Advisory Opinions - Showing a Little Ankle

Episode Date: April 20, 2020

David and Sarah discuss the Supreme Court's decision in Ramos v. Louisiana that held that the Constitution requires unanimous jury verdicts for convictions in criminal cases, a federal court's decision that upheld Michigan's independent redistricting commissions, and David responds to comments on his Sunday newsletter. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And we've got a lot of fun law to talk about today. So we have a Supreme Court decision, one of the first important decisions from the October term. Now, just to let you know, this is going to be the first of a series of podcasts. They're going to be talking about a series of interesting Supreme Court decisions, including some really explosive ones that are due in the next coming weeks and months. But this one is very interesting. It's called Ramos v. Louisiana, and it's about the, is it necessary to have a unanimous jury verdict before you send someone away for serious time?

So we're going to talk about that. We're going to talk about the Sixth Circuit Court of Appeals upholding a new Michigan redistricting plan, why that's important. And it is very important. We're going to talk about Roger Stone being denied a new trial, mainly to tell you that we were right. And then we're going to wade into the Chernobyl that was the comment section on my Sunday newsletter about why Republicans had asserted that evangelical Republicans have dropped the character test. Now they're dropping the competence test. But to give you a flavor, a little bit of sense of what it's like to correspond with Sarah Isker on Slack, I just want to, she sent around the, and we were talking about what we're going to talk about today, she sent around the Ramos news. And then the exact quote was, I believe, Sarah, PNI is showing a little ankle here.

Yeah. Do you want to tell people about Ramos and what you mean? Little ankle on the privileges and immunities clause. Na-na-na-na. Yeah. So Caleb, our producer, is laughing in a way that like your teenager laughs when mom tries to say something remotely like cool. And he's like, nope. Noted, Caleb. Noted. So Louisiana and Oregon do not require unanimous juries.

And Ramos was convicted by a non-unanimous jury. This has gone up to the Supreme Court. was convicted by a non-unanimous jury. This has gone up to the Supreme Court. We end up with, I don't know, like kind of a disaster opinion. Like everyone is everywhere. So, and there's some asterisks involved in this.

It's roughly a 6-3 opinion with Gorsuch, Ginsburg, Breyer, Sotomayor, Kavanaugh joining in parts, a Thomas concurrence, a Kavanaugh concurrence, Alito dissenting with Roberts and Kagan joining the dissent in part. Woof. There's just like a whole, there's a lot. And this all turns on a previous case called Apudaca, which I don't know about you, but I've really been enjoying staying around the house this morning. No, you're the only one. Guys, this is like, it's like a Christmas season for me between now and June. Like every day, every Monday and Thursday are going to be these fun days. Okay, go ahead.

day, every Monday and Thursday are going to be these fun days. Okay, go ahead. Well, so on the substance, the court held that the Sixth Amendment requires a unanimous verdict before you're going to sentence someone for a serious crime. So you got to have a unanimous verdict. So the two states out of 50 that do not require unanimous verdicts, they're now broad in line. Yeah, but that turns out to be like the least interesting out of 50 that do not require unanimous verdicts, they're now broad in line. Yeah, but that turns out to be like the least interesting part of this case. Yes, that's the least interesting part. So let's break it down. Number one thing I found interesting, the alignment of the court.

Sure. So we're always used to the 5-4. There's the four judges dominated by Democrats. There's the five judges dominated by Republicans. We keep hearing 5-4, 5-4, 5-4. There's the four judges dominated by Democrats. There's the five judges dominated by Republicans. We keep hearing 5-4, 5-4, 5-4. We're now to a point where a lot of important cases are not breaking down 5-4 and where particularly when you get out of the sum, not all of the core culture war cases, the breakdown is not predictable. Here you had a 6-3 where the three were Alito, Roberts, and Kagan. Record scratch sound. What? And then you have the six.

You have some of the most judges farthest on the left and the judges that, you know, folks on the left are most critical of in Gorsuch to a degree and certainly Thomas. And so I submit, and I've been arguing this for a while, that this nine justice alignment of the court is one of the more interesting, once you really dig into what their Jewish philosophies and their independence, it's one of the more interesting alignments of the last several years. Sarah, your thoughts. So we're going to talk about privileges and immunities, stare decisis, and obviously on the front end here is the criminal justice aspect of this. So taking just the criminal justice aspect, nothing about this alignment should surprise people because Gorsuch was really taking up the banner of Scalia in terms of being this very

strict constructionist when it comes to the rights of criminal defendants. And in that sense, Gorsuch writing the opinion doesn't surprise me. He is, you know, as Scalia's flag falls, Gorsuch has picked it up off the field and is running up the hill like in the Patriot. falls, Gorsuch has picked it up off the field and is running up the hill like in the Patriot. So that makes a lot of sense. I think that you can look at Kagan in the dissent as making a lot of sense on the stare decisis argument, which we can get to in a little bit later. And stare decisis is for our non-lawyer listeners. Well, actually, I mean, I want to dive into a little bit of what the real definition of stare decisis is. But the rudimentary definition is this idea that you uphold a precedent from an earlier court because it's a precedent from an earlier court. I'm not sure that that's actually the best definition, as I'll discuss later.

But roughly speaking, it just means we already decided this once. court. I'm not sure that that's actually the best definition, as I'll discuss later, but roughly speaking, it just means we already decided this once, the decision holds, and we keep moving forward. This becomes a sexier topic when you're talking about some things like Roe v. Wade, where people really want that to continue or don't want it to continue, and it becomes this proxy war over the term stare decisis. And then you have privileges and immunities where, you know, the cheese stands alone and Thomas is a hunka hunka manchego. I don't know what that means. I'm feeling punchy today, David. I'm feeling punchy today, David.

I think that means that Clarence Thomas is, is it, is that like saying riding his hobby horse? Yeah, sure. Nobody joined him on the privileges and immunities thing, but it sure is fun to continue the conversation with one justice on the Supreme Court who's like, still here guys, still think it's privileges and immunities. But again, let's maybe cabin that. Is there anything else on the criminal justice aspect that you found interesting? No, I think you really nailed it. And I think that one thing that this is an aspect of Scalia's legacy, for example, that because the way most people approach the Supreme Court, and this is a change, by the way, this is a change. If you were going to ask people what was wrong with the Supreme Court in the 1960s, yeah, a lot of people would say their view of the Establishment Clause, for example. But tons and tons and tons of people would say it's the Supreme Court's view of criminal justice. Miranda rights, right to counsel, all this stuff comes up in the Warren court.

