Advisory Opinions - Sarah's Buckets Hit SCOTUS (Oh, and Fox News Settles Dominion Case)

Episode Date: April 20, 2023

BREAKING! Sarah’s buckets have finally arrived at the Supreme Court. Also: Fox News agrees to pay and pay and pay... but won't tell you about it. Today's buckets: -You can’t leave our relationship -Bonus: Footage of New York and New Jersey debating the validity of their pact -Accommodation versus discrimination, undue burden versus substantial cost -Groff's gonna lose... probably (are religious freedom activists tired of winning?) -The AO buckets have arrived -DeSantis to eliminate unanimous jury sentencing for the death penalty -Fox News settles for $787 million in Dominion lawsuit -...how Fox covered the settlement -David has been through things Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and I'm so excited today. We have a wide array of things to talk about. We will start with the Supreme Court's argument in a religious liberty slash employment accommodation case. I'm dying to know what David thought about it. It's the intersection of several areas of his interest and expertise. We do have a little Supreme Court opinion to talk about, but it's little and it's

going to be short. The Florida legislature has passed and the governor is expected to sign a bill that would allow death penalty sentences to be not unanimous by the jury. We're going to talk about whether that's constitutional, whether that's going to fly. There's been some stuff on the internet. And lastly, but not leastly, we're going to spend a lot of time on the Fox News settlement. David has the feels. I am also curious about the feels. All right. David, let's just start with that original jurisdiction case. New York sued New Jersey. It was a lot of fun. The outcome was totally predetermined. Everyone knew where this was going. Unanimous, written by Kavanaugh. The facts are

that back in the 1950s, New York and New Jersey were trying to fight organized crime at the port of New York and New Jersey that spans the borders of the two states. So they sign an interstate compact called the Waterfront Commission Compact. Yada, yada, yada. Fast forward. At the time in the 1950s, 70% of the employees were on the New York side. Now it was 80% on the New Jersey side. And New Jersey thought that New York kind. Now it was 80% on the New Jersey side. And New Jersey thought that New York kind

of sucked. That basically the commission was causing all these regulatory burdens. They weren't having any fun. You know what I mean? And so they're like, we're done. Thanks for the memories. We're out. And New York was like, no, no, this is, you can't leave our relationship. This is a compact and you can't unilaterally withdraw. And because it's two states suing each other, the constitution says you just pass go, you go straight to the Supreme Court. And so this case that otherwise has no business at the Supreme Court ends up there. And Brett Kavanaugh writes this nice little treatise on background contract law, citing the restatement of contracts. I mean, it was like the easiest 1L exam ever.

And if you're curious, if you're wondering and you haven't figured out how it turns out, of course, New Jersey can unilaterally withdraw from a compact like this. Kavanaugh said it might have turned out differently if we're talking about the border or if we're talking about water rights or if the compact itself had said anything about how you withdraw. But it was silent. Therefore, background contract law. If there's a contract in perpetuity, either party can withdraw whenever they are displeased with the other party. Yeah, I thought this was a fun little case. It did. And Sarah, I'm glad you said that. It did take me back to first year contracts,

which was one of my favorite cases because of the professor named Gerald Frug, who has a unique way of speaking. And for example, there's a word consideration. Consideration is very important in contract law. That's, you know, the consideration is essentially what value is being exchanged in exchange for entering into a contract. And so a contract has to have consideration. And he pronounced it in this very unique way,

consideration. And so that's how we pronounce consideration, all of us for an entire semester. But yeah, super basic case, indefinite term contracts, a super basic case involving an interpretation of an indefinite term contract. As relevant here,

industry compacts are construed as contracts under principles of contract law under the default contract law rule at the time of the compact formation, a contract that contemplates continuing performance for an indefinite time is to be interpreted as stipulating only for performance terminable at will of either party. Basic stuff, fun little case. Yeah, I enjoyed it. There's this great line, parties to a contract that calls for ongoing

and indefinite performance generally need not continue performance after the contractual relationship has soured or when the circumstances that originally motivated the agreements formation have changed, for example. That's it. That's like basic contract law or at least contract termination. So cool. All right. Enough of the fun unanimous stuff. Although interestingly, in this Groff case that we talked about before argument, when it was granted cert, there was actually also at least seeking for unanimity.

A lot of the justices explicitly saying they wanted to find common ground with another. Justice Kagan at one point talking about singing Kumbaya together. David, do you want to set up the facts? So the facts here of this case are really pretty simple. There was a guy named Gerald Groff. He was hired to work as a postal carrier in 2012. When he was hired, postal carriers didn't work on Sundays. In 2013, however, the Postal Service signs a contract

with Amazon to deliver packages, including on Sundays. Groff is an evangelical Christian. He does not work on Sundays. Now, that's not something that all evangelicals do. As Nancy will tell you and my kids, I have a distressing tendency to work on Sundays. But there are many evangelicals who, for reasons of faith and conscience, do not work on Sundays. But there are many evangelicals who, for reasons of faith and conscience, do not work on Sundays. He decided not to work on Sundays, refused to work on Sundays,

was disciplined for that, and eventually he resigned. And so this case was brought to challenge the Postal Service's religious failure to accommodate his religious practices. And this case goes back to a statute, Title VII, and to a case, a 1977 case, called Transworld Airlines v. Hardison. And now the statute here requires that an employer, Title VII protects against discrimination on the basis of race, sex, and religion.

Religion here is the key aspect. So Title VII requires employers to accommodate religious practice reasonably unless there's an undue hardship. So what is an undue hardship? Now, TWA versus Hardison, this is the 1977 case, said that an undue hardship standard is met whenever the accommodation would require more than a, quote, de minimis cost. So this has always been something that has really stuck in the craw of religious liberty advocates like me, because wait a minute, undue hardship is not a synonym

for de minimis. If the Congress had intended something like de minimis, which is a trivial cost, a minimal cost, then it should have used a term other than undue hardship. Now, that doesn't therefore decide and determine what is the undue hardship test, but surely, right, it's got to be more than de minimis. And this has been something that has really been a major issue in sort of the religious liberty bar for a long time. And so essentially, the way to think about this, Sarah, because a lot of people get confused between accommodations and discrimination. discrimination is when an employer essentially targets an employee and discriminates against them because of their faith, treats them differently and worse because of their faith. That would be discrimination. And Title VII is pretty robust when it comes to prohibiting religious discrimination. If you're going to treat an employee differently and worse,

