Advisory Opinions - Sore Losers and Dr. Phil

Episode Date: February 29, 2024

Sarah and David have some legal catch-up to do but first on the docket is some rank punditry on Donald Trump's endless legal saga. The Agenda: —Why is there a delay on Trump’s cases? —David explains NetChoice v. Paxton —McElrath v. Georgia update —No Labels considers Nikki Haley —Dr. Phil’s our guy —Home Depot and free speech —NCAA name, image, likeness rules —AO dating app update Today's episode is supported by Burford Capital. Follow the link to learn more: http://burfordcapital.com/ao Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger and that's David French. And boy, do we have a lot to get to. opinions. I'm Sarah Isger and that's David French. And boy, do we have a lot to get to. And David, we're even jumping in to do like a mini emergency pod in the regular podcast because we have breaking news from the Supreme Court. But before we get to that, David, I just want to tell you, I saw an amazing sweatshirt at the University of Alabama for Valentine's Day. Gray sweatshirt, Neil Gorsuch's face, little pink hearts all around it.

And it said, Gorsuch a babe. Okay. So, Sarah. Yeah. It had to be an amazing sweatshirt to Trump, starting with Supreme Court news

that we just have. I thought that was the most important Supreme Court news I could imagine. Well, and that didn't deliver. All right. We'll get to the main event here. We got a late night Wednesday order. Sertiorari granted.

The application for a stay presented to the chief justice is referred by him to the court. The special counsel's request to treat the stay application as a petition for writ of certiorari is granted. And that petition is granted, limited to the following question. Whether, and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts

during his tenure in office? In the meantime, the stay that was placed on starting the trial will continue until the Supreme Court hears oral argument on April 22nd. It's a fast briefing schedule. And this is, you know, moving from the emergency docket into the merits docket, something we said could happen. And that if it happened, it would happen in April. And well, here we are, David, they're taking the case. You called it, Sarah. Just full disclosure, this is our second intro for this podcast. Because we recorded a whole podcast, and then this occurred. And so we re-recorded the opening, which also involved re-recording the sweatshirt opening, by the way. How dare you out me?

Which made the sweatshirt even less impressive. I don't know why you're not impressed with the sweatshirt. Look, so in our original version of this podcast, we talked about what the delay meant. And you said probably nothing. It probably just means they're not concerned with the political calendar as everyone else is. And I mentioned that there were those out there making the case that, in fact, this was really bad for Donald Trump. It meant they were not going to hear the case. They were going to remove the stay of the mandate, allow it to move to trial. And it's just someone was writing a dissent from the denial or something. And I said, I thought that was far less likely than this outcome. Why the delay? Why did it take so long? Because they were going to take the case and it doesn't matter how quickly they take it at this point. At this point, the chances of this case going to trial before the election, I'm not going to say they're zero, but they're exceedingly small. Very low. And I'll tell you why. Because the Supreme Court doesn't decide cases.

And I know I've mentioned this on this podcast before, but it bears repeating because I think 99.9% even of Supreme Court sort of aficionados don't know this. The Supreme Court doesn't decide the outcome of cases. They decide questions. So that's why when we talk about questions presented or this question, whether and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? That's the only question they're deciding, which means they could say, you know, remember in the civil context, presidents enjoy full immunity for all official acts, including to the outer perimeter from any civil liability after leaving office. Well, in the criminal context, they could decide that they

could extend full presidential immunity. But then you end up with that whole SEAL Team 6 assassination scenario. What I think is quite likely is that they'll say sort of there are core official acts that are protected and it's not to the outer perimeter like it is in the civil context. If that's the case, if that were the decision on the question, the case will be sent back down to Judge Chutkan to then decide whether these acts fall into which category, which sort of core versus outer perimeter that can then get appealed to the D.C. Circuit. And guess what? It can go back up to the Supreme Court again. So, Sarah, can I tell you why I had a Lord of the Rings quote come to my mind when I listened, when I read that paragraph? Because you're a huge nerd?

Well, that's one reason. Yeah. There's another reason. And also, can I just say, when you read that question presented so fast, I was thinking of the reality that most of our listeners listen on a one and a half to two times speed. So I sound amazing, like a micromachines guy? Imagine how that sounded. But I thought of this quote from Gollum, where he said in the two towers, sneaky hobbitses.

And I had that feeling about SCOTUS. Okay, and let me explain why. So if you look at the order, and the order says this, the application for a stay presented to the chief justice is referred by him to the court. So the whole court decides this. And then it says the special counsel's request to treat the stay application as a petition for writ of certiorari is granted.

And that petition is granted, limited to the following question, which you just read. So here's what happened. The court granted the special counsel's motion to change the stay application into a writ of certiorari. Okay, so then what did that mean? If you go down, it says, without expressing a view on the merits, this court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this court. The application for a stay is

dismissed as moot. Okay, so what's kind of clever about that, clever hobbitses, is that to grant an application for a stay generally requires some sort of decision, not decision, but some sort of prejudgment of the merits. Because one of the elements of the stay application is that there's going to be a chance you're going to win this thing. A likelihood of success on the merits is the first factor. And if you don't got that, you don't get a stay. But here they got a stay without getting a stay.

And maybe that's what took so long. It could be. So what happened was it was treated as a petition for writ of certiorari. That's granted. They don't even go through the stay factors because the stay is dismissed as moot. And so you cannot read one iota, one scintilla into the court's judgment on't look at this as giving him a favor in the sense of treating him specially. They're giving him assistance by treating him normally. Does that make sense? In other words, they're treating him like he's a normal defendant,

where they're not racing against the clock to put him on trial. So they're treating him like a normal defendant and treating him like a normal defendant in this circumstance works to Donald Trump's advantage because treating him like a normal defendant will push the trial and pushing the trial means he could conceivably win and get rid of the case entirely. Well, look, I just want to give a shout out to the best tweet that I've seen so far on this, which is, I just got in line for the oral argument. Because if you're not already in line for the oral argument, you're not getting

in. Remember, 45, 40 people from the public are going to be able to sit in the Supreme Court for this oral argument. You might as well be in line now. Two month wait seems about right. So Sarah, we're now looking at a situation where it would be entirely possible, not likely, none of this is likely, but let's just indulge me for a minute. Donald Trump wins and he goes straight into a criminal trial in December. Not likely. Remember, this is the Department of Justice. True. And they have sort of policies about this sort of thing. But it's the policies pre-election, correct? That's right. But also remember, this trial is not a one week trial.