Yeah, it's really interesting how the flashpoints in the Supreme Court change. a person who was what you would call like a law and order Republican on the court because he was an originalist and he was a zealous defender of the Bill of Rights. And as a result of being a defender of the Bill of Rights, that means that he is going to defend the rights of criminal defendants pretty consistently. And that was an aspect of his legacy. It's interesting if Scalia had been appointed to the court instead of in the 1980s, if he'd been appointed in the 1960s and had served for 20 plus years beginning in the 1960s, I honestly think conservatives would have a different view of him because the rights of criminal defendants were a much more hot-button topic back then. Interesting, because I don't know that Scalia, for instance, there were some remedy problems,

like the exclusionary rule, for instance, like this idea that if you violate a criminal defendant's rights, the remedy for that is that you exclude the evidence you got by violating their rights. That is sort of extra-constitutional. We may all assume that it follows, but actually it was pretty much made up at the time. And there's been lots of sort of academic discussions over what you could do instead, et cetera. I don't know that Scalia would have signed on to the exclusionary rule in first sight. Yeah, that's a good question. Or would he have signed on to the specific

language of the Miranda warnings? You know, there are some remedy issues there. I do think that there would have been some conflict. But you're totally right from a rights standpoint. You know, Gideon, for instance, or something like that. I think you're right. Yeah, I think that. So it's just interesting how we kind of move, how our culture moves right. Yeah. I think that, so it's just interesting how we kind of move our, how our culture moves. And so I do think that's exactly right. I wasn't thinking of the Patriot. I had just rewatched Glory. Yeah. Oh, oh my, oh, maybe my, oh, I just love that movie so much. Oh my gosh. It is so emotional. I had forgotten how powerful that movie is. But anyway, so I was when Denzel Washington picked up the flag. Oh, my gosh. But anyway, so that that's that's one aspect of it that I think you nail. stare decisis and give your definition of stare decisis and why is it different in the Supreme Court versus courts of appeal and trial courts? Okay, so let's get to why stare decisis as an

idea is necessary. There's a reliance interest for lower courts, but there's also a reliance interest from the rest of us, whether you're a corporation or an individual. We can't change the law every year in big, dramatic fashion or else sort of civil society just breaks down because we don't know what the rules are. have revolutionary changes in Supreme Court doctrine willy nilly just because the court changes or one person changes or didn't have their, you know, honey bunches of oats this morning. My grocery store is out. It's very upsetting. So that's the reason to have consistency through time on opinions.

But then the question obviously gets raised. OK, but like that makes sense. If we're talking 10 years ago, maybe 20 years ago, what about 50 years ago? What about like, when does stare decisis really hold? What if the decision's just wrong? What if it's Korematsu? And it's just a bad, bad decision. And so that's where we get into this debate over when you should uphold a decision just because it was a previous this debate over when you should uphold a decision just because it was a previous decision and when you should revisit a decision because it was wrong. So Thomas, I think, um, has an interesting definition that he laid out last year in a

case called Gamble. Uh, and he says that this is not about a judge's sort of infallibility. That's not why we have stare decisis, but about this reliance consistency interest. So for him, he will look as to whether the opinion was, quote, demonstrably erroneous, which he defines as making decisions outside the realm of permissible interpretation. His point being like, look, even I, Justice Thomas, the original of originalists, do not believe that you need to go back to Marbury versus Madison every time and start from square one and like get everything, you know, induced from there. But I actually, and this is a debate that maybe we need to have over a longer period of time as more of these decisions come out this term in particular, because I think

stare decisis has become a real sticking point for the whole court. I'm not sure what justice would disagree with that definition. They may not use his term of demonstrably erroneous, but clearly every justice on the court is willing to overturn some precedents. And I don't know any justice on the court who has said, this decision is clearly wrong. It's just wrong, wrong, wrong. But I'm voting to uphold it anyway because stare decisis. So I think that Thomas has a little bit of a fallacy here and that his definition is somehow unique to the rest of the courts. We'll we'll see over this term and the next one. But that's sort of where I think the stare decisis conversation has to start off from. But then you end up with all of these weird on Apodaca, this previous case that were unstarry

decisising, you know, these like five factors that Gorsuch is considering and that Alito is taking down on the dissent. Was there a reliance interest? Wasn't there a reliance interest? Was it even precedent or was it dicta? I mean, it gets really messy and in the weeds. was it dicta? I mean, it gets really messy and in the weeds. But I think for most people reading this, who are Supreme Court nerds, all they're thinking is abortion, abortion, abortion, abortion. Yes. Yeah. Every single conversation about stare decisis is now filtered through

the abortion lens, every single one. So I think the first thing that you said, because I think a lot of people who, and again, because we're all filtering everything through the abortion lens, a lot of pro-life folks are now on high level of scorn about stare decisis as a concept, like, come on. But the system doesn't work without it either. As a concept, like, come on. But the system doesn't work without it either. Right, exactly. So I remember when I was back in my litigation days, so I litigated before, I think the only judge I've not litigated before, like a nominee since Carter.

So I've litigated before Carter appointees, Reagan, Bush one, Clinton, Bush two, and Obama appointed judges. And I stopped litigating before Trump was elected and they were of varying degrees of quality. But one thing that I was looking for in a good judge, regardless of who nominated them was predictability and their jurisprudence. Did I know how, could you apply precedent and they would listen to, they would read precedent and apply precedent. Was there predictability? Because that's in many ways, the essence of the rule of law. The essence of the rule of law is if I enter into a contract, I can have confidence that if that contract is breached, I can get a remedy. That if my rights are violated by a third party, I can have confidence that my rights will be vindicated in court. The essence of it is a degree of predictability, uniform applicability,

and stare decisis is a huge part of that. And one of the things that a lack of respect for stare decisis that the Supreme Court can do is it can lead to less predictability in the lower courts as they sort of anticipate the next move, as they push the boundary to where they think that the Supreme Court will go. So I'm totally with you on stare decisis is really critical to the rule of law itself. At the same time, you have this issue that stare decisis should not be a reason why you keep Dred Scott on the books. It should not be a reason why you keep Korematsu on the books. And Korematsu is the case that essentially ratified FDR's internment of Japanese Americans. I argue it's not a reason to keep Roe v. Wade on the books. I think that there are cases that are outside, and I think that's the truism.

