Advisory Opinions - Right To Sue the Feds

Episode Date: June 12, 2025

Sarah Isgur and David French check the temperature on Thursday’s Supreme Court hand downs (cold term, anyone?), diving into a case where federal agents raided the wrong house. The Agenda:—Death penalty stuff and successive habeas petitions—Gorsuch the libertarian—FBI raid gone wrong—Explaining the Federal Tort Claims Act and Bivens—Conspiracy theory time—Associated Press and their access to press—We’re all ‘cranckpots’ —Is yoga protected by the First Amendment? Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠click here⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Hello, Captain Kittens! Welcome to another episode of Advisory Opinions in June, where we start getting punch drunk because we're reading so many opinions. Today is Thursday. We moved our recording, as we will probably do for the rest of this month, to match our schedule with that imminent tribunal and their randomness in handing out decisions.

So this week, they released decisions, as they have been doing, Thursday at 10 a.m. But David, So this week, they released decisions as they have been doing Thursday at 10am. But David, starting next week, it's every man for himself. They are declining to give a guidance by week and now we will be doing it by day. So we do believe they'll be releasing opinions on Wednesday next week because Thursday is Juneteenth. But other than that, we could have emergency pods, we could not have emergency pods, we could end up releasing on our normal days or not. I mean, I don't know, David.

Things are getting crazy. The temperature is going up. Oh, and there's no better sign that we're getting punch-drunk already, the temperature is going crazy, than opening the podcast by saying, hello, cats and kittens. the temperature is going crazy, then opening the podcast by saying,

hello, cats and kittens. Well, I mean, here we are. Just so that people know what is still outstanding, we have not gotten the transgender affirming care for minors case that was argued in December. It is the longest outstanding case, though we assume that that will take the longest amount of time to write.

And they send around their majority opinion. So then I tweak my dissent and then I send around my dissent and they answer that in a footnote in their majority opinion. Now the concurrence is like, well, I've got to write a whole separate thing now. So that's why that takes so much longer. The more divided the decision is,

it's why we see the unanimous decisions come out first. They take less time because you're not having to recirculate a bunch of stuff internally. So that's one that even though it is the longest outstanding, I'm not really expecting it, you know, any single minute now. There's also the porn case, David, I know that one's your favorite. This is the First Amendment case out of Texas on age restrictions for porn websites. I don't

know, David, on that one. I think we're kind of expecting the pornographers to have a very minor win as in they live another day. The lower courts had held that that one would be reviewed under rational basis review. I think we all kind of think the court's going to be like, no, come on, guys, this is strict scrutiny, but we're not going to say anything else and send it back down maybe. But that one is still outstanding. And of course, we have birthright citizenship. We have birthright citizenship. That, remember, was still part of that short order preliminary docket, but it was argued at the end of the term. So we think that one could come out any day now

or at the end of June. And then the Mahmood case that we really like, David, this is the pride puppy case, the books in school and whether you have to give an opt out to parents if you're giving them an opt out for other things. But we didn't get any of those this morning, David. No, and by the way, going through that list really does show A, how much this is a,

well, except for the emergency docket cases around Trump, how this is a much more calm term. And also it shows how the culture war has changed so much because having two LGBT focused cases where you've got their Skirmetti case, you've got the Muck Mood case and Pride Puppy, ordinarily that would be something that there'd be a kind of a not a frenzy but a real build up in the media to the resolution of these cases. And I they're legally important, but I honestly don't know Sarah how important they're going to be publicly. It feels as if things are the terms of the culture war are changing so rapidly. A I agree. Part of it is it just feels like a cold term, and so it's being treated like a cold term.

Second, like I mentioned with the porn case, sometimes when a case gets to the Supreme Court, no matter what the Supreme Court decides, even if it's on process issues, like one side wins and one side loses, and that's how it's gonna be. For so many of these cases, it's like one side wins and that's how it's going to be. For so many of these cases, it's like

one side wins on this argument, which is why the whole thing gets sent back down to redo it. But that's not like a win. We don't know whether the Texas law, for instance, on this age verification, even if I'm right that they're like, no, it needs to be strict scrutiny, go try again. That doesn't tell us much over whether the Texas law stands or falls because one could imagine a law about age restriction for pornography withstanding strict scrutiny, for instance, especially in the Fifth Circuit. So I think that's part of it as well. There's a whole bunch of other stuff going on in our politics. One. Two, it overall feels like a cold term. And three, the outcomes don't scratch that culture war itch the way that they might have in other terms. Yeah, and I also think some of the valence is changing.

So, I think that there's a bipartisan sense that porn, especially the early youth exposure to porn has been really, really harmful. That porn is very different now from the days when people were smuggling Playboys into schools or whatever. It's just very different. Did you ever smuggle a Playboy into school, David? I did not, but they were prevalent.

You were aware of smuggled Playboys. There was large scale Playboy smuggling. The black market was really more of a gray market. Yeah, exactly. Large scale smuggling in Scott County middle school and high school. I was aware of no magazines at my school, but I'm a girl, so.

Yeah, yeah. I don't think there's the same supply and demand dynamic. So, but yeah, it was, it's all, it's changed. Its valence has changed. The gender affirming care for minors, valence has changed a ton. So yeah, it's just less cut and dry

and less red blue, I think, than it used to be. It feels like right here is where we should have the ad break for a VPN, but we're not going to. Okay, so a couple other like quasi housekeeping slash big picture notes. David, I almost feel like we need to ask SCOTUS blog viewers like a poll question, like put it on the homepage on what we're gonna name that docket. I feel like I'm referring to like that woman, you know what I mean?

