Advisory Opinions - Religious Liberty and the Execution Chamber

Episode Date: March 29, 2022

David and Sarah welcome a special guest, Seth Kretzer, the lawyer who argued and won Ramirez v. Collier, the Supreme Court term’s biggest religious liberty case (so far). Sarah and David also talk about Ginni Thomas’s texts, vaccines at the Supreme Court (again), free speech, and Will Smith.   Show Notes: -David in The Atlantic: “The Worst Ginni Thomas Text Wasn’t From Ginni Thomas” -Houston Community College System v. Wilson -Ramirez v. Collier Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And Sarah, you sound better in the green room. You sounded great. How do you feel? I've got a cough drop in my mouth, and I've also got them next to me. But David, I think we are on the mend. I'm still not recording from my normal podcast space. I am still propped up in bed. You know, it's funny. Someone else had told this to me, but I sort of didn't pay attention that like for some people, at least about seven days into COVID, you have kind of a regression and you start feeling bad again. And I was definitely laid up again yesterday. So I don't know. We're heading in the right direction overall, but it's a bumpy road.

how variable people's experiences are. For me, I had three and a half days where I felt bad. I felt bad. I feel like I cycled through every COVID symptom you'd ever Googled except loss of taste and smell. And then all of a sudden, around noon on Friday,

it just stopped. Like it was just over. I was 95% well and I stayed at 95% for like the next six or seven days. But it's so different, people's experiences. Well, thank you for all the well wishes in the comments section and the tweets. It was so heartening.

Thank you. And to the person who said that listening to one of the ads that I read made them reach for a suit of bed. That made me laugh. I saw that comment, and that was funny. That was hilarious. Apologies to our sponsors. Well, we've got a lot to cover.

So a lot to cover. And we've got, this is a truly action-packed podcast. We've got a guest. We have Seth Kretzer who argued Ramirez versus Collier. And we've got, this is a truly action-packed podcast. We've got a guest. We have Seth Kretzer, who argued Ramirez versus Collier. This is a case that Sarah and I talked about earlier, a case that he won eight to one, where his client was a condemned man on Texas death row who wanted an audible prayer and for his pastor to lay hands on him in the execution chamber. And he won the case eight to one. So we're going to table that discussion. We talked about that case quite a bit

back in the day, but we've got a number of other things we're going to talk about. We've got the Jenny Thomas texts that's coming, and we've got a couple of other Supreme Court decisions that are really pretty simple. We have this case called Houston Community College System versus Wilson that was unanimous. We can briefly talk because we talked about this case before. The Navy SEALs who don't want a vaccine are out of luck, and we'll briefly talk about that. We might get to the Will Smith slap. We'll see how time goes. But Sarah, let's start with the Ginny Thomas texts. We're getting a ton of questions about these things. I wrote about them late last week. Really from a standpoint of the most troublesome

thing to me was actually the Mark Meadows response to Ginny Thomas, which I can briefly get into. But wow. Wow. Where to begin? Look, I think we need to separate this into a few A.O. buckets. Yeah. The first A.O. bucket is the prudential aspect of the text. I don't think anyone, the Wall Street Journal editorial page, isn't arguing that these are good texts. They called them embarrassing. I don't think there's anything to defend around these texts when it comes to that. At one point, she's sending to Mark Meadows a quote that had been going around, I guess, conservative circles that the Biden co-conspirators were getting rounded up and sent to barges off Guantanamo Bay. What? That's bonkers town. And the fact that she believed it isn't good and embarrassing.

The fact that she thought that she needed to tell the White House Chief of Staff is bizarre because if you think it's true, shouldn't the White House Chief of Staff already know? At one point she's saying, don't the white house chief of staff already know? Um, at one point she's saying, don't concede. The army has his back again, like same thing,

right? An embarrassing thing to think and say and believe, but also why do you think you're telling the white house chief of staff that so plenty of stuff around that. Um, but David, there's a second more important part to this, frankly, because at the end of the day

a private citizen sending embarrassing texts even to a white house official you know is what it is i guess it's fun for gossip or something but it's not particularly relevant and it wouldn't make this podcast right but she's the wife of a supreme Court justice. And the question is, what responsibility, ethics or otherwise, does this put on Justice Thomas at this point? And so two things on that. Records Act that are currently being kept by the National Archives needed to be turned over to the January 6th committee and whether the president, former President Trump, had the ability to assert executive privilege over those documents. Justice Thomas was the sole dissenter. He didn't write in that case. We don't know why he dissented. And a whole bunch of people jumped on that as proof that he was compromised in some way, corrupt, whatever else.

A few points on that, David. One, these 29 texts were not part of that tranche. Mark Meadows voluntarily turned over texts from his personal phone. These were part of that. So they weren't actually part of that case. But David, as others have pointed out, Justice Thomas didn't know that, in theory. And so the reverse of that, though, is did Justice Thomas know that his wife had been texting with the chief of staff at all about these things? As in, did he know that that tranche of National Archives text could include texts from his wife? That's just a question we don't know the answer to. We can talk about a little more. Second, moving forward, is there any ethical obligation for Justice Thomas to recuse? And here's, David, where I would note I'm a bit of an expert on at least some recusals given my previous job at the Department of Justice.

And it's something that I had a lot of trouble convincing reporters or at least making them understand my point. You don't recuse from topics. You recuse from cases and matters. Yes. In the Department of Justice, the matters thing is a little bit more relevant. But you don't just, you know, Michael Scott style, I declare bankruptcy. You don't just recuse. Now, if you're a judge, when you take the bench or if some new obligation comes up, you would send a note to your clerk to screen you off of certain parties to cases. You know, if you own stock in

Exxon, you would send a note to your clerk saying, make sure that if Exxon is a party to any of these, that I never even see it, that it just goes back. When I got married to husband of the pod, my dad then informed his clerk that he now had a son-in-law who could potentially have cases. So far, so good on the bankruptcy side here, with the new law firm at least. That's not to say it's black and white, that a case has to come up, the judge sees it, and then they recuse. But they don't recuse from topics, they recuse from cases. And so then, David, there's both what are the ethical obligations of a Supreme Court justice as opposed to a lower court judge? And two,

how would this come up in a way where Justice Thomas would be required to recuse? And maybe you find the Justice Thomas should resign part interesting, but I don't particularly because I'm not totally clear on why Justice Thomas is implicated in any of this in terms of resignation. Right. No, I think the justice Thomas should resign thing is, is, um, frankly, kind of absurd.

Um, you know, I, I said this on the main dispatch pod, if there's anybody on the court who has a coherent judicial philosophy that is strictly, that is, judicial philosophy that stands squarely in the stream of a coherent, conservative orthodoxy, jurisprudential orthodoxy, it's Clarence Thomas. I mean, this is a guy, he's an originalist. He is one of the most respected originalists in America. There is

no trace of this wild conspiraciness that we saw from these texts in Justice Thomas's jurisprudence. The one thing where I do think, if I'm looking at it from the outside, his dissent, his lone dissent in the presidential records case is troubling in hindsight. But again, we don't know what he knew about his wife's texts and who his wife was texting and what exactly she was doing around January 6th. And everyone who says, well, you know, he knew everybody knew he had to know. I mean, they live together. I mean, Nancy, she's a professional. She's got a career that she's doing work every day. And I'm not picking up her phone and reading all her texts. I don't have 100% situational awareness in all that she does.