that's discrimination. Now, accommodation is different treat an employee differently and worse, that's discrimination. Now, accommodation is different. And this is where it gets really controversial because Title VII is essentially saying there are times when you're going to have to treat a religious employee who has a religious accommodation request differently and better or differently and in a preferable way to employees who are not making a religious accommodation request. So an example of this would be if you have a rule that says no facial hair and maybe you have a Muslim employee who wants to have a neatly groomed beard and they make a religious accommodation request. Well, the employer's going to have to grant this unless they can show undue hardship, which is, that's the whole point of this case, is what is undue hardship? And so, this is an accommodation. Now, this is

where things get tricky, Sarah, because it runs into some interesting principles. One is, you know, here, let's unlock the libertarian side of me here, is telling employers, well, there are certain classes and categories of employees that are going to have to receive more accommodation than others. Not because of some sort of misfortune that they've suffered, like in the case of Americans with Disabilities Act, but because of their beliefs, because of their conscience, you're going to treat them differently. And it's the government coming into private entities and saying, you're going to have to treat people who make religious accommodations differently and better than you treat employees who are making requests for non-religious requests for accommodation.

So does this violate some sort of principle of neutrality towards religion? Does that raise establishment clause issues? In other words, you're saying these religious employees are going to have some rights that the secular employees don't. Now, not constitutional rights, statutory rights. And so it is raising all kinds of cross-current, you know, there are a lot of cross-currents here. So it is not simply the case

that with all of these different cross-currents that religious employees should have a decisive thumb on the scales. But if the statute's going to mean something, doesn't it mean more than de minimis? And so this was a fascinating oral argument because nobody seemed to be really on board with de minimis. That the de minimis, you know, minimal or trivial kind of cost to an accommodation would not meet undue hardship. There was a lot of consensus that

de minimis wasn't right. But then what does undue hardship mean? This was the key question. What does undue hardship then mean? And, you know, it was interesting because the plaintiff in the case was putting forward a test under undue hardship under the Americans with Disabilities Act. was putting forward a test under undue hardship under the Americans with Disability Act. There was, well, and I don't want to steal your bucket thunder, Sarah, but this was the case. This was the case. And I've got a lot of overall impressions, but that's the setup. And I cannot steal your bucket thunder. So. I just want to walk through some of the questions that the oral argument raised.

Some of this will repeat what you said, but I want to put it more in the context of this specific case rather than the overall legal questions that we were walking in with. Obviously, so there were two questions presented, but the justices in some ways seem uninterested in the second one. So we'll focus on the first one too, which is, do you need to overturn this Hardison case, the TWA case? Footnote, I'm curious how many listeners, what percentage of our listeners have ever flown on TWA? Fun question. But you have the de minimis language from TWA the Hardison case you also have a footnote that talks about substantial costs

you then have the plaintiff's preferred you know Groff's preferred test which is significant difficulty or expense test and then of course you have the text of the statute, which is undue burden. And the funny thing about all of this is that the text says undue burden and all of these other words are trying to define undue burden with other phrases that to me

are just as unhelpful as undue burden is. What is the difference to say, aha, we've defined undue burden finally from Title VII. It means substantial cost. Right. Okay, why don't we just use undue burden and let people run with that? So A, what does undue burden mean?

How are we going to define that? Two, does it require neutrality, as you mentioned, David? And so let me give an example of neutrality, which is our company policy is that you can't wear anything on your head to work at this store. It's a fashion store. And a Muslim woman wants to work at the store, but she needs to wear a hijab. Well, neutrality would say you don't need to accommodate that because that's the policy for everyone.

You can't wear a cool hat. We're not discriminating, as you said, against her. Just nobody gets to wear a hat. That's neutrality. Well, the Supreme Court explicitly ruled in this. It was a case about Abercrombie and Fitch and said, no, no, it's not neutrality. It's something more, as David was saying,

something different than just discrimination. It actually is an accommodation. So that was a question in this case also of how do you think about that neutrality versus accommodation part. Then on overruling Hardison, what is stare decisis? And Justice Kagan had this great part in the oral argument where I think she just laid this out really well. In the same way that I talk about

how you don't need free speech to protect the speech that you like, you don't need stare decisis to protect the cases that are correctly decided. They're correct. We don't need stare decisis. I'll just read here a little bit what she said. Stare decisis only has a role to play when the ruling is wrong. If the ruling were right, we wouldn't need stare decisis. Stare decisis has a role to play even when, I mean, only when a ruling is erroneous. And still we say Congress has had a chance. The ball was in Congress's court. Congress has not done it for reasons of predictability, for reliability, for reliance,

for reasons of the credibility of the judicial system. We maintain what we said about what the statute means. Okay, so what is stare decisis even if Hardison was incorrect? Next question, did Congress acquiesce? Right, Hardison was decided in 1977. It'd been a while. So 43 years later, sorry, 46 years later, do we say at this point Congress has had every opportunity to change the Hardison standard, whether you think it's de minimis or substantial costs, and they haven't done so. Is that congressional acquiescence? And of course, you have Alito saying, of course not. And Groff's

attorney, Aaron Street, by the way, for those who know Aaron and the practice of law, friend of the pod, even though he hasn't been on the pod, I'm just going to say it. Although we'll get to where he maybe got unfriendly with the pod later. So is simply congressional silence enough to assume congressional acquiescence? Or do you need something like a bill was proposed

to change Hardison and it failed? That's congressional acquiescence. What is there it failed. That's congressional acquiescence. What is there short of that that's congressional acquiescence? That was a question raised in this oral argument. And then last thing I want to touch on is a question not raised in the oral argument, David. Oh, interesting. Is this actually just a question for the jury?

Like the statute says undue hardship. Fine. Aside from, let's say, the extreme outlier cases, why isn't this just something that the jury themselves gets to decide? Why is this a question of law at that point? And that wasn't raised at all. Yeah.

Yeah, I'm so glad you said that because I found that that was hovering in the background. Right. The court should just refuse to grant summary judgment again and like unless we're talking about the extreme outlier cases,

you know, it's so clearly not an undue burden. You know, someone else has volunteered to cover that shift and you just refuse because you want to stick it to this guy who doesn't want to work on Sundays. Or you have to pay $100,000 and hire a new employee to work on Sunday. So those are the extreme outliers. But other than granting or not granting summary judgment, that's it, right? Like we're just going forward. So interesting question there.