And I think in a certain way, you said it very well, Thomas is expressing what's basically a truism, that every one of the the justice, if it was put to them, yeah, I'm going to give a degree of deference to previous precedent. But if it's previous precedent is really bad, as I define really bad, according to my judicial philosophy, well, then we're going to ditch it. And that's what it all turns on. What is demonstrably erroneous to you and your feelings? And then we're all coming up with different definitions of that that try to be principled across nine members of the court. I want to point out, by the way, for those who are side-eyeing our stare decisis is always seen through the lens of abortion.

Last term, there was a case called Nix. And the Nix case, David, I'm sure you're super familiar with because it was such a sexy topic. Do you want me to quote 10 paragraphs of it? Well, I know we've all committed it to memory. Um, this was on whether regulatory takings claims could be, could go directly to federal court instead of having to go to state court first. I mean, I know guys, I know it's like there's movies being made about this lifetime. People have rioted for less. People have rioted for less.

But David, this was a 5-4 decision breaking on exactly the sort of partisan lines of the court. Why? Because stare decisis. And I want to read you from Justice Kagan's dissent, which is, again, this is about whether you can take a regulatory taking through state, have to take it through state court, or can go directly to federal court. She takes the court to task for, quote, smashing a hundred plus years of legal rulings to smithereens. And it goes on and on. Maybe the majority should take the hint. When a theory requires declaring precedent after precedent after precedent wrong, that's a sign the theory itself may be wrong.

I mean, I don't really think she's talking about regulatory takings going directly to federal court there, David. I don't think that she is either. So that's just one example of over, like like last term, this term, next term, I think we're going to have these stare decisis definitional battles that are shadow boxing. Yeah, I agree with you. And, you know, it's interesting. I think Kagan is really staking out this ground is saying, I am, I am Elena stare decis Decisis Kagan. Like those two, the word Stare Decisis cannot be separated from my name.

And, you know, a lot of this goes back to also in the Janus decision, which was the mandatory union dues decision, which was a reversal of earlier Supreme Court precedent. And there was a lot of anger around that case. And look, that's a more explosive case because it's dealing with mandatory union dues and the political power of unions, which is particularly at the state level, an extremely contentious issue. But the heat, again, was not quite, especially given all the different ways that all the different alternative ways that unions had to to respond to that decision. There was a heat that was out of proportion to the actual magnitude of the decision, because, again, everyone's keeping an eye on Roe. And this is why I'm I'm going to be so fascinated. And this goes back to our our discussion that we had about June medical services.

I'm going to be so fascinated to read that decision because at this point in time, I'm still of the view that that opinion in the first big abortion case of the new court, the post Kennedy court, is going to be small ball. I think it's going to be really small ball. I could be completely wrong. And by small ball, I mean extremely incremental, either not incremental at all upholding whole women's health or very, very incremental in upholding the Louisiana law, but on the grounds that it is essentially meaningless in its impact on abortion rights, which is not exactly a ringing victory for the pro-life movement. So I don't know. A lot into this view of the court, actually. I don't necessarily ascribe to it. But to use a political lens on the court for this decision, it doesn't get more interesting than Ginsburg, Breyer, and Sotomayor basically saying,

we'll overturn stare decisis when the ends are something that we politically agree with. In this case, we want unanimous jury verdicts in federal, large federal criminal convictions, which I think many of the conservatives on the court have been understandably accused of as well. And then you have Kagan, who almost comes out as this Scalia-like figure, where it's like, I don't agree with the outcome that this creates. I wish that we had unanimous criminal jury verdicts in my happy world. And if I were in the Oregon legislature, I would vote for unanimous jury verdicts. However, stare decisis is my hill. And I'm going to be very consistent on this so that down the road, you know that stare decisis is something that is going to be near and dear to my heart so that I can cry foul in the Janus cases, in the Nix cases, and in the Roe type cases all the way down the line. Yeah, you know, there's a phrase that pro-life attorneys use for a long time, particularly in the 80s, called the abortion distortion. And the abortion distortion, and this is something that was of real concern when I first got into law school, was that in essence, to the extent that First Amendment rights touched on abortion. In other words, to the extent that the First Amendment,

that you were exercising First Amendment rights to protest abortion, especially outside of abortion clinics, the Supreme Court was going to smack you down more so than if you were protesting virtually anything else. And there was this sort of phrase, abortion distortion, that grew up around First Amendment jurisprudence. I'm thinking that there's an abortion distortion building up around just simply stare decisis, that that one doctrine is exerting a disproportionate gravitational pull on many members of the courts thinking about that doctrine every single time that doctrine comes up, which is one of the reasons why, you know, this case becomes so much more interesting beyond just correcting a constitutional mistake in two out of 50 states. Speaking of abortion distortion, can we go down

just a brief cul-de-sac? Because, you know, we've had all this media attention around the abortion cases related to coronavirus restrictions. And there really hasn't been any broad scale media attention paid to all the fertility treatments that are getting postponed. And they can have permanent effects if you postpone those for long enough. And just interesting. Yeah, that is interesting. It's getting the abortion distortion treatment. By being eclipsed, by being just, yeah. Well, because it's not divisive enough. We all wish that people could undergo their cancer treatments that are non-essential right now,

or fertility treatments. And because that's an 80-90% agreement, the media doesn't talk about it. But where abortion becomes a real sticking point, then it is newsworthy. And so there's distortion effects all the way down. Yes. Well, I, you know, let's just, we'll put a pin in this discussion because in the coming months, we have the June Medical Services opinion coming and there's going to be so much to say about that, no matter how it comes out. So let's talk a little bit about privileges or immunities showing a little ankle and why it matters. And the basic background here is involving when are, because the Bill of Rights, when it was written, applied only to the federal government. The First Amendment Free Exercise Clause, Free Speech Clause, Due Process Clause,

Prohibition on Cruel and Unusual Punishment. A lot of us in the modern era, we have no idea, don't remember at all that, wait a minute, the states could have violated all of those rights. that, wait a minute, the states could have violated all of those rights. The state power was- And did. And did all the time. And the state power was limited only by the state constitutions. And then after the Civil War, Congress and the states realized that that created an inherent instability in the system.