Like we don't have a name for her. We don't wanna give her like the honor of mistress, paramour, like, but we can't call her that slut either. So here's what I'm sort of thinking, at least temporarily. I do want to ask that poll question, but maybe it waits till the fall. I feel like we need to have a formal name, like Paramore and then a slut name.

And here's my suggestion. What if we just do preliminary relief docket as the formal name, as the paramour name. Is that better than equity docket? Preliminary docket. Yeah, because it doesn't have the word equity. I think I take people's points that the word equity. Okay, but like, but okay.

So preliminary docket, preliminary judgment docket, preliminary relief docket, preliminary stay docket. But I think the word preliminary for again, for our formal paramour title. Injunction docket. The injunction docket, they're not always, cause I don't know. I like preliminary judgment, cause it does acknowledge that some of these will be

preliminary, but also can be real, if that makes sense. But anyway, okay. Or just preliminary, just leave it. Preliminary docket. Because I do think of these as the Supreme Court's mistress in some ways. Like they're married to the merits docket. Because I do think of these as the Supreme Court's mistress in some ways. Like they're married to the merits docket, but they have been fooling around more and more

with this other docket. So paramour would be like preliminary docket. And then like that slut, I think short order docket is like the shorthand down and dirty description. That's gotta be shadow though. Like shadows gotta be the bad one. Well, that's the bad one,

but like it's not in the shadows anymore. That's not fair. It's just not descriptive, but short order captures that like short order cook. That, you know, like, yeah, they're not making you filet mignon on the short order docket, but they're making you a damn good BLT.

You know, like that's what, that's all you can expect. But BLTs can be delicious. They're just not the same. I have an alternative. Instead of doing two tiers and getting into all this complexity, do a SCOTUS blog or however we're gonna do it, SCOTUS blog or AO whole with all of the various options,

we spend a month campaigning for our preferred term and then we just agree to abide by the results permanently. That's the style guide. Okay. To be discussed further. Let's move to today. As I said, we had six decisions. Now if you are already a fan of SCOTUS blog, et cetera, you probably know this from the live blog, but it is like we talk about boxes. So the first thing we see before we know any decisions that have come out are how many boxes the clerk brings out and the boxes are what holds the opinion. So if it's a one box day, it means all of the pages of the opinions fit into one box. So you could have two opinions,

but they'd have to both be relatively short ones. Today was a three box day, David. It was just a lot. Six opinions fit into those three boxes, which also tells you that none of them were the sexy cases. Because if we had like a real, you know, 129 pager, that's a box, you know, all by itself. So we had these six cases. And remember, when they announced them, they go in reverse seniority order. So you start with Justice Jackson, and then you move to Justice Barrett. And once you get a Justice Barrett opinion, you know you can't get any more from Justice Jackson, for instance, and all the way up to the Chief Justice. And with six opinions, boy, were we working our way through all of the justices.

I'm gonna do the briefest of explanations for the six of these, and then we'll do a little bit longer for one and longer for the last one. So let's start with our Justice Jackson unanimous opinion on death penalty stuff. Literally, that's what you're getting from me. Death penalty stuff and successive habeas petitions and we're done.

Next up, we have Justice Barrett. This was an eight-one decision with Gorsuch dissenting. I actually did find this one kind of interesting because of the Gorsuch dissent. So, woman gets behind on her taxes and her now ex-husband sends the IRS money to pay her tax bill. But the IRS says, ah, you owe money too, so we're putting that toward your tax bill. And she's like, no, no, like basically this was part of our divorce agreement. Like that money

goes to my tax bill. And the IRS is like, no, you can't tell us what to apply it to. And she's like, yes, I can. That's how money works. Yeah. And as the case is pending, they look back and say, oh, as it turns out, you've overpaid your taxes the last three years and that covers your tax debt.

So this case is moot. So eight of the justices are like, yeah, it's moot. And Justice Gorsuch is like, the what now? No, he paid her taxes, which would mean that either he paid her taxes or he owes her money, and we're not deciding this. This is ridiculous. The reason that I mention that at all is because what I feel like I am seeing

over the course of this term in particular, but it's been building since he joined the court in 2017, is Justice Gorsuch the libertarian. I mean, if you are a government bureaucrat, and I don't mean that in the pejorative sense, but like you're the IRS, you're a prosecutor, you're a police officer, Justice Gorsuch is just not going to give you the benefit of the doubt. You're not the white hat every single time at all. He's going to put you through your paces, expect square corners. He knows the resources that you have, and he was just not having it with the IRS in this case. HOFFMAN Yeah, this is a guy, Justice Gorsuch is somebody who I think if you are someone who has been like you're a criminal defense lawyer and you have been watching for decades, maybe jurors give police officers the benefit of the doubt. You've

watched you've watched judges maybe give prosecutors the presumption of regular order. Like you have seen how the system embedded in the system is this kind of bias towards the government of which the judicial system is a part. Justice Gorsuch is your guy. He is, I think you said it very well, Sarah, he wants to make sure that the government is squared away. And if the government is not squared away, he's not looking for reasons to excuse it. He's looking for reasons to hold him accountable. I found it very interesting when I interviewed him for his book, which is along these themes, and sort of seeing some of the reactions

on the left side of the aisle to the interview. You could tell they wanted so much to not like Justice Gorsuch, but he kept bringing up issues that they agreed with him on. And so it was this like very interesting aspect of, okay, I know I'm not supposed to like him at all, but he keeps ruling in a way that I think has long vindicated a lot of liberal