And we work together on things sometimes. And so I do think, however, now that we have seen the text messages, now that they're out there, now that there's no question, we now know she attended the January 6th rally. We now know she was texting Meadows. My own thought is going forward on January 6th related topics, especially those regarding communications, he should recuse. That's a topical, I mean, it's a January 6th related cases. I don't want to say topic because getting an appeal of a criminal sentence against a proud boy, for example, I think is something different.

But there are certain matters where his wife could be implicated and he should recuse going forward. Whether he's required as a Supreme Court justice, that gets tricky. But as a matter of the appearance of impropriety, confidence in the court, I think it's a pretty easy call layup that he should recuse going forward there's another aspect of this that i think is interesting david there's been two long profiles of jenny thomas in the last six weeks kind of out of nowhere and i think it's fair to characterize them as hit pieces you know detailing her work and how her work, um, you know, there was a lot of buildup that there was going to be smoke. I never found a lot of

smoke that somehow she is financially entangled in cases that are appearing before the Supreme Court. That case was never made, at least for me and either of those two pieces. And like, why now? Except that then, you know, six weeks, a month later, we've now got these texts, which were leaked from the January 6th committee. They weren't released by some, you know, court documents. They weren't on Pacer. I don't love the precedent being set in terms of if you want a justice to recuse themselves you lay this groundwork attacking their spouse and then leak embarrassing things about their spouse and aha now you can get a justice to recuse themselves because of any situation where something might embarrass their spouse which wouldn't have embarrassed their spouse, but for all of this groundwork that had been laid.

You see my point, I guess? Right. Yeah, I see your point, but I'm still of the mindset that the responsibility here, if you've got the weight of responsibility, hello, Jenny Thomas. I mean, you know, is having a couple of hit pieces and a leak, is there something about that that vaguely bothers me? Yeah. What bothers me 100% more is what there was to leak.

You know, that this was really, really unhinged stuff. And it's of a totally different, it's of a different category in many ways because of how extreme it was from the more common kind of argument, which is he shouldn't, we've always heard in, in those of us who've been around these issues for a long time, we've always heard this argument. Jenny Thomas is a conservative activist and Thomas, Clarence Thomas should be recusing himself from all of the areas where she's an activist. Well, that wasn't really a standard that's been applied broadly. I mean, there's a really kind of a famous example of Judge Stephen Reinhart at the Ninth Circuit.

I don't know if you remember this, but his wife, Ramona Ripston, was the longtime head of the ACLU of Southern California. And he didn't step aside from the Prop 8 case, even though the ACLU filed friend of court briefs in the same case. And there's this sort of idea that, look, I mean, the fact that a spouse is an activist in an area is not the kind of direct personal sort of interest in an issue such as ruling on something where your spouse could actually make money by granting judgment in favor of one of the plaintiff or a defendant. And so there's long been that argument that I think just on both sides doesn't have that much merit, which is your spouse's activism can disqualify a judge. But then you cross a line of an extraordinary amount of extremism that then puts the spouse in the middle of the fact pattern of the issue in question. fact pattern of the issue in question, that's where, that's what it crosses over for me.

And I think Jenny Thomas's irresponsibility here is, is really the core story. And I have a lot of, um, sympathy, uh, or I, I've, you know, I, I don't know where justice Thomas is in all of this. He spent decades on the bench and has had no, I mean, his integrity on the bench has been without question. And so I feel awful about this situation. But Jenny Thomas is responsible for Jenny Thomas. And this stuff was just way beyond the pale. And so when you talk about cases that he would need to recuse himself from moving forward, you gave the example of, for instance, an appeal of a trial related to a January 6th defendant. You don't think he would need to recuse himself from a criminal trial related to a specific individual who was at the Capitol on January 6th? I don't think so,

unless there were some element that, because there are hints that more might be coming out. So we don't know that we have the whole universe. I think if you've got one of these simple sort of trespassing type cases where Maga Jane breached the Capitol

and walked around and left, but if it's one of these more top-level, seditious conspiracy-type cases where there's some possibility of communications at running across government, boy, that's a closer call. What about something related to the January 6th committee and their work trying to, let's say, subpoena former President Donald Trump?

I think he should recuse. I think he should recuse because at this point, you know, this is somebody what we have is there are references in there apparently to where she was also. to where she was also, by implication, she was talking to Jared Kushner, talking to Mark Meadows. We don't know the extent of the communications. And it's one of the, and does Clarence Thomas know? Has he sat down, Jenny, and said, tell me everybody that you talk to.

Lay it all out for me. You have to tell me everyone you talk to. I'm just very uncomfortable with him being involved when the communications that she has made have been at such a high level. We can't be sure that she's not implicated in these, in those matters. And by implicated, you mean that she has communicated with someone not criminally implicated? Not criminally implicated, you mean that she has communicated with someone, not criminally implicated.

Not criminally implicated. In other words, that this would be personally humiliating to her. And I think that's enough of an appearance of impropriety for him to step aside. All right. Well, I'm sure it's not the last time we'll be talking about it. You put the ball in my court. Let me volley it back to you. I don't know.

I find the text so upsetting, but also silly. I need to think more about it. And I mean silly, by the way, not to minimize what was happening on January 6th, obviously. I mean silly in the sense that she has no position of authority. They were ludicrous. If they had come, you know, a DM from someone on Twitter, it would have looked the same. It's absurd, I guess, rather than silly, is what I mean. And so what that means for recusals, again, I am uncomfortable with anyone who's able to nudge for a judge to get off a case. And so I just want to think through the implications of what it means to leak texts from a judge's wife that were not otherwise in the public domain.

Yeah. What a terrible predicament she has put many people in. But yes, the texts were ludicrous. I was just talking to somebody about them right before the podcast, and I said, this is the stuff I saw on Facebook between November and January 6th, just all over Facebook, mainly from older people sharing ridiculous memes

and conspiracy theory videos. And the lack of discernment is just pretty staggering, to be honest. And it's very, very sad. It's very, very sad. David Latt, for his part, by the way, said that Justice Thomas should recuse in cases related to the 2020 presidential election and its aftermath, noting that Supreme Court justices are subject to 28 U.S.C. section 455, which provides that, quote, any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. And David says, even if you accept Jenny's claim that the Thomases keep their careers entirely

separate, the reporting about her active involvement in Stop the Steal efforts has now created at least an appearance of a conflict of interest, which didn't exist at the time that Justice Thomas participated in earlier election-related cases. Again, I think I agree with all of that, except for the fact of how we now know that it's different than before, agree with all of that except for the fact of how we now know that it's different than before is because a partisan actor you know subpoenaed someone for their personal records got those personal records and then released them for the purpose of recusing a supreme court justice i don't like that right right well i i mean I can definitely agree with you on not liking that. And it still doesn't change the fact that she did it. It's that's that's which is the core fundamental problem. And I would say I'm pretty close to David's position on the on recusal. Pretty darn close to his position. to his position. Fair enough. Well, Justice Thomas is out of the hospital. He attended oral argument remotely today. Not surprising, given I'm attending this podcast remotely from bed. Yes. And we wish him well. Best wishes on a speedy recovery. All right. Shall we go to

Supreme Court potpourri? Yes. Houston Community College. This is a fun one. Interestingly, David Latt also touched on this case. I just want to read part of the unanimous opinion by Neil Gorsuch. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. The right to examine public characters and measures through free communication may be no less than the guardian of every other right. David, this was a case in which the board for the Houston Community College

censured one of its own board members. He was a quarrelsome fellow. I suppose he still is a quarrelsome fellow. And he has garnered sympathy from nobody throughout this entire process. A little bit, David, this is another example of a bad plaintiff make bad law in the sense that boy everyone on the court wanted to find a way to rule against this guy and you know that because

at the end of the opinion this is the very last paragraph our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The board censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this court's precedent supports finding a viable First Amendment claim on these facts. Argument and counter-argument, not litigation, are the weapons available for resolving this dispute.