And so the 14th Amendment extended due process rights to all Americans and it extended the privileges or immunities of citizenship to all Americans. And slowly over time, the Supreme Court held that all of the rights of the Bill of Rights are actually applicable to the states. The states are required to protect the Bill of Rights as well. And they did so through the 14th Amendment, but through the due process clause, which even when I was reading about this in law school in 91, 92, or it was 92 that I had my constitutional law class, I thought that was odd. Why are you reading this through the Privileges or Immunities Clause? And it turns out that I'm in good company. Justice Thomas

is thinking right along the same lines as me. I'm sure heavily influenced by my classroom arguments in 1992 that he never heard. And he writes about this. And you might think, well, distinction without a difference, distinction without a difference. But I don't know, Sarah, I do think there is a difference here. Words mean things and process means process. Privileges or immunities is a concept that means rights. So the tortured history of the Tea Party movement? And it's not totally obvious to me that that was like inevitable, but like that became sort of the the rallying cry. The Privileges and Immunities Clause has become that for a specific segment of legal conservatism that wants judicial engagement on the conservative side. So, you know, if legal

liberals want judicial activism on sort of a living constitution, legal conservatives want judicial engagement on the privileges and immunities clause, using that to create economic rights, for instance, and other proactive rights in the Constitution. And thus lives the Privileges and Immunities Clause kind of in this whirlpool that it's not getting out of, except for these occasional misses from Justice Thomas. Worth noting, by the way, so unanimous jury verdict is one. Grand jury is another of things

that have not been incorporated against the states until today on the unanimous jury verdict. Grand jury is still not incorporated. And I'm pretty sure that the Third Amendment hasn't been incorporated, although that poor guy, he's hanging out there. Just wait until the California National Guard is quartered in somebody's house. That's right. is quartered in somebody's house. That's right. But we're running out of things where the privileges and immunities clause incorporation argument will have its day in the sun. Yeah. This was really the last big one. Grand jury, I'm not sure that'll ever have its moment there. So, right. I think there is a real argument of does it matter, to be honest. I totally understand and was part of the, you know, trained up through the school of substantive due process offends my legal conservative upbringing. But particularly on incorporation, at the end of the day, it's getting incorporated either way.

incorporation, at the end of the day, it's getting incorporated either way. No, you're right. You're right. And I am completely tainted in my assessment of all of this by the substantive due process issue, which we could talk about that for a really long time, which we won't right now. Yeah. Well, it has its own, like it is not just an incorporation debate when it comes to substantive due process, obviously. And so it has these other, this baggage that it carries with it. Yes. But, and when we get to your missive from Sunday, everything in this podcast ties together. I try to make, you know, bridges across topics. There's a, does it matter element to that to me as well. So let us, because we have

really talked about Ramos and probably could keep talking about Ramos, but let's talk gerrymandering. Oh, I'm sorry. What did you call it? Gerrymandering? Gerrymandering? We're going to get comments on that one, David. So this is a post this under the category of Sarah knows everybody, but Judge Chad Riedler, who tell us about Judge Chad. His name is spelled R-E-A-D-L-E-R. So you think it's pronounced Reedler, but like the word itself, Reed and Red, it is actually Chad Raedler. Interesting. Raedler. Okay.

So he was the acting head of the Civil Division at the Department of Justice while I was there. So many, a fine hour spent with now Judge Radler, big fan, wonderful, just human. So he's on this panel, although it's not his opinion. But the issue is? Yeah. So this is really fun. Let's back up to the Supreme Court last year, where in a 5-4 case called Rucho, which I just like lectured you on pronouncing, I have no idea how to correctly pronounce Rucho. Chief Justice Roberts wrote for the conservative majority, we conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions. So that was last term. It was a big hot button was last term. It was a big hot-button case last term. In that decision, buried deep within, is mentioned that Michigan had just approved this voter referendum on a 2018 ballot measure to have a nonpartisan panel to redraw their political boundaries after the 2020 census. And this panel

will consist of a commission, 13 member board of randomly selected registered voters. Some have to be Republicans, some have to be Democrats, and some have to be non-affiliated with either major political party. And they will draw the state and congressional voting district lines. So shock of shocks. This leads to litigation. Anything dealing with redistricting, by the way, just assume you're spending six years in court minimum. Yes. Yes. Every state.

It's a it's a boondoggle. So Republicans have controlled the Michigan state legislature since 2000. So that's who did the 2000 and the 2010 redistricting maps. So one suit challenged the constitutionality of the eligibility guidelines because it bars elected officials, candidates, lobbyists, legislative staffers, and their family members from being one of the 13 randomly selected board members. The other lawsuit claimed the commission selection criteria violated the Republican Party's freedom of association by barring the Republican Party from choosing who the Republican members of that 13-member board would be. And this, it was two Democratic president-appointed judges,

and then one Trump-appointed judge, Chad Radler, upheld it and said, no prob, Bob. Enjoy your commission. Go live long, prosper, et cetera. Was that the first time in American history that the words no prob, Bob, were in a court opinion? What About Bob is also one of my favorite movies, speaking of just like great movies. I'm sailing. It is glorious. It is glorious. No, you know, I think that so gerrymandering is let's back up just a

minute. There's an awful lot of people who believe not without some foundation to be sure that gerrymandering, number one, is the foundation of minority rule. And number two, that gerrymandering is a fundamental root cause of partisan polarization in American politics. So number one is that the idea that if you gain control of a state legislature in a census year, that you're going to be able to write, in a census year that you're going to be able to write, you're going to be able to draw district lines in such a way that for the control of the state to switch hands, you're going to have to win more than half the votes, sometimes well more than half the votes, depending on how these lines are drawn and where you have things like stacking and packing. And so if you have, where you have things like stacking and packing. And so if you have, and the way it works is really pretty simple. If you have a district that is say 85, 90% Democrat, you're packing a whole ton

of votes on one side of the aisle into one district. Then you could say have three other districts that are 70-30, 60-40, 55-45, where you're going to have a clear partisan favorite. And then the way the math works out, if the 90% district votes the way it would and the 60-40 and 55-45 vote the way they would, you could have a one party majority by winning a minority of the votes. And that's something that happens not infrequently in the United States of America. So that's why people say this cements the possibility of minority rule. And then the other reason why.