critiques of government. And so it is fascinating to watch all this play out. Well, our next one was written by Justice Gorsuch. So we skipped Kavanaugh, you'll notice in our reverse seniority. It was unanimous. This one is one we're gonna talk about David, because we talked about the oral argument, although I gotta say the opinion is a little disappointing

in terms of podcast material. This is the wrong house FBI raid case. So they are supposed to raid a suspected gang hideout at 3741 Lando Lane. Instead, they stormed 3756 Denville Trace, occupied by a husband, his wife, and their seven-year-old son. They break down the door, do flashbangs, throw him on the ground, she's half-dressed, she's fallen in the closet. I mean, it's bad stuff. And at one point, an FBI officer looks over at the counter and sees a piece of mail for 3756 Denville and realizes that it's not 3741 Lando and they're like, sorry, and they turn around

and leave. And in the meantime, their door's broken down and their son is traumatized. So what can they do about that? They sue under the Federal Tort's Claims Act and the 11th Circuit gnaw dogs it, like hard, and says yes, the Federal Tort'slaims Act waives the government's sovereign immunity for some lawsuits when a federal employee does a tort to you, torts you, if you will. But there's also exceptions to that waiver of sovereign immunity, and then there's exceptions to the exceptions. This is one of those things, it's like when someone stays the stay and like you have to work out like, well, wait, that means it's back in effect. This is sort of how FDCA exceptions

to the exceptions work as well. In the end, this Gorsuch opinion, which is again, unanimous, you have Sotomayor with a concurrence joined by Jackson. Gorsuch is basically like, yeah, their case definitely moves forward. This was egregious as many of these tend to be. 11th Circuit, you weren't even in the ballpark of how to do this, so try again. And then you have Sotomayor saying, and I think they win. But David, this wasn't

quite the satisfying wrong house raid. We were, I think, expecting one direction or the other. Remember an oral argument, you had Justice Gorsuch saying, like, do you have a duty to check the mailbox for the right number? And he's like, well, no, because if they see you checking their mailbox, they could start shooting from the windows. That could put your officers in danger. And I was like nodding along. I was like, that's a really good point. And then it's like, what about down the street before they can ever see you? Do you have a duty to check the street name? Because they were not on the right street. They weren't on the right street. And by the way, if you're wondering how this happened, this is the best explanation there is, though it's not a good one.

In preparation for the raid, Agent Guerra visited the Correct House to document its features and identify a staging area for the SWAT team. But he says when he used his personal GPS to navigate to the Correct House on the day of the raid, It led him to this incorrect house. So again, he put in, he says, 3741 Lando Lane, and the GPS took him to 3756 Denville Trace. No one could confirm as much later because Agent Guerra threw away his GPS device not long after the raid. And it seems the agents neither noticed the street sign for Denville Trace nor the house

number which was visible on the mailbox at the end of the driveway. Apparently too, Agent Guerra failed to appreciate, you know, that it was a different house. Because remember, he had visited the correct house already. So David, just thoughts and feelings. There are a few cases, Sarah, that we read that make me want to climb out of this podcasting chair and get back in the courtroom. And, and this is one of those cases because of the facts that you just read,

because if I'm the plaintiff's lawyer, I'm thinking, I cannot wait to get in front of a jury. Like literally, because I think we can figure out what happened here. But he says when he used his personal GPS to navigate to three, seven, four, one Landau later on the day of the raid, it led him to three, seven, five, six, Denville Trace. How much you want to bet he puts in the three and a seven

at auto-populates and then it's let's roll. in Viltresque. How much you want to bet he puts in the three and a seven, it auto populates, and then it's let's roll. Let's roll, boys. So yeah, on the merits of this case that and he's going to win subtext from Sotomayor and Jackson, I think is going to ultimately bear out. But on the actual merits of the of the actual opinion before the Supreme Court, you're very right. This is not the easiest case to podcast about, for lack of a better term, because it involves eye-wateringly complicated statutory provisions that are very difficult to actually explain. And let me just do my best to do it as simply as possible. So you have a federal torts claim act that says broadly that if a federal official violates your

rights in a way that causes you harm and you could recover, if another person, not a federal official, did it, like if someone barges into your house and holds you up at gunpoint, you could charge them with assault and false imprisonment and all of this stuff. But if it happens from a federal employee, you can recover from them. But there are tons of exceptions, just tons.

It's like here you get to sue the federal government except for in these what what 13 or so categories. But within the exceptions are some provisos. And so the question was that was a proviso that allows for lawsuits against police officers for intentional torts. Did that proviso also allow similar lawsuits but for torts related in negligence, not intentional? This was a complicated statutory provision and the court looked at it and said, no, no, no. The proviso, which allows lawsuits, is allowing lawsuits for intentional torts.

Okay. So if it's an intentional tort, you can sue under the Federal Tort Claims Act. Then the question was, which was the weird quirky 11th circuit issue or one of the weird quirky 11th circuit issues, is okay, the 11th circuit had this expansive rule that allowed you to sue law enforcement for both intentional torts and negligent torts, but then if you were going to go ahead and do it, the 11th circuit had this really weird supremacy clause analysis that lay over to over everything to the point where as a practical matter it was very difficult to file suit because it placed the federal interests over the state interests, created a supremacy clause issue, and the Supreme Court said, no, no,

no, no, no, no, no. Okay, hold on. The law enforcement proviso applies only to the intentional torts, not negligent also. In this whole supremacy clause thing you're doing, don't do it. The only way the supremacy clause is really going to come into play is if the state law is actually preventing the exercise of federal authority. And that led, Sarah, to the only really truly podcastable portion of this opinion, which I bet you know what I'm going to talk about. So, just to give you a little bit of flavor,

