Advisory Opinions - Supreme Court Countdown Continues

Episode Date: June 10, 2021

With a lot of big Supreme Court decisions on the horizon, David and Sarah discuss an unexpected concurrence from Justice Thomas in Borden v. United States, a case about how broadly the government can define “use of force.” Our hosts also review a decision from the 20th Judicial Circuit of Virginia about a school that suspended a professor for not using students’ preferred pronouns and an announcement that the Texas Bar Association will investigate Ken Paxton for his lawsuit to overturn the 2020 election. Finally, they chat about a controversy at Yale Law School involving the infamous “tiger mom” law professor Amy Chua. Show Notes: -Borden v. United States -20th Circuit of Virginia Ruling on preferred pronouns case -Texas Bar Association investigating Ken Paxton Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger and Sarah. Can you see what I'm doing? You are holding up some dispatch swag. I'm drinking a cup of coffee and a brand new dispatch Yeti Tumblr. I don't know yet if this fine piece of swag is available online yet. It's not. It is not.

It's just a taste of what awaits you. I'm drinking, though, this cup of coffee in lamentation, Sarah. In lamentation that, once again, the Supreme Court has announced opinions and added an opinion day and given us only one opinion and not one of the biggies. But, well, wait, you held your finger up to stop me. So I was taking, the baby woke up, of course, at five. So I was taking a little pre-AO nap and my husband came to wake me up just after 10 AM. And I rolled over and I said, what did we get? And he said, you got armed career criminal. And I threw a pillow at his face

and he said, but Sarah, the Thomas concurrence. And I shot out of bed. And we shall discuss it. So, okay. The over-under on the number of marriages in the United States of America in which but the Thomas concurrence could lead to unrestrained glee and jubilation. Ten? It might just be ours. It might just be yours. Okay. So you're taking the under on ten marriages in the United States.

I'm taking the under for sure. Okay. Okay. Well, hopefully we're going to take the over on ten on number of listeners interested in the Thomas concurrence because that's what we're going to start with. Yeah. But we got a lot of other stuff. Yeah.

That's what we're going to start with. Yeah. But we got a lot of other stuff. So there is a case out of Virginia involving a teacher who went to the school board. And while the school board was considering a pronoun policy and vowed that they would not use preferred pronouns and was suspended immediately, a teacher's named Tanner Cross. immediately, a teacher's name, Tanner Cross. We have an opinion, a preliminary injunction, a TRO opinion in that case that we're going to talk about. We're also going to talk about a bar complaint filed against Texas Attorney General based on his frivolous lawsuit to try to overturn the election. I have thoughts and concerns. We're going to talk about a little Twitter kerfuffle yesterday where the Biden administration argued against, this is going to be more interesting than it sounds like,

we're going to talk about a Biden administration argument against a motion to intervene. Boy, I don't know. Hold on to your hats, y'all. No, it's actually interesting over whether the Biden administration will vigorously defend the Title IX religious exemption. We got a little bit of a hilarious Ninth Circuit moment. And then we're going to talk about Amy Chua, Yale Law School, and what on earth. school and what on earth so let's start though thomas armed career criminals kagan what you got sarah so seemed like snoozer on the front right armed career criminal this is that three strikes rule basically if you have a gun crime and you've had three previous violent felonies uh do you qualify and there's been so many cases about this through the years as they try to define what a violent felony is that frankly,

I just, I stopped caring. I didn't care. I wasn't ready to care. But today, David, this was a lot. So I'm going to walk through it. Okay. This was a lot, so I'm going to walk through it. Okay. So, an offense qualifies as a violent felony under the Armed Career Criminal Act if it, quote, has an element, the use, attempted use, or threatened use of physical force against the person of another. We're going to spend a lot of time on that phrase this morning, folks. Okay, so let's back up.

Too much time. The question here is whether a reckless assault can have the mens rea, meaning the mentally culpable state, to fit that phrase. And you're going to have four justices who say no, because if you're just reckless, then it's not against the person of another. Fine. You also have four justices who say, yeah, that's plenty. If you committed assault, I don't care if it's reckless. You had the mens rea. It is a violent felony and it is against the person of another. But David, that's a four four court, right? It's Kagan writing with Breyer, Sotomayor and Gorsuch. Kagan writing with Breyer, Sotomayor, and Gorsuch.

Mm-hmm. And then you've got Kavanaugh writing with Alito, Roberts, and Barrett. And the cheese stands alone. And the cheese this day is Justice Thomas. Justice Thomas is in a bit of a pickle here. Why? Well, because he's been on the court a while. And so he has a dissent

in a case called Johnson v. United States. In Johnson v. United States, Justice Thomas said that there was a residual clause to the Armed Career Criminal Act, which is a bit of a catch-all. The rest of the court found, the majority of the court, found that that residual clause was too vague. And Justice Thomas was like, no, no, it may be vague in application against this guy. But he basically said, there is no such thing as facial vagueness. That is legislating from the bench. Facial

vagueness versus as applied. As applied means that it's just the guy in front of you. And facial means there are no circumstances in which that statute could be constitutionally applied. And Thomas and USV Johnson said, no, you just have to apply it case by case. Well, interesting, because in this case, the reckless assault would fit in the residual clause that Thomas said shouldn't have been tossed out as a facially vague clause. And that if they had simply followed his advice, his dissent, and not applied that residual clause against the Johnson guy, that here he would apply it and therefore this guy would be going to prison.

But he has no followers in this. And so this is his actual footnote at the end, and then I'll go back through his opinion. Voting to affirm petitioner's sentence here would lead to a 5-4 judgment that petitioner's sentence is correct, even though five justices conclude that Tennessee's reckless aggravated assault does not satisfy the elements clause. That kind of fractured reasoning would be difficult for lower courts to apply. That's kind of an understatement here.

