indicted. And this gets to a larger question that is the one that we want to talk about today, which is sort of the role of judges in a text history and tradition world. How is a judge supposed to serve as a historian? How do we think about text history and tradition versus the tiers

of scrutiny? And these are all the things I want to talk about. So let's start with this historian problem. You're talking about Aaron Burr's treason trial. You know, you're not a trained historian, right? Right, right. So how are judges supposed to do this work if, for instance, they don't have excellent law clerks that you have? And, you know, they're sitting in trials, they're just have excellent law clerks that you have. And, you know, they're sitting in trials and they're just trying to get it right. And they've got another trial starting in an hour. Yeah. Well, the first problem is you need to have your litigants actually brief the issue.

And unfortunately, in Turner, there had not been any history and tradition briefing in the case. And in fact, probably the first question I asked was at oral argument was kind of an off the wall. They probably thought I didn't know what I was. I was absurd. I asked counsel, you know, how how how would you address how, you know, accused and indicted were used? They're actually used as different terms in the Crimes Act of 1790, which was like the first Crimes Act, you know, after the Sixth Amendment was adopted. And so, you know, in retrospect, I probably shouldn't have asked that question. But it was on my mind because I was thinking, you know, if you're going to be interpreting the Sixth Amendment, you ought to be looking at the way Congress was thinking about the issue, the same Congress who adopted the Sixth Amendment. So yeah, so the first big

stumbling block in this approach is you need to have some way of making sure the parties can address the issue in their briefing, and they do so. I felt like I could go ahead and write this concurring opinion in Turner because, first of all, it wasn't going to affect the outcome of the case. And all I was doing, I felt like was flagging the issue for future purposes. And, you know, it had come up. So I felt like I needed to say what was on my mind. But if it were in a case where it could affect the outcome, I think it's important that the parties know that you're going to be considering history and tradition and that that should be briefed. And your point is it wasn't going to affect the outcome here because the Supreme Court precedent, which you're bound by, had sort of

answered the question. But the Supreme Court, you're saying on their somewhat new text history and tradition test is wrong. Right, right. And actually, this decision or opinion I wrote came down before we'd had the Supreme Court decisions talking about history and tradition, but it dovetails, I think, with that approach. And so it seems like now the litigants should be on notice in all constitutional cases that history and tradition is on the table. And so they should be prepared to talk about it and brief it in appeals that involve constitutional issues. All right. So let's deal with some of the criticism of this. One, which I know you're

very already thinking about, the WWJMD problem. What would James Madison do? Why are we in this inquiry to determine what a random dude a long time ago thought? Or, you know, even if we're being a little more generous, what a group of ratifiers thought when, you know, how are we ever supposed to really determine that? I don't approach it from that angle of looking at what the intent of the framers was. I view it as an objective test of what did the people at the time, as a whole, the founding generation as a whole, what can be fairly said to be what they understood the meaning to be. Now, of course, that's a bit of an artificial test as well, because we didn't have focus groups or, you know, or surveys at the time as to what people were thinking things meant. But I think like in the Turner case, for instance, they didn't have exploding charge deals. No. So you also have you have that first issue of how do you determine from an objective

perspective what was meant. But you know, that kind of approach is done in contract law. And it's generally the way, you know, in other areas of law, we're looking at objective meaning of things. So I don't think that that's totally out of the blue. So I think that there are some things that are dead on the same today as they were then. I mean, there are conditions of human existence that don't change. So there are some things that we know are the same today as they were in, you know, 1787. There are other things, most specifically in the technological world that obviously have changed. And so for those, that's where you have the analogy problem. And you have to determine

what exactly is the closest, you know, what's the analogy to today to apply the method. But I think the analogy problem is there in all sorts of legal reasoning. I mean, that's what legal reasoning is, for the most part, is drawing analogies. So I don't think that's anything new either. Okay. So there are difficulties with the method, but I don't think that's anything new either. So there are difficulties with the method, but I don't think it's unprecedented. I think the method aligns pretty much with the way legal reasoning has gone. The difference is, instead of trying to use just case law to make analogies, you're actually looking beyond. Case law is sort of a secondary source of sorts. You're really looking to the primary sources to try to determine original