No. Jack Smith is going to get to call many, many witnesses. Remember, there's four different counts here. They last over a long period of time, involving a lot of different people. And then Trump gets to call witnesses. This could be months long trial. So no, DOJ is not going to start this in December.

I was just floating some possibility, but a number of people have already reached out and asked about, could we have a trial in October? No, no. That would clearly violate the DOJ's policy on not basically holding criminal trials that could affect an election. It's generally Labor Day has been roughly the guidepost. And that's why I say this is hard, even if the Supreme Court decides this in a way that does decide the case, even though they only decide the question.

So April 22nd, they decide it by May 15th. You have to give Trump minimum six weeks, I think maybe more to get ready for trial. So July 8th, I'm doing this in the tightest timeframe imaginable. Yeah. July 8th, and then you'd have room for a six week trial over August.

I think you're out of time. It's possible. It's possible. It's just really, really difficult. And that's, I mean, my basic view at this point on the J6 trial is that's a wrap. And at least unless he loses the presidential election is, again, not for sure, not certain. But basically, that's a wrap on the January 6th trial unless he loses.

Georgia, as of right now, there's zero indication that thing's gonna go to trial before he loses. We could very well be, now percolating in the background is the classified documents trial, which seems more or less on track, but really no one's been focusing on that of late. And then what if we had this situation where of the four cases, exactly one goes to trial

before the election and it's the Stormy Daniels case? And the one that helps Trump politically the most. You'll notice, yes, they tried to dismiss the case, but otherwise I haven't seen a whole lot of attempts by the Trump team to delay this trial. It's currently set for March 25th in New York State Court with Alvin Bragg prosecuting. There's a real argument that the Trump team will see this as net political benefit, even if he gets convicted, because it's the weakest case legally. It's the best case politically. The underlying actions, you know, the paying the hush money to Stormy Daniels is already so baked in for the country. That's not really new information that's going to come out. Well, David, we're also still waiting on that Colorado 14th Amendment decision on

disqualification. We are not expecting any opinions this week from the Supreme Court. So at this point, we're already on to next week for that decision. We'll see. And the Mar-a-Lago documents trial is still scheduled for May. I'm not terribly optimistic it'll happen in May, but it is still scheduled in May.

And he does not have quite the same kinds of defenses to this case that he has to the January 6th case because he's being prosecuted for his post-presidency conduct. Which is why this case also didn't affect this New York State case. That was pre-presidential conduct.

So pre and post, no immunity issues. You know, when I hear a different movie quote, when you talk about the classified documents days, not gonna, not gonna, not gonna work here anymore. No, they have so many other ways to delay that case. Yeah, because of the classified documents and because of the intelligence community's classified document review, as you know, anything's possible. But I don't think so. We'll see. Yeah, yeah, we'll see. Uh, my assessment on the classified documents case is we'll see, but Trump has not yet begun to delay that case. Um, that's the case

that he's not, he has made some motions and we can, we can talk about them, you know, when we've got time, he's made some motions that have been denied that would have delayed the trial. Um, but the judge has already signaled openness to delaying it. So we'll see. All right, we'll move on to what else happened at the Supreme Court this week. There was a big argument earlier this week on Monday, the Net Choice cases.

We also had the Cargill case getting argued Wednesday morning. That's the bump stocks. So let's save bump stocks because we started recording this podcast in the middle of the argument. And so we'll do a full rundown of Cargill and the bump stocks case in the next one. But why don't you talk to us about NetChoice? Because as listeners know, husband of the pod represented Net Choice against Texas. In this case, Council of Record, it turned out that Paul Clement argued both the Florida and Texas sides. And I'm kind of removing myself from this discussion.

I may ask you questions. Okay. Okay. So I've been thinking about how to frame this argument ever since I read it, because there's so many different strands you can pull on. So I'll pull on two strands right from the start. One is, strand number one is anyone who thinks this is a monolithic conservative majority needs their head examined by this point, because it was very clear from the oral argument that there were the

main divisions that you saw emerging on the court were between members of the conservative six, not with members of the progressive three. And specifically, Sarah, do we need to say three, three, three? There was a distinct difference between the Gorsuch, Alito, and Thomas kind of line of questioning with more emphasis on Thomas and Alito, really Thomas and Alito standing out. So line of questioning with more emphasis on Thomas and Alito, really Thomas and Alito standing out. So that's thread number one was this was a divided conservative majority here. Thread number two is some of the justices didn't seem to know what was going on online, Sarah. Some of the questions betrayed like a real lack of understanding of Section 230,

specifically of Section 230. It was really interesting that more so than other cases, I felt like the oral advocates were having to sort of explain the basics. Like I'll give you this. Justice Gorsuch to Justice Prelogar. The whole premise of Section 230, that they are common carriers, that they're not going to be held liable in part because it isn't their expression. They're a conduit for somebody else. That language, common carriers, the whole premise of Section 230, no, that isn't the premise of Section 230 at all

in actuality. The premise of Section 230 was that you were gonna be insulated from liability even if you content moderated. In other words, even if you acted differently from a common carrier that just delivers every package and every parcel. You know what Section 230 said is,

no, you get to moderate. And you get to moderate without becoming liable for all of the expression. And so that was a really interesting question from Justice Gorsuch, to which Justice Prelogar began her answer with, no, not at all from Justice Gorsuch, to which Justice Prelogar began her answer with, no, not at all, Justice Gorsuch, which is about as clear as you can get.

And then you have this interesting thing, a couple of interesting things. Both Alito and Thomas seemed really interested in fixating on censorship. This is censorship. What they objected to the idea that you would call it content moderation, it was censorship. This is censorship. They objected to the idea that you would call it content moderation. It was censorship. And so Thomas asked, when have we ever approved of censorship? And Justice Alito says, is it anything more than what this content moderation is a euphemism for censorship? Let me just ask you this. If somebody in 1917 was prosecuted and thrown in jail for opposing U.S. participation in World War I, was that content moderation?

No, that was a prosecution, Justice Alito. The difference between content moderation and prosecution is pretty evident as in who is doing it and what are the consequences. is pretty evident as in who is doing it and what are the consequences. Just a really weird thing. Prosecuted and thrown in jail is government action. Content moderation is private action. So it's really interesting, Sarah, to me, sort of pulling on these two threads.