Yeah. So you'd have, what he's saying there is, you'd have five justices saying that this guy goes to prison. Four, because he did, like the reckless thing is against a person. And then him saying, no, it falls under the residual clause. And then you'd have four justices saying, no, no, it does not qualify as against the use of a person. And then him saying, yeah, but it falls under the residual clause. So what are lower courts supposed to do? What's the controlling opinion? Do they follow Thomas

as the fifth vote? Do they follow the four who say reckless does match the elements clause? Or do they follow the four who say, no, it doesn't match the elements clause. Here's what's so interesting to me because Thomas is so rarely the fifth vote. here's what's so interesting to me because Thomas is so rarely the fifth vote. Thomas here picks the practical choice. Yeah. I am stunned. If you had asked me seven days and twice on Sunday, I would have said, no, Thomas doesn't pick the practical choice. He just says, look, Johnson was wrongly decided. Let the chips fall where they may. Here's the problem for Thomas. He does not agree that it's the against the person thing. He thinks it's the use part that doesn't fit. You can't use force against another person because you didn't intend to

use force. It's not the against, it's the use. Very textualist opinion here. You can see why Gorsuch joins with the four. Now, you've got this great Kavanaugh footnote that everyone's going to want us to talk about. While we're digging the Kavanaugh footnote, there is a hurricane of legalese. is a lot of, there is a hurricane of legalese. So let me try to break this down as simply as possible. Let's suppose you have a law and it has two parts to it, part A and part B. And part B is struck down by the court. But Thomas didn't want it to be struck down. Part B was previously struck down. So all you have left is A. That's all you have left. So in other words, to try to enhance sort of the potency of the statute, then the government started to read Part A as broadly as it possibly could. And so the majority

in there, or not really the majority, the plurality here says, nope, you can't read Part A any bigger. the majority. The plurality here says, nope, you can't read Part A any bigger. Part A is Part A. And Thomas, but there's only four votes for Part A is Part A. Thomas, who still believes B should be viable, and the guy should go to prison because of B, realizes B still isn't viable. So for practical reasons, he joins the four who say A is A. Does that make any sense? joins the four who say A is A. Does that make any sense? But for different reasons. But for different reasons. But the bottom line is,

A is still A. It's not bigger A. And so, it's a very convoluted. Yeah, and this is Kavanaugh's point in his footnote. So, footnote three, and this is the losing plurality, who says that, like,

look, against the person is, plenty encompasses reckless behavior. Just to explain today's lineup, four justices form the plurality. Justice Thomas concurs in the judgment. He agrees with the plurality's result, but not its reasoning, and concludes that the phrase use of physical force alone excludes reckless offenses such as reckless assault or reckless homicide. The court reached a different conclusion in interpreting a similar worded statue in Huacin v. United States, but Justice Thomas indicates that he will not follow that precedent

in this case. Importantly, unlike the plurality, Justice Thomas does not rely on the phrase against the person of another. Justice Thomas further explains that reckless offenses were covered by the Armed Career Criminal Act under the residual clause. That's the Part B. But that clause was declared unconstitutional in Johnson v. United States. Although Justice Thomas disagrees with Johnson, he indicates that he will follow the court's Johnson precedent, albeit not the Voisin precedent. So we find ourselves in an unusual situation. In Voisin, seven justices agree that the phrase use of physical force in a similarly worded statute covers reckless offenses. Eight justices today accepted the phrase use of physical force covers reckless offenses.

That's the four from each plurality, by the way. Yeah. Moreover, five justices today agree that the armed career criminal acts text properly interpreted would cover reckless offenses. That's the four from the losing plurality plus Justice Thomas in his residual clause. four from the losing plurality, plus Justice Thomas in his residual clause. Only four justices conclude that the phrase against the person of another addresses mens rea, that's the mental state,

and excludes reckless offenses. Yet despite all of that, Borden prevails and reckless offenses are now excluded from the Armed Career Criminal Act scope. That outcome is anomalous. Okay. So that's the Kavanaugh footnote. But don't worry because Kagan has a footnote of her own. Why is all the best stuff in footnotes? It's a really good question. Yeah. I mean, you could put that in the body of the opinion. Does

it kind of soften the blow if it's in a footnote? Or is it worse? Is it kind of a sneaky punch? So I'll tell you why they do it. It's because these opinions are getting sent back and forth, and they're getting edited to respond to one another. And so at some point, you're like, I don't know where this fits in the text. Drop a footnote. Let's answer this stuff.

Yeah, got it. Yeah, that's a good explanation. So here's Kagan footnote number six. The dissent also goes through a complicated counting exercise about how different justices have divided in this and two other cases, apparently to show how unfair it is that the dissent's view has not prevailed here. But there is nothing particularly unusual about today's lineup. Four justices think that the use phrase, as modified by the against phrase in the Armed Career Criminal Acts Elements Clause, excludes reckless conduct. One justice thinks, consistent with its previously stated view,

that the use phrase alone accomplishes that result. And that makes five to answer the question presented. Question, does the elements clause exclude reckless conduct? Answer, yes, it does. I think she's being perhaps a little cute in defining what she has five votes for, but nevertheless, she is certainly right that the question presented was answered. So, David, there's a few things that make this interesting if you're not an armed career criminal. Please. One is Justice Thomas taking the practical road.

Really interesting and I think sort of a career shifting moment of sorts. And I think sort of a career shifting moment of sorts. Two, in case anyone wasn't sure how Justice Thomas felt about facial challenges to statutes, he lays it out very nicely, which is no, he's against it. as he says, first to pronounce that the statute is unconstitutional in all applications seems to me no more than an advisory opinion, which a federal court should never issue at all. And he is quoting a 1999 Scalia dissent. Courts have no authority to strike down statutory text, nor may courts resolve general questions of legality by providing relief beyond the parties to the case. Do not bring your facial challenges to Justice Thomas. He wants none of it. Strongly disagree with Justice Thomas on that little assertion, but proceed.