meaning and not just the secondary sources of case law. And I guess this is where I do get a little tripped up, because if this is the correct method of constitutional interpretation and statutory interpretation, but let's stick with constitutional at this point, then it wasn't really possible as of just, let's call it 20 years ago, certainly not 40 years ago, unless every single judge was going to go dig through every single document and go to the Library of Congress. I mean, this is only possible because of the internet. And even there, because judges aren't trained historians, they don't really have a methodology by which they're doing this. They're just going to try to go find some

documents and writing at the time that maybe then you can analogize. I mean, I, of course, see how judges do this, and it makes some sense to me, but it's not how historians would do it. And as I say, like the universe available now is only expanded because of the Internet. And I guess that makes me wonder whether that can possibly be how the framers thought we would interpret the Constitution. If they wouldn't have ever dreamed that you could then just go look up what they'd written and it'd all be digitized now. Right, right. Well, first of all, the framers were in real time, so they didn't have to look it up.

They didn't, but they had to think about how their constitution would be expounded upon in generations later. Did they think this, like it's sort of a meta question, right? How the framers thought we should interpret the framers? Yeah, yeah. I think in certain respects,

the history and tradition method is a very 21st century way of looking at things. And I think we are moving in that direction with the incredible amount of data that we now have at our fingertips. And so to a certain extent, you could think of the history and tradition method as being sort of a methodology for the future. But I would argue that it's a more objective way of looking at things than just simply kind of, you know, the judge's philosophy as to what they think the right answer is in a case, we actually have some ability now to, in a somewhat more scientific way,

look at what meaning is in legal texts and use that to inform our decision making. Okay, so the tiers of scrutiny, right? And for listeners of this podcast, we've talked about it before. There's strict scrutiny, intermediate scrutiny, rational basis. And as a reminder on strict scrutiny, for instance, this is where a law or policy that infringes a fundamental constitutional right has to be justified by a compelling government interest,

be narrowly tailored to achieve that goal or interest, and be the least restrictive means for achieving that interest. What do you think was wrong with the tiers of scrutiny? Why is this better? Where are sort of the drawbacks of each? And walk me through why pick one over the other. Well, I'm not disclaiming tiers of scrutiny even today

and answering some questions. I think a lot of it depends on how concrete you can discern what the Constitution is saying on a particular principle. And if you have a concrete answer, the more concrete the answer, the less the need for tiers of scrutiny. But if you have a more vague proposition or provision of the Constitution that is not so easily categorized as to what the original meaning was, then you might perhaps could still have tiers of scrutiny. So I'm not disclaiming that at all. I'm not disclaiming that at all. But I do think that the problem with tiers of scrutiny, as you get with any ad hoc kind of arrangement, when I say ad hoc, I mean you do have parameters as to how you decide a case under tiers of scrutiny. But it's not – it does give more discretion to the decision maker to determine what falls within each category. I think when you get into that realm, you're moving more into the judge's own personal philosophy of life.

And so the outcomes are going to reflect where the judge is coming from philosophically. where the judge is coming from philosophically. Whereas I would say, if you don't use tiers of scrutiny and you're using more of a historical approach, approaching it more objectively. Now, of course, history and tradition assumes one important fact, which is that history can be objective. And historians will debate you on that point. But I think that most people think of history as being something that can be objectively understood. And that's the approach I use. This gets to what I think is maybe the heart of the question. It's the meta question. How did the founders intend for the Constitution to be interpreted down the line? I think it's fair to say that there was an assumption up until probably sometime in

the 20th century that you were always trying to understand the meaning of the Constitution based upon original understanding. Now, I'm not here to defend all, you know, judging of the 19th century or 18th century, because there certainly was some really bad judging that went on applying original understanding methodology. But I do think that that was historically the way the document was interpreted, not through what was grafted on in the 20th century. All right, before I let you go, we have to talk a little bit about life as a judge. You've been a judge now for six years, almost seven. You're coming up on your seven year anniversary. Yeah. What's your least favorite part about being a judge? I think just the isolation of it all. You're away from having a huge number of colleagues, like you do in a law firm where I was.

