Advisory Opinions - Southern Squabbles

Episode Date: December 17, 2024

Everything’s bigger in Texas, including court disagreements. Sarah Isgur and David French discuss Fifth Circuit drama with an eye toward a Ken Paxton lawsuit. The Agenda: —Taxes, the First Amendment, and Catholics —SCOTUS takes a gamble with seating —Ken Paxton's abortion lawsuit —Diversity quotas and the SEC —En banc-ers —Donny gets $15 million —Senior status … sike! —Bring back booze anniversary Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Whatever it takes, make it invisible. The Agency, new series now streaming exclusively on Paramount+. Ready? I was born ready. ["I'm Ready"] Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, I am on the clock today and in taping this episode because three members of my house have what is almost certainly a stomach virus.

Oh, no. And I'm okay. Okay, yeah. No, the sands of the hourglass are running out for you, Sarah Isker. So if this podcast ends abruptly, just know that from an audio perspective, you should be grateful.

Yeah, oh, I remember those young kids' stomach virus days. Yeah. Yeah. Oh, I remember those young kids, stomach virus days. Yeah. Yeah. Yeah. Okay. First up, David, we have a really interesting cert grant from SCOTUS about Catholicism. And I do mean it's about Catholicism. Will you explain this to us? Yes. This is a fascinating and hustling case. So is a fascinating and hustling case. So here are the basic facts I'm gonna read from the cert petition. Says Wisconsin exempts from its state unemployment tax system,

certain religious organizations that are quote, operated, supervised, controlled, or principally supported by a church or convention or association of churches unquote, and that are also, quote, operated primarily for religious purposes. So, this is an element of Wisconsin's state tax exemption policy. So, the petitioners are Catholic Charities of the Diocese of Superior in Wisconsin and

several sub-entities, although all of them agree that Catholic Charities is controlled by a church, the Diocese of Superior. The Wisconsin Supreme Court held that Catholic Charities is not operated primarily for religious purposes and thus does not qualify for the tax exemption. Specifically, the Court held that Catholic Charities activities are not quote typical religious activities because Catholic Charities serves and not quote typical religious activities because Catholic Charities serves and employs non-Catholics. Catholic Charities does not attempt to imbue program participants with the Catholic faith and its services to the poor and needy could also be provided by secular organizations." And so therefore, it was not deemed to be really engaged in religious activities, Sarah, which is insane.

It's amazing. It's insane. Like the idea that because you're not proselytizing means you're not engaged in religious activities is the most religiously bigoted and unaware of other religions, religious tests I've ever heard of. Jews actually are not allowed to proselytize, at least in mainstream, what's considered mainstream Judaism. So now if they hire non-Jews and do work for the needy, they're not a religion anymore.

Cool, cool, cool, cool, cool. It's bizarre. I saw this first on Twitter from, this is a Beckett case. And I saw it from a, I was somebody I followed from Beckett on Twitter. And I thought, wait, what? Because one of the, when you're talking about pre-exercise jurisprudence, when you're talking about what is a religion, courts generally really defer to the religious entity to define whether it's engaged in sincere religious practice, the religious entity or the religious person. And the reason for that

is that we do not want agents of the state determining what is or is not valid religious expression or valid religious practice. And we talked about this, interestingly enough, Sarah, or valid religious practice. And we talked about this, interestingly enough, Sarah, quite a bit during the COVID pandemic, because there were questions that arose around the religious liberty exemptions for the vaccine. And some of the questions were, wait a minute, is this just a religious person saying, I don't want to do something, or is this actual religious conviction? And those are not necessarily the exact same thing. But, as we talked about then, courts really do not want to get involved

in that distinction and determination, because who is the state to say to Catholic charities or to anyone else what is or is not the valid expression of their own faith? The courts almost always defer to religious institutions' expression of its own faith values when talking about sort of sincerity, you know, sincerity of religious beliefs, sincerity of religious practice. And so this was weird to me to see this, Sarah.

It's so counter, it's so counter to what I've seen in free exercise jurisprudence. And normally you say the Supreme Court takes cases to say resolve circuit splits. This is a state Supreme Court ruling. This looks a lot to me like just plain old error correction, although there is some split in the states on this. This also just looks like...

Can we preemptively declare a NAW DOG on this? Okay, so here's the only complicating part. So the Wisconsin Supreme Court said, you can look at two different things, the sort of motivation for what they're doing or what they're doing. And they were like, we're going to kind of look at both. And basically, nobody denies that the motivation is religious. But their point is, this is not about like just sort of on high thinking about religion, but in fact, the operation of state laws on these corporate entities. In this case, it's unemployment insurance,

but it could be anything else related taxes or something else. So I think the point is what you don't want is like every corporation to suddenly run to its nearby church and be like, hey, can we be an arm of your organization so we don't have to do unemployment insurance? And I get that problem, but this ain't that problem.

That's not what's happened here. Imagine if a car company said, we're going to be a religious nonprofit because we make electric cars and love the environment as God told us to, and it's a car manufacturer. Okay, that might be a better argument. That would be an interesting case. That would be an interesting case.

That's an absurd example. That's not a not dog case. Right, exactly. This feels more like a not dog case. Okay, well, we'll follow that one. We'll let you know about the oral argument. We are still, remember, in that window where cases granted now will get heard this term. Starting next month though, there's basically a tipping point somewhere in mid-January where the cases that get granted will actually be scheduled for the fall. But we're still in this term

right now. So get excited. That one's going to be a, I don't know, probably a March-ish argument at this point. David, other Supreme Court news though, worth a discussion. Do you remember how much I've complained about the line to hear Supreme Court oral arguments? I bet you, Sarah, we have spent more time on Supreme Court line issues than any podcast in the history, not of the United States, but of the world. Well, just to refresh everyone's memory of where things are. Basically, there's an unknown number of seats for the public to sit in the gallery and listen to oral arguments. It's between 40 and 50, and that depends on how many lawyers come in, though at some point they'll stop that. So,

there's definitely public seats. And if you're a member of the public who wants to hear an oral argument, you line up outside. When do you need to start lining up? Who knows? When do they give you your ticket? Who knows? The argument starts at 10 sometime after nine? Who polices? Who's in line? Nobody. What happens if you're 35th in line and then right when they're about to hand you your ticket, someone just steps in front of you and says, no, I'm here in line before this person. Nothing.

Like, unless you want to come to Vistacuffs. A duel. Yeah, that's what happens. It's a hot mess. Not to mention the fact that there's line, professional line sitters who get paid and then at the last minute they step out and let rich people in. So basically it privileges people who have the money

to pay a line center, and of course the wherewithal to do it, or people who have the time to sit in line. Now, for most arguments, if you show up at 6 a.m., you'll be fine. But for the big ticket arguments, you're talking days camping outside and, oh, you can't bring camping equipment into the Supreme Court. So you're just sort of laying there. As I've gone over before, I camped out for the heller oral argument. That was the initial gun rights case. I camped out overnight. It rained on us. We did not have a tent.