the Court of Appeals pointed to a line of cases stemming from a decision called NRAE-NEGLE, N-E-A-G-L-E, NRAE-NEGLE, NRAE-NEGLE, and says that federal officers may sometimes defeat state prosecutions against them by demonstrating that their actions, though criminal under state law, were necessary and proper in the discharge

of their federal responsibilities. This would be a super narrow exception, not even really worth talking about, but it's so worth talking about in Ray Nagel. And I'll just read from the opinion. To appreciate why this view is mistaken, a little history helps. In Ray Nagel involved an affair,

a homicide, and a habeas petition. In 1883, Sarah Althea Hill claimed to be the wife, interesting phrasing, claimed to be the wife, interesting phrasing, claimed to be the wife of U.S. Senator William Sharon and sought a share of his fortune in acrimonious California divorce proceedings. This is 1883. Sharon admitted an affair but insisted that Hill had forged the pair's handwritten marriage contract. Hill hired David Terry to represent her, a former chief justice of the California Supreme Court. Terry had resigned that post after killing another U.S. senator in a duel. As the litigation wore on, lawyer and client married. This is quite

the case. Oh, 1883. Never stop being 1883. Exactly. Eventually, the dispute between Hill and Sharon wound up before the US Supreme Court Justice Stephen Field while he was riding circuit. Terry and Justice Field were no strangers having served together on the California Supreme Court. Even so, Justice Field issued a devastating ruling against Hill as he announced his decision. Hill leapt from his seat, denounced the justices bought and had to be carried

from the courtroom. Joining the fracas, Terry punched a marshal and brandished a buoy knife. Even after the couple spent time in jail for contempt, they continued to issue threats. The threats found their way into the US reports, aware of the threat that Hill and Terry posed. found their way into the US reports, aware of the threat that Hill and Terry posed. US Attorney General ordered a marshal, Deputy Marshal David Nagel, a former chief of police in, of course, Tombstone, Arizona, of course. Remember, it's 1883.

This is the height of Tombstone. So it's former chief police in Tombstone to accompany Justice Field when he next rode circuit. That decision proved prescient for Terry soon cornered the justice on a train and attacked him. Intervening to protect the justice, Nagel shot and killed Terry. After the shooting, California authorities arrested Nagel and began prosecuting him for murder.

Okay, Sarah, the reason why I went through all of that was two reasons. One, that's a wild, that is a wild case. And number two, there is a reason why I constantly say this phrase when I talk about craziness that's going on. I say, this is the weirdest thing in my lifetime or in the modern era or whatever, because my goodness, Sarah, when you lift up the rock on American politics, the things you will find.

I also just think it's worth noting that Justice Gorsuch didn't have to include all of that. He did because it's fun. He did it for us. He did it for you. Yes. Yes, Justice Gorsuch serving the podcast community. Father's Day shopping is hard. Trust me, as both a daughter and a wife, I've been there.

What do you get for the man who claims he doesn't need anything but somehow has very strong opinions about literally everything? Here's what I've learned. The best dads are the ones who stay curious, who stay informed, and who can hold their own in any conversation, whether it's at the dinner table, the neighborhood barbecue, or when your teenager asks them a tough question about current events. These are the dads who don't just have opinions, but informed opinions. The ones who can explain why something matters, not just that it does. That's why a dispatch membership makes such a perfect Father's Day gift. You're not just giving him access to great journalism and thoughtful analysis, you're

giving him the tools to be engaged, a kind of dad who can navigate complex topics with nuance, who brings real insight to family discussions, who models intellectual curiosity for his kids. So this Father's Day, skip the tying golf balls, give the dad in your life something that acknowledges who he really is. Someone who cares enough to stay informed, ask tough questions, and lead thoughtful conversations. Head to the dispatch.com slash gift and give him the gift of great journalism.

Because the best dads deserve the best information. And we'll take a quick break to hear from our sponsors over at FIRE. Free speech on campus is under attack and professors are too often among the first to draw administrators or their institutions attention. FIRE, the foundation for Individual Rights and Expression, defends faculty when universities try to silence

or punish them for their views. FIRE's Faculty Legal Defense Fund connects threatened professors with attorneys ready to fight for academic freedom and the First Amendment. FIRE is expanding their national network of lawyers who believe that the right to think, speak, and teach freely is worth fighting for.

If you're a lawyer who's ready to fight for free speech on campus, visit thefire.org. That's thefire.org. Protecting academic freedom has never been more important, and it can't happen without principled defenders like you. David, that was really fun. I want to be unfun. Normally, I'm the fun one and you're the unfun one, but- Wait, whoa, whoa, whoa. Objection. We'll put that poll up too. Objection.

Who's usually the fun one. So if you're listening to this and you're thinking to yourself, but wait, what about Bivens? I just thought I would spend two seconds explaining the difference between the Federal Tort Claims Act and Bivens. So, do you remember the smugglers in case? Where, well, the guy names his hotel Smugglers Inn, and the police think it is in fact a Smugglers Inn, which it may well have been. It's on the Canadian border.

And yada, yada, yada, some stuff goes down. He sues the police officers for violating his constitutional rights. And this is a Bivens case. We generally, when we're talking about qualified immunity, we're talking about state action in 1883. Sorry, I'm not- 1983.

1983, thank you. I was like, wait a second. You're stuck in the Gilded Age, Sarah. You're stuck in the Gilded Age. We're talking about the 1983 statute Sorry. 1983. 1983. Thank you. I was like, wait a second. You're stuck in the Gilded Age, Sarah. You're stuck in the Gilded Age. Sorry. We're talking about the 1983 statute that allows you to sue a state officer for violating your federal constitutional rights.