Wait, and real quick on that, because I think it's important of why this all of a sudden happened. Technology is why this happened. Yes. sudden happened. Technology is why this happened. Yes. Computer power has given us the ability to get really good at drawing these lines in such a mathematically precise way that you can crunch large amounts of data in a way that in our nation's history, you never could have had the sort of certainty that you can now have in drawing some of these gerrymandered districts. you can now have in drawing some of these gerrymandered districts. Yes, that's a very good point.

And then the second thing is because you gerrymander, gerrymander, I'm going to keep saying gerrymander. This is your Nevada. This is my Nevada, gerrymander. Because you gerrymander these districts, what ends up happening is you create an entire giant pile of very safe seats where the only real threat to your ability, if you're a sitting congressman or if you're a state legislator, the only real threat to your continued presence in the statehouse or in D.C. is going to come from your ideological right if you're a conservative or from your left if you're liberal. And so therefore, what that does is it exerts an enormous gravitational pull to pull people towards an extreme. Because what I'm constantly trying to do, if you live in my district here in Tennessee, is fend off a potential primary challenge from the right.

The whole question is, have you been conservative enough or now more like have you been Trumpist enough? And that's your focus. And and so I was listening to a really interesting podcast with Ezra Klein and oh, gosh, I'm going to mess up his pronunciation, Sean McElwee, who's the socialist progressive pollster. And he was quite explicit about the strategy of more of progressive Democrats, of more progressive Democrats to target Democrats in safe seats and sort of the Ayanna Pressley AOC model of take down the longstanding, more moderate Democrat in a very, very safe seat

that's never going to be lost. And what that does is it pushes the party in the direction they want to push it. And there's a lot of validity to both of those concerns. And I'll finish my monologuing in just a moment with a big but dot, dot, dot. I think the larger reason why that reality exists is not gerrymandering. I think gerrymandering is a part of it, but the larger reason is the big sort. It is that Americans just of different political persuasions live in different places in this country to a degree that they haven't since we've been measuring partisan political preference with that degree of detail.

So that's my monologue. I don't have a perfect scientifically controlled experiment to show why the gerrymandering is the root of all evil argument is wrong, but I've got two pretty good ones. Okay. As close as you can get. but I've got two pretty good ones. Okay. As close as you can get. So one, I mentioned why these sort of snake district crazy outlined, you know, they run along a river for three miles to then go grab some suburbs down the road. Uh, and they look crazy that that's this new computer technology allowing us to crunch math. So one, you should be able to look back, you know, 60 years ago

and see a difference in incumbent retention rates in House seats. And two, and I love pointing this out to my students every time they complain about it, the Senate can't be gerrymandered. Right. So you should also be able to look at Senate numbers and see some pretty big differences in terms of incumbent retention. So let's start with the first one. Of late, so 2018, 91% House re-election rates, 97% 2016, 95% 2014, 90% 2012, 85% 2010, 94% 2008, 94% 2006.

You get my point. They're high. Yeah. They're in the 90s. That's a lot. Now let's go back to the late 60s. 64, 87%, 66, 88%, 68, 97%, 70, 85%, 72, 94%. So, you know, they're definitely lower.

There's a sort of a statistically significant lower number there, but it appears lower by four percentage points, maybe. So that would say that the current computerized gerrymandering system accounts for about 4% of incumbent retention rates. for about 4% of incumbent retention rates. Then we can go over to the Senate. Now the Senate, I will tell you, is more volatile year to year. And it's lower. 2018, 84%, 2016, 93%, 2014, 82%, 2012, 91%, 2010, 84%. So that looks more like the retention rates, I think, from the House in the 60s to early 70s, which makes sense, right? Because they're not drawn in the same way that these current models can really perfect your drawing skills. I also think there's some really important differences between running in a statewide race in terms of the media attention you can get and the salience of those races to voters. The drop-off in voter participation between a Senate race and a House race is usually also pretty big. So again, these are not

scientifically controlled experiments by any means, but comparing Senate to House, again, you're looking at maybe a six to eight point difference in incumbent retention across the board, which I think goes back to your point that, yes, it definitely, gerrymandering accounts for incumbent protection, accounts for incumbent protection. But it is not the largest thing accounting for incumbent protection. That is sorting, it's partisanship, it's a whole bunch of other things that we can look at that will also account for 5% to 10%. And some of it's name ID, which probably accounts for 50%, right? Like, name ID swamps all of these. Right, right. Yeah. You know, and the other, there's another thing that you, you cannot gerrymander governor's races, for example. And so what, what is really interesting to me is that if you look at trifecta states,

in other words, states where the house, the Senate, and the governor's mansion are all held by the same party, which is a pretty interesting measure of geographic sorting and polarization. Do you mean the state house here? The state, the state. So the state house, the state senate, and the governors. So upper house, however you want to name it in the states, upper house, lower house, governor's mansion. It's at an all time high. There are 36 states right now. It's tied for an

all time high, but 36 states have a trifecta, 15 Democratic, 21 Republican. If you go back to less polarized time, I mean, as recently as 1992, we only had 18 states. That's pretty crazy that we're trifecta. And the trifecta number, it used to bounce around. So 92, 18, 93, 21, 20, 23, 21, 18, 19, 23, 24, 21, 20, going year to year to year. And then after 2012, boom! I mean, just, which is, it's a measure of our national polarization. And it's a, so yeah, so I would put it this way. I'd say gerrymandering matters, but it doesn't matter as much as the big sort. And then the last thing is, would say if you're suing, I think the precedent at the federal level is pretty clear. If you're suing over a gerrymander, unless you can smack dab prove it's a racial gerrymander, you're going to lose. The courts are washing their hands of it.