It was incredibly unpleasant, but I made a lifelong friend. So with that, the Supreme Court this week announced a new lottery pilot program. I will read now from on high as the tablets were handed to us. The Supreme Court is implementing a pilot program in which

members of the public may apply for courtroom seating through a fully automated online lottery. Individuals who receive tickets through the lottery will be able to come to the court knowing that they have reserved seating for a particular argument or non-argument session. Pilot program will begin with the February 2025 argument session. Starting today, members of the public can access the lottery for the February 2025 session through a link on the court's website. The deadline to submit an application to the lottery is 5 p.m. Eastern, four weeks before the particular argument or non-argument session.

Three weeks before the session, the court will notify applicants by email as to whether they have received tickets, have not received tickets, or are on a wait list. Applications for future lotteries will open shortly after a particular monthly argument calendar is released. During the pilot program, the court will continue to provide some seating for the public on a first-come, first-seated basis." And then they explain the line situation, which is insane. Okay, David, I think everyone is cautiously optimistic that this is a good change. However, I will say, like all things, there are trade-offs. I think I have some concerns with how this will go.

Basically, like you could have a bunch of people scoop up tickets. Because these are not paid tickets, you sort of have the failure of capitalism or lack of capitalism at work. You can scoop up tickets. There's no incentive to then go. It's a month away from the time you actually ask for the ticket. And so then you no show. There's no reason to tell them you're not coming. You don't get like a

refund or something because you didn't pay in the first place. And it doesn't really then privilege the people who care the most, if you will. What do you think? So I can't remember as you were reading through the policy, non-transferable, the tickets are non-transferable. It didn't use any words of that. Seat geek for Supreme Court tickets. Oh no, there's gonna be a secondary market. It's coming, it is coming, Sarah. Win the lottery, pop that sucker up, courtide, courtside, there you go, courtside

tickets, SCOTUS. I just want to be clear, none of the public seating is courtside. I mean, you're not next to the advocates. Yeah, I don't know how this will go. Yeah, I don't know. And I think it sounds fair. I mean, it's promising, but let's just limit for a moment what is being lost. The Cameron crazies of Supreme Court arguments will no longer be camping out. You know, if you go to Duke, and you go by Cameron indoor stadium, I was there a couple years ago, right before coach Sieszewski's last game. And there were, it was days before the game, and you

could see the tents had already, you know, popped up. And there were, it was days before the game and you could see the tents had already popped up. And there, as we've discussed, Sarah, these elaborate rules of when you could go to class and when you could come back, similar to like your elaborate rules of how you conduct yourself in the spring in the SCOTUS line. Oh, that's lost. It's gone. It's lost to time. Yeah. Maybe the way around this is that you always have the hybrid system so that like the real crazies like now there will be 20 tickets for camping out or something. But I really do think there needs to be a known number of tickets so that if you're number 21, you don't need to camp there only to find out that it was all for not. But I do lament some amount of if you really care about this, there's

a way for you to go versus someone who just like always, you know, sets it up so that like every month they enter the lottery, get a ticket, but they never intend to come to DC. They just want to make sure they have a ticket in case they want to go or to your point about the secondary markets, that would be a disaster. I don't know how they're gonna change like prevent that aside from Saying it's non-transferable, but then they've got to check IDs Right check IDs and then responsible for that. I mean right now they right now it is the weirdest most Non-technical thing when you wait in the line They just hand you a physical piece of paper at sometime after 9 a.m.

You walk in, you have to put all your stuff in a locker. You're not allowed to take anything in with you, including your phone. You can take pen and paper in with you to take notes. I'm sure a pencil would also be allowed, but that's it. Nothing electronic, no purse, no bag of any kind. Obviously no camping equipment, like I mentioned, but it's really, really

low tack. So somehow we're going to have to like ramp up the tech side of this or something. And then even if there's not a secondary market, you still got the problem with the person who every month really, really participates in this lottery, but is never going to come. And then does that person get kicked out eventually? Are they now going to monitor, repeat bad players who don't show up, but then they've got a check ID? I don't know. Yeah, yeah.

I have questions. I know, I know. This might be a Chesterton's fence type situation. But then of course the alternative was to police the line literally, which also I don't think they wanted to get in the business of. So right now, without seeing how it's actually worked

in practice, I think this is a better system than the current one. It is Chesterton actually worked in practice, I think this is a better system than the current one. It is Chesterton's fence in practice. It is against my Burkean nature to want change. But you know what? Even Edmund Burke was fine with change when the current system was not working. True, he had a lot of admiration

for the American Revolution, which was change. And we'll take a break to hear from our sponsor today, Ethos. Your family depends on you, so get serious about something every family needs, life insurance. Ethos has made securing life insurance as smooth as possible. Just answer a few health questions for a free quote in less than 10 minutes at ethos.com slash ao. And for those who may not know, the rule of thumb is to have coverage that's 10 times your salary. But employer provided life insurance typically just covers one or two times your salary.

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Okay, next up, Ken Paxton in the news. In fact, we're going to spend the next several amounts of minutes on Texas. But let's start with Ken Paxton. David, we're going to talk more about this case as it percolates, but can you just tell us the basic facts of the lawsuit that Ken Paxton filed? Yeah, this is very, it's a very interesting case. I'm gonna tell you why we're gonna have to kind of punt on the true analysis of it, but it's very simple.

It's a lawsuit against a New York doctor brought in Texas by the state of Texas that is dealing with abortion, providing abortion induing drugs, providing abortion-inducing drugs into Texas through telehealth. So this doctor in New York is not a licensed Texas physician. According to the broad definition of practicing medicine within Texas, the state of Texas asserts that she's essentially practicing medicine without a license in Texas and is seeking a permanent injunction.

Now what's throwing in an interesting sort of twist into this case is that New York, like a number of states, has passed something called the shield law, which is trying to shield its own doctors from exactly suits like this. It's trying to shield doctors who refuse to cooperate with attempts from other states to prosecute or sue abortion providers who prescribe and send pills across state lines. So there's about eight states that have these shield laws. And so this is a very interesting question

where you have a Texas law that seems to be in pretty clear conflict with the New York law. How does this shake out? And so let me put it this way. Your tip, your median 2L right now is going to be able to answer this question better than your median 20 year practice of law lawyer. As is evidenced by this podcast. As is evidenced by this podcast. So we are punting for the sake of legal research, just to be a little bit transparent here,

that this lawsuit came in and it presents some very interesting legal issues that quite frankly, I'm not ready to talk about off the top of my head, Sarah, even with a malpractice alert. You know what, David, like any good appellate court, we would benefit from the briefing down below. Yes, exactly, exactly. So we're going to petition the court

for an additional two days of time to study the briefing and to submit thoughts. Continuing along our Texas theme for the next bit, we have two Fifth Circuit en banc decisions. One of them is, you know, mildly interesting. And the other one is what we will now dub from this point forward, en bancers. Let's start with the mildly interesting one.