As in, David, we're keeping this very, very narrow because if this guy weren't so deeply unlikable and quarrelsome, maybe there would be a problem here. But not for you, dude. Yeah, exactly. Dude. Yeah, exactly. And just to put some context around this. Yes, he was a quarrelsome member of the Board of Trustees who was censured and claimed that being censured violated his First Amendment rights. The case never had a ghost of a chance in my mind because a censure is a form of government speech. It's a it's a form of speech itself. I mean, legislative bodies issue censures all the time, and they don't actually have much force of law. They're sort of saying, we disapprove of you, which is not a really constitutionally cognizable injury to be disapproved of.

But just to put some context, I love the way the syllabus very briefly describes Mr. Wilson, often disagreed with the board. So he's elected to the board of trustees of the Houston Community College System. Mr. Wilson often disagreed with the board about the best interests of HCC, and he brought multiple lawsuits challenging the board's actions. By 2016, these escalating disagreements led the board to reprimand Mr. Wilson publicly. Mr. Wilson continued to charge the board in media outlets as well as in state court actions with violating its ethical rules and bylaws.

So it goes on in how this all escalated. And I'm just imagining because- He hired a private investigator at one point to follow one of the other trustees. Yeah, yeah. So we've all, I'm sure you've been on a board before, Sarah, where one of the members was incredibly contentious. I've been on a board where a member was incredibly contentious. I've never been on a board where they were contentious enough to just repeatedly sue the institution. That, as they say in the movie, the legendary movie Anchorman, that escalated quickly. Yeah. So the idea that you can—

And he got his case heard by the Supreme Court. I mean, he lost 9-0, but in some ways he got the attention he was wanting, which is frustrating. But the idea that you can sue a state entity and the state entity cannot issue a statement against you, the censure, without violating your rights, that was one of the most well-deserved 9-0s that you're going to find. Okay.

It was a little gnaw-doggy. It was major gnaw-dog leaking from that opinion. Yeah. All right. Let's go on to Navy SEALs because we talked about this. It's actually an interesting case because, Sarah, I'm trying to think. If you wanted one phrase to characterize you in advisory opinions, is it Naughtog or is it 333? Like if you had your middle name, Sarah sarah na dog isger or sarah

three three three isger i mean na dog sounds better but three three three certainly has more intellectual oomph behind it yeah it's you know you're a trendsetter that's right yeah and and three three three kind of has a nice ring to it all on its own. And here we had a 333 case, big time. Yep. Really, it was 333 in the form of 63. So this was, Sarah and I talked about this case. This is with the request of Navy SEALs to be exempt, a RFRA claim, Religious Freedom Restoration Act claim, asking that Navy SEALs, a small group of Navy SEALs be exempt from the military vaccine requirement, be granted their religious exemption.

And six justices said no. Two justices. Well, this was more of a seven. It was not six, three, seven, two. It was not 6-3, 7-2. Alito and Gorsuch would have granted the application. And Kavanaugh really is, Kavanaugh was really the only part of this opinion where there was any sort of explanation for the majority.

And Kavanaugh concurring essentially said, look, the military is in command of the military. The court gives the widest latitude. This is a key sentence. The court should indulge the widest latitude to sustain the president's function to command the instruments of national force, at least when turned against the outside world for the security of our society. Not a hard case to analyze. In other words, I would boil it down to the commander-in-chief is the commander-in-chief, whereas Gorsuch and Alito were much more essentially saying, look, okay, we do grant a lot of discretion,

but the fix was in on this. There was never going to be any religious exemption granted. It's a sham process. This is profoundly unfair. There need to be further proceedings on it. We talked about this a bit, and I didn't think the SEALs had a ghost of a chance. When you're talking about who gets to deploy under what conditions and whether or not you're going to be inoculated when you deploy. It struck me that's core, core military function, core commander in chief decision making, where courts really pull way out of those kinds of decisions. Anything about this surprise you, Sarah?

No, because of the deference, right? This was not an opinion determined on the law. It was determined on deference to the military. Yeah, yeah. I think if you had the exact same scenario, even though the court has not been that hospitable, other than, of course, husband of the pod and his victory and the OSHA mandate, the court has not been that hospitable to vaccine challenges. The court has not been that hospitable to vaccine challenges. Although, David, this New York thing where the New York mayor has exempted professional athletes and entertainers from the vaccine mandate that's applied to anyone else, that seems ripe for challenge. Oh, yes. Yeah, that if you represent a big enough economic benefit to the city because of your job, then it's not a public health risk. But if your economic benefit to the city is simply your wages, then you are a public health risk.

That's a that's a gnaw dog for me. Oh, that is that's a gnaw dog with capital gnaw, a capital dog. Especially if you're, you know, a lot of these also include religious exemption challenges and when are religious exemptions granted or not? What's a neutral law of general applicability? You know what is not a neutral law of general applicability? One that says celebrities get bonus points.

That is not a neutral law of general applicability right there. The Kyrie Irving law of general applicability. Exactly. Exactly. All right. Shall we move on to our guest, a victorious Supreme Court litigant? Very exciting.

The horns proudly were displayed several years ago on the steps of the Supreme Court, but we'll get to that. Our guest has actually been mentioned on this podcast several times at this point, several times. Seth Kretzer is the guy who argued in the Ramirez v. Collier case, the case we're about to talk about. The opinion came out last week. If you remember, he is a graduate of the University of Texas Law School, clerked on the Fifth Circuit, Fulbright and Jaworski attorney. He's got the full resume, David. And as I think we're going to hear from him, the full Texas accent as well.

So I'm very excited to talk to him because if you remember, there was an emergency petition in this case that we talked about. Then we talked about the argument. And now we've got the opinion. So the full circle. Yeah. Well, Seth, welcome. And if you could kind of remind listeners about this case, what was at issue in the case? And then we'll sort of dive into the ins and outs.

Yes, David. What was at issue in the case? And then we'll sort of dive into the ins and outs. Yes, David, this was a somewhat unusual death penalty case in that this was neither a direct appeal or a habeas challenge to the death penalty. I had represented Mr. Ramirez at a very late stage of his federal habeas proceeding starting in the year 2017, all of which were rejected. And then his case came up for execution in early 2020. And at that point, this arose against a backdrop of a series of cases that had all arisen on the shadow docket, where various individuals, mostly of minority faith, such as Buddhists, wanted their spiritual advisor with them in the execution chamber.