But what about if it's a federal officer? Well then you get into some Bivens problems. And basically, a Bivens claim is when you sue a federal officer for violating your federal rights under the constitution, there's no like, you know, the cause of action is the constitution and they can still argue absolute or qualified immunity and you lose.

Like you always lose. You know, like Bivens, the original facts of Bivens were incredibly close to our smugglers in case, but the smugglers in case was near the border. And they, like, Bivens, the original facts of Bivens, were incredibly close to our smugglers-in case, but the smugglers-in case was near the border. And they're like, that sounds really different than Bivens to me. So yeah, no case. Right off the bat, you'd think like, oh, okay, so you never want to bring a Bivens case. So why did the smugglers-in guy bring a Bivens case when, like, you're definitely going to lose?

Let me introduce you to the Federal Tort Claims Act, which is the other way you can sue federal officers for violating your constitutional rights. This, there is a statute, you're suing under a statutory framework now, and part of that statute is that you have to go through this entire administrative process, and like all the administrative appeals and all the weird stuff that can take forever

if you're doing an FTCA claim, and you can't seek punitive damages. So the only thing that this family would ever get in this case that they have undoubtedly, whether they've spent the money or someone has spent it on their behalf or these lawyers, literally their door replaced, basically. or maybe a piece of furniture was singed by the flashbang. All you can get is things back. You can't get punitive damages, you can't get injunctive relief, and so that makes the FTCA really unattractive.

And that's before we even get to all of these statutory exceptions that then bar your FTCA claim, like the vast majority of them get tossed out, especially in the law enforcement context. So, Bivens, you lose. FTCA, you mostly lose. Right. And when you win, you can't win everything that you might otherwise be entitled to. That's right. And like, the point of all all of this is if you're going to have your constitutional rights violated, do try to have a state officer do it. Yes. Pola County official, if the FBI

is wrong house raiding you, try to make sure sheriff's deputy is right there alongside him. Hey, in fact, call the FBI and say, I'm sorry, I only talk to Sheriffs deputies. All right. That's the end of our Martin. We got some good podcasting out of that. That was actually quality podcasting from that case. Fun fact, by the way, when you sue in Bivens, you sue the individual officers who might be judgment proof anyway, by the way, although the US generally indemnifies that. When you sue under FTCA, you're suing the United States, of course, because it's the statutory waiver of sovereign immunity. So that's how you'll know the difference. In a Bivens case, it will be like two parties and in a FTCA case,

it will be the United States. News you can use, folks. All right. Next up, Parrish. We're in Sotomayor now. We've gone Gorsuch, Sotomayor. We've skipped Kagan. We skipped Kavanaugh. We skipped Kagan. Now we're on Sotomayor in our reverse seniority. This is another eight-woner with Gorsuch once again in dissent. David, we are spending no time on this. A litigant who files a notice of appeal after the original appeal deadline, but before the court grants reopening, need not file a second notice after reopening.

The original notice relates forward to the date reopening is granted. Next case! Thomas delivers the opinion for a unanimous court about the barring act. That's right. It's default settlement procedures for claims against the government. So when you get a decision by Thomas, of course, skipping Alito, you now know that the next case is either going to be by one of two justices.

I'm quizzing you guys. That's right. It's either another decision by Justice Thomas or by the Chief Justice. In this case, if you said Chief, you still had a 50-50 shot, but you were right this time. Roberts delivered the opinion for a unanimous court, but we had some concurrences. Thomas, in which Kavanaugh joined. By the way, Kavanaugh, my high institutionalist, going on joining concurrences? Separate writings? What is happening?

His descent from that dig? I want to talk about that one for a second that we talked about in the last episode. Sotomayor also filed a concurrence in which Jackson joined. This one, David, we did talk about very briefly after the oral argument. It's about Americans with Disability Act as applied to school children. Remember, the girl had epilepsy and it most severely impacted her in the mornings. But she had from roughly noon to 6 PM where she could attend school, they asked for an accommodation, basically a teacher who could teach her during the hours that she was not seizing, having

seizures. And the school said no. So they sued and really at the oral argument, there wasn't much talk, like there wasn't much to debate because the lower court had said that in the normal ADA context, there's this standard. But in the ADA context, as applied to schoolchildren, you had to show a heightened requirement of bad faith or gross misjudgment. And the unanimous court held, no, you don't. The same standard applies to everyone under the ADA. It reminds me of the employment discrimination case we

talked about last time, David. Yep. We're not applying different rules to majorities or minorities, and we're not applying different rules to children versus not children, and certainly not a higher standard to children. The hell were you thinking? Terrible, terrible stuff that we're gonna defer to teachers and school administrators against children who have the least ability to push back and advocate for themselves in this context often. Now there was a real question of whether the court

would then decide what the standard for everyone should be. Does that bad faith or gross misjudgment standard have some bearing on how we should think about ADA cases? And the court declined to reach that. Thomas and Kavanaugh would have reached it. It sounds like Sotomayor and Jackson would have as well, though perhaps not in the same way. So there we are, though. The decision is just everyone has the same ADA standard. And that is a good thing, David. Yeah, I'm glad you compared this to the Ames case we talked about last time

because it strikes me as very similar. What's this judge-made doctrine doing messing with the plain text of the statute? I'm glad you compared this to the Ames case we talked about last time because it strikes me as very similar. What's this judge made doctrine doing messing with the plain text of the statute? Seems to be a theme here. And both of these cases actually ended up being pretty plain and friendly in the non-discrimination context. And so again, this is another example of ideological categories being scrambled, because you don't think of a conservative dominated court necessarily being the one that is going,

