Advisory Opinions - Real Originalism Has Never Been Tried

Episode Date: April 11, 2024

Sarah and David explain the jury questionnaire in Alvin Bragg’s case against Donald Trump before getting into the weeds of the origins of originalism. The Agenda: —How to select a jury for Trump ���Celebrity trial jury instructions —Biden swings again at student loan forgiveness —Did the Warren court birth originalism? —Originalism vs. platonic idealism —More questions from a high schooler —How do judicial ethics actually work? —The myth of the 6-3 court —The most important SCOTUS decisions Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And I'm weirdly extra excited about today's podcast because, David, we are heading into a very busy season at the Supreme Court, but not yet. And that gives us a chance to talk about Trump jury selection, the Biden student loan plan B, and the rest of those high school students' questions, and a little pushback from a federal judge that I wanted to get to. But first, let's at least preview what's about to happen at the Supreme Court starting next week.

So a couple cases to flag for everyone. First, the January 6th obstruction charges case is being argued on the 16th. Does a federal law prohibiting obstruction of Congress inquiries and investigations include acts unrelated to investigations and evidence, i.e., you know, breaking into the Capitol? The Trump absolute immunity case is being argued later this month as well. I don't think we need to remind people what that case is about.

The Idaho abortion law and health of the mother. That's about whether the federal emergency medical treatment and labor act preempts state abortion law regulations requiring hospitals to provide an abortion as quote stabilizing care when a pregnant woman suffers an emergency medical condition that might demand it. Oh, I forgot the homeless encampment case is also being argued. Does enforcement of generally applicable laws regulating camping on public property constitute cruel and unusual punishment prohibited by the Eighth Amendment? So, David, we are heading into busy season, SCOTUS busy season, but also the first Trump trial is set to start. Yes. And I'm excited to talk about jury selection with you because we have now some facts about this jury selection process, which will be New York State Court in Manhattan.

I've also gone back and done some research on several other celebrity or high profile jury selection processes. What went right? What went wrong? First up, though, this process, they are talking about calling more than 500 people for the veneer. So today is going to be filled with vocab lessons. Veneer is the fancy Latin word for jury pool. Actually, I'm assuming it's Latin, David. It could be French, which is also derivative of Latin. So it's all the same thing. Yeah, I think it's French. I'm a French minor in college. So don't ask me. Like, don't ask. I used to know stuff like this. I'm a French minor in college. So don't ask me like, don't ask. I used to know stuff like this. I do not anymore. Nope. It's Latin. Veneer fascius. Veneer fascius juratoris, often shortened to veneer, is a writ directing a sheriff to assemble a jury. Yeah. Yeah. Okay.

So it feels Latin-y. So we're talking about over 500 people in the jury veneer. We also have the questionnaire. It has 42 questions. And I want to go through some of those questions. But first, I thought I'd give you some history, David. Yes, I want history. Absolutely. So yes, I already went back through OJ, Martha Stewart, Michael Jackson. But the case that I actually think is most relevant to this one is the Boston bombing trial of the Tsarnaev brothers for a few reasons. One, there is no one with the celebrity of Donald Trump. So even OJ Simpson, nowhere near as universally famous as Donald Trump and universal opinions about. Yeah. You know, you may know that

O.J. Simpson was a football player, but you don't have strong opinions about O.J. Simpson. Like even at the peak of his fame, he's still sort of only a football player. And I know don't even come to me with all those ads in the 70s. Yes. Most people would have at least heard of O.J. The Naked Gun franchise, Sarah. I know. I just think of the running through the airport with the suitcase. But the Tsarnaev case to me is relevant or the most relevant because the trial was held in Boston. And so in that sense, it's very similar to the universality of Trump. Everyone knew about the Boston bombing. The city had been shut down for the manhunt that ends in a shootout at the boat.

You know, they hide under that white boat. And so they called, the trial happened in 2015. And the process for selecting jurors and six alternates chosen, four had said during the voir dire process that they believed the defendant was guilty. And I think that will shock a bunch of people because like, how did they get seated on the jury? bias to faithfully assess the facts and evidence presented by both sides, and you answer yes to that, then it doesn't matter whether you come in thinking they're guilty. Right. And I think that's going to be really relevant to the Trump case. Now, of course, they were found guilty, death penalty. Also worth mentioning, though, that two weeks ago, this case was still having hearings and motions on appeal. Why? The accusation that two of the jurors

lied on their questionnaire. So the jury selection process is in fact why the appeal is going on from a 2015 trial, still now in 2024, which to me, I think highlights the fact that there are two things that are basically gonna decide this trial, the jury selection process and the jury instructions.

And I said before, right, I don't think this is actually a very fact intensive case. This is a law intensive case. Yeah. This is the one about the falsification of business records, which we know Trump falsified the business records. Yeah. Again, like we don't really need a jury to decide that. I don't see how they're going to decide otherwise.

But A, does it count as business records when they're internal, nobody relied on them, et cetera? Oop, that's going to be a legal question. And then you have to prove that it was for the purpose of concealing another crime. What's that crime? Is it a federal crime? Was it actually a crime? Oh, that's the legal

question. Yeah. So all the jury is going to have to decide, based on what I presume the jury instructions will be is, A, did he falsify the business records? And B, was it for the purpose of? And then they're not even going to really decide this other thing. You know, and I still think there's huge legal problems with this case based on what that other underlying crime is, whether it's federal campaign finance violation by Donald Trump. We've had the former chair of the FEC say, nope, that wouldn't be a campaign finance violation. If it's Michael Cohen who pled guilty to a campaign finance violation. Yeah, he pled guilty, though. And it still doesn't make it a campaign finance violation just because someone pled guilty. So that's where the jury instructions are going to become very

important. We'll talk more about the legal specifics as we get into the trial, no doubt. But back to jury selection. OJ had a 294 questionnaire, question questionnaire. had a 294 questionnaire, question questionnaire. Woof. It was 79 pages. That jury selection process also took two months. Worth noting that part of the reason that took so long is because of the four cause and peremptory challenges that the judge was allowing.

So remember, four cause actually has to show that the potential juror is potential juror is not qualified for whatever reason, or that they cannot fairly assess the evidence and the arguments of both sides. Now, the peremptory challenges, those are like, I don't like that dude. Yeah, don't like his face. Don't like his smirk. I don't need to give a reason. But it can't be on the basis of a protected class, race, religion, ethnicity, things like that. Martha Stewart, that was 2004. Jury selection lasted for a few weeks in that case. Interestingly, they excused some jurors after one juror said she considered one of the government's witnesses, quote, sort of a mentor.

Another guy was excused because his wife had worked for Martha Stewart Living and had been unfairly fired due to a maternity leave problem. Yep, that's a bye-bye on that one. So those are examples of for-cause challenges, right? This person would be unable to set aside their personal experience to assess the facts. Another interesting note about that, by the way, because the judge was worried about the paparazzi-ing of the jurors and potential jurors in that case, he closed the questioning process from the media. A bunch of media organizations sued, took that to the Second Circuit. The Second Circuit sided with the media organizations and said, for due process reasons, you cannot close this off to the press. Sorry, for First Amendment reasons. Due process doesn't overcome this First Amendment problem. But the

trial had ended. So it was irrelevant to Martha Stewart's trial, but it's precedent. And yes, it's federal precedent, but the Second Circuit oversees New York. So, hmm. And that's the First Amendment. Exactly. Yes. Hmm. Yeah. So that's an issue because the judge in the Trump case has said this will be an anonymous jury, meaning they will only go by their juror numbers. Great idea.

