Advisory Opinions - Ruling Against Planned Parenthood

Episode Date: June 27, 2025

Sarah Isgur and David French face the muddiness of a case on moving criminal aliens to South Sudan, the messiness of death penalty cases, and the potential abortion distortion of a plain ol’ statutory question. Today’s dessert, though, is analyzing an interview of Justice Samuel Alito by the Hoover Institution. The Agenda:—Mark Justice Clarence Thomas off your bingo card—Supreme Court’s yellow light for moving criminal aliens to third-party countries—Gutierrez v. Saenz—Medina v. Planned Parenthood South Atlantic—Sarah’s pet peeve: 18th century life expectancy stats—Chief + Gorsuch = criminal justice case—Alito time This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at burfordcapital.com/ao. Learn more about your ad choices. Visit megaphone.fm/adchoices

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French. And today we will talk about the remaining cases left in the term, the cases that got decided, including an emergency case about deporting criminal illegal aliens to third party countries. And finally, we get to that really interesting interview

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supply. This is your GTA Volvo retailer or go to volvocars.ca for full details. David, I think the most exciting news for this podcast is that the Supreme Court has told us that the last day of the term is going to be Friday. The Supreme Court has told us that the last day of the term is going to be Friday, as in for us tomorrow, which means we're getting all of the remaining cases tomorrow. So, David, here's my plan. Emergency podcast, obviously required. We're getting birthright citizenship. That's the case called Trump-Vicasa. I think it's time for a crossover

episode with divided arguments, Dan Epps and Will Bode. We'll have them for our emergency pod on birthright citizenship when we get it. Then David, you and I will cover the other cases, of which there are many big ones left, for our regular episode on Monday. Can we walk through those other cases? I think everyone knows birthright citizenship. We're waiting. Will they mention the actual substance of birthright citizenship? But really, what about those nationwide injunctions? Are we going to keep doing them? Are we going to call them class actions? Are we going to just tell the district courts to do better and narrower. Any number of options left on the table for that one.

But for these other ones, David, we have Louisiana's redistricting case. Every term we basically had a big redistricting case. We haven't talked a lot about this one, but it is very interesting. I expect for us to spend some real time on that. We have the Federal Communications Commission versus Consumers Research. That's a non-delegation case. That's that Universal Service Fund. We talked about that one as well. Can the FCC delegate to this private entity setting this fund tax that you have to put in? Interested in that one. That one's

coming from the Fifth Circuit, by the way. Kennedy v. Braidwood, whether the U.S. Preventative Services Task Force violates the Constitution's Appointments Clause. So another big statutory one in these independent agency type ideas. I mean, all eyes on the Federal Reserve per usual. And then of course, Mahmoud V. Taylor,

that's the opt-out case for parents. I actually, the more I've like really marinated on this one, I think this one's gonna look pretty narrow, which is this school already had opt-outs for other religious reasons. So you can't then throw shade at the religious reasons you don't like basically, seems like a really obvious outcome for that one

versus a ruling that says you must have opt-outs. They just don't have to reach that here because the school already has opt-outs. I could be totally wrong about this, Sarah. I'm sniffing 9-0. Like I smell 9-0, narrow 9-0. Like this is the kind of thing reminding me of the Fulton versus city of Philadelphia case,

where there was a way to write that, that was nine-oh, that was narrow. And they went that way and they didn't have to go bigger. I'm with you on that. But Paxton, I don't know that it'll go narrow. So this is free speech coalition versus Paxton, AKA the porn case. Now remember the Fifth Circuit only applied rational basis review to uphold the restrictions on kiddos.

So the nine-oh version is that they just send it back and say, now do strict scrutiny like you know you should have. But there's other ways to go, David, that could definitely be less nine-oh-y where they don't just say apply strict scrutiny, but they in fact do apply strict scrutiny to this case Now you had a theory that you expressed in slack that Clarence Thomas might be writing that one Yes, finally, we get some Supreme Court bingo here at the end for those who have not played Supreme Court bingo before Generally speaking. Well, let's just walk through how opinions are assigned.

The justices sit in the conference room, just the nine of them, no clerks allowed, no staff allowed, and they discuss the case starting in seniority order and they vote on the case. At that point, the most senior justice in the majority gets to assign the case. So, you know, it's usually the chief justice or if he's not in the majority, it would be Clarence Thomas, then Alito, then Sotomayor, then Kagan, and then we're basically out of how you could have five. So, David, you try to assign a case to every justice for each sitting, which means that when we get to the very end here and there's only one case left in a sitting, in this case

January, the only case that we have left to have decided is the Paxton case, then you can go look at what the other justices have written. If you go to scotusblog.com and click on statistics, you can look at the arguments by sitting and then look at majority opinions authored by sitting and you look for the gaps. So if you go to January, there's only one gap left and it's for Clarence Thomas. You know, generally I give all sorts of caveats about the bingo game. I really don't think I need any here. I think it's pretty clear that Thomas is gonna write the Paxton opinion. I really don't think I need any here. I think it's pretty clear that Thomas is gonna write the Paxton opinion.