And for decades, this was a, to say, unremarkable occurrence would understate the situation. The prison manual actually spoke in absolute language. The minister shall accompany the inmate into the execution chamber. As I understand it, that was never strictly applied. They never made someone have a spiritual advisor if they didn't want to. But for 37 years, hundreds of pastors ministered to imams and so forth, ministered to prisoners when they were executed and touched them and prayed and so forth. And in 2019, a Buddhist man, Mr. Murphy, wanted a Buddhist reverend and the state would not allow him to have such a Buddhist

reverend and told him he could pick a different pastor or just proceed without one. And that was stayed the last minute by the fifth circuit, by the Supreme Court. Then there were a series of cases back and forth between Alabama and Texas. About February of 2021, Alabama gave up. They just agreed to accommodate the inmates' various needs and requests. And Texas did not, but but they revised their policy so Mr. Ramirez had filed a suit in 2020 that we drew the suit in a reciprocal agreement with the state to withdraw his death warrant at which point in time Texas amended their policy again after we got the new death warrant and we litigated against that new policy only after it was discovered that there

were all these exceptions in the policy that did not appear on the face of the policy. So you'd only know about it by asking the prison guards one at a time. So you won your case eight to one, Justice Thomas dissenting. But this is, I mean, it's not particularly unusual, but it's unusual in such a high profile case to have an eight-to-one opinion. Anything stick out to you when you got to read it? Oh, yes. I was absolutely floored. No one was ever expecting this case to, one, get stayed.

If it was two, to get stayed, to have cert granted. This was only the second case ever taken up by the Supreme Court under the Arlupa, this law under which prisoners litigate for their religious rights. And then the arguments, the reviews after the oral argument in November were somewhat unfavorable. They thought the panel was particularly hostile. And they said, if I had any chance, perhaps we would be able to get Justice Gorsuch, who had written some very strong religious liberty cases when he was on the 10th Circuit. No one, to my recollection at least, expected that this would be a large margin, much less an eight to one opinion. I'm just curious from like a, I don't know,

background standpoint, did you get a phone call? How'd you find out? No, actually, a friend of mine, Rafi Malconian, emailed me the opinion before I got it. I think he was already tweeting about it. As I understand it, as best as I can assume, there's one office that actually uploads the opinions to the public information page. And about 20 minutes later, someone actually uploads the opinion to the docket sheet and then everyone gets an electronic notice. So, Rafi Malkonian texted me, congratulations. I said, what are you congratulating me for? He wrote back, you won eight to one. I said, how do I get a copy of the opinion? So he texted it to me. So I found out about this at like 9.02 a.m. last Thursday. I had no reason to know when the

opinion would come down, or that's how I found out about it was thanks to a friend of mine who texted it to me. So it seemed to me at reading the opinion that history mattered a lot here, just a ton. Was that a big focus of yours going in in arguing the case was sort of the noting that, as you said in the in the lead up in the description here? Look what we're talking about. All of these state concerns about catastrophic clerical involvement just don't really match with the historical record. That really seemed to me to be a big part of this was Justice Roberts sort of saying, wait a minute. I mean, the state's claims of potential harm are speculative to the point of meaninglessness. Yeah. What was what was sort of the core,

as you're coming, walking into this, what, you know, history is part of it. What were sort of your core arguments you were forming, you know, as you're coming into court? I think history played an argument on two different levels, David. First, there was almost an estoppel effect

of the state's own history. In other words, if this happened without incident and was permitted for 37 years, it's a little hard to see how it all of a sudden became a great danger right around the time that people started to prevail on these cases in court when it arose in the context of minority face. So if it was good enough for 40 years and nothing else has changed, it's a little hard to see where the history just sort of came on out of nowhere. I did not know going into this case and learned a lot in the case about the incredibly lengthy history throughout the centuries of having a spiritual advisor with

you at your execution. The example that was most salient to me was the fact that we gave the Nazis their spiritual advisors before we executed them after Nuremberg. I think to the court, perhaps it was impactful that George Washington gave the soldiers who committed treason to the British, their spiritual advisors, before we executed them. We even afforded the folks who were in the conspiracy to kill Abraham Lincoln, their spiritual advisors, when they were executed. Going back to ancient England, they let a pastor ride with you in the cart up to the rope. They put the rope around your neck and drove away. So you had your pastor with you literally until cart up to the rope. They put the rope around your neck and drove away. So you had your pastor with you literally until the very last minute. On the aspect of the laying on of hands, which was the original predicate under which we brought the 1983 suit, this is

Pastor Moore's religious exercise of laying his hands on all of his congregants before they die. I admit I'm a Jewish kid from Southwest Houston. I did not know any of these traditions before we got into this case. But some of the amici briefs that came in, it was really astounding. I mean, numerous faiths across centuries have had the pastors, the ministers, the religious advisors, and so forth, touch their members of their flock before they die or execute, as the case may be. So I think the state really was swimming up against hundreds of years of history across numerous continents older than the country itself. If you're looking for an originalist interpretation, that's about as

strong as you're going to get. Can we dive into Justice Thomas's dissent a little bit? As we said, it was 8-1. So we've only got one dissent that we need to grapple with here. Justice Thomas read several issues in the dissent, but the most powerful one perhaps was this idea that this was never about the laying of hands in the execution chamber. This was about delaying an execution and that, in fact, your client has been able to avoid execution for more than 10 years now as he has come up with various petitions, for more than 10 years now as he has come up with various petitions, all of which have been found meritless aside from this one.

So I guess part of the question that I have is, is this the last we're now going to hear legally speaking from Mr. Collier, assuming that the state backs down and says, fine, you can have your pastor, you can have audible prayer and laying of hands. Will that be it? Other than clemency, which I'm ethically required to file in every case, I have no other arguments to raise at this time from Mr. Ramirez. But the devil, Sarah, I think is in the details.

The ball is now literally in the state's court. They have to decide if they want to take Justice Roberts' lengthy recommendation at the end of his opinion for its work and say, you know, do you want to continue to litigate this? If they want to continue to litigate, and that's their prerogative, you know, I don't tell them how to practice law, but I think they would probably do best to really read this opinion and see the roadmap that the court gave them. In that sense, probably one of the most painful things to me having to read was the amici petition filed by the descendants, the children and grandchildren and so forth, of Pablo Castro, who was executed over 20 years ago. And I feel very bad, almost 20 years ago, 18 years ago, I feel very badly for these individuals. They started the day of September 8th in the Crime Victims Plaza in Corpus Christi and released balloons into the air, ceremonially casting off their grief, and then

drove some four or five hours to Huntsville until they sat there at 10 o'clock at night, at which point in time the Supreme Court stayed the execution. I don't think anyone had told them that this issue was out there, and I don't think anyone had told them that this issue was out there. And I don't think they really had an opinion on whether or not Mr. Ramirez could have a spiritual advisor with him. It wasn't something anyone had asked them if they thought it was a good or bad idea. And their amicus petition took no position on that. They just talked about how long the litigation takes. I mean, the wheels of justice turn slowly. That's probably true in civil and criminal and habeas and other form of litigation. I can only speak my exact words when

Justice Thomas asked me this question was, I don't play games. I mean, I'm just Mr. Ramirez's attorney. I've only been representing him since the year 2017. Pastor Moore, from his hometown in Corpus Christi, has ministered to him since 2016. And please don't underestimate how important that is or significant that Pastor Moore does this. He's just not any pastor that Mr. Ramirez found in the mail or something. He is from Mr. Ramirez's hometown of Corpus Christi. And this was a great crime that shocked the community down there. So Pastor Moore, for years, has driven out there to minister to him. Any delay here, I would submit, really the state bore a large part of the role in.