Do you live in our modern world where we take people's photos and immediately identify them? Oh, you can do it. Yeah. Do the image search. Yeah. This is going to be a mess. And last one I looked at was Michael Jackson. They had 250 person veneer lasted for a few weeks. It was postponed in the middle of it when a lawyer's family member died. So I mentioned that just because we start this thing doesn't mean that we keep it apace. Then they moved. They came back in to continue jury selection. Then Michael Jackson got the flu. So they paused it again.

Things can happen. That was a seven-page questionnaire. And that one was interesting because court watchers noted an unusually large number of potential jurors said they would be willing to give up work and other commitments to hear a trial that could last up to six months. He was acquitted on all charges after a four month trial. I mean, jurors who want to serve on a jury are big red flags. Yes. And the side knows which it's a red flag for. In this case, a juror wanting to serve on the jury, for the most part, would be a red flag for the defense, though I could imagine some instances of a red flag for the prosecution.

So, David, like I said, we have the questions. Most of them are the ones you would imagine. Where do you work? How long have you worked there? Are you married? How long you been married? What do you do in your spare time? Do you have any interests or hobbies? Do you belong to any organizations or advocacy groups? Have you ever served on a jury before? Where do you get your media from? And there's a specific list. New York Times, USA Today, New York Daily News, Huffington Post, CNN, MSNBC, Google, Facebook, X, TikTok, Wall Street Journal, New York Post, Newsday, Washington Post, Fox News, Newsmax, MSN, Yahoo, Truth Social. I do not follow the news.

Do you listen to podcasts is number 11. Do you listen to talk radio? Have you ever been the victim of a crime or a relative? Then there's all the, you know, do you know anyone in the FBI? Are you employed by them or know someone? Have you ever had a relative employed by any local government but not limited to the state of New York? Anyone you know work in accounting or finance? Has a relative or close friend ever had any education, training or work experience in the legal field? Have you ever had any interaction with the criminal justice system? Have you ever been convicted of a crime or a close friend? Do you or relative or close friend have a pending criminal case? Hmm. Do you have any reasons you won't be able to show up to court? You know, like your religion has you meeting every day at noon? You know, that's going to flag on the jury questionnaire. Medical conditions, medicines you have to take at specific times,

court proceedings end at 4.30, but you could go later. Any problem with going later? Can you give us assurance that you will be fair and impartial and not base your decision in this case upon a bias or prejudice in favor of or against a person who may appear in this trial on account of that person's race, color, national origin,

ancestry, gender, gender identity, or expression, religion, religious practice, age, disability, sexual orientation, or political views. That's going to be a big one. Can you promise to guard against allowing stereotypes or attitudes about individuals or about groups of people referred to as implicit bias? Oh, thanks, New York, for that question. Has anyone ever worked for Donald Trump, any organization run by him, anyone in his family? Have you, a relative or a close friend, ever worked or volunteered for a Trump presidential campaign, the Trump presidential administration, or any political entity affiliated with Mr. Trump? Have you ever attended a rally or campaign event for Donald Trump? Are you signed up for, have you ever been signed up for, or subscribed to, or followed any newsletter or email listserv run by, or on behalf of Mr. Trump or the Trump organization? Do you currently follow Donald Trump

on any social media site, or have you done so in the past? Have you, a relative or close friend, ever worked or volunteered for any anti-Trump group or organization? Query whether you think that includes Joe Biden or a Democratic Senate campaign. Right, right.

Or a congressional race. It's not. Is that anti-Trump? Have you ever attended a rally or campaign event Is that anti-Trump? Have you ever attended a rally or campaign event for any anti-Trump group or organization? Are you signed up for any newsletters like that? Do you currently follow any anti-Trump group or organization, social media, or have you done so in the past? Have you ever considered yourself a supporter of or belong to any of the following? The QAnon movement, Proud Boys, Oath Keepers, Three Percenters, Boogaloo Boys, and TIFA.

Do you have any strong opinions or firmly held beliefs about whether a former president may be criminally charged in state court? Not unless you listen to this podcast. Do you have any feelings or opinions about how Mr. Trump is being treated in this case? And can you give us assurance that you will decide this case solely

on the evidence you see or hear in this courtroom and the law as the judge gives it? Do you have any strong opinions or firmly held beliefs about former President Trump or the fact that he is a current candidate for president that would interfere with your ability to be a fair and impartial juror? Have you read any of Michael Cohen or Mark Pomerantz's books? And they list them. Have you read any of the defendant's books? They don't list them. And then do you have any opinions about the various things in this case? Campaign finance reform?

Can you set aside anything you've read so far about this case? Will you refrain from discussing the case with anyone and from watching, reading, or listening to any accounts of this case during the pendency of this trial? Good luck avoiding that. And can you assure us

that you will follow the judge's instructions on the law? And if Mr. Trump chooses not to testify or to introduce any evidence, can you give us your assurance that you will not hold it against him? Is there any reason,

whether it be a bias or something else, that would prevent you from being fair and impartial if you are selected as a juror in this case? The end. That's a pretty skimpy questionnaire, actually.

I know. I know. That's funny that that's your reaction. I think people are gonna be like, whoa. But no, that's- Yeah, no. That is minuscule. That's a skimpy questionnaire.

Yeah, it's a very, and it tells me they don't want, the judge doesn't want the six-week jury selection process. That is one thing that's really interesting. When you hear this, and I'm gonna be very interested to hear the trial lawyers who listen talk about their jury selection processes, talk about the philosophy that they use

when they're doing jury selection. I've done jury selection a few times and it is always, it's been very different each time because judges have different processes for jury selection. The way I would describe jury selection is looking for li selection. The way I would describe jury selection is looking for liars.

So your preemptory challenges where you just have the ability to do it because for any reason other than the protected categories that Sarah talked about, race, religion, et cetera, the preemptory challenges are where you don't have to say, excuse them for this reason that I can articulate and demonstrate why they're biased. The preemptory, you're thinking, this person is saying all the right things. They're saying it all right, and I don't believe

them. I don't believe them. Yeah, beware of the silent potential juror, right? The one who's giving you as little information as possible and who seems like they want to be on the jury because you don't know their motivation potentially. Or take another example, somebody who you feel like is very obviously politically opposed to your client, very obviously, but his answer to everything perfectly. So I had a case where I was representing a very outspoken conservative professor, very, very outspoken. In fact, the reason why we were having a trial is that he was so outspoken that his more

liberal colleagues punished him for it. And so politics was going to matter here. And while I was pretty sure I was watching a majority Democratic jury be sworn in, I actually felt pretty comfortable with the jury. But there was one guy, and I had only one preemptory challenge left, and he was also a professor. And he was a professor, and I can't remember what department, but one that's generally overwhelmed, overwhelmingly on the left. And just something about him screamed like he's the dad and family ties.