That, David, leads me to number three, which is in a lot, not in a lot of ways, in all ways, the nationwide injunction problem that the courts have been having comes directly from this line of reasoning. Because nationwide injunctions are basically issued when the court finds that there is no application of the statute in question or the executive order or whatever else. And therefore, it's enjoined nationwide. So if you're curious what Justice Thomas thinks about nationwide injunctions, you can just cite his concurrence in this armed career criminal case and you know. He's a get it.

Yeah. Yeah. Now, I'm going to go with a... So when I was reading this thing and going through some of these footnotes, I had, and how narrowly Borden escapes the scope of the Armed Career Criminal Act here. how he had to pull, you know, what's it called, the inside straight here to escape the scope. So Charles Borden reminds me of the unnamed Iraqi soldier in Norman, Norman, Norman Schwarzkopf's briefing, legendary briefing. And after Desert Storm or, you know, right as Desert Storm was winding down and in 1991, Sarah, when you were slightly younger than me. And he's showing this footage of a,

I believe a strike on a bridge. And all of this ordinance is coming down on the bridge. And right before the bridge explodes, it looks like a lone Iraqi on a motorcycle just goes scooting across the bridge right before it detonates. And Schwarzkopf quips, luckiest man in Iraq. And that's what I think about Charles Borden.

Luckiest petitioner in SCOTUS because he had all of the legal ordinance bearing down upon him and he found a way. And I was looking who, I was trying to figure out who was. So the the his counsel on the cert petition is Aaron Rust, assistant federal community defender, federal defender services of eastern Tennessee. And I was trying to see if that was who argued the case. Mokes, was there some good lawyering here to manufacture this majority? Because that Kavanaugh footnote shows, I think, that they threaded, what a needle they threaded here. Because you're walking into the courtroom pretty much knowing that you've got, depending on how you kind of craft the ultimate answer to this case, I agree with you, that Kagan footnote was a little simplistic. You don't just have a majority against you in some ways. You have a super majority against

you in some ways. And Charles Borden still won. That's impressive. That's impressive. So, Aaron Rust, and I'll find out while we're SCOTUS blogging who did the argument. My gosh, that was some good lawyering for Charles Borden. And I somehow doubt that Charles Borden was paying corporate rates for this. Well, we'll do a quick SCOTUS wrap up here. So we've got 21 cases left. We actually only have two official hand down days left, but they'll add the Fridays, so Thursdays. So we have four hand down days that we kind of know we have left.

My prediction is they will add two more. So we've got 21 cases over six hand down days coming. As folks know, we are not shy about adding emergency pods when needed. So stay on the alert. Check our Twitters for emergency pods when there have been extra special hand-down days that are not Mondays and Thursdays. And before we leave SCOTUS, someone highlighted this case, and I think it is worth passing along to you. You remember we talked about the alien versus

non-citizen debate going on in judicial opinions where Sotomayor uses non-citizen and changes it in other justices' opinions. So last year, Justice Kavanaugh had a similar immigration case that he wrote. And it will surprise no one in what Justice Kavanaugh decided. I'll just read you footnote two. This opinion uses the term non-citizen as equivalent to the statutory term alien. What does that mean? It means that throughout the opinion, non-citizen is used 170 times when Justice Kavanaugh is speaking in his own voice, and alien is used 28 times when he is citing the statutory text. So Justice Kavanaugh charting that middle path, which actually I think is the correct one. middle path, which actually I think is the correct one. Okay. So drum roll, please, Sarah. And I'm just going to ask you, do you know this person? Cannon Shanmigan?

That's funny. I had dinner with Cannon and his wife this week, actually. And Cannon is the head of the practice at Paul Weiss. They have had several big wins this term. And wow, congrats, Cannon. We didn't even talk about this big win on the horizon. Wow. That is some needle threading from Cannon. You know what, David? We've talked about this before, actually, on Twitter, that perhaps we need Cannon to do the Supreme Court roundup with us at the end. I think now it is a requirement. Oh, he has to. Absolutely. Yeah, especially after we just praised him to the heavens.

Then we got to have him. Let's move on from SCOTUS all the way to, let's see, a different court, a little bit different level, the 20th Judicial Circuit of Virginia. Are you ready for this one? I mean, everyone knows the 20th Judicial Circuit of Virginia. Yes, and Judge James E. Plowman Jr. So here we go. This case, interesting, has made national news. It's not every day that a case in the 20th Judicial Circuit of Virginia makes national news, but this one has, and it has made national news because it is a hot-button culture war issue. listeners may remember that we talked some time ago about a case involving a professor named Nicholas Merriweather. This is a professor at Shawnee State University who would not use preferred pronouns because it was his belief that using a preferred pronoun would be

untruthful. It would be consenting to saying something that he did not believe that was true. In other words, that a biological male, a trans woman was equivalent to a biological woman. In other words, that, so if somebody was born male, he's not going to use the reference, not going to say she or use female pronouns. So that, that was a case in, in the, a case with a college professor, and he won. He won at the Sixth Circuit. This case was different. This was a teacher in secondary school, a high school teacher who was addressing the school board. And as he addressed the school board, he said that he was not going to use preferred pronouns, that he believed that, again, that that was consenting to something

that he did not believe to be true. He would not use preferred pronouns. He was not speaking during school hours. He was not speaking in his official legal capacity as a teacher, but he was referring to how he would conduct his job, and he was suspended. He was suspended and, I believe, barred from the grounds of the school. So he files a lawsuit, and on June 8th, just two days ago, he wins an injunction.