Now, that's not the state Supreme Court. State Supreme Courts may have a different view, but federal courts under current precedent are probably not going to touch it. They're going to give, they're going to call that a political question and they're going to leave it for the states as a general rule. But again, the state Supreme Courts, different matter. But I think that if you're going, you might have your six years of litigation, but if you're challenging the gerrymander or your districting commission, it's going to be a long, long march to defeat. That being said, good luck, Michigan. We're watching. We're rooting for you. This is a fun, fun thing you're embarking on. I can't imagine you getting in the mail like, you've been selected for jury duty. I can't imagine getting in the mail. You've been selected for a six year process to redraw all of our congressional district. So God bless those people, those 13 randomly selected voters in Michigan. Godspeed.

Yes. Yes, indeed. So real quick, let's move to Roger Stone. We dedicated a lot of time on a podcast months ago, goodness, pre-quarantine, B.C., before coronavirus, to Roger Stone's claim that his jury was biased and that the far dear was deceptive because one of his jurors had ran for president, not president, what am I saying? Congress. Presidential candidate. No, had ran for Congress as a Democrat in Memphis. And that she had a number of anti-Trump social media postings, not a huge number, but several, including a posting or two on the Mueller investigation. And we went through the applicable law, went through the postings and said, we think it's thin gruel for a new trial because it's just not the law that you can say exclude a Democrat from a jury pool involving a Republican. You just can't do it. The question

isn't whether someone has a bias in politics. It's not the same thing as saying having a bias and being able to be a finder of fact in a criminal case. And it turns out that just District Judge Amy Berman Jackson listened to our podcast, agreed with us, and declared that Roger Stone's request is a, quote, tower of indignation. But at the end of the day, there's little of substance holding it up. And she basically found that, number one, that the juror didn't lie. And then, number two, that Stone's team didn't do its homework, that it didn't use this app called Google. The famous, let me Google that for you. Yes, exactly. And that it's actually kind of common for juror consultants to use a little app called Google.

And they didn't do it. And so anyway, we don't need to spend much time on it, but your thoughts. It was an 81-page opinion. Yep. So most of my thoughts were, oh, that poor law clerk, because the outcome seemed to me so obvious. But I appreciated, you know, she had some good language in there that I think should be a nice reminder to us all. The assumption underlying the motion that one can infer from the juror's opinions about the president that she could not fairly consider the evidence against the defendant is not supported by any facts or data and is contrary to controlling legal precedent.

We just don't judge people by their political opinions. That is not a disqualification to serving on a jury. And I should think that if you really asked the American public that in that way, do you think that your political opinions should prevent you from serving on a jury? I should hope that everyone would say no. Right. So vindication for the rule of law. I like this. I like this quote. An effort to uncover social media activity would not have required the lawyers to pour over dusty family court records in the basement of a county courthouse. All they had to do was sit and type her name into an internet search engine on a laptop. There's that. Well said.

Well said. Okay, David. So on Sunday, you sent out one of your Sunday epistles. What have we been calling them? Just Sunday French press. Yeah, just the Sunday newsletter. And this one- Subscribe, subscribe.

This one was a little spicier than usual. If you don't mind giving your thesis, I then want to, I've looked through the comments of which there were 613 as of this current podcast. And I wanted to talk to you about some of the comments, my own comments, etc. So thesis first. So the occasion for this is that the president of the Southern Baptist Theological Seminary, Albert Moeller, a guy I know, I like him, I respect him. I had some Trump critics say, how can you say you respect him? I mean, good grief. You don't define a human being on the basis of a single political endorsement in 2020. I mean, people grief. You don't define a human being on the basis of a single political endorsement

in 2020. I mean, people's lives are bigger than that, y'all. But anyway, so I respect Albert Mueller. I disagree with him. He was a never Trump evangelical or an anti-Trump evangelical in 2016. He did not vote for Trump or for Clinton. And he wrote extensively sort of endorsing a classic, I guess, can we say 1998 is classic, but sort of the opinion of the Southern Baptist Convention in 1998. And Moeller is a very prominent member of the Southern Baptist Convention. He's the presumptive next president of the Southern Baptist Convention. And he argued very extensively that character matters and character is dispositive for Christians engaging in a decision about who to vote for. And I'll just give you some of the 1998 language from this statement, this resolution on

the importance of moral character in presidents. And remember, this is Bill Clinton's second term. What was happening in 1998? Impeachment. Monica Lewinsky. Okay. So a lot of people will hear this, especially our more secular readers who think of idea of God judging a country based on immorality. What? But this is really orthodox, small-o orthodox Christian theology. And this is in 1998. The Southern Baptist Convention said, tolerance of serious wrong by leaders sears the conscience of the culture, spawns unrestrained immorality and lawlessness in the society, and surely results in God's judgment. And it urged, quote, all Americans to embrace and act on the conviction that character does count in public office and to elect those officials and candidates who,

though imperfect, demonstrate consistent honesty, moral purity, and the highest character. So this was completely uncontroversial as a statement of Baptist principles in 1998. And and Mueller, Mueller reaffirmed them in 2016. And now in 2020, he's decided to endorse Trump. And he says, I'm going to endorse Republican presidents probably here on out because of issues regarding marriage and sexuality and abortion. And so I what I said was I made an argument that, look, it's just sad to see Mueller abandon the character argument, but he's not the first one. I mean, I know I've lost the character argument for now, at least with my fellow evangelicals. They've decided that that 1998 statement, even though they won't say it, Sarah, they won't say it. But by their actions, they have decided that 1998 statement is somehow wrong, inapplicable. Then I went and I said, but

do we also have to abandon competence? Like, do we also have to abandon that? Look, you've abandoned character, but do we also have to abandon competence? And I went and I went through just around the coronavirus. Regardless what you think about his response now, which many elements of his response now I endorse. I mean, he absolutely spread misinformation. When he finally got serious about it and he had a public address, he misstated, he botched the announcement of key policies in a teleprompter public address. I mean, you watch these news conferences, he often has to be fact-checked in real time. And that's just one thing here. Like that's just one thing. And so, you know, I just said character, okay, out the window. I still don't understand why, to be honest. And now is it also competence outside out the window? And when you call somebody on it, they're going to say abortion, religious liberty, sexuality. And I my argument is that's just not enough. That's just not enough to vote for somebody who has poor character and is incompetent. And the comment sections are a Chernobyl.

poor character and is incompetent and the comment sections are a churnable okay uh there's a lot to unpack there i don't want to spend too much time on the character question but i do there there were a lot of comments on the character question so i do want to spend a moment or two on them which is that and maybe this goes to just my fundamental lack of understanding. We do not live in a religiously set up system. So your religion being protected is really the only issue, I guess, that should come into bear when picking our nation's leaders. Whether they also happen to be Christian, for instance, would seem to me to be irrelevant if they are going to protect your religion, your ability to practice your religion.