I mean, they prevaricated through, I think we counted five different policies over four years. They changed policies repeatedly to fit whatever they thought the latest irreducible minimum is that would make it through the net. And they clearly thought that they could, you know, sort of goad everyone on this policy. And as far as if you read the protocol that the state put out in April of last year, it specifically says any minister may come into the execution chamber. There's not a word in that policy about what a minister may not do, especially when for 40 years they were allowed to minister. So insofar as maybe

we should have figured this out a little quicker, well, I could only ask the state one question at a time. When they finally told us the policy was the pastor would be prohibited from prayer, at that point, that was already several weeks after the federal lawsuit was on file. After, pursuant to Judge Hittner's scheduling order, we had filed the motion to stay the execution. So if the state had chosen to tell me about that a little earlier, dare we say even before the motion to stay was unfiled pursuant to the federal judge's scheduling order, then we might have been able to move this a little quicker. This is the posture in which the state wanted to present the matter to the Supreme Court, and you saw what happened. So tell us a little bit about this relationship with Mr. Ramirez and Pastor Moore. That's something Ruth Graham wrote about it at the New York Times.

I thought a really good piece. This is a pretty extraordinary relationship. The pastor drives, how many miles is he driving to minister to Mr. Ramirez? It has to be about five hours. I don't know the exact number off the top of my head, but several hundred miles. Yeah. I guess in Texas, you just measure by hours. Yes.

I mean, death row is about an hour and a half north of Houston. It's about three hours from Corpus Christi to Houston. I don't know if there's a route that goes through some country roads. It's maybe more of a straight line, but a significant period of time. Yeah. So he's ministering to him. He's driving a long way to minister to him. And the congregation, now Mr. Ramirez was made a member of that church, correct? He was. Yeah. So how did this relationship happen? Because I thought that

was one of the more compelling and interesting parts of the story about the origin of this relationship between Pastor Moore and Mr. Ramirez. Yes, back in the year 2016, so again, this was before the execution was even set and obviously before it was stayed and before I was appointed to represent him in the year 2017, Mr. Ramirez had reached out, I take it, through some people he knew in his hometown of Corpus Christi to Pastor Moore, and the congregation chose to admit him as a member. And I understand that Pastor Moore, as well as some other women in the congregation, have gone out regularly to visit with him on the visitation days at death row. Ruth Graham's article was the first one. At that point, the lawsuit had just been filed based on the laying on of hands. The Washington Post went out to Corpus Christi and spent the whole weekend down there and really talked to all the church

members and interviewed them. And I take it, went to Sunday morning services. And these folks explained how in their belief system, repentance, one can always repent. And that's why the core religious exercise, as they understand it, is ministration at the moment of death, which they would teach goes back all the way to the crucifixion of Jesus, where Jesus was able to cry out and minister to the thief on the adjacent cross. So by repenting as late as the moment of death, one can still ascend to heaven or descend to hell. That's why the religious exercise was so important here, at least in their understanding of it, and why that claim was presented to the prison as something that needed to happen at the moment of execution. And not to start at the beginning here toward the end, but just worth mentioning

what the crime is involved here. You mentioned Mr. Castro. He was a father of nine. He was closing up for the evening, went out to throw out the trash, I believe. Your client, as well as some others, were driving around town. They came upon him, stabbed him 29 times, took $1.25 from his pockets, at least according to Justice Thomas' dissent. This was looking for drug money, potentially. Went then to various drive-thrus, put that same bloody knife to a woman's throat with her child in the background as she begged for her life. Then to another woman in another drive-thru.

Mr. Castro was alive when someone came upon him. He died, though, on the scene. And you mentioned, you know, his family and the difficulty in reading their petition in this case. I'm curious now just about your career.

This isn't your first time arguing at the Supreme Court. It's not even your first time arguing a death penalty case at the Supreme Court. This is your specialty. And it's an unusual one. And it's one that we don't get to hear a lot about on this podcast. So I'm curious if you have thoughts on how you've ended up in this sort of niche career and what advice you might have for people on who would be well suited to a career like yours? My law partners would hope that

we do a lot more in our post-judgment collection practice than I do prayer cases in the Supreme Court. But no, really, when I was a young lawyer more than a decade ago, I went out on my own. And the first day I was open, the Fifth Circuit appointed me to represent Tyrone Williams, the truck driver who had suffocated 19 illegal aliens in Victoria. It was a rare federal death penalty case. The federal government doesn't seek the death penalty. Very often, I was appointed to represent him on his appeal, and I got the case reversed unanimously in the Fifth Circuit. It was my very first time to argue a case, and we were able to.

He offered to plea for life at the beginning of the case. They refused. They spent 10 years litigating, and I got him out at 25 years after the entire sentencing appeal was done. So that was just sort of how I happened into these cases. When it comes to habeas cases, these cases have consistently come up in the prison. The federal laws have been amended any number of times. Usually, as these executions get closed, there's parallel arguments being made in state court, in federal court. This was a somewhat unusual case, Mr. Ramirez's, in that it was just a narrow federal issue in 1983 case, which is the same procedural posture in which these lethal injection challenges have presented to the court. I'm not really a crusader against the death penalty. I think it is a, I can tell you a lot of modern district attorneys do not like it because it is incredibly expensive and as pretty as it would be to think. So there is no sentence to a death. What you're functionally sentenced to is life or at least decades in prison. Uh,

at which point you are, uh, you know, the case can obviously leave control and veer into areas where no district attorney would ever actually want it to go. In Mr. Ramirez's case, I did read an interview with the young man, young district attorney at the time, the ADA, who tried the case and then retired from the office. And he said he had no, saw no reason whatsoever not to afford Mr. Ramirez a minister. So in that sense, no one involved with this case really thought it was extraordinary. There is not just death penalty habeas. I'm not sure folks understand this. There's not a separate habeas law for death penalty cases. There is habeas doctrine. So in the Davila case that we lost by one vote a few years ago, that would not have just made a correction, a change in death penalty habeas. It certainly case where they choose what we call minicap in Texas,

where there's automatic life without parole, is that there's no appointed lawyer in the habeas situation where someone is given life without the possibility of parole, unlike the situation when it's a death penalty where Texas state law requires that such habeas counsel be appointed. So while I'm not a crusader against the death penalty per se, I think it's sufficiently important if one believes the government should be limited and that the government should be constrained by its limitations,

that it be carried out in the most proper way. If a prosecutor at any level of the process, direct appeal, trial, anything else, can't defend every I being dotted and T being crossed, then, you know, they probably, there's some other issues with the case. In both of my cases, Sarah, both the Davila case from five years ago next month and Ramirez last year, the very first hearing in either one of those cases was in the Supreme Court of the United States. My Davila case had no hearing in federal district court. It had no hearing in the Fifth Circuit. Everything was

unpublished per curiams, and yet it was a five to four opinion, and the client was executed a year later. So you never know when one of these cases might create terrific attention. In Mr. Ramirez's case, this is only the second Arlupa case, to my knowledge, that's ever been argued before the Supreme Court. The only other one arose in the context of beards for Muslim prisoners in Arkansas. A gentleman wanted to grow his beard. He wrote a pro se handwritten petition. The trial court said, I don't see any risk to having a beard. But, you know, the prison says you can't have one.