And in that injunction, he was represented by Alliance Defending Freedom, former senior counsel for Alliance Defending Freedom. And this case was interesting because essentially what, because he was speaking to the school board, because a lot of you guys remember us talking and saying that secondary school teachers, high school teachers, elementary school teachers, they don't, the case law is pretty strongly indicating that when they're in their jobs, when they're in the classroom, they have very limited First Amendment rights. I mean, extremely limited, almost non-existent. But in this case, this was a high school teacher talking to the school board, trying to provide his own input into school board policy.

And in that case, the court applied a more conventional legal analysis from a case called Pickering v. Board of Education, which allows a government employee, when they're speaking on a matter of public concern, not as a citizen, I mean, not in their official capacity, but as a citizen, they're going to enjoy relatively expansive free speech rights. And so in that case, they went through pickering factors, found out, of course, that he was speaking on a matter of public concern. And then the judge then goes and looks at to see if there was some sort of compelling reason why, even though he's speaking on a matter of public concern, that the school would have some grounds for disciplining him anyway, whether he was

disrupting the operation and mission of the institution. And there was just no meaningful evidence that he was. There was a few parents who complained about his point of view and asked their students to be pulled from his classes. I believe it was six emails total complaining about him. Six emails from five families, yes. And that was that. And so this is sort of a classic pickering analysis and not really very close, Sarah. And so, yeah, I mean, it made national news, but it's about as normal of an application of precedent as you're going to confront. I think what I found so offensive about what the school did here, and the judge walks through it pretty clearly. Here's the paragraph.

It is clear the plaintiff was speaking as a citizen, not in his official capacity. His speech was not conducted at his usual place of employment, occurred during non-working hours, and at a forum where public comment was invited. They were asking for public comment about this policy that they were going to implement. They invited the public to come and give their thoughts on it. And then when someone from the public did, they punished that person. It is truly the Rockwell painting where you have the guy speaking to the city council, whatever you think he's speaking to in that Rockwell painting. the city council, whatever you think he's speaking to in that Rockwell painting. And everyone behind him, you know, is probably against his speech for led to believe. And it's the freedom of speech and the four freedoms. What? I mean, again, I don't, um, I don't care what he was speaking about actually. And I don't necessarily agree with what he was saying or his beliefs or that as a pe teacher like maybe you can figure out a way to to accommodate some of your students

if they're having problems um but you certainly have the right to go to a place where comment has been invited on a public policy and say you disagree with this potential policy. Unreal. Yeah. Yeah. No, I mean, that's why I say this is just about as straightforward application and precedent as you're going to find. I mean, this is not the only thing. There are some cases that are quote unquote hard cases, air quotes, because they involve emotionally fraught issues, issues that are deep into the culture war, but they're not hard cases, air quotes, because they are so squarely within the First Amendment. This is just rote application of basic, basic precedent. And so, yeah, this was not a hard case, but it was an important case

because sometimes the easy First Amendment cases, when applied to emotionally fraught issues, are great teaching moments for the First Amendment. Because what they're going to do is they're going to be, this is when you have the 20th judicial circuit in the national news because of the emotion of the case, not because of the difficulty of the case. And it was good. I thought, you know, we're going to put this decision in the show notes. I thought the judge did a really good job laying out the law here. And it's interesting. It's written in the form

of a letter, which actually makes it kind of more readable. And so we're going to put it in the show notes. And it's a very interesting and good example of how a judge can briefly and clearly explain the law, attach it to the facts, and provide us with a teaching moment. Now, I want to launch off this just a little bit. Do you permit me a brief digression, Sarah? Let me just add one other thing, because one of the pickering factors which every school relies on is the disruption factor. I mean, it's not even just in pickering, right? It's similar in the angry cheerleader case. Did she, did her Snapchat, by telling the school to F off, disrupt the school activities.

And so the school relied heavily on the idea that, well, yeah, his statements weren't as an employee and they weren't during school hours and they weren't on school grounds. And we invited public comment, but it was very disruptive to the school. And they point to these six emails from the five families. And I just thought it was smart of the judge to dive into his reasoning on why that wasn't disruptive. They removed him from teaching on the morning of May 26th. The emails, all of them, came in on the morning and afternoon of May 26th. As in, they couldn't have removed him because of those emails, because they removed him

before those emails. And in another footnote, footnote seven, for those who are following along, the court notes that when reviewing the content of the emails sent to the school, some of the beliefs and assertions expressed by the parents regarding plaintiff's anticipated future conduct are wholly inconsistent with his statement to the school board. The defendants acknowledge viewing the plaintiff's statements and were readily aware of these same inconsistencies at the time the suspension was issued, as in they made no effort to tell the parents, well, no, actually, he didn't say he was going to discriminate against your children or prevent them from playing dodgeball or whatever else these parents came up with in their emails.

Instead, the school said, oh no, emails, and suspended the teacher, except in the reverse order. So in fact, they said, oh no, we might get emails. Suspend him. See, look, we got some emails. Right. And the other thing that I think is interesting about this, so it's six emails from five families.

And one of the things that is interesting is if you read a news story about this, you know, that you'll have people who will interview one of the families, say, which is exactly what you do as a journalist. exactly what you do as a journalist. You're going to go, you're going to find out who emailed, and you're going to let them, you know, they're going to have their say in the article, which is exactly journalistic practice. But one of the problems is, unless you provide all of that context of when the emails arrived

and how they were inconsistent with what the teacher actually said, you're going to create an impression that might be a little bit, that's a bit different from reality that would be that this teacher basically said, not only do I have this conscientious objection to using pronouns,

but I'm also going to act in very specific ways against these students, which was exactly contrary to his testimony. And I think that that was very important that the court laid this all out in that way. So I think you're exactly right. And it's also a good point that a lot of times you have the court,

I encountered this so much, Sarah, in my practice was that always schools, including universities, went to the disruption argument. But so many times the disruption argument is anticipatory. We think that it'll probably disrupt. And that doesn't get it done. That does not get it done. And a few emails that express fears that the plaintiff himself allayed in his own testimony don't get it done either. All right. So Sarah, I want to use this case to talk about something a bit related. Okay. You remember we've talked about anti-woke legislation? Of course. Yes. So one of the things that's talked about anti-woke legislation? Of course.