at least in classical terms, how we define these classical ways we define these terms, that conservatives traditionally were not the most plaintiff friendly cohort of judges and justices. But I think this is something that is changing in particular as the conservatism, judicial conservatism has become more libertarian. And I think that's where you're seeing this kind of meeting of the minds. And so, yeah, I thought this case was, it fits very well with Ames. I think it's like the companion piece to Ames. Okay, David, I want to take a little footnote, a little cul-de-sac drive, if you will, because

the more something about that dig in the LabCorp case that we talked about, where Justice Kavanaugh dissented from the dismissal as improvidently granted. So eight, one, or, you know, we don't know that because we don't see all eight justices joining the dig. But nevertheless, a descent from Kavanaugh is weird. You don't see it very often, especially solo by himself. Like, he's the swing vote. He's the institutionalist. And I've just, it was sitting with me weird, you know, late at night as I'm trying to fall asleep, I'm pondering the LabCorp descent from dig by Justice Kavanaugh. Okay, so David, I have a weird theory

and I have no evidence to back it up, none. That's what podcasting is for. Yeah, this is AO conspiracy theory time. So you remember that was about class action certification. And what Justice Kavanaugh's descent was about was he would have reached the merits and said that non-injured parties cannot be part of a damages class that is certified by a court. And there's all these reasons that that's really bad. It's bad for companies. It's bad for employees.

It's bad for our economy. XOXO, Justice Kavanaugh. The overall point, though, is to narrow classes Justice Kavanaugh. The overall point though is to narrow classes and to make them tighter and to sort of have a like my eyes are on you lower courts as you're certifying these classes. You need to take this really seriously what exact classes you're certifying. So David, let me tell you about the birthright citizenship case. If you remember, we don't think this will be about birthright citizenship at all. We think it will be about nationwide injunctions. And at the oral argument, Justice Kavanaugh's line of questioning was like, hey, if we get rid of nationwide injunctions, aren't we just replacing that with class actions?

And we're just going to, you know, instead of having a nationwide injunction against the implementation of the Trump executive order on birthright citizenship, we're going to have a class that's certified that's every baby born in the United States, and then you can't apply this policy towards the class. And so like, yeah, we're getting rid of nationwide injunctions, but we're really just changing the name to class actions.

And he wasn't necessarily like showing all his cards during the oral argument on that, but he definitely was kind of like, are we just moving the ball and we're gonna have problems with the ball on that court now? So David, here's my totally crank pot theory. He's trying to narrow classes in LabCorp and fails because there's that weird procedural

stuff where there's a May order and there's an August order, but they sue on the May order and not the August order, and that's why the case gets digged. He's like, guys, we had this vehicle to narrow classes that had nothing to do with politics and that nobody was going to notice. We let that taxi cab go right on by, and the car that's behind it is like a jalopy with a drunk driver behind the wheel. We're going to move nationwide injunctions over to class actions. We won't have said anything about narrowing classes. We're going to have to decide that on the next one. And instead of being lab core, it's going to be transgender Jesuits for guns.

And it's going to be the most culture war-y class action thing imaginable. And it's going to put that court back into this spotlight where, again, Kavanaugh, I believe, is an institutionalist, and he's trying to sort of do the thing they know they're going to need to do, but in a way that protects the institution the most. So, this is, I think we're getting rid of nationwide injunctions or drastically reducing them. And that he believes we're the like, when you squeeze that balloon, the part that's gonna pop out is class actions.

So two things. This is crazy, right? Like I have no evidence, but this is the smallest. No, no, no, no. I think this is actually, because I will tell you. Like a tiny tea leaf floating in an ocean. And I'm like, look at that tea leaf over there.

Cause when I read that part in the back of my mind was thinking, oh wait, this was an, could have been an opportunity to clarify class action procedure, right when class actions might get this like giant shot of adrenaline here shortly. So I do think there's something to that but more importantly, did you say crank pot? Instead of crack pot instead of crack pot. Yes Yeah, probably. Yeah crank pot. Yeah, I like crank pot

Did you grow up with current like I'm just did did we discover a hidden regional difference in language here? I was so interested when you said crankpot Never heard that in my life. All right Texans way in here. Do we say crankpot? Oh, wait, have Victoria just waited and says no Victoria's from a different generation maybe No, I think I'm probably just wrong, but maybe they call it egg corns, right? That like you miss hear something, but it's kind of close and it makes sense on its own. And so then that gets transferred onto younger generations.

And so like, that's interesting. My lineage could all use the term crank pot. And then eventually it will catch on as an egg corn. lineage could all use the term crankpot and then eventually it will catch on as an egg corn. Next up, David, perhaps somewhat briefly, but two circuit decisions I thought we would want to talk about. One, the DC Circuit flipped Judge McFadden's decision on the Associated Press having access

to the press pool. If you remember, Judge McFadden said that the press pool was a non-public forum and the administration could not discriminate on the basis of viewpoint. Judge Rao, writing for the panel at the DC Circuit, said, no, no, the question is whether the individual spaces that we're talking about, like the Oval Office or the walkout to Marine One or Air Force One,

are non-public fora. No they're not. They are nothing fora. They are simply the president's office and you can discriminate however you want for that. So that injunction was lifted. Interesting question of whether this will go to the Supreme Court, whether they'd be interested in that. It is a narrow First Amendment question, but nevertheless an important one. No, I mean, you know, I think, yeah, you're absolutely right. Narrow but important. And, you know, I do think it is interesting how much,

how often the truly important First Amendment doctrines are built from relatively narrow foundations. So yeah, absolutely. Absolutely. Can I circle back briefly? Just very briefly? I want to circle back to the discrimination case. Oh, yeah. Just very briefly. And the reason I really do think that between Ames and that case, and also the Thomas concurrence, I really do think we're going to be seeing a sharp limit on the truly sort of judge-made doctrines, judge-made standards of proof,

judge-made burden-shifting doctrines. I think we're really gonna be, again, to see a limitation on that. And I think that that might be one of those positive legal developments that almost rises to the level of a legal reform that is going to be simplifying and clarifying the law sort of down range.