This was a vote nine, eight. So pretty divided Fifth Circuit Court, about a NASDAQ proposed rule change requiring companies listed on the stock exchange to disclose board members' gender, race, and LGBTQ status and, and this is the kicker, David, have or explain why it does not have at least two members of its board who self-identified as female, an underrepresented minority, or LGBTQ+. All right, so those are kind of different to me, right? The first one is a pure disclosure issue.

Now it's a disclosure on like a bunch of status questions, but nevertheless, disclosure. The second one feels less disclosure-y. You can either say, yes, we have to, or you have to write an essay explaining why you don't, which feels like punishment. Okay. So what happened next is that the SEC, the Securities and Exchange Commission, a governmental body approved that NASDAQ rule. So nine members of the Fifth Circuit said no, that the SEC can only approve rules that

are designed to prevent fraud, protect investors, you know, the things that you would have the government intervening to do. And that obviously, especially part two has no bearing on that. The dissent, the eight, basically argue that the SEC's authority to approve or reject rules is very narrow. And then in fact, this just fell outside of the SEC's purview, if you will. So the SEC expressly concluded that this was a disclosure-based rule, not a hiring quota. Indeed, NASDAQ modeled its disclosure rule on the form that EEOC already requires company to use to report employee demographic information, but that goes to part one. The SEC approved the rule because the reviewing scheme that Congress created doesn't permit

the SEC to displace NASDAQ's private business judgment informed by investor behavior with agency policy priorities. So David, what's interesting about this case is that in many ways it flips the script on the two sides where most of the time you have the conservative legal folks saying like, up private business decision, not reviewable, but add in the sprinkle of DEI. And all of a sudden you have the liberals saying private business decision, the administrative agencies have no authority here. And you have the conservatives saying, oh, yes, they do. They can't approve this rule. Very interesting.

It certainly will have impact in the sense that this rule now will not have impact and also probably will be used as one of those ongoing pieces of evidence of the beginning of the end or middle of the end of the DEI hegemony, if you will. Yeah. Yeah. I think there's a couple of things to take away from this. One is post-Harvard case. Basically, if you're going to have an identity-based requirement or an identity-based sort of DEI mandate that is going to in any way penalize a company

for not having a kind of specific racial alignment or penalize a company for not having a specific identity based alignment. You're in real trouble a racial classification a sex classification which has a different level of scrutiny but racial sex classifications. You're gonna be in trouble if you're making those distinctions, not necessarily in the disclosure world, but in any way, shape, or form where there is any kind of punishment tied, even a relatively minor punishment, like writing an essay, I love the way you put that. Writing an explanation for why you have not satisfied

the government, even if it's something small like that, writing an explanation for why you have not satisfied the government. Even if it's something small like that, watch out, it's just not going to fly. And it's not going to fly for the foreseeable future. But there's also a kind of a larger issue here, Sarah, which I think is very interesting, and that is I think one of the reasons why people began to, there are many, many, many reasons for a loss of trust in institutions. But here's one, and that is when you have institutions created for one purpose, let's say regulating risk in the stock exchange, or making cars, or banking, or you name it.

And then you start to say that no, the job of that institution is making cars and social change. The job of that institution is regulating stock markets and social change. When you add that and something else that is unrelated to the purpose of the organization, you begin to create a sort of, in many ways, a divergence, a split personality,

an additional priority that can sometimes undermine the prime purpose of the organization. And I think that's one of the reasons for a lack of trust. Now, these corporations and institutions, I do believe, should absolutely be free of discrimination. They're organizations that can absolutely creatively think about ways that they can reach all of American populations, all American populations.

But this sort of idea that one additional purpose of the entity is social change, in addition to sort of its founding purpose, that's where I think you begin to see an enormous amount of contention and in many ways a kind of a dilution or a side tracking from their main purpose, which undermines that main purpose. And of course, the DEI world has had just like body blow after body blow, including this week when a DEI administrator was, once again, caught on audio talking about how Jewish students at her school don't need their services because they're all rich

and white, among other really offensive things that were said. There was also a program at the organization that does all the accrediting for private schools, basically, big deal organization, where they had a speaker who also started saying horrible things about, you know, Jews, war in Gaza, ethnic cleansing, racism, in front of a whole bunch of Jewish day schools that had to attend because this is their accrediting board. The accrediting board has since apologized. So it's just DEI and its antisemitism problem

somehow isn't going away. It's getting worse. And I don't understand because if you're an anti-Semite, just keep it to yourself. I don't mean that as a good thing. That would be a bad thing for me. I want you to keep saying it out loud, but I don't understand why they keep saying it out loud. Well, you know, this is an area where conservatives on campus, quite frankly, were a canary in

the coal mine for a long time, because they were sitting there jumping up and down, waving their arms saying, no, wait, the way DEI, you can take diversity, equity, inclusion, all good values, combine them into this ideological monoculture on campus, and the way it's working out is actually ending up contrary to all these values. It's not real diversity that they're looking

for. Yeah, they want a lot of people from different walks of life, different races, ethnicity, sexual orientations, but within a very narrow range of thought. It's not equity that we're talking about. It's really in many ways revolution. It's not inclusion that we're talking about because one of the things that we're talking about. It's really in many ways revolution. It's not inclusion that we're talking about because one of the things that we have seen in DEI bureaucracies is many times they were the primary instruments of exclusion. In many ways, you know, advocating for speech codes, advocating for policies that really narrowed the range of acceptable discourse. So DEI became, one of the reasons why people are so

scornful and dismissive of it is it just became in many ways contradictory to its core values. And then post October 7th, what you had was this really interesting dynamic where conservatives on especially an elite campus are not a constituency that the campus culture really cares about that much. That's not gonna create a crisis on campus

if you're found to have really mistreated conservative students. But what happened post-October 7th is a lot of these communities became split in a much more sort of fundamental way than they had been previously, where the anti-Semitism was being just poured out on tenured professors on campus,

community at Hillel on campus, in other words, big communities on campus that were pretty entrenched and pretty powerful in their own right. And I think that has kind of exposed DEI beyond that kind of right-wing corner of the world far more than anything else previously. Well, I just want to give listeners an update. Do I feel something happening in my stomach? I do, but I think we're holding on. I think we're okay for now.