Yes. So one of the things that's interesting about anti-woke legislation, and I had a debate with Christopher Ruffo, who is one of the primary advocates for this kind of legislation, is that they themselves, these conservative, quote-unquote conservative advocates of anti-woke legislation are using the hook, the status of state employee or status of federal employee or federal grantee or federal contractor to try to ban the expression of certain ideas, of certain ideas, ban the expression and advocacy of what, quote-unquote, divisive concepts, and these divisive concepts are defined differently according to the different statutes or regulation. But all of those divisive concepts are constitutionally protected. And so what they're trying to argue is that the specific status of a person combined in some cases with, um, their, you know, their, their, their official function means that they don't enjoy constitutional protection in that context. And what's interesting to me is, for example, if you look at the Trump administration's, um, executive order that was banning, um, that was banning divisive concepts in the federal government.

What was interesting to me about it was it went so far as to say, not just if you're doing diversity training, a federal employee or federal contractor is doing diversity training for federal employees that these divisive concepts are banned. It says if you're a government contractor, in other words, you're a private entity contracting with the government, on your own property, on your own time, with your own employees, you cannot train in these divisive concepts. So as a precondition of getting a government contract, even when you're not operating at, of getting a government contract, even when you're not operating at, you know, even when you're not operating pursuant to the contract, you can't train divisive concepts. Federal grantees. So people are receiving even private entities, receiving federal grants.

Even when you're operating in your private capacity, then if you're receiving those funds, then you're going to be in a place where you're going to have real difficulty instructing in any of these divisive concepts. Now, for example, it bans use of federal funds to promote the divisive concepts, but that money, that's a very slippery phrase. So this is one thing I've been warning a lot of these anti-woke folks about, is that a lot of these rules and regulations that they're seeking to impose are very inconsistent with a lot of the First Amendment arguments that are being made in other circumstances to protect people from quote-unquote wokeness. And the more that you're going to try to create a separate free speech status for a government employee, a government contractor, a government grantee,

the more ironically enough reach, if you were to prevail in that, the more reach you're going to and power you're going to grant to the woke every bit as much as the anti-woke. And so I just wanted to point that out, that you kind of have these two kinds of movements going on at once. You have a liberty-minded movement that's pushing back against quote-unquote wokeness, and you have a power-minded movement that's pushing back against wokeness. And the two are not necessarily compatible, Sarah. So I just wanted to point that out. So David, here's the next topic.

AP exclusive, State Bar Investigating Texas Attorney General. So this is about the case that Ken Paxton brought to invalidate the 2020 election on behalf of Texas and a couple other states where he tried to get original jurisdiction at the court. You and I talked about it extensively, said it was frivolous. Turned out it was dismissed, too sweet by the Supreme Court. So a Texan filed a bar complaint against Ken Paxton. The bar actually dismissed that complaint. The letter said it was a wasteful embarrassment and that he should lose his law license over it. Fair enough. The bar actually dismissed that complaint. You know, the letter said it was a wasteful

embarrassment and that he should lose his law license over it. Fair enough. The bar was like, yeah, not our problem. But in Texas, there is a board of disciplinary appeals. These are 12 independent lawyers appointed by the Texas Supreme Court who actually oversee these complaints. actually oversee these complaints. In 93% of cases, they just uphold those dismissals, but in 7%, they don't. And the Board of Disciplinary Appeals said, no, actually, State Bar of Texas, you do need to investigate Attorney General Ken Paxton over his decision to file that case on behalf of the state of Texas at the Supreme Court. What say you, David? I got a problem with this, Sarah.

And look, I'm no Ken Paxton apologist. I thought that case, the case he filed before the Supreme Court was frivolous. It was so frivolous that the Texas Solicitor General, well, a highly respected attorney, did not sign on to it. Paxton has problems. I mean, as we've discussed, multiple senior members of his team have resigned. He's under criminal investigation right now. So none of this is a defense of Ken Paxton. This is an important process point that I think really matters. And it is this. If I file a case that is frivolous, federal rules, if I'm in state court, state rules, the rules empower the judge or the court

that I'm filing the case in front of empower them to sanction me for a frivolous filing. front of empower them to sanction me for a frivolous filing. So the court itself, the tribunal I filed the case in front of has the ability and the power to sanction me. Now, if they do sanction me, I have no problem with the Bar Association, or in this case, the Board of Disciplinary Appeals overturning the Bar Association. I have no problem with there being follow-on bar discipline. But if I have not been sanctioned by the court, the court did not find my filing frivolous, I have a real problem with the Bar Association being ordered by this Board of Disciplinary Appeals to essentially go back and reevaluate the case and to determine whether or not it was so frivolous as to merit discipline and because what you're essentially doing is you're saying this bar association i'm surprised the board of disciplinary appeals did this

you're telling the bar association to be a sort of a backstop court here on the merits? No, let's leave the initial determination here to the court the case was filed in. And if it sanctions Paxton, sure, have at it, Barr. But if it does not sanction Paxton, I don't like this. I don't like this. Sarah, your thoughts? I absolutely agree in a case, in a complaint that revolves around a case filing. I don't see how you'd get around that. Now, there are other complaints that revolve around an attorney's conduct, for instance, sexually harassing clients, embezzling client funds, things like that where the bar is empowered to investigate, where harassing clients, embezzling client funds, things like that, where the bar is empowered to investigate, where perhaps a court, there is nothing before a court

to investigate. So that's why the bar has investigatory powers. But I don't know what they're supposed to investigate here when there is a court filing and a court did not on its own or on the motion of opposing counsel fine for Rule 11 sanctions, which is the federal rule that says, you know, if you have an improper purpose, you contain frivolous arguments or arguments that have no evidentiary support, that court can sanction the attorney.