You can't. Wrote a pro se appeal in the Eighth Circuit. The Eighth Circuit rejected it. We had a pro se cert petition in the Supreme Court of the United States, and it was reversed unanimously. They appointed my old professor, Doug Laycock, and nine to zero, they said, no way. So the handwritten petition case has never been heard of. I mean, you watch that in the movies, like Gideon's Trumpet with Clarence Earl Gideon.

And yet I don't write handwritten pro se petitions. And yet with the resources I have, it's about the next closest thing. And yet twice in the last five years, we've taken these cases the very first time almost directly into the Supreme Court. And Seth, just to let listeners know, who was the attorney you argued against in Avila? I did. I argued against your husband, Scott Keller. I don't believe it was your husband at the time. And yes, it was the UT Law School very much got a lot of enjoyment about that. What I thought was the most interesting was that not only was he the opposing counsel, but Cam Barker, who's now a federal judge in the Eastern District, was the second chair.

And we were all at University of Texas Law School at the same time. And I was the oldest of any of them. So I was the oldest person at the table. Not a huge amount older, to be fair, but within a few years. So in that sense, yes, it was certainly a hard-fought case. In fact, if I recall the situation they're presenting, my argument had lost in every circuit in the country except for the Ninth Circuit. So it's kind of like the Ninth Circuit versus the rest of America. And then cert was granted the first week of January of 2017.

Just then Judge Gorsuch was appointed the next week. We realized the Tenth Circuit opinion rejecting this argument had been written by Judge Gorsuch. So it was somewhat of a race to see if he would be on the court and confirm in time for the argument. In fact, he was. We were his first full week on the court. So I don't have as many arguments as Mr. Keller, but I am one for one, I guess, at this point. So we'll take what we can get. Did you attend the execution? I did not, no. I've never attended an execution. This is a de vil.

I have no desire to see that whatsoever. I believe they only get five invitations, as it were. It's an incredibly elaborate procedure, getting everyone in and out that day. But personally, you could not pay me to watch someone be executed. That's a very real change in American history, world history. I mean, Justice Roberts pointed that in the opinion. The vast majority of history executions were done in public. I mean, they were public hangings. This was something that happened on a Sunday afternoon. People would go with their families and watch. And over the years, this has gone behind prison walls and hopefully a much more

dignified, less public spectacle. But I've seen death. I don't need to see the actual moment where someone dies for present purposes. I'll probably, in my cases, be back in my office waiting for a call from the Supreme Court or filing a motion. But I don't think I'll be watching anyone pass that exact moment from life to death. So tell us a bit about your preparation process, because these are not your only cases. You've got a lot of other stuff going on, but you've also got looming in front of you a Supreme Court case that's not only of incredible vital importance

to your client, but is of real importance to the course of religious liberty law in the United States, the way in which we treat prisoners in the United States, the way we treat people on death row. So this is something that there's a lot of weight to it, a lot of weight to it, and you have to make a living. And so how do you balance that time-wise? What's your, you know, what was your ramp up for this? Tell us a bit about your prep process. Sure. I mean, thanks to the magnanimity of my law partner, we didn't really have any interruption

to our fee-paying cases. This case did present very, very, very quickly. Like I said, we'd filed an earlier version of the 1983 lawsuit in the year 2020. It was dismissed by agreement with the state a week later. So in that case, we knew what the matter was about. They issued the new death warrant in February of 2021. The new policy came in April of 2021. I read the policy, as did everyone else, and assumed that the state had reversed their

position on this. And so I proceeded to file funding requests and make other sorts of attacks on the execution. Pastor Moore called last summer and explained that they were not going to allow him to lay his hands on. And so on that basis, I refiled the lawsuit and then sent a clarifying request letter to the general counsel of the prison, at which point she wrote back and said, you know, he may not pray. And we realized almost immediately, this is a massively different case than any of the ones that had presented before. Even as late as September 8th, I thought they might stay the execution again. Mr. Ramirez's was the third case in three years of the fifth circus that had been stayed. And there were numerous cases in Alabama that got stayed

before Alabama just gave up and they reached a settlement with the guy. And he was executed a few weeks before the Ramirez oral argument in a case called Dunn, D-U-N-N, where he was represented by some very able lawyers at Arnold and Porter. This happened was the closest thing I've ever had to high drama in my career. Death warrants in Texas are good from 6 p.m. until midnight. It was a narrow six hours at which they can execute you. And, you know, six o'clock came, seven o'clock came. Reporters were emailing me, you know, when is the Supreme Court going to rule? I was like, I don't know. Sometime in the next five hours and two minutes, I take it. Because at that point, the death warrant will expire.

And then the thing was about 1030 at night, at least in Eastern time at 930 in Texas, that they called and said, we're going to stay the execution. And I set up the Supreme Court staff. I said, I figured that you would, it's probably getting to be too late to carry it out anyway. I said, how many dissenting votes were there? She goes, none. I said, really? This was no dissenting votes in the stay. She goes, we're going to do something a little bit different in this case. They're setting it for expedited argument. Your brief is going to be due later this September. We're going to try to get the oral argument in October. And I was trying to process all this. I was like, wow, that is amazing. I had no idea. And so this unfolded

very, very quickly. And I don't remember if it was late that night or very early the next morning. I called my friends, Lisa Eskow and Aaron Busby at the UT Supreme Court Clinic and say, you won't believe what happened late last night. Would you all have interest in doing this? And then when cert gets granted, there's an astounding process by which all of a sudden the lawyer on the case becomes very popular. Every lawyer in America seems like calls and wants to talk to them. And so I told them I was going to go with my friends at the UT Law Clinic, and their law students engaged for near total war. And we were blessed with an astounding number of amici in this case. Some of the range of people from the ACLU on the left to Alliance Defending

Freedom on the right was truly astounding to me how many people were able to find common ground at the exercise of religious liberty. So I did several moot courts, one of the UT Law Supreme Court Clinic. There's several appellate litigation boutiques around the city of Houston who were kind enough to moot court me. And then unlike five years ago, now we have this wonderful technological development called Zoom. So I was able to Zoom with the Northwestern Law School and they were able to do Zooms with numerous other law firms around the country. That was big development, of course, was that there are no people inside the court at this point, at least not as, I don't know if they've changed it since, but at least as of November, there was no public allowed in. And I tell you, probably the single scariest part of standing up there in DeVilo,

which was my first time to do this, was not so much standing up in front of nine judges, but having all of your friends and family looking at you and having 50 sets of eyeballs burning into the back of your suit and wondering what might happen or what might one say. So in that sense, it was a little more relaxed. We also got to meet our opposing counsels much more because you're required to stand in one room until you're called to go in almost like school children going into the lunchroom in a single file line into the courtroom. And then, of course, you go get a COVID test at a clinic in Georgetown the day before.