Next up, the Fifth Circuit on bonkers opinion. Before we get to that, I want to take a little frolic and detour to recognize a legal scholar and gentleman among our world, David, and that is John Ross over at ShortCircuit. If you're not reading the ShortCircuit newsletter each week, you're missing out on his circuit roundup, which is informative and delightful, and included this one, which might be the best of... Honestly, it's only the best of a few weeks, because every few weeks,

there's just one that just tickles me to no end. Some of you may think you have already learned all you care to know about the history of bricks or the definition of the word collapse. For the rest of you, those with the souls of bricks or the definition of the word collapse. For the rest of you, those with the souls of poets and scholars, we offer this unpublished Sixth Circuit opinion." So obviously, I had to go click on that, David. This is an unpublished opinion by Judge Thapar.

And just for our non-lawyers listening, what is the difference between published and unpublished opinions? Absolutely nothing in practice. So back in the day, as you can imagine, those words actually had meaning. They were unpublished in a literal sense, and they didn't have precedential value because they weren't published. But now all unpublished opinions are, in fact, published. And while they're not supposed to have presidential value, they basically are just like stepchildren of precedent. They still get cited, but you just have to note that they're unpublished and everyone's like, not as good. Sort of like senior status. What does it mean? Not much really, but in practice,

like, yeah, not as good, fine. Okay, so I just wanna read a couple of paragraphs from this opinion about bricks. How many fallen bricks does a collapse make? Parties can contract to answer that question however they want. Here, Tahini Main Street and GCC Construction said that a collapse occurs when a building

abruptly falls. So when bricks tumbled off an old building in Tennessee, there was a partial collapse. But a partial collapse doesn't mean the whole building abruptly fell. Thus, we affirm the district court's judgment that Tahini and GCC aren't entitled to recover under their insurance policies. And then there's this. Ricks are the building blocks of civilization dating back to at least 7500 BC when early Syrians labored to erect Tela-Suad, close to present-day Damascus. Since then, brick's sturdiness has provided a firm foundation for buildings near and far.

For that reason, they're also baked into popular culture. Baked, get it, David? Standing for prudence and permanence in stories ranging from the three little pigs to the Tower of Babel. Indeed, bricks even provided the famed foundation of the walls of Jericho. But individual bricks are only as good as the mortar that binds them into walls. When that mortar fails, bricks can come tumbling down. In some cases, as with Jericho's fabled walls, all the bricks might give way. In others,

only a few bricks might come loose or slide off. And in still more scenarios, perhaps many bricks might fall while hundreds remain. I mean, he's right. John Ross, just nailing it. That is the stuff of poetry. But back to our main event. And the reason I bring up John Ross is because his write-up of this Fifth Circuit en banqueur's opinion, I can't do better than it, David, and so I must quote from it in full. Do nonprofits whose members live, work, and recreate near an Exxon facility in Texas have sufficient personal stake in curtailing Exxon's illegal emissions to bring a suit under the

Clean Air Act seeking civil penalties payable to the US Treasury? Fifth Circuit, en banc. We granted en banc review 18 months ago to provide an answer and we still can't agree. So I guess we'll just un-en banc this one and affirm the judgment below. Now here's 170 pages of us fighting. David Keltner laughs 170 pages of us fighting.

I love that. David, I cannot tell you how accurate that description is. As I run through this opinion, first of all, when I just opened it without having read John Ross's wonderful description, I was met with a one paragraph per curiam opinion. And I was like, okay, I almost stopped reading until I looked up and saw that my PDF was 170 pages.

Because that seemed weird for a one paragraph per querium opinion. I'll just read you a couple sentences. The en banc court heard oral argument in this matter in May 2023. That was more than 18 months ago. Moreover, the parties in this case have already endured multiple appeals and remands back to the district court over the course of nine years. Another remand would mean that the appellate proceedings in this matter will have delayed resolution of this case by over a decade. Justice delayed is justice denied. Had we known that it would take a year and a half after en banc oral argument to issue an opinion, we would not have granted en banc rehearing. We accordingly affirm the judgment of the district court.

Okay, we've got some problems here. So first of all, to back up to what a per curiam opinion is. That actually is going to be reminiscent of that unpublished opinion in a lot of ways. It means it's issued by the court, and you don't get to see who joined it. Generally, if there's nothing noted, we assume a per curiam opinion is unanimous, or we'll say it's per curiam with no noted dissents. That will not be the case in this

per curiam, as you can imagine, over 170 pages. But a per curiam is the decision of the court. And of course, this per curiam opinion had the line, we accordingly affirm the judgment of the district court, but we have a problem, David. The Fifth Circuit has 17 members. That is an odd number. The per curiam, by process of elimination here, had seven slash eight judges join it. And I say seven slash eight because it says per curiam, and then there's these little dot dots, aststerisks, and you follow those and it says, Chief Judge Elrod concur separately in the per curiam order.

I concur in the per curiam order because I believe that our experienced district court colleague, Judge Hittner's most recent opinion, got it right. So too did the panel majority, which affirmed it. I would accordingly support reinstating the panel majority opinion. Okay, so the per curiam affirmed the district court opinion,

but one of the people who joined it actually affirmed, incurred to affirm the panel majority. So what you're saying is you can't count to nine here. I can't count to any number really. Okay, so the per curiam says that it has eight joining it, but one of those actually joined in a totally different outcome.

So we've got seven to affirm the district court and one to affirm the panel, okay? Then we've got eight in dissent, seven in a separate dissent, and, seven in a separate descent, and then one in a separate descent, but fine. That like, the eight includes the seven and the one. So we've got eight on the per curiam, but actually maybe only seven.

Then eight in descent. And you're like, wait, that only adds up to 16, Sarah. Where's your 17th judge? And here comes judge Ho Leroy Jenkinsing from afar. I'm always up for Leroy Jenkins reference. And he says he would dig the whole thing. Dig, remember? Dismiss as improvidently granted.

Okay, so this has some problems with it. Can you dig? The en banc? We don't know. The Fifth Circuit has never technically done that before. So, okay. So David, let me explain a little bit what en banc is versus certiorari at the Supreme Court. You have three layers of review, right? You get a district court trial, then you get a mandatory appellate panel. They can't say no to that. And don't send me your like, what about pinkies and all of that? Like, nope, you still get a panel opinion.