But also, David, it brings up an interesting thing. So the Texas Attorney General race is heating up in a big way because Ken Paxton, you've listed all the problems Ken Paxton has. He has his 2015 securities indictment that he's pleaded not guilty to. He has this FBI investigation. Eight of his top deputies mounted an extraordinary revolt. They accused him of abusing his office in the service of a wealthy donor. There was a long letter. More top lawyers have left since then. Ken Paxton has problems.

And he is being primaried by the Texas Land Commissioner. Normally, that would be unusual. But what makes this particularly unusual is, David, do you know who the Texas land commissioner is? One George P. Bush. That's interesting. It's an interesting last name in Texas. That's right.

George P. Bush is the nephew of President Bush and the son of... Jeb. Jeb! is the answer we were looking for. You only get partial credit. So sorry. So sorry. This, his uncle is no fan of Trump.

His father is like no fan of Trump. And he is a fan of Trump, has publicly supported the president a lot, and is now going to run against Ken Paxton for Texas Attorney General. Ken Paxton filed this lawsuit for Trump. There is every indication that there was coordination with the White House to file this original jurisdiction lawsuit at the Supreme Court to try to overturn the election results. So you think, surely Trump is going to endorse Ken Paxton, right? But there is some reason to believe that George P knows some stuff that we may not

know. And if there's one thing Trump might like, it is getting Jeb's son to say nice things about him and say negative things about his own family. So anyway, I actually think Trump's endorsement will control the outcome of this primary, this Republican primary for Texas Attorney General in the state. And this Barr investigation, it puts a little bit of weight on the Trump side that, you know, Paxton is continuing to take the slings and arrows for what he did on behalf of Trump. The problem is Trump has shown no interest in rewarding past loyalty. It's all about future performance and what can you do now. So this is another wrinkle in the Texas Attorney General race that I'm sure we will continue to talk about as the election nears.

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Terms and conditions apply. All right, are we ready to move on to our next topic? Yes. Another interesting twist on another one of these emotional yet easy cases. But with a twist. So headlines were made earlier this week, and Twitter was in a tizzy because all of a sudden, the Biden administration declared that it would, quote, vigorously defend the religious exemption contained in Title IX

against a lawsuit filed by a coalition of LGBTQ advocates. Now, you might be scratching your head and going, what? Well, hold on. The Biden administration is defending religious liberty against a challenge by LGBTQ advocates. Is that a kind of a man bites dog story? Yes and no. So here's what happened. And we've actually talked about this case before.

A group of LGBT activists sued the Department of Education, and they were claiming that the religious exemption in Title IX, so Title IX, which prohibits sex discrimination in federally funded educational activities, contains an exemption that religious schools can invoke to opt out of the Title IX superstructure. And there are private religious colleges that have opted out. They've taken advantage of this religious exemption. So the plaintiffs are suing to try to, they're not suing the religious colleges, they're suing the Department of Education saying the religious exemption violates the Constitution. It's a losing case. They're not going to win this case. But the colleges who are not defendants in the case, some of them, including Western Baptist University, William Jessup University, Phoenix Seminary,

and the Council of Christian Colleges and Universities, CCCU, filed a motion to intervene to defend Title IX's religious exemption. So they didn't trust that the Biden administration or believed that their interests were so implicated by this case, even though they're not defendants, they filed a motion to intervene. The Biden administration opposed the religious schools motion to intervene. Well, you might think, okay, well, they're against these religious schools. That's, you know, maybe in partisan terms, the predictable outcome. But no, what they said is they don't need to intervene. There's no need for them to intervene because they, quote, failed to show,

the interveners failed to show how their interests diverge from the federal defendant's interests, or how the federal defendant's counsel, the DOJ, would inadequately defend the religious exemption. In other words, the Biden administration says, it's going to defend the exemption. It's going to defend Title IX. And a lot of people got very mad at the Biden administration. And a lot of people got very mad at the Biden administration. But Sarah, as we know, it's the general default position of the DOJ to defend existing the constitutionality of existing federal law. Is it not? It is the default position, but it is becoming increasingly less to be counted upon. Yeah. Yeah, that's what's interesting about it.

If you had rewound the clock many years, it would be extremely weird to expect the Biden administration not to defend this law and not to defend this exemption. But in recent years, you have seen political instructions delivered to the DOJ to not defend specific statutes or regulations. And so therefore, the decision of the DOJ to defend is seen as now inextricably political. So how do you read this?

Is this an act of moderation by the Biden administration, or is this a autopilot sort of DOJ defense that might get changed? I actually think it's neither. I think they wanted to keep those schools from intervening, and they want to win on their grounds, which will be narrower grounds. And that, in fact, the schools have every reason to want to intervene. And I will be curious to see if the court sees that the same way and lets them intervene for that reason, that they will be arguing something

very different than what the Department of Justice is going to argue. Yeah, no, I thought that's where my head's at as well. But yeah, so it is very interesting. It's a little bit inconsistent with the notion that the Biden administration is going to be a relentless opponent of religious liberty. But stay tuned on this one. Okay. Sarah, you have a humorous Ninth Circuit moment for us. So, you know that nightmare where you show up to your high school math class and there's a test and you didn't study for it. Yes. Yeah. Like everyone has that nightmare well into adulthood. The nightmare sort of changes

as you get older to like reflect your current situation. I have fewer of the high school ones, but I actually still have the law school exam for the class I never attended that I now have to take. But that was reality in a few cases. So in this case, this poor attorney is arguing before the Ninth Circuit. He's making his case. He's a zealous advocate. It is about the application for disability insurance benefits from the commissioner of the Social Security. You know, they got denied. benefits from the commissioner of the social security. You know, they got denied and he's talking about the fibromyalgia and my client and we're four or so minutes in and the justices are like, there's nothing about fibromyalgia in this record. And he's like, absolutely your honor. If you look at page 13, so the justices are flipping, flipping, flipping. I'm like, well, we want you to look at page 12.