Yeah, I thought it was interesting. And, you know, at the end of the day, the way I feel like the case went is, let me go to the end of the day, how I feel like the argument went. And then we, I got to swing it back to you for buckets. So we'll do the buckets. It felt very clear to me that a majority of the court,

and again, here's the standard AO legal profession disclaimer. All of what we're doing now is speculation based on oral argument. While you can generally know where things are going to go from oral argument, you can't always go. So you can't always know. So take this with a grain of salt. But my impression, Sarah, is that there was actually not a majority for the plaintiff's opinion or the plaintiff's position here. Not a majority.

when the plaintiff was pushing for this idea that said that employee morale can't really be taken into consideration when you're talking about accommodations. There were some tough hypotheticals put to the plaintiff's attorney about what if you're in the small workplace and you're going to have people, maybe even like say fellow evangelicals who are going to be working on Sunday because you're one of those evangelicals who doesn't work on Sunday and it's going to cause resentment and it's going to build and it's going to build. And how much does this have to build before it becomes an undue hardship? And so they really pressed the plaintiff on this. Plaintiff kind of stood his ground saying, it's got to get bad. You know, people have got to be willing to quit. And there was this kind of tough exchange

that says, wait a minute. So if on Friday you hear about grumbling, you can't do anything about it. But on Monday when somebody quits, then you can do something about it. And so there was a lot of interesting pushback on this, again, and from some of the conservative justices. Justice Barrett, for example, was really keen in talking about this

point. And so for me here, and this is going to be the perfect tee up for the buckets. So for me, the way I read the oral argument is the justices were grappling for a standard to use to help frame what undue burden was. And then they didn't get it and they didn't quite grasp one that they could put both hands around in the plaintiff's argument. And then here comes Solicitor General Prelogger who gives them three buckets. And there was almost a tangible sigh of relief. And so I cannot, because you are the art, you, the buck, the term buckets is your term. It's an advisory opinion signature,

but it's one like Gnaw Dog that is originated with one Sarah Isger. So I cannot steal your bucket thunder. Do you want to take us to the bucket part of the argument? I do. I want to be very clear that when Solicitor General Prelogger introduced this, she introduced them as three categories. Yeah. It was then, we're going to spend a moment here on just the buckets itself,

by the way, before we get to the substance of the buckets. Yeah. Then Justice Gorsuch labels them buckets. At that point, the Solicitor General adopts buckets moving forward. Then we have Justices Kagan, Kavanaugh, and Alito all adopt the bucket language. So for those counting at home, we have enough for cert on the bucket question.

We do not have a majority of the court yet. Also, interestingly, I thought at the end of the argument, and quite upsettingly, again, because I think it's fair to consider Aaron, a friend of the pod, who was arguing for, again, who was arguing for, again, Mr. Groff. So here's his closing statement. I have not heard a single word about the text of Undue Hardship. I have not heard any textual analysis from the government.

I've heard a lot about buckets. I've heard a lot about different scenarios and holdings of Hardison, but that cannot be defended as a matter of the text. How dare he cast shade on the buckets? Aaron, casting shade on buckets. I'm going to just go ahead for you, Sarah. You're not going to say it. You're too modest. This is clearly your influence on the court. Nobody could possibly come up with another way

to get to buckets except me. That's it. There's no reasonable interpretation. The word barely existed before me. Yes. All right, let's get to what the buckets are. So this is in the government's argument, the Solicitor General is talking about

how these requests come into three buckets. One, scheduling requests. That's of course what we have here. Two, grooming requests. That's the hat example, beard example. And three, expression of religion at the workplace. You know, you want to put up a cross on your locker when you're getting ready.

And then she walks through each of those buckets and where the line of undue hardship might be. I'll start at the bottom. On the expression of religious belief at work, basically, like, always you accommodate. She says, look, I don't want to make it too categorical. You could have an example of a doorman, you know, where it could be confused

that his religious expression is that of the building or the company or something like that. But aside from an outlier like that, always, you know, pretty categorical accommodation. Second bucket, that grooming bucket. Again, think hats, beards, stuff like that. Things you need to wear. Again, pretty categorical, minus safety considerations.

For instance, she says you work at a manufacturing facility. Skirts might be dangerous at that manufacturing facility. And we've seen this in the different relupra context. Beards in terms of like whether in a prison you could hide a shiv in your beard, things like that. But you're really focused on... As I regularly do, by the way. It would be the smallest shiv in the world in your beard.

Tiny, tiny shiv. But again, barring safety concerns or something of that, again, pretty extreme nature, a comedy. On the scheduling issue though, it does get really hard because you're impacting other employees. I think the difference between that bucket

and the other two buckets is who's hurt. Nobody in the other two buckets. You're not asking anything of anyone else. But when you say you don't want to work Sundays, the employer is left with a few options. One, and this one's an easy one, ask if anyone else does. Great, someone does.

Easy accommodation. We're not in court over that. But let's assume nobody wants to work Sundays. It's a disfavored day or Easter or Christmas or whatever else. Then you're left with a couple other options. Offer more money to employees who are willing to work those days. That's, of course, going to be the most common. And then the question is, how much more money is an undue hardship? You have Justice Alito asking, what about a dollar per hour?

And it's Amazon, a company that can definitely afford that. Is that a substantial cost? But what if in like the hardest in case, it's time and a half you have to offer? And so again, it's a pretty fact-specific inquiry. One might wonder whether that's a jury question. Another thing an employer can do is force employees to work on Sunday

by threat of losing their job and not pay them more. That's where you then get into the morale problems. And I thought there was a good discussion over the fact that like, so Aaron Street arguing for Groff was saying morale alone is not enough. I thought it was one of the weaker parts of his argument because he didn't actually get to where I thought some of the justices were able to get to, which is sure. When they were talking, by the way, to Prelogger and her rebuttal,

sure, morale, when it's just grumbling because that person gets a religious accommodation or actual based on hostility of that religion, maybe we qualify that as morale. But of course that doesn't count. You don't just get to sort of almost a heckler's veto version of not wanting an accommodation. But at the point that employees

are refusing to go the extra mile, they're unhappy to show up for work, they're quiet quitting. They're actually quitting. All of these things, when is that then a substantial cost to the company? Justice Kavanaugh says morale is incredibly important to a company actually functioning, workplace, culture, and all of these things. You had Justice Barrett agreeing with that. And I think you didn't have Justice Gorsuch get all the way there, but Justice Gorsuch, surprisingly, was the one looking over and over again and saying,

what if we just clarify that that de minimis language from Hardison isn't what we meant. We're not overturning Hardison. We're just going to say, look, it's undue burden. It's substantial cost. The end, go forth and have a good day.