If you totally remember the best. Yes. Like he's like a total NPR liberal guy. And I felt like there's just no way he's going to let that he Like he's like a total NPR liberal guy. Yes. And I felt like there's just no way he's going to let that. He's not going to get out of the way of his own ideology. And so I struck him and it was just pure instinct. Like this guy doesn't like my client.

Like I just, he's just not going to like my client. And sometimes it's like that. It's just this, you've profiled them in a particular way, again, not related to the immutable characteristics and protected identity characteristics, but you do engage in a kind of profiling. And there are people who make enormous sums of money being jury consultants, raising that profiling up to an art and a science. And so, yeah, it is, but jury selection is not, and you do not have enough preemptory challenges to do this. You cannot swear in, quote unquote, your jury. If that's your expectation, that's a bad expectation. You're going to end up with some people on the jury that you're taking the position,

well, I just kind of have to live with them. That this is, I'm hoping that they're answering honestly. I have some qualms, but I'm just gonna have to live with them. The absolute shaping of a jury beforehand, I mean, some people will say they've seen it happen, but what you're really trying to do is to get rid of the people you think are unpersuadable

and leave only the persuadables. Even if the persuadables might've come in with an impression contrary to what you want, the key is, are they persuadables? And what your preemptory is trying to do is just get rid of the unpersuadables as much as you can discern who they are. Well, we'll be following that closely is an understatement.

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I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames dot com. Use code advisory at checkout to save. Terms and conditions apply. David, next up, the Biden administration is going to take another swing at massive student loan debt forgiveness. But deja vu, right? Didn't we just do this and the Supreme Court nod-dogged it? Yes and no. Yes and no. This is wild. So what we have here, and what's wild is not that Biden's trying more loan forgiveness. We knew that was going to happen. But the twist we're going to

tell you is a little wild. So if you remember back to the original student loan case, it involved the HEROES Act of 2003 that allowed for alleviation of hardship of student loan recipients that when they suffered that hardship as a result of national emergencies. And so here you had this remarkable multi, what's it, $400 billion student loan forgiveness being extended after the COVID emergency. So the COVID emergency is winding down, it's ending, there had been an extension, there had been not debt forgiveness, but there had been a pause in repayments related to COVID emergencies. All of that had gone on. And then as the emergency ends, then Biden evokes the emergency to purportedly wipe away hundreds of billions of dollars of debt.

And it didn't work, obviously. That's not what the HEROES Act was intended for. This was a massive expansion, elephants and mouse holes kinds of expansion of the meaning of the HEROES Act was intended for. This was a massive expansion, elephants and mouse holes kinds of expansion of the meaning of the HEROES Act. And the court said no. But the interesting thing is, and Sarah, in Slack, you were like,

take a look at the transcript of the argument in the student debt forgiveness case. And so I did what you instructed. I went back and I plugged in words like Higher Education Act or HEA and found that the actual plaintiffs in the student loan case, in other words, the people who were challenging the student loan forgiveness program,

who were saying that under the HEROES Act, it was unlawful, their attorney said this, and I quote, the parties agree that the secretary can forgive debts under the Higher Education Act, and the secretary has never denied that he may follow the proper procedures and forgive the respondent's debts after his current program is declared unlawful. That's wild, Sarah. He's saying the parties agree. Now, the party's agreement doesn't make it lawful. The party's agreement in a previous case involving a different statute does not mean that different parties can't come forward, challenge this

provision or this program and be heard. They absolutely can. But that was fascinating. And when you actually, as you invited, Sarah, say, look up HEA and Higher Education Act in the actual transcript. This is a theme throughout. And the theme is essentially, he didn't do it the right way. He went Heroes Act without notice and comment rulemaking.

If he wants to do this the right way, he should go the Higher Education Act and use notice and comment rulemaking. And that was a theme of the oral argument. And here, what he's doing is he's using the Higher Education Act and going through notice and comment rulemaking. And it's fascinating. And why would you think that you have more ability to deal with this under the Higher Education Act? Well, part of the text of the act gives the secretary the power to, quote, enforce, pay, The power to, quote, enforce, pay, compromise, waive or release any right, title, claim, lien or demand, however acquired, including any equity or any right of redemption.

It's a pretty broad provision there, Sarah. So this is this is what what's the tattoo? The justice. Other cases presenting different allegations and different records may lead to different conclusions. But there are, you know, troubled waters ahead for the Biden administration in this. There's a reason that they chose the HEROES Act instead of the Higher Education Act in the first place. Yes. First of all, it's just the speed issue. They could do it under emergency powers immediately, theoretically, and they wanted to do it fast because that's, you know, more fun. That's why they chose the HEROES Act.

Under the HEA, they have to go through the Administrative Procedures Act. First of all, that can take, I don't know, roughly a thousand days to go through all this notice and comment rulemaking. But more than just the time, it's hard to go through notice and comment rulemaking without making any mistakes. Right. And it opens up a ton of litigation along the way. Anytime you have to go through the APA process, did you consider all of the factors on the other side? And, you know, your letter has to acknowledge everything. I mean, that's what happened in the Trump administration on several of the things that they tried to APA through. So, you know, A, it's going to take a long time. Watch for the Biden administration to try to do a lot of fanfare

about how they're going to do this and then note how it doesn't actually happen. And that's why the plaintiff's Mike Connolly from William, sorry, Constable McCarthy argued for the plaintiff's in that student loan case. He's the quote that you read. That's why he was happy to make that concession because A, he could run the clock out on them a thousand days and Biden doesn't win reelection. It doesn't happen. And two, okay, yeah, yeah. You have authority, like the legal authority to try to do it through the APA and you're going to give us so many different APA avenues to attack this. I don't need to attack whether you had the legal, the statutory legal

authority in the first place. So I'm happy to give away that argument. There'll be much better APA arguments. So they, I think it is simply true based on how they've described what they're going to do this time around, that they have the statutory authority to do it. Whether they can execute that statutory authority not just remains to be seen. Like we're not even on the first square of this yet. And also another thing to bring up is if he tried to do this 10 years ago, let's say it's 2014 and it's Obama-Biden

and they do this before the last decade of developments in administrative law, they probably could do it. Because remember, 10 years ago, Rational Basis Review of Administrative Procedure Act, a challenge or challenges to actions under the Administrative Procedures Act, that Rational Basis Review was traditional Rational Bas basis review, which meant we're just kind of seeing if there's any good reason for this at all. And rational basis review generally means the state wins. Well, what have we seen in the last 10 years? What have we seen, especially during the Trump administration?