The conservatives were very divided and I felt like some of that took Paul Clement off guard, quite frankly. I don't, Paul Clement walked in and the argument that he was giving felt like a, an argument you give when you think you're winning this case, a sort of a do no harm approach. But the divisions on the conservative side of the court became pretty clear right away, which then throws into question whether you are in fact on the conservative side of the court became pretty clear right away, which then throws into question whether you are in fact on the winning side. And so I thought that was a very interesting element of this, where it was clear that the conservative justices were divided and that some of them weren't actually necessarily that up to speed on the issues. I mean, the Gorsuch question was pretty

remarkable. And then Thomas asked, when have we ever approved of censorship? Which is a wild question to ask, because in that entire exchange, he was noting how he's been on the bench for the entire sort of course of the internet, which means, yeah, he's been on the bench for a long time. And there are cases like Hurley, Torino, others where the court has said, yeah, private parties have a First Amendment right to exclude messages they don't like. And so that was a really weird question

from Justice Thomas. And it was feeling like from some of these justices that they had really imbibed a lot of their online rhetoric about the online world and had disconnected it from a lot of their larger precedent. And that was certainly not universal, Sarah. Justice Kavanaugh, Justice Roberts, Justice Barrett, they all seemed to be pretty, not just on top of the issues, but be able to connect it to precedent. And then I'll stop monologuing here in a second. But the most, I thought the most important observation was actually made by Justice Kagan. And because a big part of the controversy here was, well, wait a minute, how much is content moderation really expressive? In other words,

how much is this the kind of thing that actually the First Amendment should encompass and should cover? How much is content moderation actually changing these sites in certain specific ways in accordance with the values and outlook of the actual owners of the site? And Kagan brought up the rather obvious fact that Twitter has changed a lot since Elon Musk came over. And Twitter is a very different website. It's got a very different ethos.

It's got very different content. It is very different since content moderation changed. And I'll pause there because that leads me to another thing and i i've already been monologuing two questions one focusing on the three justices in the middle barrett kavanaugh and roberts there seemed to be two um maybe unexpected things that they were really focused on one was the facial challenge aspect of this, that NetChoice basically didn't wait

for enforcement. They argued that the whole law is unconstitutional in all of its applications. And I thought I was hearing a lot of, well, what if we just disagree with that part and wait for this to be enforced and wait for to find out which parts of the law really are unconstitutional which leads me to the second part that they seem concerned about which is maybe it wouldn't be okay if gmail for instance said that conservatives can't use gmail or someone with a specific viewpoint can't use gmail can't use dms on twitter um can't use Gmail, can't use DMs on Twitter, can't use Facebook Messenger, things that look a lot more like common carrier phone type stuff.

And I was wondering if you could talk to some of the answers on the facial challenge and the answers to the difference between posting something on Facebook and Twitter publicly versus the sort of private-ish communication that it allows. Because obviously we were thinking about AT&T, for instance,

there was also a physical phone line that AT&T was running to your house. Yeah. So if AT&T said they weren't serving you, you were really SOL. Yeah. That was it for you, man. Yeah. Yeah. So even if Gmail started doing that, it would be different than the phone companies. But maybe that distinction doesn't really matter anymore when we're talking about Gmail or Facebook Messenger or Twitter DMs or something. to me that there was a majority of the court willing to say that the Texas and Florida social

media laws, to the extent that they impacted the social media we're familiar with, such as Twitter, Facebook, et cetera, that that's likely going to be unconstitutional, that Texas and Florida laws will likely be unconstitutional. It is very unclear to me that they will extend that kind of zone of privilege that they're gonna extend around Facebook, Twitter, threads, et cetera, that they'd put it to Gmail or even Facebook Messenger or text messaging. And there's a very good reason for that, Sarah,

and you put your finger on it. And that is when we're talking about common carriers, things like AT&T, for example, is a common carrier or UPS or something like that. What we're often talking about common carriers, things like AT&T, for example, is a common carrier, or UPS, or something like that. What we're often talking about, and traditionally, how this sort of common carrier designation came about,

is you're talking about private entities that are fulfilling sort of public functions also, in some ways, in some ways also doing so through the use of government resources. So the phone lines, for example, there was an awful lot of government action to put telephone lines all over the freaking United States of America. And so if AT&T or Bell or whatever at the time was saying, no phone line for you. Well, there's a pretty strong argument at that point that what you're doing is you're essentially, you've commandeered the government into your own

censorship in an interesting way, because this, the creation of that whole common carrier infrastructure was a joint government, public-private partnership kind of situation. And so you had, you have point-to-point communications. We have a long history in this country of point-to-point communications. Like I'm sending a package to you, Sarah, or I'm texting you, or I'm calling you. That would be common carrier activity. That's why, you know, that's when you think common carrier,

that's what you're thinking about. When you're talking about posting stuff in public, what you're actually talking about there is much more like letters to the editor. It's public commentary. There has never and has there has never ever been a common carrier of op eds. There's no such thing as sort of a common carrier of op eds. Prior to the rise of Twitter, Facebook, et cetera, if you wanted your public voice to be heard, you did an op-ed submission to a paper. You wrote a letter to the editor.

Maybe you took out an ad for the paper. But even the ads were screened by the paper. Just buying ad space did not give you an absolute right to get your message out in the public. So that's one reason why when people talk about Twitter or Facebook, accepting the DM or messenger functions as being a common carrier, I'm saying, wait a minute, you've changed the definition of what a common carrier is. It's like if you're looking at a duck and you're looking at an eagle

and you say they're both ducks. No, they have some similarities, but they're very different birds here. And so what you're talking about, I think what you're gonna see is the court drawing a distinction between public commentary, which is your typical tweet,

versus point-to-point communications, which is your typical common carrier type activity. And it's likely to have an opinion that draws out that distinction and does not strike down the state laws to the extent that they interact with Gmail, but does to the extent they interact with Twitter or Facebook on public posting. That's my reading of how this could go, public posting. That's my reading of how this could go. But I think you're absolutely right, that the Gmail type portion of this, there's going to be some deal, they're going to deal with that in some way, some distinct way. So first of all, I'm hoping to have a robust conversation in the comments section, taking on your ornithological example there, because I don't think duck and eagle works,

but I'm trying to think of a good example of like, you know, eagle vulture. They both eat dead animals, but one kills the animal and the other just eats the dead animal. And maybe that's a better analogy. I was going to go with duck and goat to signify the extreme difference, but. See, I don't know,

because I think that would make it too easy a case. I'm not sure this is as easy as that. So, okay, what I'm hearing from you is, look, there's the big win version of this, which is sort of what you're describing. This is just not common carrier. This is their free speech. This is Hurley, right?