Because I remember when I first got at a law school, I remember how often you would read a statute that would seem to be relatively clear in how you're going to prosecute a case or how you're going to try a case, only to dive into the case law surrounding the statute and realize, oh, the statute is really barely even the beginning to the actual language of the statute is really barely even the beginning of the understanding of the legal regime. And so I do welcome this simplification. And I just wanted to circle back and put a pin on that because I think it might end up being more significant than people realize.

Fine. Then I'll circle back on crank pods and tell you that the internet does not think that this is a real thing at all, but there are lots of ceramic studios that have already adopted the name crankpots. Interesting. That's weird. Okay, next up then is,

is yoga protected by the First Amendment. David, this was a night circuit case about a local ordinance that banned teaching yoga to more than four people on a beach. And if you're wondering why it's important to ban teaching yoga to more than four people on a beach, nobody from the government was really willing to say why, because there's already laws about large gatherings.

You need permits and stuff for large gatherings because that can force people onto sidewalks and it can be dangerous for pedestrians or just uses up a public park that's for everyone's enjoyment and not just your group. But this local ordinance was like teaching anything, any service for a fee or a donation, including yoga, like it's specifically called out yoga on the beach, is criminal. And the lower court said teaching yoga is not protected by the First Amendment. The night circuit in a pretty nod dog fashion was like, well, that's obviously wrong, you idiot. It's definitely protected by the first amendment. And since there's no compelling government reason

because there's no reason, we're reversing that. David, do you feel like this was correct? Do you have any high-minded thoughts on teaching yoga to more than four people on a public beach? So I liked this case and I wanted to talk about this case for a couple of reasons. One, it is- Because you're super into yoga. Are you into yoga?

No. Have you ever done yoga? Have I ever done yoga? I think I tried it once, but not like going to a place that like Nancy had a video. And I thought, I'll try that. I'll try it. And I found it a combination of extremely boring and exhausting, like both at once.

I think of myself as someone who has a lot of grit that my success has come from my grittiness. Yeah. And yet I will also tell you that I tried yoga and Pilates and I was so bad at them that I was like, I am not ever doing this again. I don't, like, I'm so bad, I can't really even get better at this.

At least CrossFit I stuck with for like six to nine months. Yoga was like, I think I did like four sessions of Pilates and was like, I'm not getting better nearly fast enough for this and I hate being bad at something. Well, for me, kind of similar, exhausting. I was terrible at it. I have zero.

This might come as a surprise, Sarah. I'm not a very flexible person. I failed gym class because I couldn't touch my toes. And I was like, that's not my fault that I can't touch my toes. School is supposed to test any number of things, but surely not innate flexibility before passing high school.

What? Well, and I think that sound that you just heard with thousands of our yoga listeners saying, but David, this is how you get flexible. No, my hamstrings are so tight, you could like play the standup bass on them. Anyway, David, tell us why you're into this case. Anyway, so two reasons.

One, I'm always interested in cases. I'm always interested and gratified when I see courts gnaw-dogging clear content slash viewpoint discrimination. I'm just continuing to sort of reaffirm the core ethos of the First Amendment. And second, you know what this strikes me? There's an awful lot of lawmaking that occurs because powerful people get annoyed by something.

And this strikes me, and look, I'm sure we might have listeners who might have some more background on this, but there are a number of cases, if you're a First Amendment lawyer, if you do it for long enough, you're going to run across cases like this that are so nonsensical. I mean, the underlying fact pattern, the underlying government action is so nonsensical, so obviously at odds with the law that you wonder how this happens. And when you lift up the rock on a lot of that stuff, now second time, we've used the same analogy this podcast, but it works.

When you examine this stuff more closely, it's really interesting the number of times you will find that a really foolish action was undertaken at the best of somebody who is very powerful in that local community and who got irrationally annoyed at something or irrationally angry at somebody over political beef. And that spawns, actually ends up spawning an awful lot of litigation. Okay. Last thing I want to talk about today, friend of the pod, Joel Alasaya, wrote an op-ed in the New York Times about the interesting diversity within originalism. As he notes, the chief justice actually never has defined himself as an originalist. So yes, he was

appointed by Republicans and yes, he certainly is a conservative in many respects. You can look back at his time in the Reagan administration and the Bush one administration I believe he was in and say like obviously a conservative, but has never said that he's an originalist. So within the five, Joel says, is highlighting two big points of diversity with an originalist that I thought were fascinating, David. First, he talks about that Fulton versus City of Philadelphia case. This was on Catholic charities running adoption and refusing to adopt two same-sex couples, but happily referring them to others, etc. Philadelphia says, we can't work with you anymore. They sue on free exercise grounds. The real question in this case was whether they were going to overturn Employment Division

versus Smith, right? Neutrally applicable laws are just A-OK, even if they have insane discriminatory outcomes. Basically, the justices found for Catholic charities but just refused to overturn Smith. They further zombified it, but they didn't overturn it. As Joel, Professor Alessia, is writing here, he's like, look at the differences between, for instance, was it was a le was Alito, yeah, yeah. Look at the differences between an Alito and

a Thomas versus a Barrett and a Kavanaugh. Basically, they're all originalists, they're all coming to the same conclusion as to what the First Amendment demands. But their disagreement is on what originalism says about overturning precedent. There's nothing in the Constitution about that. So, yes, we all agree that case was wrongly decided.