As we've said many times, rational basis review has been taking PEDs. It is bulking up, man. It's early 2000s Barry Bonds right now. It is extremely strict, the modern version of rational basis review. And then also remember, Chevron may be on the way out. So that deference to agency decision-making on the way out. So you're going to have very bulked up rational basis review. You're going to likely have no Chevron. Ten years ago, this could have been done. And, you know, I think when the history of like the last 25 years is written, a lot of people will look back who are more left leaning and look at the Obama

administration and say that was the land of lost opportunities because they had for a period of time, not just both House and Senate majorities, they had a filibuster-proof majority in the Senate. And they got one big piece of legislation through. And that was really big. It was the Affordable Care Act. It was really huge. One really, and that was really big. It was the Affordable Care Act. It was really huge. But think of so many things that were left on the table. And honestly, the Affordable Care Act, I don't think added up to the political or even policy win that the Obama folks had hoped. Yeah, it's interesting. I would be interested to get some of these folks on truth serum.

Now, you know, more than 10 years later. The Affordable Care Act is part of the fabric of American life. People are now used to being able to get insurance no matter what kind of pre-existing condition, etc. More people are insured. Also, health care is costlier, but the cost curve actually has been going down on health care in some ways. It would be interesting to get them on truth serum and say, did it work out the way you wanted to work out? I expect they'll say in some ways, it would be interesting to get them on truth serum and say, did it work out the way you wanted to work out? And I expect they'll say in some ways, yes, some ways definitely no. But also under the truth serum, I bet you would say, and we could have done immigration reform. That's exactly what I was thinking. You could have done immigration with that. Oof. Yeah. All right, David, next up, we talked about originalism and the alternative to originalism coming from the Warren court era and how really the Warren court era births originalism in a lot of ways as a reaction to an effect that the alternative to originalism is the Warren court, as if that were bad. Just a thought. For someone of my viewpoint, that would mean Brown, Miranda, Mapp, New York Times, and more. Sure, that would include Roe. Warren was gone,

but same era. Roe caused a lot of turmoil and political disruption. I am sure we can agree on that. The other cases stuck, and we are better for them. Just saying, not expecting to change your mind, just a contrary thought. So I immediately was like, oh, no, no, no, that's not at all what I meant. I was trying to be, I think, just more descriptive, right? Like the Warren court excesses, I'm sure that's what I said, and I'm sure that was taken to me bad, is what sort of creates the counterforce that births originalism. But I guess I think what I didn't say and what I definitely believe, of course, there were great cases from the Warren Court era that I think were better for. I mean, Brown v. Board of Education, like, obviously.

But yeah, look, even Miranda, New York York times V Sullivan's, the defamation case. Uh, there's plenty of others that, um, either I think we're better for, or I don't think we're worse off for what I guess I would say though, is that the Warren court era judicial philosophy clearly can make bad cases and good cases. And so can originalism basically all judicial philosophies can have good outcomes and bad outcomes depending on your policy preferences. And so then we have to ask, okay, what is the process behind them? Is it consistent? And I think that part of what the negative reaction to the Warren Court was, was that there was no process. It was the nine platonic

guardians model. It was like, we picked these nine people for their wisdom to sit on Delphi and just, you know, give us their best thoughts on how to run a good country who aren't elected. There's no real way to remove them. And then original was like, what if we have a process and we just sort of agree on these first principles that we look to the text, we look to the Constitution, we try to determine what they were doing. And then we have to follow that unless you amend it or Congress reacts to our decisions. And so it's not that I think one produces like originalism only produces good outcomes. The whole point of originalism actually is that it shouldn't always produce good outcomes,

like your policy preferences. And the Warren Court, even though I don't think there was a process slash don't like the process, of course can produce good outcomes because it was the nine platonic guardians trying to do the right thing. I don't think anyone on the Warren Court was trying to do bad things, but it's how you end up with political disruption because they're just sort of divining goodness. So I have a theory, Sarah. Are you ready for my theory? Yes. A true originalist court would have reached many, if not most, certainly not all, but many, if not most of the same outcomes and would have triggered a very similar backlash because the backlash at that time was not related to originalism. It was related to outcomes. time was not a region related to originalism. It was related to outcomes. So the anger at the Warren court, yes, there was the nine platonic guardians, but the real anger was the actual outcomes in the

case, particularly like from a law and order perspective, from the sort of establishment clause school prayer perspective. Many of these outcomes really, and then certainly Brown created a huge backlash in the South, for example. So a lot of the fight over the Warren Court was not, how dare you reach Miranda through progressive means? It was how dare you decide Miranda? You know, how dare you decide Brown? And so the interesting thing is, Sarah,

when you actually have some of our more originalist justices, what has been the outcome of their decisions in the very arenas where the Warren Court generated some of the most anger in criminal justice, they have been siding consistently with some of the more progressive justices in these criminal procedure areas. criminal procedure areas. And so if you lift out one of the judges of the Warren Court and put back in Neil Gorsuch or you put back in Antonin Scalia, definitely you wouldn't have had Roe or Roe wouldn't have been decided by the same margin. But I really question whether history would be that substantially different on the actual outcomes of a number of these cases, particularly Brown, particularly some of the criminal procedure cases. Okay. So Miranda, we all know the Miranda rights, right? That's pretty much made up out of whole cloth that you have to tell someone their rights. So I don't know if I agree with that one. Map the Ohio is the exclusionary rule of evidence as illegally collected or seized against you in

violation of the Fourth Amendment, then that can't be used at trial. We've talked about how the exclusionary rule is totally a textual and that the sort of more originalism remedies for illegally seized evidence would be a civil lawsuit, but that like we don't let the guilty person go free necessarily. And then we've talked about the counter to that, right? Then like everyone's just going to go try to make sure that the guilty person go free necessarily. And then we've talked about the counter to that, right? Then like everyone's just going to go try to make sure that the guilty person goes to jail and like F the fourth amendment rights, which causes a whole nother problem. So MAP is one of those cases where I don't think it comes out the same in originalism world. And I actually think I do like the way it comes out in real life in our world. Um, because I just don't know how you really incentivize

protection of Fourth Amendment rights, because I don't think civil lawsuits necessarily do that. But Brown is where the rubber hits the road, because I just want to read the text of 14th Amendment, Section 1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws. I don't see how Brown doesn't turn out the same way in an originalist court, except for the fact that a previous court had basically written out privileges

or immunities. So if privileges and immunities don't exist, no state shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States. To me, you know, Plessy v. Ferguson, Brown v. Board of Education, so clearly separate but equal violates the privileges or immunities of citizenship. But even if we don't have that, nor deny any person within its jurisdiction the equal protection of the laws, meaning but for your race, you would have not been arrested in that car. Well, then the law didn't protect you equally like separate but equal doesn't is like an oxymoron under that clause regardless. Right, right.

I have heard over the course of my career, numerous originalists say Brown would not have come out, even originalists saying Brown would not have come out this way under originalism. And that has quite frankly stumped me. Sarah, I have literally been stumped as you read these, as you read the text of section one of the 14th amendment, privileges or immunities, A, if it's actually originalist, then originalist court would reverse prior precedent writing privileges or immunities out, right?

Right. the idea that Brown would have come out. And again, an originalist listener who thinks that Brown would have to come out the opposite way with originalist thinking, please explain in the comments. I'd be very interested to read that. But that has consistently stumped me, even after I've read some smart people make the argument, it has still stumped me. I think the interesting thing about some of these cases like Matt v. Ohio, Miranda, Gideon v. Wainwright, you know, which is the right to counsel. Right to counsel. Is an originalist would absolutely agree that there exists a right to counsel. An originalist would absolutely agree that unlawfully seized evidence, that there is some, there has to be some consequence for unlawfully seized evidence.