So as late as that evening, I thought, you know, if someone sneezed next to me on the plane, I mean, this might go to the telephone. But fortunately, I tested negative for COVID and we were able to proceed. And Pastor Moore did fly to Washington. He was waiting for me outside the Supreme Court steps when I exited the building. All right, last question. During her confirmation hearing, Judge Jackson was asked about her role as a federal public defender in defending some of the people being held at Guantanamo Bay. And she gave an impassioned statement on the importance that defense attorneys play in our criminal system. I was wondering if you'd watch that and if you felt any of that,

because I'm sure on the one hand, you feel a lot of purpose in your job. And at the same time, I'm sure you've gotten criticism for who you've represented. Someone driving a car where 19 people die in the back when he abandons the car and locks the door. In this case, they stabbed Mr. Castro 29 times. You're not representing the good guys, and yet you are one of the good guys because our system depends on this adversarial relationship. I do a lot of civil litigation to pay the bills. And every time in my civil cases when people are at each other's throats and calling us nasty names and crooks and fools and so forth, I'm like, you all have no idea. Okay. I've been called just about every name in the book. Every time I've had an execution, I think the last one,

my secretary said four people called to bless me and four called to tell me I was going to hell. And I was like, well, I guess one half of them are going to be right at some point. But, you know, so it definitely gives one a thick skin. Many great plaintiff's lawyers like Joe Jamal have started out doing criminal work. It is amazing oftentimes how much more money is devoted when people are arguing about relatively small amounts of money, at least to them, relative to the criminal justice system. I watched certainly news coverage, the snippets. I know what Justice Jackson said. I don't know if or soon to be Justice Jackson said. I don't know if I saw the exact moment, but I know she's done that sort of work as a public defender. I've never been a public defender. I've always been a private

sector attorney, at least since my judicial clerkship. So I've picked a lot of this up on the way. But it certainly is important. I truly believe laws are only laws if they apply to everyone. It's always very easy to make an exception for some politically unpopular group of people. I mean, if one goes back and reads about Herbert Cohen representing Richard Loving, that was an astoundingly unpopular position to take at the time. I think he and his law partner, who's still alive in Virginia, were spat on on the street. Certainly Judge Justice and Tyler was spit on many, many times, and Tyler for desegregating the schools.

And even Abe Fortas, when he represented Clarence Earl Gideon, he was very tight with President Johnson. But some people thought that might end his career, not enable him to go on to the Supreme Court. Well, certainly my career has been nowhere near as grandiose as those names that I just mentioned. Really, the only way the system works is if laws apply to everybody. And in the situation here, I mean, we lost in the trial court. Obviously, we lost in a divided opinion in the Fifth Circuit, and yet it was reversed unanimously eight to one. So I don't accept the premise that one can just simply know that one is going to lose or a case is destined to failure. I mean, you can tell Scott, even in DeVito, I still got four votes, you know, I mean, you know, in your face, Scott. Yes. I mean, you know, do what you do what you can. But

even then the process, I do not believe that anyone who tells me they're committed to small government, restrained government, competent government should fear an adversarial testing of their legal theories because we've seen in this case, you never quite know how they're going to play out. Well, Seth, thank you so much for joining us. Congrats on the 8-1 victory at the Supreme Court, One of our first major decisions of this term and a win for religious liberty. If I have an accent, Sarah, I'm pretty sure maybe it's only you hear it

because you've grown in your Texas accent and on the East Coast, I believe you're from Houston too, right? I am. I went to Memorial High School. I'm really sad that I've lost my accent. But when I get home and you get like two margaritas in and maybe a little bit sleepy, it comes out. Don't worry. I understand. All right. Well,

thank you all very much. Thanks very much, Seth. 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 digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos.

So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. 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.com to get $30 off plus free shipping on their best-selling frame. That's a U R a frames.com use code advisory at checkout to save terms and conditions apply. That was interesting. Sarah, your thoughts, you know, I am maybe more sympathetic to justice Thomas's dissent here

on the, the equitable side of this. Um, I think it's hard because of course anyone can have a conversion at any point, but this is someone who has clearly gone out of their way to avoid accepting responsibility for their actions. He fled the country after the crime and escaped to Mexico for three years. After he was sentenced to death, he filed meritless appeal after meritless appeal through the system that created a large chunk of the now 18-year delay. And there is a point at which he said he just wanted his pastor in the room. He did not want his pastor to lay hands on him. Then he changed his mind and said, after the state said okay to that, then said, well, now I do want my pastor to lay hands on me. Um, I think legally this is the correct outcome, but I'm not sure this was the right defendant for it. And I just feel so much for, um,

Mr. Castro's nine children and grandchildren who are just being repeatedly put through the ringer by this. And it's why I asked the question to Seth about like, okay, are we done now? Because I think the proof will be in the pudding at this point of whether there is yet another appeal of some kind or delay tactic. Yeah. Well, two, two things. One, I'm very glad you brought up the crime in the conversation. Um, when I wrote about this initially, this case initially, because I strongly agreed with Seth's legal position. I strongly agreed as a matter of religious liberty, as a matter of history, practice and humanity and decency that with his underlying position. But when I initially wrote about this, the first thing I talked about and the first thing I wrote about was the actual crime itself. Because one thing that bothers me in a lot of these death penalty arguments is that the initial victim in the case is often forgotten. And there's a grieving family,

there is a heinous crime, and we need to remember that. And so I'm very glad you brought that up, even though I completely, totally agree with Seth's underlying legal position. I thought Justice Thomas made a good case about, you know, on all the points that you made, but I'm still squarely with the majority that the request itself is completely within the stream of American historical practice, legal practice. In other words, this is the way things have been done for a very, very long time, and it's completely within the historical stream of faith practice. So this was not even a sort of a fringe religious request, Not even a sort of a fringe religious request, although fringe religious requests are entitled to equal consideration under American constitutional law.

This was squarely within historical practice, squarely within American faith practice. And Texas should have granted the request without it getting to the Supreme Court, in my mind. But I am very glad that you did bring up what got us here in the first place was something horrific, just horrific. And David, two little potpourris before we go. One, in my slightly out of it-ness last week, I talked about recidivism rates and I was just wrong and I just want to correct what I said. So the problem is we were talking about child pornography a whole bunch of other things totally unrelated and primarily unrelated to pornography and child pornography in particular. So set all of that aside, I shouldn't have been talking about any of that because frankly,

when it comes to recidivism rates, it's actually more complicated than we think in terms of measuring it because you measure it on a secondary conviction or on a secondary arrest. And most of the numbers actually look just at arrests. So let me just run through some numbers. Rape and sexual assault offenders are less likely than other released prisoners to be re-arrested. Released sex offenders are more than three times as likely as other released prisoners, however, to be arrestedrested. Released sex offenders are more than three times as likely as other released prisoners, however, to be arrested for rape or sexual assault. About 67% of released sex offenders were arrested for any crime later compared to about 84% of other released prisoners,

which, David, that statistic may stun some people. 84% of people released from prison are rearrested for some reason. It's an incredibly high recidivism rate in our system that might just be worth a pause to think that what we're doing, something about what we're doing isn't working particularly well. And I had mentioned that I worked in a neuroscience lab on these issues. And I went back and read the paper that we published to refresh my memory of why I sort of messed this all up in my head. We had looked at the best predictors of when sex offenders would re-offend. So to the exclusion of other types of offenders. And that's why it all got little jumbled in my head, David. So, apologies, listener, for that mistake.