Well, and with the full awareness that a lot of people are going to be listening to this podcast after the opinion's already out. Yeah, the question though is, because we're recording this in a speculative moment, the question is, what does it mean if CT is writing this opinion? Does that mean it's the narrow rational basis review was wrong, send it back to the fifth

circuit? Because it feels to me if CT is writing, it's something more than that. Well, my big question is, did the chief give it to Clarence Thomas, i.e. they're both in the majority, or was the chief not in the majority, in which case Clarence Thomas assigned the opinion to himself and generally speaking, if you're the justice, the most senior justice, the one assigned in the opinion,

you assign the good stuff to yourself. So yeah, lots of questions still outstanding. I'm gonna be particularly interested in the Justice Barrett, where she votes on this, or if she writes separately, uh, because, you know, one of the interesting things about the, um, profile that Jodi's profile of justice spirit was she made the point that she's the first mom of school age kids and some of her questions and in first justice to be a mom of school age

kids, she's not the actual first mom of school age kids. That would be, that would be extraordinary. That would be amazing. justice to be a mom of school-aged kids. She's not the actual first mom of school-aged kids. That would be... That would be extraordinary. That would be amazing. But no, she's the first justice who's a mom of school-aged kids. And some of her questions and oral argument were pretty pointed, I would say. So I'm going to be very interested to see what happens. Well David, we are recording this Thursday morning because it was a hand down day as well today. We got four opinions, but also we got one of those interim relief docket opinions.

David, also just an interesting point about this. We've talked about the merits docket and the equity docket or the short order docket or the interim relief docket or the emergency docket or the shadow docket. The names are really proliferating at this point or even calling it the non merits docket or the short order docket or the interim relief docket or the emergency docket or the shadow docket. The names are really proliferating at this point or even calling it the non merits docket. But those aren't like real things, which it also might be worth pointing out. So for instance, if there's an opinion of the court, it's going to be on the same place on the website, whether it came in as a merits docket case or it came in as an application for relief case, which is all to say, David, this one was not an opinion of the court that we got in this emergency posture.

This was DHS versus DVD, and it was about sending illegal aliens to third party countries. Now the reason it's not an opinion of the court is because all we actually got from the court was the application for stay presented to Justice Jackson and by her referred to the court is granted. That's pretty much it. So that's not an opinion of the court, but we did get a dissent from that written by Justice Sotomayor, Justice Kagan, and Justice Jackson joining, so that 6-3 ideological lineup. David, I want to read just a little bit from the government's application to the court

for this stay because I think it sets up some of the issues in an interesting way. Then I want to get your read of the issues in an interesting way and then I want to get your read on the dissent and everything else. This case addresses the government's ability to remove some of the worst of the worst illegal aliens. The United States is facing a crisis of illegal immigration in no small part because many aliens most deserving of removal are often the hardest to remove. When illegal aliens commit crimes in this country, they are typically ordered removed.

But when those crimes are especially heinous, their countries of origin are often unwilling to take them back. As a result, criminal aliens are often allowed to stay in the United States for years on end, victimizing law-abiding Americans in the meantime. So let me just explain that a little bit. You're convicted of rape, let's say David, and you get 10 years in prison. At the end of that 10 year sentence, you're ordered removed to France.

And so we like call up France and we're like, hey, this person's finished their rape sentence. We're gonna send them back. And France is like, absolutely not. Why would we want a rapist? So they say no, and there's nothing we can do about that. We can't force France to take this person back. They've also served their sentence.

So for the most part, what we're talking about is then releasing them because they served their sentence and we have nowhere to send them even though they've been ordered removable, we don't have a country to send them to. Okay, back to the government's brief. The executive branch has taken steps to resolve this problem by removing aliens to third countries that have agreed to accept them. Convincing third countries to accept some of the most undesirable aliens requires sensitive diplomacy, which involves negotiation and the balancing of other foreign policy interests. I hope you feel your Article 2 buzzwords buzzing in your ear. Until recently, those efforts were working.

Just last week, the government was in the process of removing a group of criminal aliens who had been in the country for years or decades after receiving final orders of removal despite having committed horrific crimes. These aliens include one who was convicted of sexually abusing a child victim for the better part of a decade, beginning when the victim was seven years old. Another was convicted of sexually abusing a mentally handicapped woman with the mental capacity of a three-year-old. At least two were convicted of murder. All of these aliens have already received extensive legal process. All were tried and convicted in a criminal court with all the process and

protections afforded to criminal defendants. All were adjudicated removable. Okay. So then what happens David is that a district judge said, okay, but you can't remove them to South Sudan was one of the options. Libya was another one of the options. And that's what the Supreme Court was asked to decide is whether that district court's order preventing removal without notice so they could file convention against torture complaints, things like that, was that effective? And what the Supreme Court is saying, 6-3, is they're removing that district court's delay, basically.

And so those aliens are removable to third-party countries. Reactions, feelings on the dissent? Well, first, the Supreme Court, it was 6-3, which we're presuming because it was per curiam. So at the very least, it was 5, right? And then we have the three more liberal justices and dissent. There's something that has persistently bothered me about a lot of these arguments, and that is when the administration comes in and says, these people are the worst of the worst, and then they walk through the litany of their crimes, and their crimes are horrible, we have statutory punishments for the crimes.