Otherwise, the prohibitions have no force in effect. It seems to me that some of the stuff you're talking about is an originalist outcome, but not necessarily an originalist remedy. Yep, yep, yep, yep, 100%. Yep, and that's, to me, the interesting element of the Warren Court and sort of the originalism in the Warren Court. But the interesting thing is some of the remedies. So what if the remedy, because in an originalism perspective, you don't have qualified immunity in originalism.

That's right. in originalism. That's right. So some of the remedies might be actually more draconian than you have now. And so it's not exactly clear to me that both the outcome and the remedy would put us in a substantially different position today because the outcome of a lot of these would still be the same. And we don't know what the remedy would be. But if it's an effective remedy, then are we kind of sort of in the same position? But I'm laughing because the quote, real originalism has never been tried before comes to mind. And also that I think we probably to listeners sound a little bit like the libertarian, you know, real libertarian people. They're like, yeah, but you wouldn't have a fire department. Yeah, I know. It's like libertarianism works beautifully in libertopia.

Originalism works great in originaltopia. We're talking about originalism in its purest form versus Warren Court platonic idealism in its purest form. And it's sort of the what's the what's the term like the the benevolent dictator? Like if you actually could pick the nine wisest people in the country to be Supreme Court justices, then the Warren court model works pretty well. But we can't all agree on what wisdom is and we can't agree who those nine people are. And that's why you need some sort of process based judicial philosophy, in my view. Yeah, even if the outcomes, even if the outcomes on the whole would be better under the Warren court, I would still favor something more like originalism or at least a process based decision because it's something we can like haggle over,

agree on, come to terms with and feel some buy-in over. And the non-platonic guardian, the non-platonic guardians, you have, there's no accountability and there's no buy-in and there's no even knowing what, like how they're deciding cases. Yeah. The way I described it to my wonderful class of lifelong learners at Lipscomb University, whom I'm teaching the foundations of the American founding, originalism is a framework.

It is not, it is not an, at its best, it is not an outcomes-based philosophy. It is the rules of the road. It's how you navigate from A to B. And I think a lot of people don't quite realize that. When they think originalism, they think, oh, I get, especially if they're conservative, they think, oh, I get the outcomes that I like. But it's a framework. Much like liberal democracy

is democracy with guardrails. Originalism is adjudicating with guardrails. Yes. All right. Next up, we have the rest of our high school classes questions. Again, thank you to Jack and his high school government class

for sending in these questions. They're just awesome. So picking up where we left off on question number six, do the courts have an order of importance they decide cases in, or is it in the order they hear the cases? Ha ha ha, Jack. Neither. The Supreme Court releases opinions in the order that they finish writing them, which is a really unsatisfying answer because we don't know how long it takes them to write them. So you kind of got to take that one on faith slash all the Supreme Court clerks that tell us that as well. Here's why it can feel like they release the most important decisions last, because not just the writing process for the majority opinion takes

the longest, though it might, because if it's the most important case, quote unquote, it's also probably very legally complicated to get there. But it's the back and forth between the chambers, because remember, the majority, you know, justice will circulate that draft opinion, and then the concurrences get circulated, then the dissents, then the majority, you know, changes their opinion based on the dissent. Well, now the dissent wants to change their dissent based on how the majority just changed the majority opinion. And that can go for many, many, many rounds until everyone's satisfied. even though they tend to follow the, it's done when the writing's done. So in theory, it should be the order in which they heard them. In reality, it kind of comes out in reverse importance order.

And in truth, it's just how long it takes to write them. Right. And, you know, when you were talking about all of the oral arguments coming up this month in April, this is actually how I like to have the really important cases where it's they're arguing them in April and then deciding them in June rather than there's a faster turnaround because they got to get it done before the end of the term. So there is the faster turnaround. Yeah.

I hate it when it's a hugely important case argued in October and then we're waiting to the very end of June. That's just a long time. It's a long time for impatient podcasters, Sarah. We need our content. David, I have great news for you. We have two hand down days coming up. So for our next podcast, we will have had an opinion hand down day. So get excited. Music. Music to my ears. All right. Next up. Do the justices still wear the wigs? Not in this country, Jack, because F the British. They do still wear the wigs? Not in this country, Jack, because F the British. They do still wear the wigs over there. Here, they don't wear wigs.

They do wear black robes and they can embellish those black robes. I think that's kind of interesting because the history of the black robes, which obviously predates the existence of the United States of America, are actually supposed to be metaphorical or whatever you want to think of it. The black

robes are supposed to anonymize the judge, as in you don't look at their clothing or how fancy they are or how, you know, whatever. It's just sort of a head and a floating black robe person. And so all of the judges are the same, right? The law is, you know, justice is blind, is the idea behind the black robe. So the embellishments on the robes, whether it's the William Rehnquist stripes, because he was chief justice, or the Ruth Bader Ginsburg doilies, which were delightfully adorable, to me actually violate the purpose of the black robes. Well, but you would embellish yours, right? How would you embellish your robe?

Because I have, I know how I'd embellish mine. Okay, how would you embellish yours, right? How would you embellish your robe? Because I know how I'd embellish mine. Okay, how would you embellish yours? Flare, like I'm a TGI Friday's waiter. Guac is extra, yeah. I'm going to have, that's right. I'm going to have like some random campaign buttons from old campaigns. I'm going to have like a championship button

for the Cleveland Cavaliers in 2016 for no reason. It's just, you know, flare. I'm going to have some good flair. Throw in some Star Wars and Lord of the Rings buttons. Yeah, absolutely. I feel like I would not embellish the robe because as I said, I believe that the robe actually serves a symbolic purpose.

Instead, what I would look for are the sort of turn of the last century hairpins. And I would have like large owl pins sticking out of my hair or an ocelot. So I would be probably advertising different endangered or threatened animals to raise awareness with my head pin. Which is the exact opposite of the anonymity.

But you are retaining the integrity. I didn't change the robe. That'd be like saying, well, I'm not going to wear the robe. I mean, the robe is going to be black, but I'm going to be on the bench in Mickey Mouse ears, Sarah. That's right. Yes, that's pretty much exactly it. All right.