We're not deciding anything about the facts of this case. There was one, so A, I agree with you in that I think the outcome of this case, unless there's a real departure from oral argument, which we've seen sometimes, Groff does not have the votes to win this. There's a decent chance I think the most likely chance is that they don't overturn Hardison

they redefine Hardison get rid of the words de minimis from Hardison if you will but the holding of Hardison stands maybe you'll see words like substantial cost maybe you'll just see undue burden by itself and they'll remand it back dear court if there was any confusion, sorry, we'll make clear it's not de minimis,

but maybe you applied the right test in the first place. Just do it again. And I think Groff loses then eventually on that, even if he doesn't necessarily lose-lose at the Supreme Court. Right. But there's one part of this that I am left pondering, and that's something Justice Alito brought up.

And it came up sporadically, which is this idea that there was a memorandum of understanding, a collective bargaining agreement with the employees, and that this violated the accommodation of letting him not work on Sundays, violated the collective bargaining agreement. And Justice Kavanaugh at one point saying, isn't that clearly a substantial cost? So why are we even here?

By the way, at the point you've lost Kavanaugh and Barrett, like there's no path for Groff to actually win this thing, I don't think. But Justice Alito, I thought, pointed out a real problem with that. Why couldn't you, through a collective bargaining agreement, end religious accommodations? And so he says, for instance, you can't count on the MOU issue. Suppose the collective bargaining agreement or

memorandum of understanding says that the employer will never grant a religious accommodation if it requires anything more than a de minimis effect on the employer, i.e. the exact test that they're trying to get away from. Yeah, right. Then you've just got an MOU that puts, you know, 1977 Hardison or whatever back into effect. I think he's got a real point there. I expect a concurrence on that, clarifying the MOU problem that,

yes, maybe most MOUs will count, but an MOU that specifically tries to undercut religious accommodation won't. And Aaron pushed back on that well as well. Like, I thought he did a good job pushing back, saying you just can't collectively bargain away religious accommodation. That's right. Because the majority of, the whole point of a religious accommodation is protecting the minority, and a collective bargaining agreement is done by the majority. You almost get back to that free speech principle, if you will. And the last thing I want to say about this is you also had Justice Alito make a very good.

He wasn't spicy, by the way. He was very, you know, non-spicy Alito. There were other spicy justices having fun. There was a lot of laughter in this argument at various points. Justice Alito raising the issue that by simply saying, don't worry about the de minimis language that Gorsuch, the new standard that Gorsuch is proposing,

just take out de minimis from Hardison, but the holding still works and like, just that's it. And Justice Alito's like, what about all of our other case laws since then that has actually really changed uh religious liberty cases how are we going to make clear that those still have a fact and you had the chief leaning a little bit into that direction as well so i expect um de minimis language to be gone, this case to get remanded, a little bit of discussion,

maybe in a concurrence, about how MOUs alone aren't enough, and maybe another concurrence from the chief or someone else saying, that doesn't mean that you can just ignore everything that's happened since 1977. We have all these other cases. Please check them out.

They're quite lovely. Questions that I don't expect to be answered, stare decisis, the neutrality issue, and congressional acquiescence. I think those will just die on the vine. Yeah, I came away from this thinking, okay, on the baseline question of does TWA, is TWA v. Hardison still going to be, the analysis of TWA v. Hardison, is that still going to be the standard going forward?

No, it is not. What is going to be the standard? I'm going to go with some version, maybe not the way Prelogger actually articulated it, but I think the bucket analysis got pretty influential. I mean, Gorsuch said, I like it. Everyone said they liked it. I mean, everyone who talked about

it said they liked it. We didn't hear anyone say they didn't like it, and I think it's why Aaron responded the way he did in his rebuttal. It was like, ah, yikes. The buckets took hold. Yeah, the buckets captured the imagination. So I'm going to say, hey, I think a bucket version is out there. And then it goes back with a situation where, how about this, Sarah?

There is greater protection for religious accommodation, but Groff might still lose the case, ultimately. That it's remanded back with a greater sort of level of protection for religious accommodation, but not so great as to encompass a person seeking a Sabbath exemption in a smaller post office scenario where there might be real morale problems. So I'm seeing a glass half full

possible outcome here for Groff, where he's going to have a better standard, but it might not be good enough for him. Groff's going to lose. This case isn't a close one. lose. This case isn't a close one. And I'll tell you why that matters. Because, and this is David, where I want your thoughts and feelings. The religious liberty legal community has won so much. I mean, all they do is win, win, win in the last 15 years, let's say. That they're taking these cases that are frankly not sympathetic anymore. The Groff case isn't sympathetic to someone like me. Right. He takes a job as a fill-in postal employee.

The whole point is when someone else can't do a shift, so Sundays, holidays, stuff like that, he took a job for that and then says, I can't work Sundays. And it violates the MOU. They've worked really hard to find people to fill in. They originally did accommodate it. They had someone quit. They had someone transfer.

I mean, how is this not a substantial cost or a significant... I mean, under any of these tests, including the test, by the way, that Groff himself proposes, significant difficulty or expense. They've gone through significant difficulty. This is a tiny little post office outpost. I'm not saying there isn't some version of some other employee who wants Sunday off at a huge employer where there's plenty of people to draw from, but this ain't it.

Yeah, you know, it's interesting. I like your decisiveness. I think you're probably right. I do think Groff probably loses it. Now, in his defense, when he joined, they were not delivering on Sundays. That's a very good point. Yeah, so they were not delivering on Sundays.

That changed. I think that's a very important fact in his favor. So, but I do think as a general matter, when I think of religious accommodation, on the one level as a pure legal matter, I have always been extremely sympathetic with the argument that, wait a minute, de minimis is not a synonym for undue burden.

The growth has me 100% in agreement there. De minimis is not undue burden. Those are not the same things. Everyone else agrees too. Literally the case wasn't about that anymore. The government didn't argue, it did. Everyone agrees to that. Everyone agrees to that. Everyone agrees to that.