They're excluding people from their parade. There's the, let's call it maybe smaller win options. One is distinguishing between Florida and Texas. One is distinguishing that the laws of Florida and Texas are slightly different, I'm saying. One is saying, you know, the distinction between Gmail and, you know, Facebook messages or something like that could be a smaller win. There's also some of the losses, though, which is, hey, sorry, we're just not taking this on a facial challenge. It's not unconstitutional in all of its applications and therefore come back when you get something that's smaller and definitely unconstitutional in its current application as applied challenge versus a

facial challenge. That would be a loss. I think you would agree. Oh, for sure. Are there any other outcomes that I'm missing here that are I think the loss outcome that is most likely is it's just not right for a facial challenge outcome. There's not the big loss, which would be you this facial challenge works and this is constitutional. Bye bye. Yeah, I don't see that. That doesn't really seem like it was one of the outcomes. No, no.

And especially when Justice Roberts was really not buying the fair versus Rumsfeld analogy, which was for those keeping scored home, fair versus Rumsfeld was a much older case that Justice Roberts, I believe, wrote the majority opinion in, holding that law schools could not, in fact, exclude military recruiters from campus. Now, the interesting thing was in the oral argument, this was an interesting exchange because Justice Roberts said in a very shorthand way that really the outcome of the Rumsfeld case was because the federal government has been pouring a bunch of money into these schools. And so therefore, they've got room, they should be able to have room for their recruiters. And the advocate, you know, Whitaker pointed out quite accurately that actually Fairview Rumsfeld doesn't spend a whole pile of time on the money issue.

That's right, which was a surprise, which is why fair. I mean, you and I've talked about this. Fair is a weird case. It's hard to square with anything before it or anything after it. It feels like one of those distortion cases where it's post 9-11. It's the military and it's sort of cabin to its facts in a lot of ways. And I think we'll see that potentially after this case that fair gets even more cabined to its weirdness. Yeah. Well, David, we'll certainly talk about it

a lot more when the opinion comes out and I'll feel better about discussing it. Also, I thought you'd enjoy this. So of the Paul Clement argued for net choice, Henry Whitaker was the solicitor general of Florida, Aaron Nielsen, solicitor general of Texas

and Elizabeth Prelogger as the U.S. Solicitor General. I basically went to law school with everyone but Paul Clement. That's amazing. Henry graduated right before I came, but we were then together at the Department of Justice. Aaron is a wonderful friend and is the new Solicitor General of Texas. So congrats, Aaron Nielsen, for that.

And then obviously Elizabeth and Iitor General of Texas. So congrats, Erin Nielsen, for that. And then obviously Elizabeth and I were the same year. So amazing. Cool, cool little argument for me. No kidding. So do you feel comfortable offering any kind of prediction? Because I think I've got one. I'm going to let you do the prediction.

Okay. I can't tell you. I'm so uncomfortable. I know. I know. It's so funny, listeners. She's visibly uncomfortable, visibly uncomfortable. I can't wait for the opinion to come out. Yes. Yes. I'm going to go ahead and say it. I wish Scott had argued. I'm saying it. I wish Scott had argued. So you don't have to do anything in response at all. I felt like the argument was not as good as it could have been. But I'm going to say 6-3 or 7-2 on the narrow dub for Scott.

So that's my best projection. I do not see Sotomayor. Kagan, I never saw Kagan being with Florida or Texas on this. She's generally a very strong justice on free speech issues. Jackson, we haven't seen a ton of her jurisprudence. Sotomayor on free speech yet, but Sotomayor gave some pretty strong hints and moral arguments to where she was leaning. So I'm thinking 6-3 for at least the narrow win because I don't think the progressive three would go for the big dub, Sarah,

because I think on the progressive side, they believe that there is some room for regulation here, just not necessarily viewpoint-based regulation. And so I don't know how big they're gonna wanna go on this. So I'm thinking you've got a solid majority for the narrow win. I don't see a solid majority for the big win

because I don't see Alito and Thomas going along. Gorsuch's questions kind of raised an eyebrow or two. So that's my current prediction is 6-3 or 7-2 narrow dub. Sorry, listeners. On the one hand, you get the benefit of my insidery stuff sometimes and other times you don't.

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don't, you'll find out at the next episode. All right. We'd had an opinion, David, in a case that we covered on this podcast. And it was one of the ones that we were kind of into actually like a sleeper case that was interesting this is the mickle wrath v georgia double jeopardy case where um very tragic guy kills his mom because he thinks she's been poisoning him he has schizophrenia so the state charges him with all different types of the murdery stuff at trial the jury said that he was not guilty by reason of insanity on the malice murder. That's your capital murder, you know, intentional murder type stuff. It's different. It's named different things in different states. So not guilty by

reason of insanity on the first one and then guilty but mentally ill on another one. So the defendant, the guy who's convicted, goes to the Georgia courts and says, ah, under Georgia law, these are repugnant verdicts, meaning they're inconsistent with one another. You can't be insane for the same murder that you're only mentally ill for. Same murder, same facts, like no distinction. And so those verdicts are inconsistent with one another.

And they're so inconsistent that under Georgia law, there's such a thing called repugnant verdicts. And the Georgia Supreme Court agrees. So he gets his guilty verdict thrown out, which is what he wants. But the Georgia Supreme Court also throws out the not guilty verdict. Right.