We have punishments for the crimes that are outlined by statutes. These individuals ostensibly serve their statutory punishment. Now if the statutory punishment was also, okay, if you're a criminal alien and you've been convicted of rape, you're going to serve X number of years and also we're going to have the ability to deport you wherever we want to deport you as a consequence of your criminal conduct, I would feel a lot better about these cases than what seems to be happening, which is, hey, you have a criminal defendant, a criminal alien, they serve their sentence or

they're serving their sentence, and then we want to add on something else that looks a lot like an additional punishment for the crime that's not actually spelled out in the statutory punishment for the crime that's not actually spelled out in the statutory punishment for the crime itself, but we're using the fact of the crime to cut through the normal process that we apply for third party deportations. And I thought that the dissent was very effective in sort of saying, wait a minute,

there is a specific kind of process here. This is a very narrow circumstance where you're able to send people into these third-party countries, and are we following this process? Is this process being followed? I think that there's this kind of persistent way that the Trump administration has tried to evade these things by saying, well, they're criminal aliens.

They're the worst of the worst. And so therefore, what? Don't worry about the statutes as much? That's kind of not the way this works. So I am absolutely agree that there are circumstances in which you can deport people as we've laid out in statutes to third party countries. The question I have is where are we following the statutes or are we using the status of the criminal alien as a criminal to avoid following the statutes, or sort of provide

political cover for avoiding following the statutes. But look, six justices probably have said, you know, given this green light is maybe the wrong word, it's a yellow light maybe once you include all of the rest of the jurisprudence here. So yeah, it's one of those situations here where I wish the majority, I really wish the majority had written because when you only read a dissent and then you otherwise are reading sort of the maximal arguments offered by the Trump administration, I don't think it's kind of a fair way to, it doesn't provide us with a great way to evaluate the outcome. I found what was really interesting here is the dissent paints the government as the bad actor that they keep defying court orders and they make a compelling argument for that.

The government makes a compelling case that the district court is the bad actor here. I'll read just this portion of it. In addition to usurping the executive's authority over immigration policy, the injunction disrupts sensitive diplomatic foreign policy and national security efforts. Recent events vividly illustrate the injunction's pathologies. Last week, the district court required the government to halt the ongoing third country removal of the aforementioned criminal aliens to South Sudan. The court did so by exploiting an open-ended term in its injunction, holding that the government

did not give them a meaningful opportunity to raise a fear of torture in that country, notwithstanding that they were all notified they were going to be removed there and that none expressed any fear at the time or even that day. Having slammed on the brakes while these aliens were literally mid-flight, thus forcing the government to detain them at a military base in Djibouti not designed or equipped to hold such criminals, the court then retroactively clarified its injunction to impose additional set of intrusive and onerous procedures on DHS. That same story as told by the dissent is totally different. That the government never

tells them where they're going, never gives them the opportunity to raise convention against torture defenses to being removed to South Sudan, that there's a violence on the ground because the South Sudanese people hear that these really bad guys are about to be freed into their country. And so they're like a mob waiting to kill them basically. And that the government defied the court's order and shouldn't be rewarded for that behavior.

I find this to be all pretty factually muddy, David, and this is part of the problem when you're having to set the status quo before these cases have been fully litigated, where we get the legal issues really distilled. There are factual disputes here that are like night and day. Oh, yeah. Well, although there is an interesting element of the government's argument that you read that does marry up with the dissent, but the way we use language is very telling. So they said they didn't raise an objection even when they found out where they're going the day before. Okay. That should cause your ears to perk up.

Wait, the notice was the day before? And this is where you learn the government's assertion that these deportations could be reconciled with the injunction as wholly without merit. This is the dissent. Notice at 5 45 PM for a 9 35 AM deportation provided to a detainee without access to an attorney plainly does not quote afford non-citizen with a reasonable time to seek relief. So that's why I wish the majority had written here, Sarah, because that's where I'm having the most trouble squaring this outcome with previous outcomes because of that very,

very short period of notice. All right. Let's talk about some of the other cases the Supreme Court decided on Thursday morning. I don't know. Let's start with the Gutierrez case, David. This one was also a bit messy at times. Gutierrez was convicted of murdering a woman in a robbery. She was 85 years old and was stabbed many, many times with two different screwdrivers. He was sentenced to death. He now claims that he was not in

the mobile home where the stabbing occurred even though he did take part in the robbery. He wants to force the state of Texas to test DNA. His claim is that the DNA would not show up as his from inside the mobile home. Well, Texas is like, okay, we don't care. Even if the DNA doesn't pop as you, you would still be eligible for the death penalty for this murder. So why do we need to test the DNA?

Well, we got the decision from the Supreme Court. It's 6-3, but not ideological, David. This is that 3-3-3, 6-3 that we get, where in dissent is Alito, Thomas, and Gorsuch. The majority held that, yep, it is a due process violation not to test the DNA and that what Texas does with that is kind of up to them at that point, but the DNA needs to be tested. You have Justice Thomas writing a separate dissent, Justice Alito writing a dissent that all three, Alito, Thomas, and Gorsuch join.