Question eight. What measures are in place to prevent bribery and or corruption? Parentheses. This one was worded more harshly when it was given to me. I tried to capture the question without the harshness. You know what, Jack? We don't mind that question in the harsh form. And I think everyone can imagine the question in the harsh form, given the news around justice ethics that have been out there lately. So a few things. One, something can be true, but the motives for the person doing it are still worth considering. So I want to talk about the

motives first. The motives for attacking Supreme Court justice ethics right now seem to me to be a way to delegitimize and undermine the institution of the Supreme Court by those who don't feel like they're winning anymore at the Supreme Court. And so I don't like those motives. That being said, just because their motives are bad doesn't mean they're wrong. And we've talked about a lot of these ethical problems that are on a spectrum, right? Some of them are like bonkers town, unreasonable, crazy, like Neil Gorsuch selling his house to someone through an LLC that he co-owned with some other people to a guy who turned out to be a lawyer. And there was no way for either party to know who the other party was. And that disclosure, we talked about that in a previous episode. We can put the date in there if you want to hear

about that one. And then I think on the other end of that spectrum, David, our, you know, Justice Thomas's mom's house being renovated and the houses on her block bought or renovated by a friend of Justice Thomas's and that not being disclosed. So to the question, what are the measures in place to prevent bribery and or corruption? I'm going to give you a few. One, public scrutiny, right? Like this is the process. Right. Two, impeachment. The way to remove a judge is to bring articles of impeachment in the House and convict that person in the Senate. In fact, over the history of the United States, I'm going to get the number slightly wrong, but like 15 judges have been impeached and I think eight have been removed, something roughly in that. So far more judges versus anyone else have actually been removed based on the impeachment power.

And the third way is the ethics rules that are sort of voluntarily imposed and followed by the justices. But I still think that's remarkably effective when they're written in a way and told to the judges in an important way, because, and this is maybe the overall theme of advisory opinions versus other podcasts, I assume, I think we assume that every judge wants to do a good job and is doing the job for the right reasons. You may disagree with what they think a good job is, just like I might disagree with the nine platonic guardians in the Warren court, but I don't think they took the job to like screw over the country or degrade the judicial system, whether I agree with the opinions or not. And so same here. I think judges

are all trying to be ethical. And they're certainly trying to be unbiased when they hear cases, but they screw up. And they don't follow the ethics opinions or the ethics rules are really ambiguous. So they just think, well, I know I'm not biased. And this person isn't going to appear before me. So it's fine. But that appearance of impropriety can still adhere and it can still stink. So I have 30 years of experience dealing with the judiciary and have 30 years of experience and to greater or lesser degrees dealing with Congress. And I'll put it like this. 30 years of experience with two institutions leads to different conclusions.

And conclusion number one with the judiciary is, I have a rebuttable presumption of bipartisan integrity in the judiciary. And bipartisan is not exactly the right phrase because they're not nominated and confirmed as Democrats and Republicans. But you know what I mean. I have a rebuttable presumption

that judges and justices nominated and confirmed by either party are people of integrity and uphold the code of judicial ethics. There's a couple of reasons for that rebuttable presumption. One, I think the culture of the legal profession is different from the culture of the political profession. There are the adversarial process, the way in which sort of the norms of the legal profession work. By the time you reach the position and prominence as a lawyer to become a judge, you have a reputation. You have developed a reputation within the profession. And that does work as a check on people who are grotesquely unethical being nominated and confirmed. The other thing is the actual adversarial process itself where you have two very capable opponents in a case

who are focused like a laser on picking apart everything that the judge does, locate, very keen to locate bias, very keen to ameliorate bias or to respond to bias, the actual process places every case, every case a judge is under more scrutiny than a member of Congress because their decision is reviewable. Then they're, especially if you're a lower court judge, if you're a consistently reversed judge, that has a bearing on your prospects for potential future advancement.

There's a lot of, there's a lot more accountability in a real world sense, Sarah, in the judiciary than people realize. Now, I know that there is sort of the stereotype of the U.S. federal district court judge and sort of they, you know, there was a song once about it on YouTube about sort of district court judges kind of drunk on their own power, et cetera, et cetera. That does happen. It does happen. But as a general matter, I think people don't fully appreciate the day-to-day scrutiny that a judge's decisions are placed under.

And the day-to-day, the battle, the day-to-day battle over their decisions and then the power of the fact that all of those decisions, or almost all of them are reviewable, it creates a dynamic that reinforces the code of ethics, that reinforces a culture of integrity. And all of those dynamics don't exist in politics. It's very different. It's funny, there's one federal judge, Sarah, that has been impeached and removed, impeached and convicted.

And you know what he did after that? ran for Congress and won. How appropriate, and won. And stayed in Congress until his death. That was Alcee Hastings, a representative from Florida who was impeached and removed as a federal judge and then entered his more natural home of the Congress of the United States of America. Oh, that's so depressing to me, huh?

Yes, so that's the difference to me in the two branches. I have a rebuttable presumption of integrity when I'm dealing with the judiciary. I have no presumption of integrity at all when I'm dealing with a member of Congress. So I was also going to mention that things didn't have to turn out the way that they have in our judiciary. So John Adams appointed the majority, in fact, all of the justices on the Supreme Court when he was president. By the time he'd left, that was six justices during the Adams administration. And of course, that included Chief Justice John Marshall,

who's kind of considered the father of the Supreme Court. One of those justices was Samuel Chase. Samuel Chase hated Thomas Jefferson. He was a Federalist through and through. You might want to think of him as the Clarence Thomas of the Federalist era and Thomas Jefferson, who was a Democratic Republican as, you know, the progressive wing. Jefferson takes office and heading towards the end of his administration, he'd only gotten one pick on the Supreme Court. So it was five Federalist appointees and one Democratic Republican. And Jefferson was like, I got a solution to this, boys. Let's impeach Samuel Chase. So they did. They had eight articles of impeachment in the House. The impeachment

inquiry was opened entirely on partisan lines, which, you know, boy, it's hard to imagine that ever happening today. And the eight articles of impeachment were all about things Chase had done in trials. Now, remember, Supreme Court justices at this point rode circuit. They did jury trials. You did it all.

In fact, your Supreme Court work was a minority of anything that you were doing. So, like, for instance, one of the articles was that he issued a warrant instead of a summons and that that was against the statutory language. Not that he did it like to hurt someone. It was just like a mistake. But that they argued in that article of impeachment that even an error could constitute an impeachable offense.

article of impeachment that even an error could constitute an impeachable offense. Now, the last article was sort of a fun one. It accused Chase of being, quote, highly indecent, extrajudicial, tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan. But notice none of the articles of impeachment were actually about that. They were all about his conduct as a judge and, you know, not allowing this material witness type stuff. If Samuel Chase had been impeached, Jefferson had said he was going to impeach Marshall next. The idea wasn't that these were bad judges or unethical judges.