So then he's like, well, wait, wait, wait, wait, wait. They're repugnant verdicts. But you can't retry me on the thing I was acquitted of because, you know, double jeopardy. And Georgia argued, well, no, because the verdicts were repugnant, there were no verdicts at all. David, you and I said that the court was very likely to gnaw dog this one. 9-0 nod dogged it yeah they nod dogged it hard justice jackson wrote the opinion um which is only insulting in the sense that when the junior justice gets assigned the nine zero opinion it means there was no discussion about this at all that that's how easy it was justice jackson handling this um quite quickly in a 11 10 11 page opinion just nope nope nope nope nope so in the end georgia gets to keep their

repugnant verdict statue they can knock out all the guilty verdicts they want what you can't do then is retry someone on the not guilty verdict, which basically means you're only undoing guilty verdicts. And my prediction is, David, we will not see any more repugnant verdicts in the state of Georgia. I think that is right. And this was an interesting case

because not so much because it's hugely consequential. This is a pretty unique setup here. But it was a mental mind-bending exercise because the question was, if you had the repugnant verdicts, did you have a verdict at all? Did any of it really truly conceptually exist if you had two incompatible findings?

And the argument from the defense was, yes, in fact, there is one of them that does exist and it is the acquittal. That is the one that exists. The other one does not exist. And so the court is- Well, I would say the other one exists just because it's so inconsistent. We're not

going to put someone in jail when we can't trust the jury's decision making because it's so inconsistent. Right. So so I think their argument is, no, they both exist. That's why double jeopardy attaches. But when one is so inconsistent that we can't trust the jury to have actually made a rational decision, we then also toss out the guilty verdict. And it's basically a mistrial. Yeah. Yeah. Right. I mean, I think there's a number of ways to frame this because they're trying what this court was essentially trying to do is this is just I mean, what Georgia was trying to do is this was a mess. It's a do over. And it's just such a mess that it's a do-over. And it's just such a mess that it's a do-over. And the argument from McElrath was, no, no, no, no, there's a through line here. And the through line here is that he's mentally ill.

That's the through line. That's the core. That's the real core finding here. And, you know, I remember as we were discussing this, one of the aspects of this case is if you really dive into the procedural history here, there was some pretty phenomenal lawyering going on on the defense side. I mean, really pretty phenomenal lawyer maneuvering this case to get exactly into the position where it is and then making the argument that was the ultimately successful argument before the Supreme Court. This is one of those few cases where you can sit down and say, I can clearly see how legal strategy really played into this outcome. I say few cases, just in the sweep of all of the cases. We see that quite frequently in Supreme Court cases,

but this is another one of those examples. It was really a fascinating case to work through conceptually. All right. Next up, there's been some rumor of Nikki Haley, who just lost in Michigan, but picked up two delegates, by the way. She got about 30% of the vote. And just if we can do a little political punditry here, David, which we don't do a ton on this podcast anymore. But, you know, I was a Republican political operative for roughly 20 years. Yeah, there's a lot of discussion. I do radio for ABC News. And I call into one radio show and they're like, it's so ridiculous that anyone is covering the Republican primaries if Nikki Haley is actually somehow showing that Donald Trump is weak in any way. She only got 30%. This is ridiculous. That's totally normal. And then on the other hand, I call in and it's like,

can you believe Nikki Haley got 30%? Doesn't that show how vulnerable Donald Trump will be in the general election? And it's like living in two different realities. So here's my real take on this, which is the reason that this is a Rorschach test for so many people is because we can't decide whether Donald Trump is an incumbent or not. If he's an

incumbent, it's a real problem when someone's getting 30% against you. Yeah. But if it's a normal Republican primary, because technically he's not an incumbent, then someone getting 30% in late February. It's a route. Is a great sign for that leading candidate. Yeah. And so it really depends on whether you consider Donald Trump an incumbent or whether this is a normal Republican primary. And I will say, as negative polarization has increased in the country over the last 10 years, we talk about negative polarization a lot, but we don't define it a lot. And I think a good definition for negative polarization is the idea that you don't like your own team, but you hate that team a lot more. And so what motivates your vote is hatred of the other, not love of your side. And the question for those Nikki Haley voters, or for that matter, the 13% of uncommitted voters

in Michigan that were trying to send a message to Joe Biden in the Democratic primary, is this a sign that they're so unhappy with their candidate that they're gonna stay home, that they'll consider voting third party, that they may even cross over and vote for the other side? Or will negative polarization take over? And in fact, all of those folks are gonna come home, vote for their own team,

not because they suddenly like Joe Biden or Donald Trump. They clearly prefer someone else. But in the end, because they hate like Joe Biden or Donald Trump. They clearly prefer someone else. But in the end, because they hate the other guy more. And if that's the case, then neither of them are vulnerable in the sense that these votes are showcasing their vulnerability. And there's another there's another bit here, Sarah, that's interesting, which is. Who are the independents who are voting for Nikki Haley? So I read an interesting analysis that says, wait a minute. Okay. You cannot extrapolate the fact

that Nikki Haley is walloping Trump with independents in the primary with that Donald Trump is really weak with independents in the general election compared to Joe Biden, in part because let's not forget a primary vote is a very low turnout election relative to the general. And then these are independents who are then voting in a Republican primary. So again, another self-selected group. High information, high activity level.

In New Hampshire, we saw over and over again, independents vote for Nikki Haley in the primary who said they would vote for Joe Biden in general, even if Nikki Haley were the nominee potentially. We saw something quite similar happening in South Carolina and I haven't broken down the Michigan numbers. Yeah, and the analysis I read, which was fascinating,

was said, look, if you really dive into the demographics of who voted, the independents who voted for Nikki Haley, there's your never Trumpers and there's your almost never Trumpers. Like your people who are the genuinely stricken to pull the lever for Trump,

not the people who pretend they're stricken to pull the lever for Trump, but the genuinely stricken. And you're getting a very small, now, it's a group of people that's meaningful in very close elections in states like Georgia and Wisconsin, where there's a lot of good argument that it is, in fact, the never Trump vote that sank Trump in both Georgia and Wisconsin. But it is not a number to extrapolate out from nationally. All right. So given all of that, no labels, this potential third party candidacy that has worked on ballot access, they now say they're going to be on the ballot in 30, 33 states they've claimed, though they're not actually on the ballot in those states, has at least floated the idea that they're considering Nikki Haley. of reasons that you can extrapolate from our previous conversation just now. But legally,

it's a fascinating question because the vast majority of states, 45 states in total, have something called sore loser laws. If you run in the primary in a state and you lose, you can't then run as a third party in the general election. You can't be a sore loser. Get it? But does that apply in presidential elections? I.e., would they be in really big trouble if they picked Nikki Haley right off the bat or not so much? So credit to Richard Winger, editor and publisher of Ballot Access News, back in 2016, he actually ran through all 45 states with sore loser laws to see if any didn't or did apply in presidential races. It's fascinating. There's a real argument that a lot of the sore loser laws don't apply in presidential races. The problem will be that

at least South Dakota and Texas definitely claim that they apply. Virginia, for instance, it's just phrased as if Canada is defeated in the primary, his name is not to be printed on the ballots for that office in the succeeding general election.