And David, in many ways, this is, again, a messy, messy case about exactly what the court's precedent was, exactly what redressability means. But I gotta say, I kind of thought the dissent had the better side of the argument here. Just like testing the DNA to prove a negative like isn't a thing, it wouldn't disrupt

the jury's conviction. He made that argument and here was the part that I found really persuasive from the dissent. He had the opportunity to get that DNA tested before his trial. Strategically, they chose not to for fear that it would show that he wasn't there. Then of course, when he gets convicted, they have nothing to lose because maybe the DNA will show he was there, in which case shrug, he's getting the death penalty.

Then if it doesn't show any of his skin cells or whatever, then they have this argument. But like, I wasn't into it, David. And I think our death penalty jurisprudence is a big, fat, messy mess. We're totally going to agree on that. I totally can agree on that. Although I narrowly side with the majority here and here's why. The argument essentially was, well, so what if the DNA wasn't on the murder weapon? So what if he didn't actually kill the person? The felony murder rule still applies. Well, the way the Texas statute works, it's not just simply, okay, are you a part of the felony? Did somebody die? Then it's felony murder. The statute says

that it's going to apply if he actually caused the death, that he intended the death, or anticipated that a human life would be taken. And so that would be that the very, if he was not in the trailer and if he did not hold the knife, he did not, or I guess, I think it was a screwdriver, he did not hold the murder weapon, then you're left with that last prong that he anticipated that a human life would be taken. That's the entire death penalty then hinges on that element of it. And that's where it's very unclear to me, even under this record, that if you do a retrial and there's no evidence that he was in the trailer at all, do you have the same outcome?

in the trailer at all, do you have the same outcome? And this gets to one of these big questions about these death penalty cases. A lot of these cases, and we talked about this in this really awful case out of St. Louis several, about a year or so ago, where an individual was convicted after there was no, executed after there was no DNA evidence or physical evidence trying, tying him to the crime at all. If you have a case in which post-conviction proceedings and post-conviction evidence doesn't establish innocence, but it casts serious doubt on the jury's conclusion, what do you do? And that's where I think death penalty jurisprudence is, this is where it's having real difficulty

handling that situation. It's easy to deal with it if you have actual innocence, if you have established actual innocence. Somebody else confesses to the crime and their DNA evidence matches their confession, etc. That's easy. Or if there's no real evidence that emerges afterwards and you're just making a standard procedural and effective assistance of counsel kind of arguments. But where it gets really difficult is a lot of these death penalty cases, people keep digging and picking into them and digging and digging and digging and they get more and more complex. And I think that would be true almost

in any criminal conviction. But with death penalty cases, this is something that is because life and death is at stake. You're much more apt to have this scenario. What do we do? What do we do in that circumstance? And that's where I think our death penalty jurisprudence is just kind of a mess. Okay, so I agree with everything you just said, except I don't think this is a good case as the poster child for that. Our dude, Gutierrez, is the one who hatched the plan

for the robbery. He recruited the other two guys. Witnesses placed him at the mobile home park at a minimum. So like, we know it was his plan to rob an 85-year-old woman who he believed had $600,000 in her mobile home. He picked the two guys to help him with the robbery and they all showed up to the mobile home park together. I guess as a juror, I think a reasonable jury could convict him and institute the death penalty whether he walked in the mobile home or not, whether the DNA shows that he was in the mobile home

or not. Because the idea that he couldn't anticipate that the two guys he handpicked for this robbery who came with screwdrivers weren't going to kill her, I just don't believe that. He made that argument and the jury didn't buy it. And now he wants to have DNA to say like, see, and there's no DNA that proves I'm in the mobile home. You already argued you weren't in the mobile home. The jury could have said, yeah, we totally understand he wasn't in the mobile home. He absolutely knew they were going to kill her though.

I think the most persuasive part of that is the tactical decision not to do the DNA testing. That's where I'm most sympathetic to your position is, wait, okay, can you really have it both ways? All right, David. Up next, we'll talk about Medina versus Planned Parenthood. Is this another abortion distortion? No Frills delivers. Get groceries delivered to your door from No Frills with PC Express. Shop online and get $15 in PC Optimum Points on your first five orders.

Shop now at NoFriels.ca. All right. Next up, David, we have, this one was a big one, Medina versus Planned Parenthood, South Atlantic. This was also a 6-3 case, but it was along ideological lines. David, this implicates so many different parts of the law. I will tell you, my biggest question was, would this have been a 6-3 case if Planned Parenthood hadn't been in the title of the, in the caption of the case? So this is actually about 1983 lawsuits. It has nothing to do with abortion. No, nothing.