Flipping, flipping. And the advocate, to his credit, maybe? I don't know. He's like, absolutely, Your Honors. The fibromyalgia is in the record. It has been substantiated, found by... And one of the judges stops him again. Long story short, David,

he had two Social Security cases before the Ninth Circuit. One this week and one next week. He was arguing the wrong case. Oh, man. He had flipped them in his calendar. Totally different case. Oh, man. He had flipped him in his calendar. Totally different case. He... You know, the judges were very nice to him.

They said, we've got some extra time. If we give you 10 minutes to bring up the correct case, are you prepared to argue that one? And he said, yes. Whoo! But are you prepared when argue that one? And he said, yes. Whoo. But are you prepared when you thought it was next week?

You are not. You are not. Unless you're the least procrastinating attorney in America. Yeah. Yeah. Oh, man. So on the one hand, like he's lucky it was a Zoom argument so that he was at his computer and he had all of his binders near him.

On the other hand, because it was a Zoom argument, we all now see it and can play it on repeat. It will make you deeply uncomfortable and fill in your new adult nightmare. Yeah. Oh my goodness. Okay. I know we're running close to long, but I want to talk about this. And I think the Supreme. And we'll get to the reasons. But here's the drama. So a number of you may remember the name Amy Chua. if you remember an internet firestorm of a decade or so ago,

she wrote Battle Hymn of the Tiger Mother. Yale law professor who made a name for herself as sort of like the most strict disciplinarian mother in the United States of America and who was imposing this... I don't want to get into the tiger mother stuff, but you get the picture. She created a huge outcry about parenting, arguably one of the most famous Yale law professors. Also in 2018 was a supporter of Brett Kavanaugh's. She has sort of a legendary reputation for placing students in plum clerkships, sort of a larger-than-life personality on campus. She's also married. She's sort of the ultimate Yale power couple, married to a guy who is sort of a powerhouse

Yale scholar who has had some controversy both in his scholarship and also has a Me Too investigation against him for sexual harassment that he denies vigorously, but he has been sanctioned by the university. And so now there's this huge controversy over whether or not Amy Chua is drinking with students and having students over to her house. And she has been punished by the law school for having students over to her house, allegedly having students over to her house in violation of, for example, COVID restrictions or more specific instructions to her to not have students over to her house. And okay, boring.

Didn't I just bore everybody to death? But the reason why I'm interested in this, Sarah, is the absolute, what it reveals about the absolute kind of petty vengefulness of the culture of this very elite institution. Because one of the elements of this is this text chain where apparently one student is trying to get another student to admit in a series of text messages that he's been to Amy Chua's house.

And that these text chains then get broadly shared throughout the law school community. And what it reminds me of, one of the things that I experienced when I went to law school was, so I'm kind of in a state of awe about the fact that I'm going to Harvard Law School and the majesty of the place and the history of the place. And then I'm not saying everybody, and I'm not even saying most people. Most people I met there were really like, were really lovely people, were great people. But there was a strain of pure vengefulness and pettiness that I had never encountered in my life. And above and beyond what I'd seen in other places.

like Yale Law School, the more things change, the more they stay the same. And I think one of the other things, another thing that I think that I've noticed, I don't think I've noticed, I've noticed is the extent to which there is sort of this strain of pettiness and vengefulness in American elite spaces that, you know, it's the ethos of Twitter in a lot of ways, is really troubling. It's really troubling. And this is a kind of thing that I think you see it in these Yale law students. I saw it in a subset of Harvard law students. And it's one of the things, not to get too broad about it, that undermines, like, you know, that gives a lot of people a lot of ammunition for this kind of anti-elite um populist moment i mean it's not based in nothing you look at some of this stuff people who are sort of on the apex of the pyramid absolutely scratching and clawing each other

in the most weird and petty ways because one person might be seen to get more of a leg up on a clerkship? Am I overreading this? I think there is so much wrapped up in this. I think there is gender. I think there is political affiliation. And I think there's absolutely this elitism aspect to it as well. The idea of attacking a law professor for drinking with law students is hilarious. I mean, truly the

most baseless idea that will end a whole lot of activities for law students on every campus. end a whole lot of activities for law students on every campus. I think that it is clear that you have some law students who are jealous of the relationship that they don't have with Amy Chua, who, as you said, can then get her students clerkships and that it is relationship-based and that there's something that feels very unfair about that. But I think what feels unfair about it is that she's helping conservative students. So for instance, during my time at law school, Elizabeth Warren had a whole flock of students. And I do mean like ducklings with a mother duck, following her around campus, walking her dog. And it was great. And she was more involved in their lives, in their careers, helping them out, publishing their papers, all of that stuff. And she was an incredibly powerful professor on Harvard's campus. It would never have occurred to a conservative student

to try to punish Elizabeth Warren or her students because you felt that somehow you were then being denied that relationship with Elizabeth Warren and therefore denied that career advancement. Did I have pangs of jealousy when my friends were like, oh, I'm going over to Professor Warren's house? Yes, because it was a beautiful house near campus and they were getting better food than I was in my frozen meal that night from my freezer in the microwave. But that's like that. Of course, they had that relationship and good on them. So I also think that the idea of attacking a powerful male professor at these campuses for mentoring students. male professor at these campuses for mentoring students. It just, it's been happening for so many decades. And the fact that there's a female doing it, and she does tend to mentor more female