So there's that. The only states without sore loser laws are Arizona, Delaware, New York, Oklahoma, and West Virginia. Arizona is the only one without sore loser laws are arizona delaware new york oklahoma and west virginia arizona is the only one of those that matters one bit and here's why i'm going to say it's stupid no matter what and then we can talk briefly about why even if you try to apply them to presidential races maybe um that wouldn't be constitutional uh it's stupid no matter what because if there's a legally cognizable chance that she can't be on the ballot,

what are you doing this late in the day picking her and fighting those legal battles and trying to get it to the Supreme Court, which may or may not take it, and you're running out of time. And this is the, you know, it may get decided after the election, capable of repetition,

yet evading review, mootness exception. But of all the money that you need to spend to get a third party candidate noticed, to get the ballot access, to fight off the negative ads that you're going to get from the two major parties that will have a billion dollars, you're telling me you also want to spend a few million on litigating whether someone who ran in the Republican primary can then run as a no-labels candidate. It is some combination of legally and politically stupid, and I can't decide which one more so.

I think the best way to describe how legally and politically dumb it would be is imagine your campaign poster, Haley Phillips, 2024, vote for us, asterisk, after we win 33 lawsuits. Yes. That's, it's not practical, guys. It's not practical, guys. It's not practical. No, no.

And as you all know, I've said all along, no label should be looking at celebrities. I will note, by the way, that Dr. Phil just came out with a new book and was just at the southern border. He just did a radio interview where he sounded awfully up to speed on immigration policy, David.

And didn't he just go on The View and rail about... Uh-huh. Yeah, what did he rail about on The View? Oh, school closings and COVID restrictions. And yep, yep, yep. So he's definitely going to be a right-of-center candidate, already has universal name ID. This is the candidate I've been describing that you need

if you want to run a viable third party. And I put that a little bit in quotes because I don't necessarily even mean one that can certainly win, but one that's getting more than two to five percent in this election cycle. Dr. Phil is your guy. And I don't know why we're not talking about him more. I mean, I've been saying Matthew McConaughey because, you know, Dr. I don't think Dr. Phil is big enough at this point. I think it's taking. I disagree. Really? He's he's a household name. And even better, you don't know anything about him. You really don't. Right. You don't anything about his politics. And he's also from Texas. So actually, I take it all back. I'm good. Matthew McConaughey and Dr. Phil on the

ticket. But David, I thought we could spend just a brief moment on why sore loser laws might be unconstitutional. And it's this idea that it actually goes back to what we're talking about in the Colorado 14th Amendment disqualification case. A state can't create a new qualification to be president outside of the ones in the Constitution, i.e. 35 years old, natural born citizen, etc. Hasn't held office. Well, you know that one. It's twice, but technically, if you're elected to one of them, anyway.

In the Colorado case, the idea is because 14th Amendment Section 3 only says hold office, they are creating another qualification to get elected to office, to be on the ballot in their state. And that's what makes it unconstitutional to take Donald Trump off. This would be a similar argument that, in fact, you can't say that Nikki Haley can't run in a presidential campaign because she is qualified to run in a presidential campaign and you can't create an additional qualification. I think the answer would be, well, yes, she ran in the campaign. She already ran and she lost.

There have been court challenges to sorrel loser laws, and they've generally been upheld. And I think the reason why, you know, one of the key reasons why is you do have a zone, although the independent state legislature doctrine does not create the state legislature as the 800 pound gorilla that can do anything it wants, regardless of anything else in elections, there is a wide zone given constitutionally to state legislatures to regulate elections, regulate presidential elections. And if they say, you've run, you've already run, we're not blocking you from the ballot. You've been on the ballot and you didn't win is a little bit different from saying you can't be on the ballot at all.

So I am interested in this. I'm generally of the view that they would be upheld, though, I swear to loser law. I'm generally of the view that they'd be struck down, I think, in part because the states have not been enforcing it in other categories. So, for instance, and I'll just name a few here, Gary Johnson ran in the Republican primary in 2012, then ran as an independent in the general election and got 45,000 votes in Georgia. Let's scan down to Michigan. John Anderson in 1980 ran as a Republican, ran with the Anderson Coalition in the general election, got close to 300,000 votes in Michigan in 1980. Let's look for another swing state here. North Carolina, also John Anderson, got 52,000 votes that time. Pennsylvania, John Anderson.

So Wisconsin, Lyndon LaRouche, 1992, ran as a Democrat in the primary and independence for economic recovery in the general election got 633 votes in the general election in Wisconsin that year. Those states would need to explain why they're going to enforce the law now when they haven't before, which is a different but interesting question for them. So, fun. Sore loser laws. I don't think it's going to come up. I'd feel better about a case if they had not enforced it before and now are enforcing it. That would be. Yep. But that's not bad. Yeah. That's not necessarily a challenge to sore loser laws, but to the selective enforcement of sore loser laws. Indeed. And in fact, 43 of the 45 states, Richard Winger has put together examples where they allowed someone to run in the general election who had lost previously. The most fun one, by the way, Roseanne Barr ran in the Green Party primary in California in 2012.

And then the Peace and Freedom Party in the general election. Well, my how things have changed. My, my. All right, David, a couple more things on our list here. One, the National Labor Relations Board had a fascinating case that we're going to watch.

You guys know that normally we don't talk about things until they get to sort of the circuit court level. But this one struck my fancy. And Mitch McConnell even put out a statement about it. So clearly it's getting some traction and it's an issue in your wheelhouse, David. Like an office space, if you work at Home Depot, you are encouraged to have flair on your apron. But there is a rule. No political flair or like social movementy flair, even though I don't know what that leaves at this point, because everything is political or social movement.