But when I read the pre-Lager buckets, like Gorsuch, like others, I mean, it really captured my attention as well. And what it reminded me is if you're talking about in the religious liberty world, a lot of the wins have been about don't treat religion differently and worse. In other words, don't exclude religious institutions from this public program. Don't create rules that mean that religious organizations are uniquely

disadvantaged in being on campus. This has been, I mean, the core of my legal practice was don't treat religion differently and worse. As I said at the beginning, this is the flip around. It is, do you treat religion in some ways differently and better as sort of an accommodation to the incredible rich religious diversity of our country? And we don't want people of faith to be in a situation where they sort of have a narrower,

smaller category of jobs that they can seek. But then at the same time, there's this fairness issue that you identified, Sarah. And wait, if I'm a secular employee and every single Sunday- Or not even secular, you're a Jew, like anything. Everyone wants Sundays off. Any.

Religious people, not religious people. I'm a non-sabotarian evangelical. And a lot of Sundays, I just, you know, want to be with my family or, you know. Or I want to go to church. I want to go to mass on Sunday. It's just not a requirement of my religion that I must go every Sunday. I'd like to go to church. I want to go to mass on Sunday. It's just not a requirement of my religion that I must go every Sunday.

I'd like to go to church though. Yeah, it's a desire, not a command. And so you begin to see this sort of unfairness. And that to me is the bigger issue than the question of the unfairness issue, which is why I think the morale point was properly brought. And this is where it gets really difficult because I can see the argument that says

my religious accommodation should not rest on someone else's subjective annoyance. Yep. Got it. Absolutely. I understand that. But at the same time,

there's a point at which subjective annoyance becomes so prevalent and so problematic that you're in the real world, the employer just has a real problem. And so when do you overcome that? And this is where I'm really sympathetic to your point, Sarah, which is this is why we kind of have juries, isn't it? You know, you come in and you say, look, here's what it says, undue hardship. Here's all the evidence of how it's been a real undue hardship. And then the plaintiff comes in

and says, oh, that's overblown. That's not the, you know, this is the post office in Amazon. Are you kidding me? Like the idea that they don't have the resources that are a rounding error to a rounding error to a rounding error that could accommodate all of us. I mean, come on, you know? And so you have that battle over undue hardship in front of the jury. And I think that there's a real merit in doing that. But I freely admit that I have a different view

of the accommodation analysis than I do of the discrimination analysis. Because the discrimination treats someone differently and worse? No. Out. No. Accommodation treats someone differently and better? With some limits. With some limits. And so that's why I found the bucket. I found the bucket categories really pretty persuasive. And then the final analysis, I've been thinking about TWA Hardison versus Hardison since I first learned about it in law school. And to an extent, this case is a solution in search of a problem because there isn't really a real problem

in the United States of America with religious accommodations. This is, there are issues at the edges, I freely admit, but in my experience, Sarah, this is not a widespread problem that observant religious citizens have trouble getting employment, A,

and B, getting reasonable accommodation within that employment. And so I think that this is, in some ways, even though the case itself was decided, TWA versus Hardison was decided incorrectly in my view. In an interesting way, this is kind of an edge case culturally and legally. All right, look, I have no actual reason to believe this,

but the extent Justice Gorsuch ends up writing this opinion, if the word bucket appears, we will take it as a wink and a nod. How about that? We, of course we will. We'll do a victory lap on Twitter. All right. I want to spend just a couple minutes

on this Florida law that's about to be signed by the governor. Florida's had a lot of back and forth on its death penalty jurisprudence, if you will. Their state Supreme Court has weighed in, et cetera. We don't need to necessarily get into all of the factual legal background on this. But this law would change the requirement in the death penalty context from

12 jurors, a unanimous jury recommendation for death, to eight jurors. So not a majority of jurors in order to get the death penalty in Florida. And I just want to walk through just a little bit of the jurisprudence on this because a lot of people remembered the Ramos case from recently, which held that you have to have a unanimous jury verdict at the sentencing. Sorry, but you had to have a unanimous jury verdict at the guilt phase of a criminal trial. And that this was one of the last things to be incorporated against the states.

But sentencing is different than the guilt phase. And in fact, even within the sentencing phase, in the death penalty context, there are two phases then within that. So I wanted to break that down for folks. You have to have a unanimous jury verdict, even in state trials now, to decide whether the person did it. That part's over. Then you move to sentencing. And in the death penalty context, the Supreme Court has also said that you have to have a jury find the facts necessary to get the death penalty. So for instance, in many states, there's aggravating factors to make one death penalty eligible. There's also a Supreme Court case that said that's not up to a judge. That still has to be a fact finder because to be death penalty eligible is a factual inquiry that has to be done by a jury.

In Florida, that will remain unanimous, as in you have to have all 12 jurors believe that the person is death penalty eligible. Then you move to the last. Are they death penalty recommended? And that's where Florida's changing their law from 12 to eight. That's taking into consideration things like mitigating circumstances, all of the sort of fuzzier, non-fact-based ideas

of whether someone deserves the death penalty, even if they're eligible for it. And the Supreme Court has not spoken to this, David. And so I thought it was worth just a few minutes of discussion of, A, whether you think the Supreme Court will be interested in weighing in on this at all down the road.

This Florida case tees it up nicely. It's gotten a lot of attention. Sorry, this Florida law. It was in reaction to the Parkland shooting. So incredibly sympathetic facts for what that's worth. And I, they're not the only state, other states have this non-unanimous distinction when it comes to the recommendation phase, the idea being you don't want like sort of a single activist juror preventing that from happening.

What did you think, David? Yeah, I've got to say, Sarah, I do believe the Supreme Court will weigh in on this and I'm literally stumped as to how it will come out. I am genuinely stumped on this. And now there is a case, Hearst v. Florida, which is some important context. And this is an 8-1 decision from 2016

where Florida death penalty law required a jury to make a sentencing recommendation on which only a bare majority of jurors had to agree. And then the judge would later hold separate hearing, determine whether sufficient aggravated circumstances existed to justify imposing the death penalty. So under the statute, the jury was rendering only an advisory sentence of life or death. And the court held that that judge sentencing requirement violated the Sixth Amendment, which guaranteed a right to trial by jury. So again, here we're dealing with, yes,

there would be a unanimous guilty verdict, but then non-unanimous jury determination, unanimous guilty verdict, unanimous determination of death penalty eligible, non-unanimous imposition of the death penalty itself. I don't know, Sarah. I don't know how this comes out. I think that a lot of people are opining that it is certainly going to be struck down. I'm not in their camp.