It was, I don't know, they're not deciding my way. Like, I don't want an independent judiciary. I want, you know, I want a super majority in the Senate. I have the majority of the House. I have the presidency. I need that third branch of government, too. And that's what the impeachment of Samuel Chase was really about. As I mentioned, the Democratic Republicans did have that super majority in the Senate. They could have convicted Chase, but four senators voted against the final article of impeachment. And that was and then more senators actually voted against the other ones. And that was the deciding factor was these four guys voting against their partisan interest not to impeach Samuel Chase. So the impeachment of John Marshall

never happened. And we've maintained this idea that it really is life tenure for good behavior, not for correct judicial decisions. And that, you know, gets us to our Eileen Cannon conversation and everything else. We don't remove judges for being bad at their jobs because who gets to decide what's bad and will that person be making it for the right reasons? So I like the impeachment of Samuel Chase is probably more important than Marbury versus Madison in some ways. Interesting. All right, David, next up, is the court really divided 6-3? I feel like you've all heard my opinions so many times about the 3-3-3 court. Let's give David a chance on this one. Yeah. I mean, yes, in the

sense that it has six nominees that are Republican nominees and three that are Democratic nominees. that are Republican nominees than three that are Democratic nominees. But what we are now seeing is that it is not a neat 6-3. Of course, it was a quasi 6-3 for Dobbs, for example. It was really a 5-3-1, say, for Dobbs. There have been other cases where that 6-3 has occurred. But what we're seeing is, and what the numbers are telling us,

is that the 6-3 construct is now in many ways a fiction, that there is enough differences. There are enough differences between the six justices that are Republican nominees that it's just wrong to say that they're a monolith. That in fact, for example, Justice Kagan voted in the majority the last term more often than Justice Thomas did, which would not occur if this was this pure 6-3 court. Now, the reason why this 6-3 construct will continue to dominate people's minds is because there will be highly controversial cases that will have the 6-3 alignment. Not all of them, not even most of them, but there will be highly controversial cases that will have the 6-3 alignment.

Not all of them, not even most of them, but there will be enough that you'll see that 6-3 where that 6-3 construct will still be sort of the dominant way of looking at things. But when you really boil down and slice it, it is, you know, you've used the term 3-3-3 with three judges more originalist, three more institutionalist, and three more progressive, which I think is the best formulation. But however you want to slice it, what you're going to see over time is that 6-3 dynamic is just not going to be nearly as common, including for the very important cases than you might think. So for example, let's take Dobbs. Dobbs is not 6-3, it's 5-1-3, basically. So actually the majority for a reversing row is five justices, not six justices. When you talk about the 9-0 decision in the Colorado case,

it was 9-0 on the specific outcome, but it was a 5-4 decision on the reasoning, or really more 5-3-1 on the reasoning. So you'll find this again and again. And part of this, Sarah, I think is just the reality of group dynamics. When you get six people together, they're going to have differences. And often, the very fact that it's now a six justice majority as opposed to five, I think actually lends itself to more intellectual independence. There's less of a feeling of we five have to completely stick together. And there's more of a sense that there's more flexibility and room. So I don't think of it as six, three, except in that narrow sense. And in the limited sense, there will still be some cases that do

have that 6-3 dynamic. But by and large, that is not how the court decides cases. I'll throw out some statistics. So last term, there were 58 cases. Half of those were decided unanimously. Nine out of 10 were decided with at least one liberal justice in the majority. Nine out of 10 were decided with at least one liberal justice in the majority. Five cases, so 8% were decided, six, three with the six Republican appointees all on one side and the three Democratic appointees all on the other side. That was the lowest number of straight ideologically split decisions in the past six years. Kavanaugh was in the majority 96% of the time. The chief 95%, Barrett 91%.

in the majority 96% of the time, the chief 95%, Barrett 91%. They were the swing justices least likely to be in the majority, justices Thomas and Alito. All three of the liberal justices, Jackson, Sotomayor, and Kagan, were more likely to be in the majority than Thomas and Alito. And in terms of your monolithic thesis, David, I think there's really some evidence for that. If you take out the unanimous cases, the three liberal justices voted together in fewer than a quarter of all the cases. And the six conservative justices voted together even less in only 17% of the cases. cases. So yeah, I think thinking of it as a 6-3 court is actually even less accurate than when it was a 5-4 court for all the reasons that you said. All right, next up. What do you think are the most important influential Supreme Court cases? So we have another two hour podcast. podcast. Okay, I'll give my answer for high school students. Because I think if you're a lawyer, there's probably a few different in the weeds the answers to like modern legal practice. But number one, and there's nothing even close to it is Plessy v. Ferguson. That is the case that upheld Louisiana's Separate Car Act,

holding that separate but equal was constitutional. Some background on that story, by the way, it was a setup case. Some prominent Black citizens in New Orleans wanted to challenge the constitutionality of the Separate Car Act, which had been passed, I believe, in 1890 in Louisiana. As some background, remember, Reconstruction has failed after the election in 1876 that was basically a tie. In order to elect the Republican, Rutherford B. Hayes, they made a deal to pull out all federal troops from the South. So in the aftermath, really 1877, that's when you're going to see Jim Crow laws, lynchings start to increase. In fact, the highest number of lynchings in any decade in the United States was the 1890s, the decade that

we're going to be talking about. So it's under this backdrop that the Separate Car Act is passed, meaning that people of different races have to have different railroad cars. But there's a problem for this committee of prominent Black citizens who want to challenge the law. The railroads didn't like the Separate Car Act because that would mean they'd have to have more rail cars. And so they called the, not called, they informed the railroads that they were going to send Homer Plessy, who was one-eighth Black, meaning that one of his grandparents was half Black. That was enough under Louisiana law to have to ride in the black rail car. So they told the railroad that he was going to be riding their car and that he was in fact black regardless of how he looked. And as best I can tell, the railroad company was kind of like,

cool, bro. I don't know that we're going to care too much about that. So they had another problem. Even if there was an officer to arrest Plessy, what if they charged him with vagrancy or something and didn't charge him under the Separate Car Act, which is what they needed to challenge. So they hired a private detective to ride that railroad that day so that that private detective could arrest Homer Plessy and charge him with the correct crime. This was actually a thing back in the day that, you know, there were private police officers, basically, who would arrest people and charge them with crime. So the case isn't just like a setup

in our traditional sense of like, you sort of create all the facts that you need to challenge a law. This guy wouldn't have even been arrested, but for them paying to have him arrested by a private detective. So I love that background of Plessy v. Ferguson, because, you know, we talk about 303 Creative, or people are like, well, you know, these test cases are really awful. Like, okay, well, some of our most important cases, in fact, a disproportionate percentage of our important constitutional law cases were test cases. It's fine. All right. So why do I say Plessy v. Ferguson, which is not the outcome we wanted? Because I think that's important. Seven justices said that separate but equal was constitutional. And I think reading their reasoning and how sure they were that they were right is important to engage one's own intellectual humility and to

understand that these things that you take for granted, whatever they may be, like you just might be wrong even if all your friends agree with you, even if the vast majority of the country agrees with you. Question it because you just don't know what that's going to look like a hundred on years later. And second, the reason I think it's the most important case for high school students to read, of course, is because one justice dissented. John Marshall Harlan stood against all of the other justices, the culture, not just of the country,

but of where he had grown up in the border state of Kentucky. His story is incredible. And for high school students who are actually enjoying this part of my explanation, go read The Great Dissenter by Peter Kanellos to get the full biography of John Marshall Harlan.

You're gonna be even more in awe of what it means to have character and a sense of moral right and wrong, regardless of the world that you're born into and regardless of prevailing sentiment around you and what your friends think. That dissent is incredible. And I think it's the most important Supreme Court out there. It should remind us of all of the things, the good and the bad, getting things wrong, and what it means to be the person standing alone. It's what inspired

Frederick Douglass to send a letter to John Marshall Harlan that said one man standing with God is a majority. And that's the quote that I have in my son's bedroom. I love that. You know, and I think by bringing that up, I think it's very important in this period of history to bring up the fact that we have made catastrophic mistakes in this country in the past.