At this point, if you said you liked puppies, I'm sure someone would complain. Nevertheless, this employee had several complaints about racial discrimination in the workforce. This is around the time of the George Floyd murder and protests. And this person writes BLM on the apron. Home Depot fires the person because they won't take BLM off the apron. Right. And it violates the policy. The National Labor Relations Board found, however, that this was part of their rights and collective action to be advocating for that. And it was, in fact, a protected activity in the workforce. And I want to read you a little piece of this. Labor Relations Act, however, protects the legal right of employees to engage in, quote, concerted activities for the purpose of mutual aid or protection, whether or not they are

represented by a union. So the NRLB held that the employee's refusal to remove the BLM marking was concerted because it was a logical outgrowth of prior concerted employee protests about racial discrimination in their workplace. And because it was an attempt to bring those groups complaints, the attention of Home Depot managers, they also found that it was for mutual aid or protection, because the issue of racial discrimination involved employees working conditions. Interestingly, when the employee was asked about it, like, oh, hey, I see you have BLM on your apron, you know, that violates our policies, you need to take it off. Why do you have it on your apron? The person basically says, like,

George Floyd, solidarity with that movement. Right. At no point did they say it was related to their complaints about racial discrimination. I mean, wow, David, like, can you have rules in a workforce anymore? Because remember the Starbucks case where the employees after hours brought in a camera crew that violated Starbucks policy to talk about unionizing. So Starbucks fired them. The NRLB found that that was protected action, even though you're violating the store's policies. them. The NRLB found that that was protected action, even though you're violating the store's policies. And in this case, the store just has a policy of like, we don't want customers to feel uncomfortable with our employees who have political views, because we just don't want that

coming into your, you know, two by four conversation. So we can't have any of it. It's not viewpoint discrimination. And now the NRLB saying, well, no, sometimes you can violate that policy if we think it's for mutual aid or protection of other employees, though I'm sure that having a pro-life sticker, the NRLB would not find protected. Right. I mean, this is a bad decision. It'll be interesting to see the ultimate outcome here if Home Depot continues to press this. Because there are some real constitutional issues. Because if I'm providing you with a Home Depot apron, if I'm providing you with a job, I'm giving you access to the public.

If I'm providing you with a Home Depot apron, that is my expression. And then I'm saying, hey, I don't want you to use my expression. It's essentially a billboard for your politics. That strikes me as imminently both constitutionally appropriate and reasonable that you can't use my colors, my vest, my jacket. And to the extent you personalize it, do it. You did an Ironman triathlon, put that on there. You like the Philadelphia Eagles, put that on there. But this idea, and then the notion that sort of like, if you're saying BLM, that that's some sort of super speech,

no, it should not be viewed that way. It's free speech, but this is a private employer. It's a private employer, and that private employer, you don't have constitutional rights vis-a-vis Home Depot. Now, these are statutory rights he's trying to vindicate, but Home Depot has constitutional rights. Even if the statute is held to be broad enough to encompass the speech, I'm not sure that that survives First Amendment scrutiny here.

Might remind you a little bit of that choice. In fact, that apron looks a lot like, you know, Facebook. Yeah. So the Supreme Court is set to hear that Starbucks case about the employees letting in the camera crew after hours. I don't expect anything in that resulting opinion to directly implicate this case, but it'll give us some vibes. So when we do hear that oral argument, I'm sure we'll be talking about this example again. And, you know, we've had a few union cases with an iteration of this Supreme Court before, remember having to allow the inspectors on the California farm, for instance. So this will be in a line of revisiting the NRLB,

revisiting union rights at a time when unions are shrinking in the country. But also interestingly, at a time when those union members demographically are looking a lot more like Republicans and conservatives. So a lot going on politically on that valence and institutionally within unions as well. We'll see. All right, David, Tennessee, the Tennessee Attorney General Jonathan Scrimetti, also law school classmate and friend Jonathan Scrimetti, congrats, Jonathan, for your very high profile injunction, nationwide injunction against the NCAA name image likeness rules.

on with the NCAA these days, because we have the Supreme Court decision, which basically says when it comes to educational benefits, and it was only brought up on that question, the NCAA might have antitrust problems because that came up on an injunctive relief standard. So it was just likelihood of success on the merits and irreparable harm. So it was just likelihood of success on the merits and irreparable harm. So it was just sort of, it opened the door to the possibility that the NCAA had antitrust problems. Now, this also was an injunction about name image likeness stuff. But I'm pretty confused, David. Other than now the NCAA can't enforce its rules on NAL stuff. Does that mean that schools can just start directly paying? Like Purdue can directly pay Zach Eadie now. Zach Eadie doesn't have to get sponsored

by the local barbecue joint to pay him the million dollars. And did we just witness the end of college sports? Is it now just going to be the minor leagues where they can actually then potentially have contracts? Because one of my big complaints about college sports right now at basketball and football level is everyone keeps transferring.

Yes. Oh my God, you nailed it. It's a transfer portal. It's so annoying because they're not really for your school anymore. They're just going to leave the next year. They're, God knows, they're not from your state. And so you could at least have contractual obligations. Like, nope, you've got to stay with our school

if we're going to pay you this money. And maybe that would fix some of the college sports problems. I don't know. Oh, I think that would be a great advance. Let me do something we do on occasion. Let me give a malpractice warning on two counts here. Yeah.

Because number one, interpreting NCAA regulations, people do this for a living, right? They do this for a living and they argue over NCAA regulations. It is a Byzantine system. So we're dipping our toes into a Byzantine system. And then in a very specific way, antitrust, which every time antitrust comes up, we give the same disclaimer. This is complex area of law.

As you have noted, Sarah, a lot of it seems to be kind of made up, a sense that actual antitrust lawyers have reinforced by emailing us and saying, you know what? Sarah's right. It's made up. by emailing us and saying, you know what? Sarah's right, it's made up. But essentially what's happening in the case is that after the NIL ruling that essentially said, look, you own your name and image.

If you're an athlete, you own your name and image. The NCAA does not own it. And you can enter into deals to make money off of your name, image, and likeness. And so then as soon as that started, one of the first things people did is they got organized with it. And they began to create these NIL collectives. And I think the first one was Gators, was Florida.

So they began to create these NIL collectives. And as I understand an NIL collective, it's a coalition of people who are offering name, image and likeness money to student athletes. Well, the NCAA got wind of this and said, no, this and I these NIL collectives, we're going to consider them to be like boosters. And we don't want the student athletes negotiating directly with these NIL collectives. So that's where the booster stuff came in. I wasn't figuring that out. That makes so much sense.