You also are, to a certain extent, you're isolated from things that other people are talking about, because by nature, we have to be away from a lot of things that people are concerned with in daily life. So I I would say, I would say just not having that ability to interact with as many people. I am fortunate each year I get, you know, great law clerks who, you know, are sort of my pipeline to the world. So I can pepper them with questions about what's going on. I will tell you this, one of my other law clerks said that they, that she actually listened to Advisory Opinions podcast before she interviewed with me. And I guess it must have helped her because we thought she really knew all the

latest and greatest. So you have an endorser in one of my law clerks, at least one of my law clerks. I think they all endorse your podcast. You replaced Judge Boggs, who was pretty famous. Still is. Sorry, still is. That was I meant pretty famous in his clerkship interviews. He had a quiz. Do you institute the Boggs trivia quiz? No, no. Judge Boggs' chambers is next door to mine here in Louisville. And we did not try to compete with that. However, I would say our clerks, though, do often pair up with the Boggs clerks at trivia nights at the local establishments. And so it does come in handy, and their team generally doing pretty well. I think they're in first place right now. My clerk is telling me now they're in first place at this local trivia challenge.

They better be. I mean, literally, that's how they get their job. You know, when I was coming up through law school, the Internet was starting, you know, to be more widespread, etc. And there was a real question over interviewing with Judge Boggs and how that was going to work, where he had a trivia quiz for clerks even get an interview. Right. And whether it was, you know, cheating and how that was going to work with the Internet. So maybe we need a former, a recent former Boggs clerk on or maybe Judge Boggs will let one of his current clerks come on and talk about how the Boggs quiz is working now that he's a senior judge in the age of chat GPT. I mean, we're past the internet at this point. Yeah, yeah. I think they actually maybe have

honor codes or something that they're not supposed to check the internet for these answering. But yeah, he would be a great person to talk with or one of his clerks. They're always very entertaining and bring a lot of things to the court. And I learn a lot just talking with Judge Boggs and his clerks. Okay, so you're not giving your clerks trivia quizzes. What do you look for in a clerk that is unique to you? And don't say grades or writing ability.

Like everyone's looking for that. What's something specific that a clerk needs to have to clerk for Judge Bush? They need to have a good reason why they want to clerk for me. Because I get a lot of resumes from people that I really come away thinking, there's no reason that they want to clerk for me other than that I'm a court of appeals judge. that they want to clerk for me other than that I'm a court of appeals judge. So really, I'm looking for someone who's thought about what I do and they're ready to engage me, to tell me what I did right, what I did wrong, and can be a good colleague for a year in our chambers. Because we are, as I said earlier, we're isolated from the world

for the most part, but we have a lot of fun while people are here. Is D'Alba's favorite lunch place? The conference room table is our favorite lunch place. We brown bag it and we all sit in there and we talk about everything. You know, future clerk applicants out there, I just want you to know, this is actually a really good question to ask because for a lot of chambers,

the answer is brown bag. I would say it's like half and half. I don't know, maybe you disagree. Half do brown bag and you all sit around the table because then you can talk more freely sort of in the privacy of chambers with your brown bag lunch. And then about half have like a favorite lunch spot

where they go and sit around and talk at the lunch spot and you order food and you better like that food. And this is like a bit of a personality thing. Like I'm not a brown bag lunch person. I hate packing a lunch. So know your chambers ahead of time. And if you're gonna clerk for Judge Bush, you better be pumped about the brown bag.

You better come in telling him why he's wrong about the Turner case or very, very right in some new, interesting way. Well, I appreciate the endorsement and I will consider non-brown bag lunch applicants. Don't. No, make that a deal breaker. If you can't pack a peanut butter and jelly

sandwich, you're out. Okay, well, we'll see. But as long as they're interesting and will put up with, you know, whatever I have to, corny isms or whatever else I have to say, I will get along just fine. Judge Bush, thank you so much for coming on to talk about how a judge judges judging. And you have some writing coming out about this. And as soon as that is published, we're going to plug it on this podcast and read it word for word. Well, that's very nice of you.

And I've enjoyed visiting with you today. Well, that was a fun conversation. David, I'm sure you enjoyed it. Sorry you couldn't join. And with that, we'll talk to you next time, next week. And lots to happen in between the two. We are expecting that filing, the reply from Fonny Willis and her team in Georgia

to those misconduct allegations in the Mike Roman indictment. So we'll be watching that closely and who knows what else. Dun, dun, dun. that closely and who knows what else. Soda Mayor. So if the chief is here, then it's Alito.

Sorry. Then it's Thomas Alito. Gorsuch. Kavanaugh. No, I forgot Kagan. Hold on.