I do not think it's certain that it will be struck down because this law is not as extreme as sort of a lot of the shorthand commentary about it indicated that it was. So again, I don't know. I mean, in the Hearst case, the issue was really at the end of the day that it wasn't the jury imposing the death penalty.

It was ultimately the judge imposing the death penalty. Here we have the jury imposing the death penalty after the jury ultimately the judge imposing the death penalty. Here we have the jury imposing the death penalty after the jury has already acted unanimously in some respects. I'm sorry, advisory opinions listeners. I'm stumped. I'm stumped as to how this turns out. Yeah, I mean, and the Sixth Amendment,

for what it's worth, says, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. Yep. And that impartial jury language is what was used for the unanimous jury verdict in the guilty phase and for a jury finding in the eligibility phase of

death penalty cases. So on the one hand, I think it's really hard to even see that in the text, qua text. So it's not like I can just say like, well, it doesn't say anything about the, you know, recommendation of the death penalty phase of it. So it's not there.

And on the other hand, you also have a lot of these cases all with a drumbeat in the same direction. Hearst, Ramos, they're all going to putting a higher bar on criminal penalties and sentencing, not a lower one. That's the argument that this will get struck down.

On the other hand, if you want to leave anything up to the states, this is the last thing left. I'm inclined. I don't know. I'm with you. I don't know. I think I'm slightly inclined to say it would get upheld. Yeah. If you made me, if you made me make a prediction, which you're not, but I'm going to anyway, I'm, I'm with you with trepidation. Yeah. I'm with you with trepidation. Yeah, I'm with you without confidence. Yeah, yeah.

55-45, it's a close one. Yeah, exactly, exactly. All right, well, when that case starts moving, and no doubt it will relatively soon, sadly, because it means that there has been a death penalty eligible case in the state of Florida after this bill has signed. We will follow that. I expect we'll, you know, we're like two terms away. Yes.

David, our remaining time is going to Fox News. The disclaimer will still apply, which is that my husband worked on this case and was a lawyer for Fox News in this case. Please tell us your thoughts, feelings. Okay, I'm going to... My thoughts and feelings cannot be divorced from the Fox reaction to the settlement.

Okay, so I'm going to read... Well, tell us the settlement. Tell us what happened. I'm sorry. So the case was settled during trial well right at the absolute onset of trial um if you were the jury's been impaneled everything's been impaneled we're about to have oral argument i mean the opening arguments um it is and then all of a sudden there's a pause there were folks in the courtroom who said they saw a piece of paper being passed in high drama,

a piece of paper being passed over to Dominion's counsel. There's a break. It went for an hour. It went for two hours, maybe even a little more than two hours. And then it comes out, there's a settlement. And so the first question is, is this going to be confidential? And I never thought this was going to be really a confidential settlement. There's just been too much in public.

And if it was going to be confidential, no. Number two, how much was it going to be? And then number three, was it include an on-air apology? Well, number one, it was public. Number two, it was $787 million. That's a giant amount of money. And number three, at least as of yet, no sort of apparent apology.

And I think those three things are, I think must be, the last two things really have to be viewed together, and that's the way to understand the settlement. So let's just get one thing out of the way. $787 million is a rout. It is a massive legal defeat for Fox News. You cannot enter into a settlement.

I was listening to an analysis yesterday and it said that in Rupert Murdoch's career, his entities, his media entities had paid out about $750 million in various settlements through his career. This one is bigger than every settlement before combined if that report is accurate. This is a route Fox lost. And what makes the $787 million even more interesting to me, and Sarah, I thought

actually the weakest part of Dominion's case was its damages claim. That this was a relatively small company making a one point something billion dollar damage claim. And I was having trouble seeing where they were going to find that amount of money that was being left on the table as a result of Fox's actions. So I thought their damages claim was always one of the weakest part of, it was weaker to me than the liability claim. I thought the liability claim was very strong. The damages were going to be tough to prove at huge scale. Well, they just got huge scale. So why would Fox just go ahead and give out huge scale damages? Well, I think part of the answer is in Fox's response to the suit. And if you don't mind, answer is in Fox's response to the suit. And if you don't mind, I'm going to read the whole story on Fox News. Dominion Voting Systems filed a $1.6 billion. So here's the headline.

Fox Media Dominion Voting Systems Reach Agreement Over Defamation Lawsuit. Dominion Voting Systems filed a $1.6 billion defamation lawsuit against Fox News in March 2021. Delaware Superior Court Judge Eric Davis, who is overse6 billion defamation lawsuit against Fox News in March 2021. Delaware Superior Court Judge Eric Davis, who is overseeing the defamation lawsuit, praised both parties for their handling of the case. I've been on the bench since 2010. I think this is the best lawyering I've ever had. I've had ever, Davis said, adding,

I would be proud to be your judge in the future. The settlement came as a trial was scheduled to launch this week with the jury selected earlier in the day. The lawsuit, which stemmed from coverage of the post-2020 presidential election, which by the way, was there a post-2020 presidential election? No, had become media fodder with news outlets closely watching the outcome of the highly publicized legal battle. Then President Trump and his allies fiercely challenged Joe Biden's victory in the weeks following the election. Some of them, including members of his legal team,

made false and unsubstantiated claims against Dominion voting systems and are the subject of separate defamation lawsuits. What was not in there, Sarah? Any of the news. No mention of the number, $775 million. No apology. No acknowledgement that some of Fox's own people had repeated the false claims that were part of other lawsuits.

And I thought, you want to know why Fox paid $775 million? For the privilege of writing that post and speaking in that manner about this case for now and through the foreseeable future. That's why they paid all that money so they could keep their people in their hermetically sealed Fox chamber and where they'll not ever learn about it. They'll never know about this,

Sarah. If unless I told some of my friends or my in-laws who watch Fox all the time that they just had to pay three quarters of a billion dollars for false claims. Unless I tell them, they won't know. That's why they paid $775 million is my theory. I think I have a slightly different take on it. So first of all, this isn't the end of Fox's problems. It's also not the end, by the way, of Dominion's wins, potentially. So Dominion still has their cases against Newsmax and OAN, which I believe are in

front of the same judge, by the way. So good luck, other companies. Which were less responsible than Fox. Two, Fox has the Abby Grossberg lawsuits outstanding. This is a former Fox employee who has said that Fox in-house lawyers pressured her to destroy evidence and lie during her deposition, things of that nature. Not great. Other Fox problems, shareholder lawsuits that are percolating and expected to be filed. They still have the Smartmatic lawsuit, which is in a federal court in New York. Not great, Bob. And David, if that was the theory of why settle, they should have settled this a long, long time ago. They've incurred a lot of damage to the hull of the ship in the last three months, I would argue. If they were willing to pay near $800 billion, sorry, $800 million, not billion, $800 million,

they should have paid it three months ago at minimum. So why now? And I think it is potentially the Abby Grossberg lawsuits. That's what's changed is the coverage of that. Oh, I forgot one other problem that Fox might have have while this has resolved the case between the two parties you do have the outstanding uh at least inquiry from the judge whether to appoint a special counsel to look into discovery abuses related to her allegations but separate from her lawsuits i think that will probably go away because her lawsuits exist but in theory he could continue because that is a violation against the court, if you will, not a part of the lawsuit itself. So I think it was the Grossberg stuff. I'll acknowledge, though, that it very well could have been that Rupert Murdoch was just like, you know what? I don't

want to testify. I just don't want to. So like, do it. I was shocked by the number. For very similar reasons to you, David, their damages model was bonkers. It made no sense. The idea that they suffered $1.6 billion in damages when their company isn't worth a fraction of that. Now, their argument was that the company's valuation that they had had done, I believe, was so far off. I mean, okay, you can make that argument. You know, assume that they had really won everything in the sort of fact-finding guilt phase, if you will, in the civil context here. The damages stuff was going to be really hard. And so I had sort of said, we thought that a settlement was happening, but we didn't know the amount, that I was going to assume that this was probably going to be a

win for Fox in the sense that it was going to showcase how nobody was really taking seriously some of the weaknesses in Dominion's damages model. And then the number came out and I was wrong. Yeah. You know, the reason that I think the Grossberg stuff is relevant to why they might've settled isn't about the reputational damage to Fox News. As I said, they've been going through reputational damage for three months. It's that it arguably hurt and or ended their path to the Supreme Court on the actual malice standard and the various privileges that we had talked about in a previous episode. If there was sort of spoilation and discovery abuse

and all this other stuff, you stop having a clean vehicle on New York Times versus Sullivan. And once your vehicle is gone to the Supreme Court Fox had to mitigate their damages well and to be clear Grossberg says that she that Fox did not recover and produce in discovery

some recordings on an old cell phone key recordings recordings of conversations involving the very claims here and Maria Bartiromo, et cetera. And so don't know what was on the recordings, but again, this was just another brick

in the wall of liability. And there's also a factor, I have been in complex commercial litigation before, not $1 billion complex commercial litigation, but I've been in complex commercial litigation before, not $1 billion complex commercial litigation, but I've been in complex commercial litigation before where cases were settled after a jury was impaneled and right before oral arguments because you know what concentrates the mind is the looking of the jury and the opening statements and any little thing that upsets the calculus right before then. And like you were saying, Rupert Murdoch saying, I don't want to testify, you know, or new recordings, any little thing can bump it over. And a lot of times the lawyers are sitting there with a settlement close, a settlement close, and the principals have said no. And then the principals, under the glare of the TV cameras and the dawning

realization of what it will mean to have their personalities cross-examined, says, okay, let's do the extra 50 million. But you know what's interesting? We're assuming here, and I think it's probably the right assumption, that Fox was the one who was like, all right, we'll come to the table. There's always the chance that it was Dominion who saw the jury and was like, eh, it's not quite what we wanted or what we thought.

That one juror might be a holdout. Fox had offered 750 million. Make it 780 and you've got a deal. one juror might be a holdout, box it offered $750 million, make it $780 million, and you've got a deal. That's a plausible alternative with the facts that we know. Yep. You know, I'm going to be very interested

to find out if any, normally settlement discussions are guarded, they're confidential, you never know the back and forth. I'll be interested if any of this leaks. This one less so. Yeah, I'll be interested. Is of this leaks. This one less so. I'll be interested.

Is it something like, here was our opening offer as Dominion, 500 million and an apology on air. Box says, no apology. And they paid 380 million to not apologize. Exactly. Exactly. So questions I'm curious about. One, did the lawyers on the Dominion side

take this on contingency? Like, how many Maseratis am I about to start seeing driving out of the Lock Lord parking garage? Maseratis, Bugattis, Sarah. Bugattis. Sorry, sorry. I don't know the prices of cars, obviously. Two, everything you just said, right? Just the ins and outs of that settlement negotiation. But, you know, David, at the end of the day,

this is one of those cases where Dominion outlawed Fox. Not on the law, but this had a lot more than the law going on you needed a lawyer who understood the media and yes it was a lot easier for Dominion because they had the media

wind in their sails everyone else in the media hated Fox but nevertheless they did it really really well yeah they were working

reporters on the phones they were making sure that their filings were made for reporters. It's very different than I think just general good litigators who are used to making sure their filings are good for a judge and teed up on the law and all of those things. So let that be known for future cases like this. I mean, you're not just litigating in the court because what caused this settlement

was surely out of court problems. I could not agree more with that, Sarah, that they did a really good job. And just for future litigants out there who are involved in high profile cases, make it easy for reporters to understand your arguments. That means providing easy access to court filings. That means providing easy access to court filings. That means providing easy...