And there's this sort of Pollyanna-ish view that I think a lot mistakes in this country in the past. And there's this sort of Pollyanna-ish view that I think a lot of modern Americans have about the American experiment where they say, well, it all worked out. Look, you know, we had slavery. We don't have slavery anymore. We had segregation. We don't have segregation anymore. Like we're moving in the right direction. Everything's going to be okay. And okay, I will grant you the United States of America is a heck of a lot better place than it was when Brown was decided, certainly a heck of a lot better than it was when Plessy was decided. But one of the things about Plessy, it really was in many ways the final nail in the coffin of Reconstruction. And so you had

Reconstruction ending around 1877, the Compromise of 1877. You have Plessy in early 1890s. And then that was sort of the last chance to save literally two or three generations of Black Americans from the nightmare of Jim Crow. And so we can regress in this country. I mean, I'm watching Manhunt. Sarah, remember when we did the Manhunt book podcast? Of course.

Manhunt, the search for Lincoln's killer. Yes. And the Apple series is based on it. But they get one important thing wrong and one important debate they skip over. Okay, the thing they get wrong, Edwin Stanton is not, I was gonna use a pod inappropriate. Um, you would not be sexually attracted to Edwin Stanton as you might be in

Manhunt the show. Edwin Stanton had these little, um, spectacles and a super long scraggly beard. He was chunky, uh, but he was a force and again, had great strength of character. The second one, by the way, is in the show and in the book Manhunt, Edwin Stanton's famous line after Lincoln dies, now he belongs to the ages, is rendered as now he belongs to the angels. And this is actually a big debate among Lincoln scholars of which one was more likely to be said. A person who was in the room wrote down his memory right afterwards. His pencil broke and he was really upset because it meant he couldn't write down what everyone said exactly. But we assume he went home that that we know. He Now Belongs to the Ages was written down by Lincoln's two secretaries, Hay and I'm forgetting the other one. They wrote that down 20, 30 years later as He Now Belongs to the Ages. And that's the one, of course, we've all sort of committed to memory.

Yeah, it's a great show. I mean, I absolutely love the show. But one of the things that it shows is how almost immediately after Lincoln's death, the backsliding began. Because it shows the conflicts between Stanton and between Andrew Johnson. Andrew Johnson sucks!

Yes, Andrew Johnson does not come off well. Nor does he come off well in history. Another good book, The Impeachment of Andrew Johnson. I mean, there's a race to the bottom for the worst president. And I get why Buchanan normally tops people's lists. But I also think it needs to be considered. What do you call it in sports of performance over expectations? Oh, yeah. Wins above replacement or things like that. Right. In that sense, I think Andrew Johnson is the worst president we ever had, because you can imagine Reconstruction over Hannibal Hamlin, who was Lincoln's first vice president.

It was never meant to be Andrew Johnson. And even Reconstruction under Lincoln, there's endless academic literature on what it might have looked like. We never got a great sense for what Lincoln had in mind. But Andrew Johnson's the worst. Well, you know, one thing I love about these fictionalized where you have period accurate, but it's still a fictional, you know, it's still a movie. So there's fictionalized elements. But one thing that I did like about this is there's a difference between reading what it's like to say that the 40 acres and a mule promise that Sherman

made was revoked. It's one thing to read about that and how terrible that was. It's another thing to sort of see it, the way they portrayed it, played out, and just how devastating that was to the freedmen because here you have a community of people who quite literally have nothing. They have nothing.

They have no opportunity to accumulate any kind of real material wealth in any meaningful way. And then here they get a plot of land, they get an animal to help work the land. And, you know, that was especially then the key, the key to wealth. And in many ways, it's a key to wealth now. I mean, most listeners here, their house on their land is going to be their biggest investment of their life. It's going to be the cornerstone of their household wealth. And to dangle it out there and then to just yank it back is just one of the more tragic moments in American history.

And, you know, it goes to this notion that we can backslide. We can absolutely backslide. And Reagan was aware of this. He said, the defense of liberty requires constant vigilance. And I think that this moment in American history is a question of, is this a backslide moment? Is this not a backslide moment? And I'm glad you brought up Plessy

because that shows how our most powerful institutions can completely undermine the democratic experiment for generations, for generations. recently. I can't possibly answer this question. It's not fair. I was like picking among favorite children. I thought that Jack already has picked the one that I would pick for high school students, which of course is angry cheerleader. Oh, that's fantastic. So Jack, you already know that one. So David, what, what would you pick other than angry cheerleader for a high school class of most interesting recent Supreme court case or cases? Well, the one that's not been decided yet Rahimi. That's what I was going to pick. We're on mind meld. It's the mind meld.

It's the mind meld. Because Rahimi really is going to drill down into what does this text history and tradition thing really mean? I mean, this is one of the most intellectually interesting, legally significant kind of nerd disputes, arguments that is existing in the legal profession today. And what is text history and tradition and getting some more clarity on that. I'm going to be

like, if you're a nerd, you are on the edge of your seat on waiting for that. Cause I think the case is going to come out against Rahimi, against the person who had the domestic violence restraining order entered against them. I think they're going to lose, but why? How are they going to lose? That's what's going to be so fascinating. All right. So that was so much fun. Thank you again to Jack's class. I don't even know what state you guys are in. But I had a lot of listeners, you know, write in comment, what a cool government class you guys must have that you went through this experiment and sent us all these questions. And we're so grateful. So thank you guys must have that you went through this experiment and sent us all these questions. And we're so grateful.

So thank you guys. That was really fun. And if there's some other high schooler listening out there and your class wants to do something similar, let us know. We're about to head into kind of a busy season. So maybe we can't do 11 questions next time. But yeah, you guys agree on a question or two. And we'd love to do this.

We love our high school listeners. And for you three or so junior high school listeners out there, same applies to you. My history teacher in eighth grade was one of the most influential people on my life. She weirdly taught us both history and English. And that's how I memorized every amendment to the Constitution was because of her, the preamble, all that stuff.

So thank you, Mrs. Healy. I know you're still out there. I doubt you listen to the preamble, all that stuff. So thank you, Mrs. Healy. I know you're still out there. I doubt you listen to this podcast. Oh, sure she does. I'm sure. I'm sure. Yeah. But I actually, I will bet dollars to donuts that there's someone out there listening who also had Ms. Healy and will confirm that she is the best teacher in America. So, ha. With that, thank you so much for listening to Advisory Opinions.

As I said, we're gonna have Supreme Court decisions, the start of the Trump jury selection process, and we're gonna start hearing oral arguments in what are some of the biggest cases of the Supreme Court's term next week. So it's gonna be a busy Advisory Opinions. I'm not gonna promise an emergency pod, but it feels, you know,

like when the sky turns kind of green, David, and you're like, is a tornado coming? That's what's happening in my brain right now when it comes to emergency pods. The sky is green. Oh, it's so green. It is absolutely so green. Expect some emergency pods in the next several weeks.

And with that, I'll talk to you all next time.