And thank you to those of you who emailed to point that out. But now more fun, David. There was a crime committed at the Oscars last night. Yeah. Yeah, so I wasn't watching at all. I was, we were re-watching Ozark. I'm so not interested in the Oscars because I knew Dune wasn't watching at all. We were re-watching Ozark. I'm so not interested in Oscars because I knew Dune wasn't going to win Best Picture.

So why do I care? And so I actually haven't watched the Oscars in forever. And I just casually pulled out my iPad and checked Twitter. And the first thing i saw was so that happened and whenever you see something like that you're thinking what the heck and then apparently because of copyright you can't the videos didn't pop up immediately right so oh i got the videos immediately from australia okay well so here's what happens chris rock makes a joke about jada pinkett not having hair about her starring in gi jane 2 jada pinkett has alopecia which has caused her to lose her hair

and in the initial shot will smith is sort of laughing along with everyone else and jada is making a not amamused face. It pans back to Chris Rock, and the next thing you know, Will Smith is on stage, hits Chris Rock, open-faced hand. I don't know what you call that. Yeah, open-faced sandwich. And then goes back down.

Well, everyone still thinks it's a bit. And then Will Smith yells from the audience, get my wife's name out of your effing mouth yeah twice and then it's apparent that this is not a bit um so david first question could chris rock file a police report sure of course you just can't walk up and hit somebody because they insulted your wife under the law. No, no, no. Advisory opinions, listeners. That's a basic statement of law right there. It's a basic statement. Okay. Chris Rock did not do that. So now we get to the more prudential aspects of this, David. did not do that. So now we get to the more prudential aspects of this, David.

Is it weird that my thought went to Yale Law School? It's not weird. My thoughts went elsewhere immediately. But as soon as we were slacking about this and you went to Yale Law School and I thought, oh, I see where she's thinking. I mean, this was... Right, it's this idea that speech is violence and therefore you can answer it however you want if the speech makes you upset, if you don't like the speech. Rather than argue back, rather than use your own voice, you can do anything you want because it is all justified by someone else's speech that is offensive, hurtful, and especially if it's, you know, hurting someone else who has been offensive, hurtful, and especially if it's hurting someone else who has been marginalized with a medical condition and your wife, and that therefore your actions are

justified. And weirdly, David, I don't know why, I was getting particularly worked up about the fact that we still have not heard anything from the Dean of Yale Law School. She still hasn't met with the Federalist Society to apologize that their event was ruined. What is going on here? And then we have at the Oscars people taking things into their own hands when they don't like something that's said. Yeah, Sarah, I'm completely with you. It's prolonged cowardice, and it's very, very irritating. And I hadn't made the connection, but it's a super obvious connection once you made it about this was somebody essentially treating words as the equivalent of violence, just right there, and responding to words with violence.

And I thought, I like the Steph Curry tweet quoting Denzel. I like the Steph Curry tweet quoting Denzel. He says, like everybody, I'm still in shock about the whole thing, but in all the unnecessary drama, at least we got the line of the night from Denzel. In your highest moments, be careful. That's when the devil comes for you. I thought that that was this moment of rage moment of rage and I don't know what. But I got to confess something, Sarah.

I have to confess. I had a blink reaction. Like my blink reaction was to defend Will Smith. I was curious if there was any sort of gender dynamic to this for you of like, if someone insults your wife, you know, it's not okay, but. hold on, that visceral reaction isn't right. This was not a violent act against your wife. You don't, you know, he was not physically attacking. There are other ways to signify your disapproval other than if he could have just,

if he just stayed there and yelled back at Chris Rock. If he had said, get my wife's name out of your effing mouth without the slap, I think people would be on Will Smith's side. Yeah, exactly. Exactly. But it is interesting that sort of blink gut reaction. And it's also, this goes back to something that I've written about before. There's actually some science, a famous University of Michigan study of Southern men. Okay. Have you heard about this? That Southern men in the shame honor society, that Southern men when bumped in the hall, now this is something

personal to them, have a different physiological reaction. It's that sort of shame honor instinct. And I have that instinct in me. And when I saw that thing, when I saw that happen, it activated that instinct. And you just have to pause, wait, think, nope, that ain't right. So David, another part of this that has been commented about online, at least a lot in the last 12 hours, is that maybe Will Smith's anger reaction came from the fact that his wife has been shaming him by being in an open marriage. There's been a lot of psychoanalysis going on and I saw some of that. Also, I saw more sympathetic that Will Smith has said candidly he feels awful that he didn't protect his mom from his dad after his dad was abusive to his mother. But again,

these were words. This was a joke that was hurtful, for sure. It was a hurtful joke. It also wasn't particularly funny. No, it wasn't funny. It was a hurtful joke. It also wasn't particularly funny. No, it wasn't funny. It was pretty hurtful. And, you know, I think if Will Smith had just sat there and yelled, as I said, people would be very sympathetic to him right now. But, man. And then he goes and he wins best act, goes and wins best actor. So here's a question for you, Sarah.

Chris Rock is showing grace. He is showing grace right now. And I think it's entirely appropriate to say, I'm not going to file a police report. In many ways, Chris Rock turned the other cheek, right? Quite literally. Quite literally. He turned the other cheek

and he's not filing a police report and he's handling this and the way i think he should handle this what should the oscars do should the oscars take the oscar i'm bewildered how the oscars didn't escort will smith out of the building at the time before he had won um the oscar i don't think you need to take the oscar away from him except for the fact that then, because you didn't take him out of the room to begin with after the incident, it just shows, again, a just total lack of like, nobody's in charge here, and we're back to Dean Gherkin at Yale, right? Like, someone else will take care of this. It's someone else's responsibility to teach

the children how we respond to speech we don't like. And so, you know, the Oscars did nothing. Yale has done nothing. And as many people said to us, David, after the last episode, why are you so convinced that when these people, these Yale law students in this case, become judges and advocates in the room, that somehow they will then conform to the current adversarial system. Fair point. Very fair point. And maybe the Oscars are a decent example of that. And I'm just disheartened, David, by the whole episode. Oh, it's deeply disheartening. Sarah, we're beginning with something deeply disheartening and we're ending with something deeply disheartening. But yeah, and this goes back to, we have seen repeated instances.

And I remember in 2014, 2015, and moving into 2016, when there were multiple incidents of campus violence to suppress speech, very few, precious few examples of prosecution of violent students or violent people who are not students who entered campus, just precious few. And there should not be a disruption privilege, and there shouldn't be a criming privilege. There has to be to maintain a marketplace of ideas, to maintain a culture that respects and protects free speech. There is a phrase that is important for people to know, ordered liberty. Ordered liberty. There should be guardrails.

There should be guardrails. And Smith breached them on every level. And he's got his Oscar. And it all feels a little unjust to me. Maybe on Thursday, we will have more justice. We'll have some oral arguments to discuss from this oral argument calendar, David. And good times ahead. Yes. All right. Well, sorry to begin and end on a disheartening note. We won't always do that. So keep on listening. Please subscribe wherever you listen to your podcast. Please rate us wherever you listen to your podcast and check out thedispatch.com. Bye.