I mean, not really, not the legal question. Okay, so under section 1983 came as part of the Civil Rights Act of 1871, and it allows private parties to sue state officials who violate their rights under the Constitution and laws of the United States. Okay, so David, the question is when Medicaid says that a patient has the right to pick their provider as part of a state accepting federal funds for Medicaid and the state then passes a law that says no Medicaid funding can go to Planned Parenthood, did the state violate the patient's rights because they couldn't pick their provider if they wanted

Planned Parenthood? Okay, so one, was that a right? Two, does 1983, in the language in 1983, provide them the ability to sue the state official for violating that right. The six conservative justices on the Supreme Court say no to that second question. 1983 does not provide a private right of action against state officials for violating that part of the federal Medicaid provision. Justice Thomas has a really interesting concurrence in this David that I just know you're gonna be like all over.

That it also isn't a right because something in a spending, if Congress is using its spending clause powers, it by definition isn't creating a right, it's creating a contract with the state because the deal is, we'll give you this money if you do this. You can't create a private right that way. All you can do is create this contractual obligation with the state so if they violate it, you get to take back the money or whatever else the problem may be. You can sue the state maybe, like the federal

government can sue the state, but that's Congress's spending clause power, not its commerce clause power or any other power where it might be able to create a right. So that's why I say those are the two questions, David. Was it a right or because it was a spending bill, never a right. And two, can you vindicate it through 1983? That question was so interesting to me, David, because as I said, the six justices in the majority held, no, 1983 is not for every statute. Congress kind of needs to speak to it, or it needs to be kind of a core constitutional right or law. But boy, David, like the text of 1983 says rights under the constitution and laws.

I kind of felt like both sides flipped their normal ideological priors on this one as well. Yeah, because it seems like the majority was basically saying this. So the actual statute, section 1396A, per N, A, per N, 23, per N, capital A, for those keeping scored home, there's three A's in there. Two of the three are lowercase, one is capital. Okay. Anyway, gotta love the federal code. It says that states are required to ensure that, quote, any individual eligible for medical assistance may obtain it from any provider qualified to perform the service who undertakes to provide it. And the majority's reasoning, just to make it super simple, is if that language instead of saying, may obtain it, says any eligible, any individual eligible for medical assistant

has a right to obtain it, then they would have sided with the right of action. But the fact that it says may obtain it is ambiguous enough to not be a clear statement of an establishment of a right enforceable at law. So, a lot of words to basically boil down to that. statement of an establishment of a right enforceable at law. So a lot of words to basically boil down to that, that essentially the six judges, justices are saying, look, if you're going to create a private right of action under section 1983,

that is not referring to a constitutional right, but instead a statutory right, that statute has to clearly say that it has created a right rather than say something more like you're a third party beneficiary to a contract. And they much compared this much more to a contract. The dissent just flips this around and basically says, no, no, no, no, no, no, no. I mean, this is a legal obligation established by a statute. It is being taken away under the color of state law. This is very straightforward.

Section 1983. And Thomas comes in and says, you kids get off my lawn with this section 1983. Way too many lawsuits. This thing is out of control. We need to rethink it all. So that's my very short summary Sarah and as I was as we were saying at the beginning and Yeah, I think you raised a really good question. Does this come out exactly the same way of Planned Parenthood is Not on the case. Do we have some abortion distortion coming in here because this is

Just plain vanilla statutory construction here. It is not an abortion case. It is does section 1983, does a federal statute grant a right of action under section 1983 without clearly specifying that a legal right has been created when the legal right is more implied than express. That's what this is really about. And David, there is something, so just to take from Justice Thomas's concurrence. So he notes that in 1961, for instance,

federal courts heard just 296 1983 actions. Post that year, courts have faced a deluge of 1983 filings numbering in the tens of thousands each year. Maybe there's abortion distortion going on, or maybe what we're seeing is also conservatives tend to want to narrow statutory readings that provide private rights of action generally, and the sense that 1983 has gotten out of control where, you know, a state official looks at you wrong or hurts your feelings and you can file a federal lawsuit about it and it's flooding the courts for that reason.

I do think that's animating at least some of this, if not all of it. But David, we've seen some really, really important 1983 cases. Like, you know, someone gets arrested for asking too many questions at the city council meeting type stuff. Like those are 1983 cases as well. So I'm curious about your overall thoughts on the expansion slash the end of the expansion of 1983, whether that is good or bad or you're indifferent, and two, this spending clause argument that anything in Medicaid is a third party beneficiary and therefore this is spending clause and there's definitely not going to be 1983 actions coming from any spending clause law because that's not where rights come from, like babies.

So I think two things at once. One is I think Thomas is just dead wrong about Section 1983. I think the expansion of Section 1983 is much more in line with the actual text of the statute, that the statute has broad text. And in fact, right now, currently, the Supreme Court really does narrow section 1983 with judicial, I mean, with qualified immunity, which is not anywhere in the text. So already you have an A textual narrowing of section 1983. I think the expansion of section 1983 that did result in hundreds, thousands of more

cases is just, it's what happens when you actually apply this, the text of the statute in a very, very large country with lots of governmental agencies that are filled with human beings who are not always going to safeguard our constitutional structure. So, it is also, I would guarantee you, Sarah, if you look at 1961, sort of like the... Well, I'm not going to say guarantee you. It would be very interesting to look at the difference between 1961 and 2025 as sort of the expansion of government overall.