What do we do about it? Thomas, of course, believes that if precedent's wrong, it's wrong. We follow the Constitution first. Whereas Barrett and Kavanaugh seem, at least, to believe that, no, stability, institutions, all of that's important too, reliance interests. So just because it was wrong doesn't mean that we automatically overturn it. We need to have other ways of getting there. For instance, in this case, we didn't need to overturn it. There was a way to get to the originalist outcome without explicitly overturning Smith. He then, of of course talks about New York State Rifle

and Pistol Association where you see a difference between Kavanaugh and Barrett on what you do about what you look at for originalism. When you're looking to see the understanding at the time that for instance the Constitution was ratified, can you look at the understanding just after the time the Constitution was ratified? It's the same people, generally speaking. Maybe a few died, maybe a few were born, but by and large, they're there. What about 20 years after the Constitution was ratified? And basically, Kavanaugh's like, sure, post-ratification history can be informative if it's informative. And Barrett's like, no, originalism means pre-ratification history can be informative if it's informative. And Barrett's like, no,

originalism means pre-ratification history except in the most extreme circumstances, you ignorant slut. I just thought it was a great piece, David. It was one of those pieces where you read it and you're so mad at the author because they said something that like you knew and you could have said, but you didn't think to say it.

And they said it better than you would have said it. It's like they consolidated your own thoughts. And that stuff drives me crazy when I see someone else write something down that like I knew on the one hand, but hadn't ever put into those words and nearly as well. So you suck, Professor Alessia. No, I thought it was a great op-ed, very helpful, very educational. And it also reminds me, and this is something that we've talked about before, that in some ways, originalism has had a kind of a, I'm not going to call it a deceptive PR campaign, but ultimately misleading PR campaign in the

sense that one of the ways, especially early on in originalism, I feel like people were sold on originalism is that it removes ambiguity, it removes ad hocery, it removes the judges' own personal opinions from being injected. It felt sort of more like, you know, archeology than philosophy, if that makes sense. You're uncovering something that concretely existed and that is the original public meaning. And then that sort of the social dynamics of originalism

contributed to that as well, because if you're looking at a law faculty, a lot of law faculties, you might have an originalist. Like there's the one guy, the one girl who is the originalist. And so they are like the stand in for originalism. So it makes it feel more monolithic. Or when you're talking about originalism, as opposed to competing philosophies, it makes

it seem more rigid and less malleable. But then when you get the gathering and assemblage of originalists, and we need to come up with what's an assembling of originalists, like a herd, a flock, whatever, of originalists together, and then the differences begin to emerge. They're going to emerge in those areas where, particularly emerge in those areas where the Constitution is just totally silent.

And I like how he talked about how Dobbs kind of papered over some of these differences. And he says in the piece that, you know, maybe there were other ways consistent with originalism to be decided. But I would also say that Roe might be one of the prominent court opinions, least consistent with originalism that you're going to find. So I've literally never, and I'm not going to say they're not out there,

but I have never in my life encountered in the universe of, of originalists, somebody who was going to uphold Roe, because the Roe decision was so, so counter to almost any strand of originalism. But I do think that that has misled people into thinking originalists are more monolithic than they are. David, there's this one line that made me kind of crack up a little. He says, for originalists such as myself, these fractious dynamics pose the greatest threat to the urgent effort to restore the rule of law that was so badly damaged by the Supreme Court in the 1960s and 70s under Chief Justice's Earl Warren Warren Burger.

But for all observers of the court, regardless of judicial or political inclination, these disputes are key to understanding its decisions. I think that's a fascinating paragraph. A, absolutely, this entire podcast is basically dedicated to the proposition that it is key to understanding the court's decisions. B, though, whether you think it is a threat to the rule of law or, in fact, the glorious 50-state laboratory of democracy-type experiment within conservatism that like tests and will sort of in a Darwinian sense allow survival of the fittest theories when it comes to post ratification theory.

I found it really interesting that he said he thought it, he saw it as a threat. And I think I clearly see it as a good thing. An opportunity. Yeah. Yeah, that is a very interesting paragraph. It really is. But it's also, I just think that there is no way for originalism to be any other way than fractious because it is just not as easy, simple, cut and dried to determine original public meaning.

That's not a simple, easy process. And I think nothing made that more clear than the Bruin decision. That the Bruin decision, which was rooted in text history and tradition, and when Justice Thomas and the majority is walking through the history, even walking through it in a way that is designed

to try to bolster his points, the complexity of history was very apparent and that the lessons of history were not all pointing in just one direction was very apparent. And this has just been the case. The more and more that we have seen originalism play out in jurisprudence, you're starting to get things like historians filing briefs. And these historian briefs often complicate the history quite a bit. And so I think it was absolutely inevitable

the more that originalism moved on from some of the more basic culture war issues where there was a lot of unanimity and began to be an all encompassing judicial philosophy that is applying to all decisions that come to the court. If you have a real originalist majority, that's what's happening. And in that circumstance, these divisions are just absolutely inevitable. And good, let's test it all.

I think, you know, having it put through the crucible of, you know, intellectual disagreement and debate is only a good thing. And with that, our next episode of Advisory Opinions will come out, you know, next week when we are learning more about when they're going to be handing down decisions. David, we don't have that much time left. We've got 21 decisions left to go. Like, really, I mean, two weeks, so 10 business days. Maybe you could count June 30th? If they keep us

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