And then you can ask the Supreme Court to review your case. They can grant or deny cert. When the Supreme Court grants cert, they're just accepting the question presented. If they dig your case, they just unaccept the question presented, and nothing's really changed. You're back to where you were before, your panel opinion at your circuit stands. That's not true for en banc. So you still have the district court. You still have the mandatory panel. When an en banc court accepts it, it's not actually an added layer of review,

technically speaking. Because when the en banc court votes to take your case, they poof away. They disappear your panel decision. It's like the three-judge panel never heard it. So then the en banc court decides it, sitting with all the judges of the circuit court. Or in the Ninth Circuit banc court decides it, sitting with all the judges of the circuit court or the Ninth Circuit's case, you don't get all the judges, whatever,

whatever, there's always exceptions. So you still, when you go to apply for the court to accept certiorari of your case, you still have those three layers of review, right? The district court, the panel, the circuit court now sitting en banc, and then the Supreme Court. So what happens if the circuit court un-en bancs, but the panel decision has been vacated, it disappeared off the map? Hey, well, in theory, if a en banc court splits eight, eight, it affirms the district court because the panel decision doesn't exist

anymore. So that's what the seven members of the per curiam said they did. So that is what the seven members of the per curiam said that they did. But that's not what Judge Ho's dig would do. It would just put back in place that panel opinion, which is what Judge Elrod said in her concurrence to the PC did. So now we've got seven who say they want to reinstate the district court opinion, two who want to reinstate the panel opinion, and eight who dissent.

But we don't do pluralities in on box. What matters is whether you can get to nine. So you've got nine to reinstate something and eight dissenting. Or, or I don't know, David, I could run through all these numbers in various different ways. Here's what's interesting, and I think what makes the difference. Judge Richmond, who is in dissent, which some of you may know her as Judge Owen, that's how she was confirmed,

she since got married, congrats. Judge Richmond says, as to the per curiam issued today, I submit that affirming the district court's 2021 judgment on the basis that justice delayed is justice denied is not a cognizable legal principle under the circumstances of this case. What should have occurred is to recognize that the Anban Court did thoroughly consider the issues presented by Exxon-Mobil on appeal and a majority of the 17-member Anban Court could not agree upon the judgment that should be entered. Application of well-recognized principles of appellate law would dictate that the District Court's 2021 judgment be affirmed because a majority of the Court did not agree to reverse or modify the judgment.

Okay, so A, I think her reasoning there is actually pretty good. Saying that you're deciding something because you couldn't decide it is weird compared to just saying we couldn't decide it and therefore this is what happens when our court can't decide something. But note, she says, I submit that affirming the district court's judgment on the basis, she's acknowledging in dissent what happened, and that matters a lot. She also though has a footnote, which is a little concerning to that judgment that I just made. Though neither the per curiam opinion nor Judge Ho's separate opinion expressly says so, Judge Ho has agreed to join the per curiam opinion. This is apparent on the face of the per curiam opinion, since without the joiner of

a majority of the en banc court, nine members, it could not be a per curiam opinion. That is, an opinion of the court. But Judge Ho didn't join the per curiam opinion. Kind of expressly so, I would say. Expressly meaning there's no express joining. Right. I'm beginning to see what you mean by on bonkers, Sarah. This is so weird. Okay, now let's get to the fighting part, David. I know you've all been waiting for it. This has been a journey. So Judge Oldham, writing in dissent, has a chart.

We've seen charts. They don't happen that often, David. But this chart is different, according to Judge Oldham. Finally, let's parse the four different votes cast by my esteemed colleague in this case. First, Judge Ho votes to affirm the District Court's 2021 judgment in the per curiam. Second, Judge Ho says he would vacate the District Court's 2021 judgment. Third, Judge Ho's opinion votes to dig our en banc court's grant of rehearing. Fourth and finally, Judge Ho would dig plus reinstate the panel's 2020 and 2022 decisions, presumably on the theory that it is the same as affirming the District Court.

So he has this chart showing, one, affirm, Exxon must pay 14 million. Two, vacate, case returned to district court. Three, dig, appeal remains undecided. Four, dig plus reinstate, not applicable because it's impossible. Anyway, okay, so Judge Oldham has a whole thing wherein he's like, dig isn't a thing, dig can only work for Sir Sherari because there is no such thing as simply dismissing a grant of en banc because the panel opinion

has been vacated. So what you really meant to say was a vig, a vacate as granted. I like that actually that it's a vig because of course you can't dismiss en banc and then reinstate because you've dismissed the jurisdiction of the en banc court. He's right about that. So he's just saying you have to flip the order. You have to reinstate the panel opinion and then dismiss the en banc court. That's what he's calling a vig. Fine.

Why are we talking about semantics? And this gets to where I feel like we might be losing people, Sarah. Like, what is the case even about? Really? Oh, who cares? Who cares? Judge Ho in responding. Says Judge Oldham's dissent invokes Roman ecclesiastical and other historical practices in

a quixotic effort to prove the dismissal of rehearing on bonk as improvidently granted somehow offends millennia of legal tradition. I like history too, but nothing in his historical gesturing remotely demonstrates how justice or tradition requires appeal before 17 judges rather than three. There's no need for a fainting couch. The dissenters only feign incredulity. They don't really mean it. Does it actually say there's no need for a fainting couch? Oh, yes, it does.

Oh, man. And then Judge Oldham responds saying, I don't know about fainting couch. You're the fainting couch. Kind of. Here's the problem, David. Here's why this is relevant. It's not obviously about the substance of this. It's about what the hell is going on at the Fifth Circuit. You have all of those who write making some reference to this being a horrible, miserable, no good process behind the scenes. And in fact, Judge Richmond says,

to say that I am disappointed in the process that has been employed in our on-bank proceedings in this case would be an understatement because we do not ordinarily discuss the process by which we decide cases. I will not go into all that is behind what is being issued today. Fair enough for not going into it,

but we are left reading tea leaves with human excrement on them. None of this makes sense. You can't count to any number. You can't even agree on what numbers you're counting to. You have footnotes that say that so-and-so joined whatever, but then they say they didn't. David, this is really dysfunctional at this point. This circuit judges expressing frustration out loud in written opinion, in nonwritten opinion. It's really bad. It's not good.

Bad. Yeah, yeah, wow. No, I mean, when you forecast this as 170 pages of fighting, you were lying. And just listeners, that fainting couch rhetoric, that's like big rhetoric from a judge. That is not the norm. Circuit courts fight all the time about the merits of decision, and you see pointed comments back and forth disagreeing on the merits. There is some of that here in the 170 pages,

but the vast majority, I feel, is dedicated to the process, to what the actual outcome is here, to whether you can affirm because it took too long, whether you need to affirm because there's no majority, whether you need to affirm because I hate you, whether you affirmed in the right language or it should have been a different language, but even then you're wrong. I don't know how one fixes dysfunction

in a place with life tenure where you can't fire people. Oh, yeah. No, you're right. You're right. And this is not the first time that you've seen evidence of dysfunction in a circuit. I mean, many years ago, Sarah, back when I was in the full-time practice a lot, like early in my career, the dysfunction on the Sixth Circuit where I was practicing. Famous. Famous, I mean, to the point where it's reaching in well out of, you know, Tennessee, Kentucky, Ohio, Michigan and hitting national media.