Please continue. This is helpful. I'm learning. Yes. So you have these NIL collectives and then you have these boosters and the boosters, boosters traditionally have been heavily regulated with the NCAA because these are the rich, like the owner of the local car dealership who's got cash to burn, really cares about the local college football team. And, you know, one of the ways that NCAA rules used to be attempted to be

circumvented is boosters would give money to student athletes. It's not that the colleges would, the boosters would. And the boosters were then heavily regulated. So what they've attempted to do is essentially take these NIL collectives and put them in the position of a booster. And previously, the court had essentially said, wait a minute, this could be wrong, but we're not going to grant an injunction because we can't see the irreparable injury. If there's a likelihood of success in the merits, you still also have to have irreparable injury before you grant an injunction. And originally the thinking was, well, this is only money damages here between what you could have gotten in an open market

versus what you're getting in the sort of the controlled market. So that's not irreparable injury. But what the court essentially did was say, wait a minute, we don't really know what the financial gap is, what the financial harm here is. And another way of thinking about irreparable injury is when it's difficult to quantify financially. And so if you can't really quantify it financially, you're restricting free trade and a free marketplace of services injunction, then there's going to be irreparable harm injunction granted. And so it was really aimed at trying to open up the ability of the student athlete to negotiate with more parties in the name, image and likeness arena. And so that's your basic setup. likeness arena. And so that's your basic setup. And all of this comes into play through Tennessee because Tennessee is facing potential NCAA sanctions. And this injunction just really

helped. It really helped my kid's former school. Yeah. So congrats to the University of Tennessee and the University of Virginia for basically being threatened with detention and then getting the teacher fired. Exactly. Well done. All right. Last thing. Interesting breaking news, David. A federal judge in Texas ruled that the one point seven trillion dollar government funding bill that passed in 2022 was unconstitutional because of proxy voting. They did not meet the quorum requirement as established in the Constitution because of the proxy voting allowed by the Democrats. And therefore, the whole bill is thrown out. This came in the form, though, of a challenge from Attorney General Ken Paxton to block a provision that gave pregnant employees stronger legal protection. So not the most

sympathetic lawsuit I've ever seen in my life. God forbid we help pregnant women. But in some ways, that's not going to be what's at all interesting on this case. I wish we were going to talk more about requiring employees to provide pregnant women with reasonable accommodations. But instead, we're going to talk about proxy voting, because if you remember, this has actually come up before the Supreme Court declined to take the case. But it was brought by members. I believe Chip Roy led the caucus on that one. It was brought by members. I believe Chip Roy led the caucus on that one. Republican members saying that proxy voting was unconstitutional

and that any resulting legislation would be found unconstitutional. Supreme Court just was like, yeah, no standing, not interested. Let's see it when it happens. Well, just happened. So that one is going to go to the Fifth Circuit. And depending on that panel,

could get interesting. It might be going to the big house sooner rather than later. Let me put it, let me give a spoiler alert to everyone. The one point, how many trillions was it? 1.7? $1.7 trillion spending bill is not going to be overturned, ultimately. David, how dare you prejudge a case without knowing anything about it? I'm so sorry.

All right. Last thing, David, I have been getting so many requests from AO listeners to find other AO listeners to date. I really, someone needs to start this dating app because we have a, we have a marriage as we've talked about. Yes. We also have a successful couple that met through advisory opinions. Things seem to be going well.

I check in on them from time to time. I've also had a federal judge offer to marry them when and if the time comes. And then just today, David, I got another request. These hard up, you know, single people living out there in the country, the social, you know, the online dating apps, like the filters that they have just aren't going to do it if what you really want is to talk about Supreme Court oral arguments on that first date. I don't know.

This is my business idea for one of you. Go run with it. Yeah, I don't know how these apps work, but can you put in like a hashtag advisory opinions? Maybe, but here's my take. As a pre-screener. Like the filters that you have on education or income or all this other stuff, like doesn't actually mimic

what used to be dating and friend groups. There were lots of problems with dating and friend groups. But on a first date, you had this commonality that you share because you were at least tangentially connected to the same friend group. And I actually think podcasts are a better proxy for a friend group than education or income level or political affiliation or anything like that. And so one could imagine a dating app that is just a podcast dating app where you like check which podcasts you listen to and you look for other listeners of those podcasts.

And that's your only real filter other than maybe like age or do you want kids or something? Yeah. Anyway, if you're a single lady in your 30s in Tampa, like hit me up. No, not for me. Just to be clear, I'm very happily married.

That's so funny. That is exactly the kind of quote that if just spliced out and popped on Twitter, I just, yeah. Which don't do that, Adam. Do not do that. All right, David. Next episode, we will have exciting conversations

about bump stocks because bump stocks and IVF bans are going to have a lot in common for me. These are cases where Congress can act, doesn't act, and it ends up at the relative Supreme Court. And then there's going to be all this fury about it. And the headlines are going to be about the court. Alabama Supreme Court. And then there's going to be all this fury about it. And the headlines are going to be about the court, Alabama Supreme Court bans IVF,

U.S. Supreme Court strikes down gun control measure, when in fact, it was always up to the legislative branch. So that's going to be our Cargill conversation. We're also going to revisit those two others,

which the facts may not be that interesting to you, but the potential outcomes, one of which is going to be one of the few cases that Chevron and the demise of Chevron could really affect. And another one on sort of that continued climate change through executive action problem. Right.

So we'll touch on both of those next time. And David, we also, when we recorded this podcast before, talked about how we're going to keep our microphones close to us during the weekend. It's a good thing we did keep our microphones close to us because that turned out to be quickly necessary. But you know what? I'm going out of town this weekend. I'm still going to take my microphone with me

because I just feel there's static in the air. You know, I don't know. A lot of things seem to be moving. A lot of things are moving. I think basically at this point, Sarah, we should just pledge between now and the election everywhere we go. We've got a laptop and a microphone going to dinner with the family, David, bedtime in the briskets room, the microphones there just in case, just in case. Just in case. Just in case. Now, I will not, I might bring the microphone to Dune 2 on Friday night,

but it's going to be tough to pull me out of that movie to record. I'm just going to tell you that right now. All right, listeners. Thank you so much. Shop with Rakuten and you'll get it. What's it? It's the best deal. The highest cash back. The most savings on your shopping. So join Rakuten and start getting cash back at Old Navy, Best Buy, Expedia, and other stores you love.

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