students and conservative female students who are again, seen as traitors to their gender and are extra offensive to liberals. And I have experienced this. I have to say, I am treated different than my male conservative colleagues who, it's the vitriol that I get is hotter and more. And it's because I should know better, right? Like, well, they're white men. Like, of course they're awful humans, but you, you are in a special circle of hell. And I think that is a lot of what's going on here as well. And you can't discount that. And I also think you have Amy Chua's personality where she doesn't give an F what you think about her. And I think that that upsets the orthodoxy of a place like a Yale, Harvard, or anywhere else, because the whole thing is based

on what other people think about you. That's why you're there, because other people think that Yale is an important name. So, you know, then last, I would say there's this, you know, tallest piece of grass. She is famous. And so she gets additional scrutiny for that. And the tiger mom thing made a lot of people angry. Her daughter got a clerkship with justice Kavanaugh and a whole bunch of people upset about that because they thought that her daughter only got the clerkship because, uh, Amy Chua supported Kavanaugh during the confirmation. Um, I think that is, uh, for, I don't know any of those people who have been saying that, who know Amy Chua's daughter.

And unless you know her and her qualifications and want to say that she is unqualified for that clerkship, I don't care what you think. You are insulting this young woman who I, again, also don't know her, but may well have the best qualifications of anyone to get that clerkship. So sit down, figure out what you're talking about, know your facts. If she went to Podunk Law School and was in the bottom half of her class and then got a clerkship with Justice Kavanaugh, okay, I'm willing to hear that criticism.

But we know that's not who her daughter is. So, you know. I mean, she's an overachiever. She was raised by a tiger mother. That's right. So I think it's interesting the way that we watch reality TV shows about the Kardashians. Here's how the other half lives. And there's something kind of gross about it. And I think that conservative law students are so used to being in the trenches

and constantly fighting. I think it has gotten worse at Yale in the last few years for the Federalist Society members. And I think this is just another collateral attack on those students that, you know, they will weather, they will come out stronger, more bonded to one another. And this is the problem of going as a liberal to a liberal institution. You don't leave with those relationships and you don't leave with those connections and that community, that sense of community. And that's what has always bothered them about the Federalist Society because they've never been able to create that on the left. The American Constitution Society was created for that purpose. It can't serve that purpose because you don't have that minority status. In the same way that the Black Law Students Association has a

sense of community and the White Law Students Association doesn't exist for good reason. Right. No, you raise a pile of good points. There is, and this is something that's relatively new, there is a kind of Federalist Society envy slash resentment where there are people I've seen actually make an argument that there's sort of almost a conservative career privilege now. That if you're a conservative, it's easier for you to get the plum clerkship if you're a conservative at an elite institution. And you know what? It actually might be. Yep. Oh, I think it unquestionably is. Yeah, I do. And which is one of the reasons why the Federalist Society is growing a lot. And

not everybody in there is super committed to the idea. There's a careerist path now to the FedSoc that didn't used to exist. But the fact of the matter is, just as you said, when I was in law school, Elizabeth Warren had just arrived, so she hadn't become Elizabeth Warren quite yet. So she hadn't become Elizabeth Warren quite yet. But there were a host of professors who had the flock of students around them. One of them, Alan Dershowitz. If you were going to be working for Alan Dershowitz, you were kind of in an alpha position at the law school. Speaking of a professor whose house I've been to more than once and had many drinks there, no one batted an eye about drinking at Alan Dershowitz's house? a super close relationship with any professor. And I was fine with that. It was fine. I had other

great close relationships. I never even really thought of it. But one thing that I was keenly aware of was the yawning gap. Now, again, not everybody. The yawning gap between people with incredible privilege and potential power as soon as they were admitted to this school and their gap between their actual level of privilege and their perceived level of privilege. That this idea that these micro differences between different circuit court judges or different top, top, top tier law firms were going to determine everything about their future when the reality was that the fundamental, that sort of fundamental, incredible privilege

of graduating with that elite degree, they were just taking that completely for granted, like just completely for granted. And that never failed to kind of astonish me. And maybe it's because I grew up in the rural South and went to public schools in Kentucky and kept being like every... There was not a moment there I wouldn't walk through Harvard Yard that I wasn't like, whoa, this is Harvard Yard. But it was just remarkable to me the extent to which there was the dichotomy between an enormous amount of privilege and potential power in their hands versus the sense that

they were incredibly disadvantaged and oppressed. And I never got over it. And it's never really gone away in these elite spaces, and it leaks out in situations like this, that to other people, when they're reading about it, you're just like, what is wrong with you? But inside the school, inside the school, it is deeply felt emotion. And a lot of them carry that kind of mindset

all the way through their professional life, all the way through. We'll see how it turns out. Yep. All righty. Okay. So we'll be back Monday. I'm going to go out on a limb, Sarah,

and say we're getting multiple opinions Monday. Do you know how you know that it's time? It's because I'm now willing to stop predicting. And that, like, last year, that's exactly what happened, is when I was like, no, I'm done. That's when they all came out. So, I'm done. Yeah. Yeah. Okay. Well, get ready.

We're ready. But even if the Supreme Court continues to disappoint, we've got a lot going on and a lot to talk about. But until then, please rate us on Apple Podcasts. Please subscribe on Apple Podcasts. Please check out thedispatch.com. We have a lot of new content coming in. We've, goodness, we just had a dispatch meeting. We're growing.

We've got a lot of new folks working at the dispatch now. It's just now it's a really exciting time so go check out thedispatch.com and we will be back on Monday. Sarah? Signing out y'all Thank you.