So this does happen, it can happen. And yeah, that's fascinating. And as you said, on bonkers well deserved we will save the on bonkers moniker for anything that can even come close to what that just was yeah wild merits alone I don't think we'll ever warrant you an on bonkers designation will ever warrant you an on bonkers designation. Sure. I could tell you winter's coming or that it brings cold dry air, but you already knew

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20% off full-size fragrances now through December 24th. Shop now at Sephora and Sephora at Kohl's. All right, David, a few smaller things to hang on our advisory opinions Christmas tree today. I want to do a quick disclaimer for what's going to happen next. We're going to talk about rape. We're going to talk about definitions of rape. This is one of those moments if you've got kids in the car, probably not. Go ahead and turn off the rest of this episode. First of all, there was a settlement in the ABC defamation case.

Donald Trump sued ABC News after an episode in which George Stephanopoulos interviewed Nancy Mace. He opened the segment by describing Nancy Mace's own experience, being raped. He showed a video of her discussing her rape and then had her on the show to ask her how, since she was raped, could she support a candidate who had been found liable by a jury for rape? Nancy Mase pushed back on that characterization of the jury verdict and George Stephanopoulos basically said, well, nope, the judge described it as rape and they go back and forth. It's a very long interview. George Stephanopoulos basically said, well, nope, the judge described it as rape and they go back and forth.

It's a very long interview. George Stephanopoulos uses the word rape many times. We talked about this case not actually that much, David, but what the jury actually held was that Donald Trump was liable for sexual misconduct. New York has a rape statute and in fact, the jury explicitly held that he was not liable for rape. So David, the definition of rape in New York actually requires penis and this was digital penetration. So then afterwards, however, because, right, this is defamation built on defamation. The underlying case here was a defamation case where E. Jean Carroll had described that she was raped. And basically what the judge

said was the way that we use the term rape, she wasn't incorrect. Even though the jury was holding that it was more likely than not that he digitally penetrated her, that her colloquial use of the term rape was not defamatory. But George Stephanopoulos was not talking about E. Jean Carroll's use of the word rape. He was talking very explicitly about the jury's decision. And the jury held under New York law that he did not commit rape, that he committed sexual misconduct.

That was the back and forth with Nancy Mace. The judge in this ABC defamation case declined to dismiss it on those grounds. It's really kind of interesting saying like, look, there's a whole question of when the judge describes something this way, whether you can rely on that. But basically said, because you were very clear that you were talking about the jury verdict, you knew the details that were a little bit different here. You could have offered your viewers that distinction

that the jury actually found this, but the judge also said this, but you didn't. Instead, you showed a headline, but you blurred out the things that would have made it clear that it was kind of a distinction. So when the judge declined to dismiss it, David, they settled the case for $15 million. Fun fact slash disclaimer, I was actually on that episode.

And it was a bit stunning to sit through. Congresswoman Mase's daughter, minor daughter, was in the green room watching the show with us, who were going to appear on the panel a few moments later. Oh boy. Yeah, I'm looking right now at the verdict form for the case. And the verdict form for the case. And the verdict form reads, under the heading battery, did Ms. Carroll prove by preponderance

of the evidence that, one, Mr. Trump raped Ms. Carroll? And there's a check yes, check no, and no is checked. And then it says, number two, Mr. Trump sexually abused Ms. Carol. And it's got the yes and no box and it checked yes that he did sexually abuse Ms. Carol. So what we're talking about here is there is a verdict form that says check no under Mr. Trump raped Ms. Carol. And the reason why the word rape is often tossed around is, as the judge in the sex abuse case said, well, there's a colloquial definition of rape and there's a legal definition of

rape. And what Trump did might fit a colloquial definition. So it's a fair word to use, but it did not fit a legal definition under New York law. And as you were saying, Sarah, I think that ABC did not have to settle this case. I don't think the initial ruling necessarily here was the final word here because you did have the colloquial definition that was out there. And as you said, there was a distinction here where he was talking about the court case. And so I understand why the lower court reached the decision that it did, but I don't

necessarily think that ABC, I don't necessarily think if you took this up through appeal that ABC was going to lose this case. But once you lose that motion to dismiss another another element locks in, and that's discovery. That's right. Yes, and so one of my interpretations here, there are a lot of reasons why people settle. And one of the reasons why people settle is sometimes they don't want to go through discovery. Now, I don't have inside information on this.

I'm just describing a general reality in dealing with large corporations where you see an interesting and puzzling settlement where they had valid defenses, which is I think what ABC had here, but they were gonna have to go through discovery. Don't know what's there? Don't know what's there.

But I will say, unlike a lot of folks who are looking at this, I did not interpret this as just ABC's cowardly capitulation. I interpreted this a bit differently. I don't know about you, Sarah. Remember discovery not only entails getting emails, text messages, it also entails depositions. Putting George Stephanopoulos under oath. I'll just say I for one, happy to not have to sit through a deposition.

Another one in my life. Another one, cause you were there. You were a witness, Sarah. So look, I don't think there was much law made here as you sort of insinuate David, the substantial truth doctrine still stands. If Stephanopoulos had been talking about what Trump did, I think this would have been a very, very different case

and it might have actually not survived the motion to dismiss. The reason it did is because there was a dispute over facts and law frankly, related to what it means when he was very clear. So the judge, as reasonable jury could interpret Stephanopoulos' statements as defamatory. Stephanopoulos' exchange with Mace lasted about 10 minutes, during which Stephanopoulos

stated 10 times that a jury, or juries, had found plaintiff liable for rape. In fact, of course, the Carroll II jury did not find plaintiff liable for rape under New York penal law. It was Judge Kaplan who determined that the jury's verdict amounted to liability for rape. Yet none of these particularities make it into the segment such that a reasonable viewer would have indisputably understood what defendants now brief in detail. Instead, at one point, Stephanopoulos asked to display a screenshot of a newspaper article about Judge Kaplan's finding and stated that,

quote, the judge affirmed that it was, in fact, rape. The ostensible clarification occurred late in the segment and did not include any further explanation. Viewers were simply treated to a 10-second glimpse of a headline and partially blurred text with no mention of Judge Kaplan by name or any description of why his description of the verdict differed from the jury's actual verdict as recounted by Mace.

Once again, this court does not find that a reasonable jury must or even is likely to conclude Stephanopoulos' statements were defamatory. A jury may, upon viewing the segment, find that there was sufficient context. A jury may also conclude plaintiffs failed to establish other elements of his claim, but a reasonable jury could conclude plaintiff was defamed and as a result, dismissal is inappropriate. David, if anything, the only surprise here for me after failing to win the motion to dismiss is only $15 million.