And so I guess to some extent, this falls under the I'm not electing a pastor in chief argument. I guess to some extent this falls under the I'm not electing a pastor in chief argument. Right. And so for me, I totally accept your hypocrisy argument that similar to our Supreme Court discussion when it opened, you're willing to make a character argument when when it aligns with the political outcomes that you want. Clinton's character is bad and I don't want him to be president. Not Clinton's character is bad. Therefore, I don't want him to be president. Not Clinton's character is bad. Therefore, I don't want him to be president. So now the test is the opposite. It's an outcome that you don't want. And I think, yes, hypocrisy, blah, blah, blah. Totally get it. And I don't find that that interesting. That's humanity. But I guess the I'm not electing a pastor in chief. It's not like your choice is

between, and I know your binary choice thing, but like, and it's not a binary choice, but it is a choice. And are, you know, you have chosen to live under a covenant of the American constitution, which is not a doctrine of evangelical Christians run the country. Right. So one thing about this pope, I'm not electing a pope, I'm electing a president. A pope is a religious teacher, a religious leader, a religious authority. I'm not looking for that in a president. I'm not looking for the president to instruct me on the Bible. However, if you are a Christian and you believe the Bible, okay, there's an enormous amount of precedent biblically that says that the virtue of leaders, that the character of leaders is healthy, leaders of high character and of real virtue, that that is good for society

when you have leaders of virtue. It's good for a nation. It is good for a culture. The prophet Jeremiah exhorted people of Israel when they were in exile, seek the welfare of the city where I've sent you into exile. And so what you're wanting is... Wait a second. Wait, wait. Seek the welfare of the city. That does not seem like a character argument to me. That seems like, if anything, it falls under your competence argument. Well, it definitely falls under the competence argument, for sure. There's no question about that. I feel like the competence argument is sort of my last line of exasperation. That's like, we're even crossing this one, y'all. But on the character aspect, the statement and what the Southern Baptist statement says,

and I picked it out, it was only one of many in the 1990s. And they are drawn from a rich biblical history that says that virtue in leaders is incredibly important for the health of a society. And that the failure of virtue in leaders often means it renders the society less healthy. And so you're not looking... I think the pushback to that is, though, that you're sort of picking one type of virtue over another. Again, set off your competence argument for a second. And let's assume that. So here's what one leader said. Yeah, Trump's quirky and he's done some unacceptable, sinful things, especially in regards to women. However, I don't need him to be holy. That's my job. I need him to protect my religious liberty and fight for the things that I, and no one before

or since has been able to. And so here, I think the argument is you're defining virtue as, um, uh, I think his honesty. Yes. Fine. All of those things. Self-discipline, knowledge. But I think how others are defining virtue is his ability to, and again, set aside your competence argument. I want to get to that in a minute. Okay. But I think virtue can be defined in different ways, and you've just sort of picked your own definition of virtue, a la your own definition of stare decisis.

Well, the definition of virtue that I'm picking out is the biblical definition of virtue, which is what Christians should consider. Now, the other interesting aspect of this, just once, Sarah, just freaking once, will somebody please make a defense of Donald Trump that doesn't minimize his flaws and maximize his virtues? minimize his flaws and maximize his virtues. The idea that nobody, that he's just, he's quirky, quirky, and that nobody before or since has defended the rights that he cares about, that's, with all due respect to the person who made the statement, nuts. Okay. Because, what does he care about? Religious liberty. That's religious liberty. What has Trump done more than any other president? Because that was what was said to defend religious liberty. I'll wait. Oh, I actually think you're going to get a lot of comments on that.

And I think there's a very defensible argument on that. And I also think that, you know. No, no, no. What is it? I mean, you can't just say there's an argument. Make the argument. You know, the Department of Justice putting out its 20-page thesis on protecting religious liberty, the Little Sisters of the Poor intervention. I think there are several things that people can point to, but more to the point, I don't know that you get to assume that you get to define that either. Your definition is correct. You and I are both lawyers. Do either does a DOJ statement, which can be repealed by the next DOJ or this DOJ if it wanted to, or an intervention.

That's why I'm not saying that that's definitive. I'm saying, though, that it's a real and reasonable argument that someone can hold that doesn't make them stupid or totally un-Christian because they believe that and you don't. I'm not saying it makes them un-Christian. I'm saying it's a ridiculous argument. But because let's let's people have such amnesia. It's really remarkable. So from a federal standpoint, as far as substantive protection of religious liberty rights that have been relied upon in court for decades now, there are two enormous statutes. Now, statutes are far more endearing than regulations. They're far more endearing than DOJ interventions. And the two statutes are the Religious Freedom Restoration Act and the Religious Land Use and

Institutionalized Persons Act. These are acts. These are statutes that were passed in the adult lifetime probably of most of our dispatch members. And people act as if history began. I don't know when. David, those are all fine arguments, but it doesn't make someone who disagrees with you on that. I don't think it makes that ridiculous. I think it's their opinion and they're a voter same as you. And so they're entitled to that reasonable opinion. I think. Wait, wait, hold on. OK. Because we're also running out of time. I want to get to your competence argument a little bit, because I think that my pushback on that, if I had one and that I saw some in the comments, you know, there's this like every president lies.

Why does this guy get under your skin more? It's because he says it in a certain way or doesn't say it in a certain way. And so to to paraphrase all of those comments, I guess the question I would put to you is, is this really more of a norm argument that he violates norms that you happen to like and that some people happen not to like? And that when you set aside the things he says that are norm arguments from the things he does, which I think a lot of the people in the comment section are like, look, I get it. I don't like some of the crazy stuff he says or tweets or whatever else, but you're talking about norm violations. Lots of presidents have lied in the comment section are like, look, I get it. I don't like some of the crazy stuff he says or tweets or whatever else, but you're talking about norm violations. Lots of presidents have lied in the past and you weren't so, you know, personally umbraged by the whole thing.

Was I not? You look at his actions and that's what they're basing their vote on. and that's what they're basing their vote on. Yeah, so this is another one of the points that I was trying to make. If you look at his actions on the checklist, the Mueller checklist, okay? So that's on his actions on the Mueller checklist. Yes, he's made some good pro-life moves in regulations

and presumably maybe judicial nominations, although we have to wait and see about that. We have been Lucy, we pro-lifers have been Lucy with the football on that for a long, long time. So on the checklist, yes, gotcha. He has done some good things for religious liberty. He has done some good things for life. Don't exaggerate them, please, because George W. Bush signed into law the Born Alive Infant Protection Act, and he signed into law the partial birth abortion ban. Trump won't sign into law likely any pro-life legislation. But yeah, he's done some good things. But the entire point of my piece is that as if you are dealing with a – if you're a Christian approaching the public square, you're not just an interest group that says, hey, whatever else happens, as long as he meets the checklist, he's my guy.

should be particularly apparent in a time when we faced an unbelievable threat in a viral pandemic where he did a good thing without question in late January when he restricted most travel out of China, as is Trump's pattern. He has exaggerated what he did. But then there was a period of time in which he said, and look, it is brand new news to me, Sarah, that we are not to pay attention to the words of a president, because I don't know about you, but I'm old enough to remember about eight years of argument with Barack Obama over the phrase radical Islamic terrorism, okay? And so it is new news, and here's the deal. This conversation, I do think it's worth me just footnoting here, this conversation is me representing the views of about 300 commenters, not my own views, not whatever.

Like I'm trying to be the comment section and push you on some of these. No, this is you, Sarah. This is you. Oh, gosh. And here's the thing. I do not consent to changing or lowering the bar of acceptable behavior for Donald Trump. I refuse. I will not. And so if you're saying to me, oh, well, it's just words. Was that your argument in 2014 and 2012? If it wasn't, spare me, because presidential words really matter. They really matter. And when you're saying things like, well, we only have 15 cases of coronavirus, it's going to go down to zero, where you're tweeting out comparing it to the flu as if the flu is far more dangerous. Those words matter in the body politic. And then when you go on a

telepromptered speech, a telepromptered speech, Sarah, and you botch the announcement of your own policies, which, among other things, triggers a panic in Americans overseas, causing them to bunch together in huge masses in airports and viral ridden areas and come home bunched together from these viral-ridden areas, these things have real consequences. And by the way, not one of these commenters who's defending this would defend it at all if this had been the result of a Hillary Clinton presidency. And we will let David have the last word on his own piece. Commenters, I expect at least 600 more comments on the website after this. I'm sorry, I probably did not represent your comments as well as I could have. And apologies to all of you. I did read them. I tried my best. Some corrections, by the way. It is Noel Canning from our last episode. A wonderful listener sent me a video of a worker at the Noel Canning factory. They can things, by the way, who was on strike and they pronounced it Noel Canning. So I feel like that whole debate's put to rest and I felt really good and I slept well that night knowing how to pronounce Noel Canning.

Number two, you two are awful people and fact-checked me in real time and said that 24 started pre-9-11 when I was talking about the Sopranos and that it, you know, was original and blah, blah, blah. And I mean, talk about some real time wrong fact checks. You were Candy Crowley at the debate, my friend, and you were simply wrong. Yes, it was filmed before 9-11, but it did not air until after 9-11. So suck it. Well, it turns out that you're more rude than the con some of the commenters last thing i know some of you are probably very concerned that we have not talked about the last dance the michael jordan 30 for 30 documentary do not fear uh i have strong feelings about things

that are released now in segments and so i refuse to play along with this two hours a week game that they want me to play. I'm going to binge it all. We may do a halfway point. I will acknowledge that possibility. But I am not going to do this week by week business. I like binging. You can't take away my American Netflix given right to binge things. So you're gonna have to wait on the last dance. Yes, but we will deliver on that. And we may, as Sarah said, we may do it a partway through. And the partway through part where we might have to deliver is when we talk about the bad boy pistons. One of the more, whew, I tell you, I mean, you talk about a harbinger of cultural decline, talk about a harbinger of cultural decline, the bad boy Pistons. But anyway, we'll save that.

And I do want to say that because we have a large overlap between dispatch members and non-members. Number one, if you want to participate in the now 613 comment thread stream on my piece and give me what for, become a member of the dispatch. And number two, I would say that that comment, our comment, I have to just brag on our comment section for a while, agreeing or disagreeing with me. This is not your normal comment section online. It really isn't. It's, you're going to have a lot of goodwill. You're an occasional troll in there. A lot of interesting discussion, a lot of thoughtful discussion. And it's actually really, I actually really enjoy it. I spent, towards the end of last evening, I had, when I first checked in, like two hours

after the post went up, it had like 250 comments. And I thought, oh my goodness. And then I checked in at the very end and just a lot of great discussion. So if you want to participate in that, agree or disagree with me, happy to hear it. Become a member of the dispatch. Anything else, Sarah? I just really loved that one of the commenters was welcoming new commenters. And it just like warmed my heart. I know, I know. It was fantastic.

It's like, welcome to our contentious but civil community. Yeah, yeah. It actually said like, just taking this opportunity to suggest that we not let that kind of thing, meaning sort of vitriol, et cetera, draw us away from what we are here to discuss from having more interesting and constructive debates among

ourselves. It's like a perfect synopsis of the comment section on thedispatch.com. Yes, exactly. So join the Dispatch, subscribe to this podcast, please rate this podcast, and we will be back on Thursday. This has been Advisory Opinions with David French and Sarah Disker.