Looking at you, Alan Brad. Yeah, seriously. Make it easy. And Georgia in the future. Make it easy. And this is something that's often particularly important for plaintiffs because plaintiffs are many,

typically are much more in the case of, I have a pile of allegations to bring against you. And it is absolutely imperative if you're working through this tactically as a plaintiff to make that pile of allegations clear and easy to understand. Whereas the defense lawyers are often in a difficult position

because maybe their clients don't really need to be talking to the media. And maybe their clients are guilty, but not as guilty as the plaintiff indicates. And that's a really difficult position to be in. Dominion maximized the facts here in a way that was very, very powerful. So I couldn't agree with you more, Sarah. And I'm not looking for another job. I want to be very clear that I'm not talking about myself here,

but I have found it shocking, and I've been saying this privately for a long time, that the major white shoe law firms that take and handle cases like this, I don't mean this exact type of case, but large public profile civil and criminal litigation, don't hire former DOJ public affairs directors. These are people who have worked at the very tippy top,

the top basically legal comms person in the country who understands politics, the legal press, the national political press, all of these things, and speaks lawyer. Now, there's only been two lawyers who've had the job. Sorry, three now. Barbara Comstock, me, and then Kerry Kupak, who took the job after me. You're insane, I think, to try to do one of these cases and say, well, our lawyers know how to handle media. This partner has talked to the New York Times many times. That's not the job. It's just not. And the fact that lawyers don't seem to understand the difference between their job and my

job and what our various expertise is, I assure you that the people at the Department of Justice know the difference between what the Director of Public Affairs does and what they do. But for some reason, senior partners at these litigation firms do not seem to. And I think this case highlights what that can cost you. About $780 million. I mean, if I had to, if I had to have a two word summary of your job

as a legal public, in legal public relations to reporters who, by the way, and you and I have talked about this a million times, often don't do a great job of reporting cases. Many of them are not lawyers. Many of them are, you know, in multidisciplinary and they're having to learn. And here's the two word guidance, spoon feed. Yeah. you need a translator. Yeah. Anyway. All right, last thing, David.

You had an interesting experience. You were in Virginia at an inn at midnight. What was going on? You wouldn't even tell me. You were like, I'm saving this for the pod. So I was in Middleburg, Virginia, and I've already forgotten the name of the inn. Do you travel too much, Sarah, to the point where you forget where you just stayed?

No, I don't. Okay. Well, I travel so much that I just, I forget where I just stayed, but it's a lovely property in Middleburg, Virginia. Huge property. And it's unique because there's no one central hotel. There's a bunch of manor houses

scattered across the property. And you go to the central manor house and they tell you which house you're going to be in with your group and you get a key and then you're driven to that house. And the reason why you're driven is some of these things are up to a mile apart from each other. So I was at a dinner in DC and we got done talking, had a great time and at around 11 o'clock. Well, if you know your geography, Middleburg and this rural part of Virginia

is about an hour and 15 minutes away from where I was in DC. So I get an Uber. I knew the name of my manor house, but it doesn't pop up as a separate destination. So I drive to the main house and I think they'll give me a ride to my house, right? To my manor house.

Get there at 12, 15 in the morning, walk in the door of the main house, happy, ready to get my ride. No one is there. Yeah, of course they're not. Not at all. David, this is on you. No, it's not.

Like- But they're supposed to have 24-hour mini Uber service so you don't have to walk one mile? What's wrong with you? At night, in a rural place... Did you call in advance to tell them what time you'd be arriving? I just assumed. And so... 12, 15

AM? Are these people not allowed to sleep? What kind of service do you demand, Prince David? I just assumed. And so... 12, 15 a.m.? Are these people not allowed to sleep? What kind of service do you demand, Prince David? Do you not go to hotels where they have round-the-clock front desk service? Not driving me. And actually, yes, I've been to plenty of hotels where they don't have 24-hour desk service.

That's why you call. Like a Hampton Inn does. Yes, a Hampton Inn does. Not a locally owned inn with a manor house. The fact that you're staying in a place called the manor house should have given it away. But it's like, it's not some mom and pop operation. This is a big thing.

And so I'm sitting there, it's 12, 15 in the morning. No one's there. I call, no one picks up. Yeah, they're asleep. I see the courtesy car. Can't steal it. I don't know where my house is. Yeah.

Okay. So I walk behind the vacant concierge desk and I grab a map to the property and I realize I am staying as far from the main house as you can stay and still be on the property. So I'm like, fine. Which again is one whole mile. It's a mile. Okay, so at this point it's 1230.

Are you in heels? No, no, I'm in dress shoes. So I walk out, it's pitch black. There's no lights. It's cloudy, you know, midnight, it's cloudy. I walk out, as soon as I walk out, it starts to rain. Okay. That's pretty funny. Yeah. So it starts raining. The wind kicks up. All I've got is my iPhone flashlight and I'm walking a mile and half of that mile

has to be on a very rural road in middle of nowhere, Virginia, a gravel-ish road at almost one in the morning with about a 20 mile an hour wind and the rain. And it's smacking me in the face so much that I can't see through my glasses anymore. And I'm just this walking lonely in the countryside for a mile in the rain and 20 mile an hour winds to get to my manor house, which I was able to navigate to and actually thought it was pretty funny in the moment.

But just for future reference, if you're ever at one of these places where it's like a bunch of little houses, don't assume. Don't assume. I hope you took away a valuable lesson, which is call in advance if you're going to show up past curfew.

I just would have liked to have seen like a zoom out photograph of this little tiny iPhone light navigating the darkness in the rain. And it's a super nice resort. Like it's super nice. But anyway, that was my very, it's a-

Harrowing, David. I was going to say, it's too much to call it an adventure. I would call it a mishap. A travel mishap. I can't believe listeners had to stay for that. I'm sorry. You know, this is why he wouldn't tell me

the story in advance because I would have told him this doesn't come out his way the way he thinks it might. No, it comes out my way. Totally. No, no, not at all. Commenters will explain. We'll see.

We'll see what the comments say. If they've flown TWA and if they think David sounds sympathetic and reasonable here, or if he's in a feat, a cellar corridor, bad guy. For not wanting to walk a mile in the rain on a deserted country road at one in the morning to get to my hotel room. For expecting someone to stay up all night waiting for you, who's not your mama.

Depends on how you phrase it. What is the issue presented here, Sarah? What's the QP? The QP is, is it unreasonable to expect a guest to walk a mile in the rain with only an iPhone camera on a deserted road as a precondition of staying at this hotel? That's the QP. That is definitely not the QP. All right. We'll let the jury decide here or the justices, however you'd like to frame yourselves in the comments. Thank you for joining us for another episode of Advisory Opinions.

If you want to join the comment section, you can become a member of the dispatch. If you want to leave us a comment wherever you've seen this podcast, that always helps people discover the podcast. And David, we've had some great discovery lately. Our listenership has really taken off. So for all you newbies out there,

we appreciate, we don't have a glossary ready for you, but I mean, you know, gnaw dog buckets, you're going to be in the way. So welcome to the ride. Thank you.