I'm surprised that the Trump folks took that, like that it's worth $15 million to Trump's presidential library plus the apology versus getting the discovery. I would have thought that was worth more than $15, Tim. Sorry, $15 million. Yeah that was worth more than $15 to him. Sorry, $15 million. Yeah, definitely worth more than 15. No, that's interesting you raised that because I kind of had the opposite instinct that $15 million is a very substantial sum of money.

The damages, he wouldn't have gotten that, I think even if he'd won the trial for what that's worth because the damages calculation is basically how much additional damage did it cause compared to the actual jury verdict and all of the other headlines? What did George Stephanopoulos' statement cause damage to Donald Trump? I don't think you get to 15 million.

Yeah, no, I don't think you do either. That's why the settlement strikes me as a shrewd move from Trump's team to say yes to it because otherwise it could be a pigs get fat, hogs get slaughtered type situation where you refuse the $15 million in the hand for the you don't know what's in the discovery in the bush. And what if what's in the discovery is kind of a big fizzle that it's mildly embarrassing to ABC or 18 hour outrage cycle on Twitter, but you said no to $15 million for that. So, yeah, I kind of interpret it as you take the win, especially when the settlement amount is more than damages that you'd likely receive.

And I think you'll know this, but I am an ABC employee. So again, disclaimer on that. All right. Next up, David, the Federalist Society, I was going to say announced their new president, but they have since announced it, but there was a leak as to the Federalist Society's new president over the weekend. I had previously reported that it was down to Dean Reuter and Robert Ault.

And so who is the Federalist Society's new president? Sheldon Gilbert. Now, I had been warned after I reported that it was down to two, that in fact, that there were more people in the running. I was pretty confident in my reporting. I since believe that my reporting was accurate and also there were more people.

That basically once it got down to two, they brought Sheldon back in who had previously been dismissed from one of the larger lists. We sort of had this like large shortlist, a like five person shorter shortlist, then it was down to two, then they brought Sheldon back in. So then it became three. Sheldon Gilbert is leaving Walmart to take this position. He's considered sort of a libertarian conservative. He has his feet in a bunch of the different schools. David, he's a member of the Church of Latter-day Saints.

I think it's a really interesting pick. When we had talked about the various, the longer short list, the shorter short list, there wasn't someone on there who was a famous elder statesman of the Federalist Society. So they were always considering the different models of, you know, someone more administrative, more caretaker who would have maybe more freedom to actually run the organization than be a focused face of the organization. All really interesting. I did want to read a paragraph from Josh Blackman's

post about the challenges facing the Federalist Society now that they have a new president coming in. First, this is from Josh Blackman. First, there is a long-summering tension between social conservatives and the libertarian wing of the movement. For example, in the lead up to the landmark Dobbs decision, which overruled Roe v. Wade, FedSoc's national convention largely ignored the abortion issue. To this day, many social conservatives still feel slighted. Second, FedSoc has long favored a strong deregulatory focus, which was a priority of the Reagan administration.

However, the Trumpism of the Republican Party seeks to use government power to promote conservative goals. Third, Fedsock has long favored the lowercase c approach to conservatism, moderation and restraint. This jurisprudence was a natural choice when originalism and conservatism were minority viewpoints on the Supreme Court, but now and for the foreseeable future, the roles have reversed. Judges with courage have more cachet than those seeking passive restraint. He concludes by just saying, I've been a devoted member of Fed Soc since my first year of law school. I deeply hope that Fed Soc maintains its relevance and influence for another four decades, but I worry that the celebrated approach that worked to climb the sunrise side of the mountain

may lead to its decline on the other side. What is that new approach? I do not know. And it should be, as is true to FedSoc's core, a matter of debate. However, maintaining the status quo is not sustainable. And he has this whole paragraph about Intel, Southwest, Blockbuster, etc., showing organizations that have huge market dominance at some point, but fail to evolve and fail to recognize external threats, fail and cease to exist and kind of become a punchline. David, there's so much more to be said about the future of the federal society, and I hope and think we will have a special guest on to talk about that and answer some of our questions in the near future.

Excellent. But I just, you know, before we don't really have time now to go into all of the nuances. And as you said, we've got a potential special guest coming. I just want to state for the record that the new Fed Soc president and I have very similar backgrounds because I too am a former in 1987, one of my first job, my first paying job of my life, I sold guns at the Georgetown Kentucky Walmart. I sold guns and sporting goods, but most of what I did was sell guns, which is maybe like that most hashtag Merica first job you could have selling guns in a rural Kentucky Walmart. So yeah, we're basically the same people. I mean, I have an early childhood memory.

My mother would take me to Walmart after school many days, most days, I don't even know, because it was like a place that I could run around. Eventually I got old enough that I could use the like, I would go tell an adult with a Walmart badge that I'd lost my mother and could they please call her on the loud speaker because I was ready to go basically. But one of my early memories is going to the gun counter at the rural Walmart where I

lived in a 2,000 person town where she bought a small rifle to take out the armadillos that were terrorizing her azalea bushes. Interesting. Well, I could have sold her one if it was in Georgetown, Kentucky. Get groceries delivered across the GTA from real Canadian superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. Two freshly cracked eggs any way you like them. Three strips of naturally smoked bacon and a side of toast. Only $6 at A&W's in Ontario. Experience A&W's classic breakfast on Now, dine in only until 11 a.m.

All right, David, a couple more things. One, Judge Wynn of the Fourth Circuit reverses his announcement that he was going to take senior status. This marks the first time we've ever had a circuit judge do this. Now again, we have had judges in the past, including circuit judges, who said they were going to take senior status, take it back. But we've never had it happen around an election. That is what has happened here for the two district judges that did it right after the election. That is what has happened here. For the two district judges that did it right after the election, there have been ethics complaints filed against them

under Canons 2 and 5 of the Code of Conduct for United States Judges, Canon 2. A judge should avoid impropriety and the appearance of impropriety in all activities, Canon 5. A judge should refrain from political activity. You have Senators McConnell and Tillis, real mad, David, real mad about this. Senator Tillis, the Senate Judiciary Committee

should hold a hearing on this blatant attempt to turn the judicial retirement system into a partisan game, and he deserves the ethics complaints and recusal demands from the Department of Justice heading his way. Wow. I mean, it's not great, David. I would say that the partisan games around retirements

did not start this week. No. Judge Wynn didn't create those, but I will say it's an escalation of it to say like, well, they didn't fill my seat. So, and a president that I don't like was elected. So now I'm out instead of like, well, they didn't fill my seat. So and a president that I don't like was elected. So now I'm out instead of like, well, I took that gamble when I decided to go senior late in an administration. I don't like it. As I've said before, David, I don't like it.