How much of our national GDP is into government? What kind of public employment do you have in government? What kind of regulatory arrangements do you have in government? What kind of regulatory arrangements do you have? Because one of my thoughts is that between 1961 and 2025, we've had very large-scale expansions of the reach of government, and that is going to necessarily mean more opportunities to violate the Constitution, more opportunities to violate statutory rights that have been created at volume since 1961. So I think I'm not in a concurrent agreement with Thomas. It's a much harder question on the second point, which is, okay, was a right of action

created here? Because I agree absolutely that not every benefit that I receive as a result of a statute, that I don't have a right of action to sue for that benefit for every conceivable benefit that is given to me as part of spending bills, et cetera, et cetera. There has to be a test for when I do have that right of action. But if the test is not, well, the right of action has to be explicitly given in the statute, then we're in that arena where, as Justice Gorsuch says, justices exercise judgment. And I generally agree with the test outlined by the majority.

It's got to be pretty darn explicit. Let's make it pretty darn clear. So I would say I'm in general agreement on that point, but it's still a bit hazy, Sarah. It's still a bit hazy. So to me, this gets to this really interesting sort of first principles, originalism versus textualism problem, which is, as we said, the language in 1983 is incredibly broad. You get to sue any state or local officials who have deprived you of, quote, any rights, privileges or immunities secured by the constitution and laws.

The end, right? But the purpose of section 1983 is also quite clear. It was enacted in 1871. It was, the purpose was to enforce the provisions of the 14th amendment in response to an ongoing pattern of violence and intimidation. By the way, that quote comes from professors, Bode, Goldsmith, Manning, and Amanda Tyler from Hart and Wexler, which are like all friends of the pod. Well, Professor Manning hasn't been on the pod, but he's the interim provost at Harvard

and was the dean of Harvard Law School up until quite recently. the interim provost at Harvard and was the dean of Harvard Law School up until quite recently. The purpose wasn't to have this roving right against state officials, but it has become that because the text says that. Again, you have what the original purpose was, enforce the 14th amendment. So if whatever you're looking at sort of wouldn't exist as a 14th amendment right anyway, then you don't have a 1983 right to enforce that not protected by the 14th amendment right, let's say. That's one, that's like the originalist reading.

But then the textualist reading is like, it says what it says, if Congress didn't want it to say that, like they shouldn't have written it. And they can change it at any time. That's the strongest argument. And that's why, look, the language, if it just said this, if it said, every person who under color of any statute, blah, blah, blah,

it's subject to the deprivation of any rights or immunities secured by the Constitution laws. The majority's reasoning would be a lot more persuasive. It doesn't say right, so it's not explicitly falling within section 1983. That would make a lot of sense, but it also says rights, privileges, or immunities. And weirdly, it's not privileges or immunities in the same phraseology that you have from the 14th Amendment. It's rights, comma, privileges, comma, or immunities. So is that a privilege?

Like the ability to choose your own doctor and your own provider? I mean, yeah, right? Isn't it? So doesn't section 1983 apply here just on the plain textual reading of the statute? Now, if the answer is, well, the plain textual reading, the Medicaid statute doesn't say rights, got it, totally understand that. But here's that language that says privileges. So just sort of talking out loud as I walk through this, that's a pretty darn compelling

textual argument. And my basic understanding of originalism is that originalism isn't really the concept of originalism really shouldn't come into play until the text leaves an ambiguity. If the text is clear, then we don't have to go to history and all of that. You just apply the text. So for example, no one's going, well, you know, the real intent of the age limitation in the Constitution was you have to understand life expectancies were much shorter. Somebody's 35, it's much more senior.

So what that really means is we need much older on average people. That would be, no, no, no, no. It says 35, it's 35. The Occam's razor here is that privileges, it's 35. The Occam's razor here, it says privileges. It means privileges. But gosh, Sarah, wouldn't that put, I mean, if section 1983 has been, gotten a shot of steroids before,

this is adding human growth hormone on top of it. Can I just tell you one of my biggest pet peeves is people who say that the life expectancy at the founding was whatever, like 38 years old or 40 years old or whatever they say it was. No, that is false because it's including infant mortality. Basically if you lived past the age of two or five or pick your ages of a child that gets past those initial illnesses that they did not have antibiotics or

Tylenol for in any of these eras. Life expectancy, I mean, it's shorter than it is now, but it will sound relatively normal to you. It's going to be in the sixties, for instance, certainly in the founding and I think pretty far before then as well. So whenever you see average life expectancy, just know that they're lying to you because like every kid who died at one throws off all of the numbers. Oh, so annoying. Okay, David, I think on that case, to me, that is a true case, to me that is a true ideological divide. That is a 6-3 case in the truest sense, not coincidentally, not accidentally. Yep, there is just an ideological X-axis as I've described it difference in how the justices are going to see a case like that. Chalk that one up to your 6-3 court. I wanted to mention one other case. This is called Duffy versus United States.

Not because the case itself was particularly interesting, but the lineup was. So this was Kagan Sotomayor and Jackson with the Chief and Gorsuch. Anytime you see that lineup, David, I feel like I don't even need to tell you what the case is about. If the chief and Gorsuch are over there, and I'm giving away the game here, right?

Gorsuch. It's Gorsuch. Then you almost know it has to be one of these criminal justice, lenity, tie goes to the criminal defendant type cases. So the dissent is Alito Thomas Thomas, Kavanaugh and Barrett. This was about the First Step Act. I'll just read you a little piece of it so that you understand why the lineup is interesting.

Basically, Congress reduced the mandatory minimum sentences for certain firearm offenses. And in doing so, it said that it would apply not only to all future cases, but all pending cases. And the question here was, this guy was sentenced in 2010, but then his sentence was vacated now. So, which is it? Does it retroactively apply to him

or was his sentence never legally valid? And so the point is, David, it was a little ambiguous, right? Did Congress mean that it had to be a legally valid sentence? Or just that like you were sentenced, right? They were trying to get like pending cases, meaning you haven't finished your adjudication right now. So I think you can guess how Gorsuch comes down on this. Oh yeah, no, it's ambiguous. So the tie goes to the criminal defendant. Your sentence was vacated. It means it wasn't legally valid. It means you are currently being sentenced. So it's a pending case.

I think on this one, I don't know. I'm like, yeah, that's pretty persuasive to me. It's not gonna affect that many people except that it creates a huge incentive to get your sentence vacated and to find something wrong with your sentence. But like, it's not that easy to find, you know, to reopen your sentencing. No, no, not that easy.

But you do raise a really good point. If the chief and Gorsuch are with the liberal three justices, No, no, not that easy. But you do raise a really good point. If the chief and Gorsuch are with the liberal three justices, you're at least 50-50, right? Well, on the immigration, sorry, on the tribal lands cases, I wouldn't necessarily always expect the chief. So if you get the chief and Gorsuch, I'm going to tell you it's a criminal justice case. Yeah. Yeah. No, that's exactly right.

All right, David. Now for dessert, time to talk about that really fun conversation with Justice Alito over at the Hoover Institution. We'll have to dig into. We'll be right back. Hey, we know you probably hit play to escape your business banking, not think about it. But what if we told you there was a way to skip over the pressures of banking? By matching with the TD Small Business Account Manager, you can get the proactive business banking advice and support your business needs. Ready to press play? Get up to $2,700 when you open select small business banking products.

Yep, that's $2,700 to turn up your business. It's Alito time. So Justice Alito sat down with Peter Robinson from the Hoover Institution for an hour long conversation. They went over all manner of things. David, I'm sitting here with my transcript highlighted all over the place, but let's let why don't you start? What what was most interesting to you? Yeah, what was most interesting to me, and this is gonna seem out of left field, but Justice Alito is talking and he says something interesting about sort of this constitutional theory as being a relatively new discipline.

And I think this is something that we had Will Bode on to talk about. Well, he has found one of the early architects of originalism. And by early architect, we're talking well over 100 years after the founding. And that's an early architect of originalism. And I think there's a sense that a lot of people have that these constitutional theory arguments have been kind of a permanent part of the judicial landscape when they've not.

And this is gonna kind of connect with the Justice Thomas concurrence. There's been a lot more constitutional litigation over the last several decades than existed before at volume. And so you're developing something that looks a lot more like maybe common law than constitutional law used to. And so here's my question for you, Sarah.

What if this is this a function of a couple of things? Thing number one, dramatic expansion of government over the last day, 100 years of American life means that a government is touching American lives a lot more than it used to, and so therefore there's going to be just by automatically a lot more litigation. But here's the other one. What if this is also an artifact that we have not had a truly substantive amendment change to the Constitution that really mattered in like 54 years? The only way that constitutional law has quote unquote developed has been judicially. That's the only way that constitutional law has quote-unquote developed has been judicially. That's the only way.

And so I do wonder if that's kind of a little bit at play here in this creation of this new discipline of constitutional theory. So that was kind of a tangential to the actual conversation, but it was very intriguing to me when he raised it, that hey, this constitutional theory argument has not been around for a very long time. And it just made me think why? So that was kind of one thing that stood out to me.

I really enjoyed the back and forth about the use of precedent within conservative judges. We talked about that in the Joel Alasaya piece in the New York Times, that it can be a real dividing line, right? Thomas thinks that if the case is wrongly decided, flip it, like that's how this works. But for other justices on the conservative side,

not necessarily, right? Just because a case that was previously decided didn't use originalism, and if you had used originalism, it would have turned out differently, doesn't mean that we revisit that. Sort of let sleeping dogs lie, starry decisis, let the thing stand. I think of Alito as being closer to the Thomas side than say the Kavanaugh or Barrett side in a case like Fulton, where they declined to overturn the Smith test

because what will replace it? It was like the most institutionalist concurrence by Barrett ever. But when Justice Alito describes himself, he calls himself a practical originalist. He's talking about this example from Justice Scalia in the McDonald case. He's talking about how the lawyers in that case wanted to revive the privileges and immunities clause. Like the lawyers going on and on about that. Finally,

Scalia interrupts him and says, that argument is the darling of the professoriate, but we have a hundred years of precedent, so get on to the rest of your argument. I find Alito to be this really fascinating character on the court because you have Justice Thomas holding this one very black and white pillar, and then you've got the chief maybe on the other side where like take it as they come, right? Every pitch down the plate can look different. But Justice Alito just doesn't fit comfortably into either camp and that's why I find him so interesting. His goal as he says it when it comes to precedent is like, look, I think it was wrong if I can get the votes to overturn it. Okay, maybe that's a thing.

Just because I was in the dissent last time, for instance, doesn't mean that I should be trying to overturn the same case this time. I'll join the majority if I can get it narrowed or if I can fix one part of it. You saw that even in Dobbs, probably his most famous decision to date, certainly his most famous decision to date, which was all about trying to hold together a six-person majority, which I think was actually pretty hard to hold together. You saw Barrett and Kavanaugh trying to slink away on various points and Alito being like, let's narrow it, keep narrowing it. Let's just hold this part and write your separate concurrences, et cetera.

I think practical originalist is a great term for what he is. Yeah, I think so too. And we just talked about the abortion distortion effect. There's a Dobbs distortion effect on the precedent question because I've said this about 10,000 times and I might have to say it 10,000 more. I have never in my life encountered an originalist with a possible exception of Akhil Amar, and

that might not even be right, who has believed that Ro was rightly decided. Not a single one and that it was even close. Wait, he doesn't think Ro was rightly decided. No, no, no. I know. one and that it was even close. Wait, he doesn't think Roe was rightly decided. No, no, no, I know. That's what I'm saying is that the reason why people have labeled Alito as reckless with precedent is because of Dobbs. That is not the case to use to determine if an originalist is reckless with precedent.

That is not the case because there isn't, I've never read a coherent originalist is reckless with precedent. That is not the case because I've never read a coherent originalist case for Roe, period, ever. And so using that, Dobbs had a lot of political resonance for sure, a lot of cultural resonance for sure. But you go back to when Roe was decided and you've got a lineup of liberal jurists who said, whoa, what? So I have always objected to using Dobbs as a stand in for these guys don't like precedent. All of the conservative nominated justices were on board with upholding the Mississippi

law and five of the six and the only one who wasn't on board with the reversing row is the one of the six who you really wouldn't call an originalist and that's Roberts and so I don't think that Dobbs is your measure although I will say I think he's closer to the Thomas model than he is to the Barrett would be my assessment. I think that's right, but I think he really thinks of himself quite differently than Thomas. You can see this line in the interview where he says, there's a big difference between originalist scholarship and originalist judging.

For one thing, if you're on a multi-member court and you're trying to produce an opinion that at least four of your colleagues will agree with, you have to make compromises. Scholars, sometimes they jointly write a book or an article, but much of the time they write on their own and they don't have to worry about pleasing anybody else. This gets to our conversation, David, about how often a judge or justice is in the majority and whether that means they have influence and what it means to be influential. Because in many ways, Thomas is the least influential member of the court because he falls much more into that originalist scholarship side of things. He's going to tell you what the correct originalist answer is, and he doesn't care if nobody's with him. Whereas Alito is saying he

doesn't agree with that. He falls into the originalist judging mode. He's willing to compromise with doing the least amount of violence to originalist principles to do so, whatever he can get. It's sort of like that old Bush saying about who to nominate for judgeships. You nominate the most conservative judge that can get confirmed, right? Justice Alito is making the most originalist decision that can get four more votes. And so I think that makes him quite different. Now, who's more influential?

Justice Thomas isn't in the majority as much, but he's also like staking out this ground and saying, here's what a true originalist would believe. There's something very influential about that, as we talked about with Justice Scalia and other justices who weren't the swing votes. Speaking of influential though, Dan Epps, a co-clerk of my husband who clerked for Justice Kennedy, he was on the SCOTUS live blog as opinions were being handed down this morning and someone asked about whether being a clerk at the court was just a tireless, endless job. Dan's answer was something like, well, I mean, I had decent work-life balance, but that's

because Justice Kennedy never needed to write dissents. I think he didn't say it to be funny, but I took it to be this really funny, funny statement. By the way, someone else asked, what happens to clerks if their justices die? And of course, the correct answer is that another justice picks them up for the rest of the term. It's not unusual for a justice to have five clerks because a senior justice has a clerk and that clerk doubles with another active justice anyway. But someone else posted, the clerk is buried with their justice. I was about to say that and I thought, is that going to be too dark? Love that idea.

Well, I'll tell you one thing, justices would retire more quickly if that was the case. would retire more quickly if that was the case. All right. So David, we will have the emergency podcast of Birthright Citizenship as a special crossover episode with divided arguments, Will Bode and Dan Epps. And then our normal Tuesday episode will cover all of the other cases that we expect the Supreme Court to hand down on their last day of the term. Man, they're ending early. I mean, 72 hours before the end of the month. We haven't had that in several terms now, David. So congrats to all the clerks and justices. No procrastination this time around. You get an extra weekend that none of us expected you to have.