Yeah, I don't like it either. I'm not sure it's the stuff of ethics complaints, but I don't like it. Well, imagine a case coming up before Judge Winn that involves the RNC, for instance, or President Trump, which is not hard to imagine. Yeah. I think you would have a motion to recuse there. When you found out that he was going to be president, you rescinded your retirement so that he couldn't fill your seat, presumably because you dislike him and his politics that

much. And then you're going to sit in a judge in his case. Yeah, I know I'm I'm I'm with you on that. I'm with you on that. David, other, you know, Hill involving judges housekeeping, New York Times headline White House threatens Biden veto of bipartisan bill to add new judges. So a bill passed through Congress. I mean, that alone headline headline worthy David. Wow.

Yeah, Republicans and Democrats agreed to create 60 new district court judge seats that would be filled over the next three presidential terms. They agreed to this before they knew the outcome of this election, which is the only time you're going to get an agreement on this. Now that we know the results of the election, President Biden is saying he's going to veto the bill because it would give, of course, President Trump the first bite, those 20 or so seats, and the next two terms would also get 20 or so seats. David, I think what I find, I mean, it's galling in every respect, like Congress finally does this. Republicans and Democrats

agree that we need more federal trial judges out there. There's a lot of delays in getting your case heard in the federal district court in some of these places. He vetoes it. He's going to veto it, he said, for purely partisan reasons. Oh, for sure. Because if he was coming in. Trump is limited to one term. I think this is your best case scenario.

If you're a Democrat, a one-term president and you have a non-incumbent election in 2028. Incumbent elections, incredibly hard to win, as we all know. So Democrats, I mean, I've said I think Democrats are very likely to win in 2028, then they would have the incumbency for 32. So if you were just betting on just like how history works, you would have Trump getting 20 seats and Democrats getting 40 seats. Take that deal, you idiots. Well, you know, we haven't talked.

There's some things we have not talked about about the Biden administration. This one, I'm glad we're raising this. Glad we're talking about this. And I completely agree with you. But he's kind of in a YOLO phase right now because he's done the pardon of his son. He has clemency grants here, which look, some of these, he granted clemency to about 1,500 people. What looks like they did is he granted clemency and what the White House has said is he granted clemency to people who met the

criteria of being on this COVID-related home release where there was not a, their offenses were nonviolent, not a sex offense and not terrorism related. And so if they met this criteria, they were, there was clemency. And here's the key, none of the commutations granted were individual decisions according to a White House official,

and none who met the criteria, what I said, COVID-related home confinement, etc., etc., were excluded. Okay, well, some of the folks who got clemency absolutely deserved it, but some, oh my gosh, Sarah. Kids for cash, Judge. Yeah, kids for cash, Judge. A guy who took money to put juveniles into for-profit detention facilities, took money. When this case was exploded onto the scene, it was an extraordinary scandal, just an extraordinary scandal that resulted in thousands of juvenile convictions being vacated. It ruined families. It ruined families. It ruined lives for money money. For him. He hurt children intentionally for

a few bucks. It's disgusting. And he's on that clemency list. It's wild. You also have Shanlin Jin, Chinese national, former doctoral student at SMU, in 2022, so just recently, like post-COVID one might say, for possessing and distributing child pornography. Investigators found over 47,000 images and videos on his computer, some depicting infants subjected to sexual violence. He pleaded guilty. He was not maintaining his innocence.

He pleaded guilty and was was not maintaining his innocence. He pleaded guilty and was sentenced to 97 months in prison, commuted by President Joe Biden. Including also, grant you clemency was a woman who was the convicted of the largest municipal embezzlement in US history after barely serving one third of her term. So again, some of these absolutely were appropriate. Wait, there was this one also. Okay. A doctor and oncologist in Mississippi, she was convicted of healthcare fraud.

Okay, that happens from time to time, you think? She owned and operated the Rose Cancer Center where she engaged in a scheme of defrauding Medicare by submitting false claims for chemotherapy services. How, you ask? She admitted to billing for more chemotherapy drugs than purchased, diluting drugs provided to patients, and reusing needles and syringes. Her actions put patients at risk, of course, with at least one patient allegedly contracting HIV, not to mention the whole still having cancer.

Right. Wow. Okay. Make individual determinations. Do not make determinations on the basis of sweeping criteria. Speaking of dumb things that have happened in American history, David, we missed the anniversary of the 21st Amendment, which repealed the 18th Amendment for all of our legal eagles out there. Anyone, anyone? That's right. 18th Amendment is prohibition.

21st Amendment repeals prohibition. David, you've got a little quote for us courtesy of one Professor Oren Kerr of Berkeley, friend of the pod. Yes, this is a quote from Judge Learnenhand. And remember how we just had to interpret the phrase or the words that somebody was on their fainting couch as being like really extreme judicial rhetoric, like really extreme? This is a new level, Sarah, except it's not new.

It's an old, old quote from Judge Lerninhand, his thoughts about prohibitions and cursed be its name, its memory, its parent, its fosterers, its designers, its sycophants, its proposers, its backers, its executors. Cursed be all who ever had part or parcel and that sycorax that heck, heck, hate. I don't know what that is. That blotch that abortion that stain that blazon that stench that enormity that changeling that hybrid that monster that nightmare that vile stew that serpent that her that nastiness that misery that harpy that miscarriage that hypocrisyisy, that snare, that delusion, that illusion, that ignis fatus, that fraud, that venom,

that damnation, that hallucination. So I guess he liked his bourbon? Wow, wow. Yep, I think that he did, Sarah, I think that he did. Last note, that lunch between the two lawyers in question from the last episode, that was court mandated lunchtime with the tip, is happening as we record this, David.

I have an insider who has promised us to read out from the lunch itself for our next episode. I mean, you can't get more insider reporting than this, I think. I mean, this needs to be reported out like the Helsinki summits and the Cold War. I mean, I don't know how it's gonna go, but I feel based on my reporting

that I think the lawyers here are gonna have a fine time. I think this is- A lot of pressure. A lot of pressure right now. A lot of pressure to get along. It also is happening at Saw's Barbecue famous Saw's barbecue of Alabama. In fact, if you've ever seen me in person, I'm often wearing my Saw's barbecue hat because it's a great hat. And they're famous for their white barbecue sauce, David, an abomination in the

rest of the country. But I applaud Alabama for trying to cover up that their smoked meats aren't as good as Texas where we do no sauce because our meats can stand on their own without your sugary concoctions. Is that the end? Cause I got nothing to say about barbecue. I've already been canceled about that. Ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh,