Advisory Opinions - Supreme Court Dismisses GOP Immigration Rules Challenge

Episode Date: June 16, 2022

Sarah and David tackle six rather technical Supreme Court opinions released on Wednesday, including Ysleta del Sur Pueblo v. Texas, involving a Native American tribe. Plus: What does the term “mare���s nest” actually mean? Sarah sheds some historical insight and discusses the primary results in South Carolina and Texas with David. They also briefly cover the Southern Baptist Convention and a recent lawsuit in Florida: Does the right to life trump a religious exemption to have an abortion?   Show Notes: -Ysleta del Sur Pueblo v. Texas -The Sweep: The Value of a Trump Endorsement -Guttmacher: Long-Term Decline in US Abortion Reverses Learn more about your ad choices. Visit megaphone.fm/adchoices

And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC Cashback Mastercard? Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The clicker around the room! You guys just about finished?

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maple syrup on Halo Halo, Montreal style bagels eaten in Brandon, Manitoba.oba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore you ready i was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And Sarah, I have to say,

this is my absolute least favorite kind of Supreme Court decision day, where they hand down multiple decisions in highly technical areas in which I have no expertise. So good times today, Sarah. Good times. So I actually like days like this because you keep getting new presents. It's more like Hanukkah than Christmas. You know, like all the presents are small, but like you get lots of them. And because they came out every 10 minutes, we were basically opening presents till 11 a.m. I will admit, though, so the brisket woke up several times last night. And so I took what I'm now going to dub SCOTUS naps, where I slept for the nine minutes between several of the decisions. It is not a satisfying way to nap, and I do not recommend SCOTUS naps. David, before we get into the buckets of cases that we got from today, I had two corrections.

Well, one correction that someone sent and a good point. one correction that someone sent and a good point. We were talking about CBSGs in which you ask for the views, the Supreme Court asked for the views of the Solicitor General's office. And I said, I was, you know, like, obviously then they grant cert. And a very smart person pointed out that I was uncharacteristically glib recently about cert odds post-CVSG. I love that. It's a compliment within a correction. Uh-huh. Yeah. The reality is that a CVSG improves cert odds, but there is still a big difference in cert outcome between the SG recommending and not. You'd enjoy digging into the math. Uh, yes, I would. You're so right. And I was glib about it and yeah, I, I feel, um,

rightfully chastised and wanted to, to add that correction to everyone else. Uh, also David, this person totally unrelated made a really good point. He said in Canada, they have will issue laws about long guns, but it requires a firearms course before the issuance of a license to purchase. And just like driver's ed, it is neither immediate nor trivial. Why not add that to the debate? So perhaps David, at the very end of our conversation, we can circle back to that potentially. All right. Buckets of cases. Oh, but first, let's preview the whole rest of the podcast.

Oh, you're right. We have other things. Okay. We have other things. So we're going to go through a series of highly technical Supreme Court cases that you will not be interested in. Then we will talk about primary results that you will be interested in. Then we will talk about primary results that you will be interested in, a very interesting election result in the Southern Baptist Convention that is actually of national importance. And then we're going to end with some new statistics about abortion in the United States that, from my

perspective, are pretty troubling. So... I want to totally dispute your characterization of this first segment. Okay. Dispute away. That's why they're in buckets, David. Okay, okay. Only the first bucket is cases that our listeners

are going to care about. Convince me to be interested. Okay. So bucket number one, fine. I think David was rude to bucket number one, maybe a little too blunt about bucket number one. Bucket number one has four cases in it. Fair enough, David. Medicaid reimbursement that basically HHS doesn't get to simply ignore what the statute says and do what they want to reduce Medicaid reimbursement by $1.6 billion annually. Fair enough.

Congratulations, American Hospital Association. Number two. Oof, another arbitration case, but this one wait for bucket number two, listeners. I know I hear some of you mad at me about dismissing this arbitration stuff. But just wait. That arbitration case, though, that's definitely a bucket number one case. Number three, this was a little bit of a close call, but kind of not. So under the Hague Convention on Civil Aspects of International Child Abduction,

if a court finds that a child was wrongfully removed from a country, you know, you abducted a child and just took them to another country that belongs to the Hague Convention, you have to return the child unless basically they find that it would harm the child. Grave risk of physical or psychological harm. But this case was pretty fact-based on what you would need to show for that and how that would all work. So it seemed juicy, but, and frankly, these cases are really sad.

Yeah. That's a bucket number one. It was very sad. And number four, this is about when the VA, the Veterans Affairs Department, denies your benefits claim, you can seek collateral review from a federal court if there's been a clear and unmistakable error. The question is, when does it need to be clear and unmistakable error? What if the law changes later? Unfortunately for my amazing law school or undergraduate classmate, Melanie Bostwick, she lost that case on behalf of her VA petitioner. But congrats, Melanie, on having a very cool case

at the Supreme Court. And go Cats. All right. So that's bucket number one, David. Again, I think you were rude to bucket number one. I think you owe bucket number one an apology. But I'm not sure you were factually incorrect. But rude and blunt. That's my brand, Sarah.

No, that's my brand. You're the kind one. So bucket number two, we're edging up here in sexiness time. We're going to reach back. We said last week that we were going to go

back and review two cases, Shin v. Ramirez, the one we did on Monday, and an arbitration case. We did not talk about Southwest Airlines case, and we dismissed it improvidently, I would say, David. And we got some emails about it. And y'all were right. We were wrong. I lumped it in with all of the other arbitration cases, and there are way too many this term. But this one is a bucket number two arbitration case. Latrice Saxon's job includes loading cargo

onto airplanes. But does that mean that she is part of a, quote, class of workers engaged in foreign or interstate commerce? Ask SCOTUS blog. So actually, that's pretty interesting. Basically, the the federal arbitration act has an exemption if you're an employee who is a class of workers engaged in foreign or interstate commerce to me that would seem to be almost a rule or an exception that swallows the rule but it's been relatively narrowly applied right now it's applied to, so the full statutory language says contracts of employment of seamen, stop the giggling listeners, railroad employees, or any other class of workers engaged in foreign or interstate commerce. So on the one hand, Southwest argued that this only applied to workers who accompany goods across state or national borders, so seaman and railroad workers. On the other hand, Saxon argued that it basically includes all airline workers because you're dealing in the

commerce of interstate traffic of goods and people. The court basically rejected both and frankly has left this question pretty wide open. Saxon won, meaning that someone who loads and unloads cargo is engaged in that interstate commerce, but they seem to very much reject the idea that someone who takes tickets at the counter at the gate would be involved and exempt from the Federal Arbitration Act. And the reason this case is a bucket number two case is because Amazon last mile delivery drivers, Grubhub, there's a whole bunch in our commerce right now that is somewhere in between all of this. And so people were looking at this case to determine what types of workers would be exempt from arbitration clauses

in their employment contract. And I would just say that the answer after this case is shrug emoji. We're not totally sure. So can I just say for a minute, with all due apologies to those listeners who demanded that we talk about the Southwest case, that bucket one is a low class of bucket. If that was bucket two.

David, so rude today. I'm so sorry. Here is the other case in bucket number two. Let's see if this gets your juices flowing a little better. This is on bingo. Do you play bingo, David? I have in the past, but at my advanced age, I expect I'll be playing it more in the future. So this is, in some ways at least, a case about bingo, but it had an

interesting split. Gorsuch delivered the opinion of the court with Breyer, Sotomayor, and Kagan, and Barrett. And then you had Roberts, Thomas, Alito, and Kavanaugh. So really weird 5-4 split. and Kavanaugh. So really weird 5-4 split. And David, I'm curious if you can guess what this case is about, that you would get Gorsuch writing for the Five with the liberals. What topic splits Gorsuch off the most? Not a hard question, but I have to say that I'm cheating because I'm like literally looking at the opinion right now. But I didn't need to see this opinion to know as soon as I read that a lineup, we're dealing with a Native American tribes issue. Um, right. So basically the question is whether Texas law, which would prohibit certain types of gaming on tribal land, well in Texas, that would include tribal land should apply to that tribal land or whether in fact they are exempt from Texas law. And, uh, as Roberts points out pretty convincingly in his dissent, um, the language. So in order to obtain federal trust status, the tribe agreed that Texas's gambling laws should apply on its reservation.

Congress passed a bill codifying this arrangement. The key statutory provision states, quote, all gaming activities, which are prohibited by the laws of the state of Texas are hereby prohibited on the reservation and on lands of the tribe. Roberts says a straightforward reading of the statute's text makes clear that all gaming activities prohibited in Texas are also barred on the tribe's land. prohibited in Texas are also barred on the tribe's land. Gorsuch says that historically, there was a distinction between state prohibitions and state regulations. And this is where bingo comes in. Because California tried to do this. They allowed bingo for charitable purposes, but it was otherwise banned in the state. And when a tribe tried to start their own bingo for charitable purposes, but it was otherwise banned in the state. And when a tribe tried to start their own bingo games that weren't for charitable purposes, California said, well, that would be banned if it were anywhere else in the state.

And the court said, well, no, because you already have this. You're not banning bingo. You're regulating bingo. The regulations don't fall under that type of language. Only prohibitions do. David, did you have a strong feeling about who had the better argument here in the 5-4? No, although I have to say I don't have a strong feeling about who had the better argument, but my heart is generally with Gorsuch on this because he seems to be a guy who grasps sort of the totality of the history. He's really into the history. And once again, this was a walk through the very messy, not real great history going back to 1845 when Texas becomes a republic and the back and forth with the tribes that then moves through till 1987. He does a full survey. And Gorsuch seems to take a position that the history doesn't give you the benefit of the doubt in the statutory interpretation.

And I find his approach pretty compelling, although I felt this was a close case. Definitely a close case. Definitely a close case, and Roberts has the better statutory read, obviously, but I am exactly with you that sometimes statutory reads have to give way to historical expertise, and I just trust Justice Gorsuch more on these issues. But interestingly, that he couldn't convince anyone else to join him from that group of four law or the weird history of how you got here. The text says what it says. Here's what Congress meant is what it is. More surprised that he didn't get Kavanaugh.

More surprised that he didn't get Roberts. Are you surprised that he got Barrett? I just, I still feel like we don't know Justice Barrett very well. Yeah, I agree with you. I completely agree with you. Completely. So we're learning. Like every case, it adds new data into our little computer systems. One thing we are learning is that she is not just a part

of a block. No, no. Yeah. Yeah. Fascinating. Okay. So that's bucket two today. Yes. Now, Arizona. Woo-hoo! Bucket number one, full sexiness alert. What? Oh, no. No. No, that's a way overstatement. No, I would say— No, David, this case was my number five, like four or five case this term. Okay. Okay.

Unfortunately, the resolution, I will agree, lowers the skirt a little bit, if you will. I don't know why that cracks me up so much. All right. So a reminder, folks, this is the public charge rule in which 19 Republican states try to intervene after the Biden administration tries to do some like really impressive Top Gun style maneuvers to get rid of the public charge rule without going through notice and comment rulemaking. The oral argument, which we talked about for a full episode, was messy. Everyone got hammered with messy, complicated questions from the justices. Very hard to read where the justices were going, except that they were deeply annoyed with, frankly, everyone for screwing up

this case. If you remember, Attorney General Mark Brnovich, who is running for Senate in Arizona, argued the case. I said I thought that was a mistake, that this was such a messy technical case that you really wanted a Supreme Court litigator arguing this. Drum roll. Percurium opinion, meaning it's unsigned. The writ of certiorari is dismissed as improvidently granted. That's a dig, dismissed, improvidently granted, granted. That's a dig dismissed improvidently granted, D-I-G. Interestingly, the past tense of that is not dug, digged. So the case was digged. And I think the thing that's really interesting about this outcome isn't the digging, it's the Roberts concurrence, which really very nicely lays out kind of the fast one that the Biden administration

is getting away with here. But also the procedural screw up that Arizona did. Yes, yes. But the bigger issue, sort of the bigger issue beyond the procedural screw up is, okay, you have a rule that was promulgated through notice and comment rulemaking. This public charge rule, this is a matter of real national importance, promulgated through notice and comment rulemaking according to a statutory process. Then there's a judgment entered against the rule that, and the Biden administration, to be clear, doesn't like the rule. It would want to repeal the rule. Now, normally to repeal a rule, you have to then go through notice and comment rulemaking

to repeal the rule. It is a slow and relatively painful process. It takes time. But hey, what if a judge has ruled against the rule, has blocked enforcement of the rule? here's one way to do it. Let's just not appeal the judgment and then wipe the rule off the books. It's so kind of an interesting approach here to sort of say, okay, in lieu of notice and comment rulemaking, we're just going to get a ruling that we're not going to appeal a ruling we like and use that as a pretext to wipe the rule off the books. Pretty clever stuff. Not sure it's ultimately lawful as Roberts raises, but this is not the case to decide it. Yeah. And he listed the reasons without actually even going through them, which would have made for a very longer, very much longer concurrence. These maneuvers raise a host of important questions. The most fundamental is

whether the government's actions, all told, comport with the principles of administrative law. But bound up in that inquiry are a great many issues beyond the question of appellate intervention on which we granted certiorari. Among them, standing, mootness, vacature under United States v. Munsingware, the scope of injunctive relief in an APA action, whether, contrary to what the government has long argued, the APA authorizes district courts to vacate regulations or other actions on a nationwide basis. How the APA's procedural requirements apply in this unusual circumstance. It has become clear that this mare's nest could stand in the way of our reaching the question presented on which we granted certiorari, or at the very least, complicate our resolution of that

question. I therefore concur in the dismissal of the writ, but that resolution should not be taken as reflective of a view on any of the foregoing issues or on the appropriate resolution of other litigation pending or future related to the 2019 public charge rule, i.e. We're granting cert here real soon. Looking at you, Seventh Circuit. Sarah, I have a question. What is a mayor's nest? Sarah, I have a question. Uh-huh.

What is a mare's nest? I'm so glad you asked that, David, because actually I thought that the Chief Justice was misusing the term. Hmm. I, of course, am wrong, as could be expected when the Chief Justice uses any term. But mare's nest, etymologically, refers to something that doesn't exist. Female horses don't have nests. It's supposed to be an illusion, a hoax. Hmm.

But it has a second meaning. A mare's nest, like a tangle, a mess. Okay. I assume that comes from the idea that if a mare did have a nest, it would be really big and hard to get through. a nest, it would be really big and hard to get through. So he is, I assume here, using the second meaning of it and not the first meaning about the hoax. Yeah. But the phrase mayor's nest, I will have you know, goes way, way back, like 16th century stuff. Huh. 1576. I've heard it, but never knew what it meant. 1576. Yeah. That's really precise, Sarah, to date it back to a specific year in the 16th century. Yes, it was a translation of a version of Italian John della Casa's Galateo in 1576. nor stare in a man's face as if he had spied a mare's nest.

Huh. Why dost thou laugh? What mare's nest hast thou found? Said John Fletcher in 1613. The joke was pushed further by Jonathan Swift in 1751. What, have you found a mare's nest and laugh at the eggs? Now, okay, I'm beginning to get it now. I'm beginning to get it. But the Chief Justice Roberts' meaning doesn't appear until the mid-19th century,

and it looks like someone didn't understand the original meaning, since it is not intuitive, and thought it was a rat's nest, like just thought it was another phrase for that. And so that's where it comes from. Here come the carrots making their way upfield, followed by the whole wheat bread over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback mastercard. Oh, and the broccoli boots it over the line. What a goal.

How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback mastercard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. Okay, we're transitioning from the court. So Sarah, take off your SCOTUS analysis hat, put on your Republican and national politics analysis hat, and let's talk about a few things that have occurred over the last, or since yesterday.

over the last, or since yesterday. South Carolina had some primaries in which two representatives were up for vote. Tom Rice, who voted to impeach Trump. Nancy Mace, who voted to certify the election but did not vote to impeach Trump. Tom Rice loses. Nancy Mace wins. This is coming on the heels of the Georgia Republican primary, where Tom Raffensperger won, who was directly defiant of Trump in the election steal effort. Brian Kemp won, who upheld Georgia election law and blocked Trump's effort to steal the election,

but was not so in his face defiant as Raffensperger. Optimists were hoping that Tom Rice would pull this one out and we would begin to see some slippage of the Trump grip. Lol. And Tom Rice lost. But Nancy Mace won. So, Sarah, translate this for us. Well, it's like we've seen in Ohio and Georgia.

There's just going to be a lot of other factors that come into these things. Trump clearly does not have the pull where his word is infallible, and that's all that's going to be told about this. At the same time, clearly his endorsement will carry some weight. So think of it as a tide of some kind that you've got to overcome. In this case, obviously, Tom Rice voting for impeachment could be one factor since Nancy Mace didn't actually vote for impeachment. But frankly, I think that a big factor is that Nancy Mace had a whole bunch of endorsements from the likes of Nikki Haley,

Mick Mulvaney, the former chief of staff to Donald Trump. And again, the folks over at Echelon Insights, Patrick Graffini published this. They did some really interesting data analysis where you ask, let me see if I can explain this in a way that people understand. Instead of polling people and asking them how much Trump's endorsement matters to them, instead you give them multiple candidates with different things that they have going for them. And so this candidate, you know, likes gun rights, is endorsed by Trump, and has worked as a CEO for the last 20 years. This candidate was endorsed by the governor of the state, worked as a teacher for two years, and doesn't like gun rights. And anyway, you do a whole lot of those. And in the end, you're actually able to separate out which individual traits

meant what in a percentage calculation. And it's a really effective way to start pulling some of that data out. Interesting. So what they found was that Trump's endorsement was worth a whole lot if it was combined with everything else, meaning they had all of the local Republicans endorsing as well. What they also found, though,

was that Trump's endorsement was almost entirely wiped out if all of the other local Republicans endorsed someone else. Interesting. Not surprisingly, you know, business experience mattered in the Republican side, whereas certain issues mattered more on the Democratic side. It's really cool. I'll put the full study results in the show notes. But that's all to say this race actually bears that out exactly.

Nikki Haley, their former governor, Mick Mulvaney, former congressman and former Trump, you know, chief of staff said, no, no, keep Nancy Mace. That would look different than in the Tom Rice race. You know, and also it's interesting. So Trump went after Mace. Mace didn't just vote to certify, voted to certify, and then went on national media and said, you know, very loudly and plainly that she did her constitutional duty. So sort of put amongst the smaller constellation of Republican Congress representatives who voted to certify the election, kind of put a target on her back a bit, but did not vote to impeach. But she's also in this interesting bucket of Republican legislators who goes hard after the Marjorie Taylor Greene types. And so she's kind of like, I kind of put

her in, since we were just talking constantly about buckets today, I kind of put her in, since we were just talking constantly about buckets today, I kind of put her in like the Dan Crenshaw bucket, which is going to certify the election, not going to be directly confronting Trump, but is going to directly confront some of the crazier elements of the party, therefore putting an interesting and somewhat different kind of target on you. And also, I think there's just a difference between South Carolina and Georgia, Sarah. Who knew? Hey, David, actually, I pulled up the numbers on that study I was talking about. Some of the other ones are interesting because, again, it fits with what we've kind of been seeing playing out in this primary. OK, so a candidate who is endorsed by

Donald Trump and by other local Republican leaders, plus 29 percent, a candidate who is endorsed by Donald Trump, but not by local other Republican leaders, plus three percent. So, again, David, it's a bump. It's a little bit of a hurdle for someone like Nancy Mace, but a hurdle that an incumbent like her can overcome pretty easily, all things considered. Interestingly, is endorsed by neither local Republican leaders nor Donald Trump, minus 22%. CEOs get a 9% bounce. Is a public speaker or talk show host? Negative 17%. And yet, looking at you, Pennsylvania, combat veteran plus 6%. The rest of these are relatively low. The Democrat one, though, David, is really fascinating and actually why I wanted to

revisit this. Endorsed by Joe Biden and Kamala Harris, plus 14%. And again, compare that to that 29% Donald Trump number with other local Republican leaders. Just not nearly as meaningful the hold on the party that the current leaders of the Democratic Party have. Endorsed by Bernie Sanders, plus 5%. Now, this is across Democratic primary voters. Endorsed by Elizabeth Warren, negative 10%. Endorsed by Alexandria Ocasio-Cortez, negative 12%. This is fascinating, Sarah. This content right here is worth the whole podcast. Is a white man negative 12%? Is in their 60s or older negative 12%? Yeah, so is a member of the LGBTQ community plus 6%? Was in business, negative 6%. I mean, a lot of these aren't going

to surprise you, but I thought the Elizabeth Warren and AOC numbers were interesting because it tells you where the median Democratic voter is. And remember, they're not being asked this question. What they're doing is not realizing the question being asked as they're reviewing basically resumes of potential candidates. And it's going to turn out that as they read these candidates resumes, every time they see endorsed by Elizabeth Warren or endorsed by AOC, it's conjuring up all of these other things in their head that they don't like in a Democratic primary candidate. So anyway, think of that as these primaries continue. And as we start looking at the fall as well and where that median Democratic voter is.

So let's do another election on another. Let's do another election sort of that's broadly on the right side of the spectrum before we move on to the Texas special election. But yesterday, Southern Baptist voted for a new president. Now, why does this matter? You say if you're not a Southern Baptist voted for a new president. Now, why does this matter, you say, if you're not a Southern Baptist? Well, this is the largest Protestant denomination in the U.S. It is very influential beyond its 13.7 million members. That's a lot of members. But it's very influential beyond that.

It's very influential because if you have a critical mass of sort of one evangelical culture, it's going to have a sort of a radiating effect into other smaller evangelical cultures. And also, it really punches above its weight intellectually because the SBC has a network of very impressive seminaries. So it's just churning out a lot of highly educated, super articulate pastors, seminarians, professors. And so it's a very culturally consequential institution, even if you've never darkened the door of a Southern Baptist church. It has real influence in the United States. And it pretty resoundingly, so last year, it very narrowly defeated a challenge from a group called the Conservative Baptist Network. This was a coalition of very, very, very, I would say,

I don't like to say very, very conservative because there's not many moderates in that room, Sarah. There's not many moderates in the way that people would define a moderate in the United States of America in that room. It's two different kinds of religious conservatives. One, I've phrased the differences between evangelicals and more fundamentalist folks, but they're more fundamentalist folks who have very deeply intertwined politics and religion. Just to give you an example, this group, Conservative Baptist Network, which put forward a guy named Tom Askell as president, one of their speakers yesterday before the vote was none other than Turning Point USA's Charlie Kirk. So that sort of tells you where they're coming from, not just ideologically, but in their view of politics and religion.

And it's not that the Baptists that defeated them are divorcing politics and religion. They're mainly Republicans. They vote. They're concerned about social issues. But really what you're talking about is they really do not want to define their faith through the political prism. They tend to be a bit more ecumenical. And so it's really an interesting, I kind of parallel it in a way, Sarah, bear with me here on this comparison with the San Francisco recalls. So this is where you have my theory of defeating extremism is that only the right can defeat right-wing extremism and only the left can defeat left-wing extremism. And I think what you've seen in the San Francisco recalls,

because that's not conservatives voting out the San Francisco school board of the San Francisco DA, it's progressives. So this is progressives reforming a progressive bastion. And what we're seeing in the SBC is evangelicals reforming an evangelical bastion. So this is right reforming right and left reforming left. And I think both of these things are quite healthy.

And when I say reforming, it's not just the defeat of this fundamentalist, Charlie Kirk-esque individual. individual. It's also, these are the same messengers, many of the same messengers who approved the report, the production of the report that blew the lid off of sex abuse cover-ups in the convention, and then just approved overwhelmingly recommendations from the Sexual Abuse Task Force to reform the convention itself. So this is a really, I just want to put a pin in this. We talk a lot about some negative things that occur in politics and culture, but this is a really positive thing. This is a really positive thing. I feel like there are shoots, signs of life and signs of reason that are arising in super important bastions, both on the right and the left. Shall we move to Texas? Texas. So this was

not a primary. This was a special election in Texas's 34th congressional district. To give you some idea, it runs from just east of San Antonio all the way down to the border at Brownsville and over just a little, almost all the way to McAllen. So it's a long, narrow one. The district is 85% Hispanic, not surprisingly. Median household income, $42,000, which I'm now just reading off Wikipedia. Okay. So this person who wins will only represent the district until January because there will be a new election held in November. Nevertheless, it was a democratically held seat. Joe Biden won it by four points in 2020 and a Republican won it this time, including she carried by one point a county that Biden had, in fact, won by 13 points less than two years ago. Now, Republicans are out there saying, see, wow, look, Hispanics, Texas,

huge wave coming. So let me give you some caveats on this. Democrats had basically written off this seat because they were going to have to relitigate it for November anyway. Now, you could say they wrote it off because they knew they weren't going to win. I'm very open to that possibility. But whereas she raised seven hundred and some thousand dollars, he only took in forty six thousand dollars. She had a million dollar TV by done by sort of allies, outside allies. He had nothing. And with all the results in, she has won 50.1% of the vote, which as you know, in Texas is 0.1% that she needed to avoid that runoff. So wow. He got 43.5%. So about a seven point

difference there. Now, the other interesting thing to note for November is that this election was held under the old district lines. The November election will be held under the new district lines, which has added in more Democratic votes. So that seven point gap that she has today shrinks for a few reasons in November. One, it's going to shrink because they've added more Democratic votes. Now, as we've seen, not all those Democratic votes can be counted on as Democratic votes anymore. But two, the types of people who are going to come out in a special election in June at the border, going to look a little different, I think, turnout-wise than folks who are going

to turn out in November. Speaking of turnout, holy smokes, was it low. Yes, she won with 14,000 votes and he had 12,000 votes in a district. I mean, all districts, right, have roughly 730,000 people. Yeah. To put that in perspective, my congressman, Mark Green, won his 2018 race. So let's not compare with a presidential year of 2020. of 2020. But in 2018, he won his race that was not really contested, to be honest, with 170,000 votes. Yeah, I mean, it's actually pretty funny because, as I said, the district's 85% Hispanic. Republicans touting this as a huge win in the Hispanic community and along the border,

touting their immigration policies. 14,000 people, I'm not saying this is the case, but could literally all be white in that district. They're not. They're not. They're not. And she will actually become, the Republican who won, the first Mexican-born Congresswoman. So that's exciting. Oh, that is interesting. That is interesting. Yeah, but one other thing about this, and again, okay, here's the caveat. I recognize it. When I looked at, when I first saw the headline and I saw a Republican wins this district, Biden won the district. And I was like, oh, more evidence that this sort of idea that if, as America becomes more Hispanic, it's going to become more democratic,

America becomes more Hispanic, it's going to become more democratic, disproving that thesis, which I fully disagree with that thesis. I do not think you can just draw the straight line to more Hispanic members, you know, more Hispanic citizens is going to mean America being more democratic. I just, I disagree with that. I think you cannot draw those kind of sweeping conclusions about the Hispanic population in the U.S. But my idea that this was further evidence that I was right was tempered by the fact that she won with 15,000 votes. She might win in November, but we'll see. I don't know. I just think it's so hard to predict anything based on those low, low turnout numbers and the other side giving up.

Yeah, yeah. That's a remarkable idea that someone can become a member of the United States Congress with 15,000 votes. with 15,000 votes. I also find it fascinating that the Democrats didn't put up a fight in this because it's really, really smart. And normally I don't see either political party making smart decisions. So because she can only vote until January

based on this win alone, it doesn't affect their majority at all, really, in any meaningful sense for six months of votes. And so why spend a million dollars that you can put towards the November race for a press release? Yeah. No, it's interesting. I hadn't, that was, this is why you tune into advisory opinions. You know why? Because that opinion was not on Twitter last night. Twitter was hyping this thing. Twitter was hyping it big time. And we'll take a quick break to hear from our sponsor today, Aura.

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this is rough. Okay. Many people have heard me talk about this, seen me write about this, but the story of abortion in the United States of America has been one of nearly uninterrupted, just with a few little minor blips, but nearly uninterrupted decline in the abortion rate in the U.S., both in rate, rate, in ratio, in numbers. And what we just saw happen in the Trump presidency is an actually materially significant increase in the number of abortions in the U.S. There were 8% more abortions in 2020 than in 2017. And so this is the first, I believe this is the first presidency that has since Reagan that has ended with more abortion, a higher rate of abortion than when it began, which is a big change. That's a big, I mean, you're talking about a reversing of a 40-year trend. And so, you know, we haven't had a chance to dive into all of the reasons for it, but it does appear that expanding Medicaid coverage on abortion care,

that I'm reading, I hate that phrase abortion care, I'm just reading from the Guttmacher study, but expanded Medicaid coverage of abortion did increase the number of abortions. And there's some indication, you know, again, take some of this with a grain of salt, that the Trump-Pence domestic quote-unquote gag rule slashed the Title X family planning network's capacity and reduced the number of contraceptive clients. So that meant that some people in states lost access to low or no-cost contraceptive care, which could have resulted in more unintended pregnancies and greater demand for abortion. This is very complicated. Anytime you're talking about a major change or significant change in a complicated cultural phenomenon, you're not going to see monocausal explanations. But I just found that I knew this was coming. I had a sense this was coming, Sarah, because CDC abortion numbers, which do not cover all 50 states,

had been ticking upwards. But I was waiting for the Gtenmacher study because it covers all 50 states. And I was expecting it to mirror the CDC, but to actually see it mirror the CDC is pretty dispiriting. I hadn't seen this this morning before you pointed it out to me. So you've had a little bit longer to look at it. What are your thoughts? What are your thoughts? So to me, there were three factors that sort of were worth considering. One, that the abortion pill now accounts for over half of abortions and how that's going to affect overall the idea of abortion morality, the idea of abortion access. You know, taking a pill is pretty different than going in for a full procedure

when you like sort of look at your own maybe ethical code. And two, it makes it a lot easier. Next was COVID, you know, abortion clinics having to close or people staying home or frankly, people not having sex. And then three, that Medicaid access. I mean, some of the numbers on this were staggering. You know, New York saw a slight uptick in abortions from 2017 to 2019. But Illinois began allowing Medicaid funds to pay for abortions in January 2018 and saw a 25% increase. Now, interestingly, at the same time, in Missouri, abortions decreased substantially. And a lot of those people were going to Illinois. Yeah. That's... So it's not that everyone in Illinois suddenly got an abortion. It's that Illinois became

a haven for abortion procedures. Yeah. That's what makes some of these state numbers a little squirrely because Tennessee used to have a very, a really pretty high abortion rate that was an artifact of the reality that Tennessee's state Supreme Court had interpreted the Tennessee Constitution to be very broadly protective of abortion rights. And so it became an abortion destination for people who lived in states close to Tennessee. And then the Tennessee abortion rate, as I understand it, began to slide back down to more sort of the Southern norms as the Tennessee population reversed, passed a constitutional amendment that reversed that Tennessee Supreme Court ruling. But yeah, one of my first questions when I heard the 25% with Illinois was, what about movement of people from state to state to obtain abortions? But I think the bottom line is, that's distressing to me, is that the abortion, long-term abortion decline was primarily not a result of legal changes. Although legal changes, I don't say that legal restrictions have no impact on

abortion rates. Obviously they have some impact on abortion rates, but when you have a decline that big, that for that long, that's nationwide, what you're looking at is a change in demand for abortion. Just fewer people wanted to get an abortion. When you see that flip, there might be legal quirks here and there, but there was a change in the demand. There were just more people who wanted to obtain an abortion. And that is a cultural reversal in the United States that's, I think, really important to look at. And quite frankly, Sarah, you're kind of beginning to look at, if you go out of the Trump presidency, if you take a look at what was happening going into the Trump presidency and you look at what's going on going out of the Trump presidency, it is shocking the number of social indicators that got much worse.

Violent crime, much worse. Opioid deaths, much worse. Suicide, worse. Abortion rates, worse. worse. It's pretty remarkable that the reversal of these social indicators. And it's worth thinking really hard about why did all of them go south in roughly the same period of time? Okay, David. Well, we have a new case filed in Florida about abortion, filed by a Jewish group claiming that Florida's abortion restrictions violate their religious rights, claiming that under Jewish law, they can seek abortions for the well-being of the mother, and that therefore their religion requires access to abortion beyond Florida's restrictions. We've gotten several questions about whether this is a real lawsuit or not so much. I mean, it's a real lawsuit in

the sense that it was filed. That's not what they meant. I know. I know. The reason why I don't believe this will prevail is that the religious liberty argument is going to flounder on the understanding that the life in the womb is going to have, especially in a post-Roe world, that it's going to be acceptable for the state to recognize the independent life interest of the life in the womb. independent life interest of the life in the womb. So traditionally, my religious liberty is going to end when it infringes upon your legally protected interests. And so if the state grants legally protected interest in life for a 15-week-old baby, a 15-week-old unborn baby, then I do not, I'm not going to have a religious liberty interest that's going to be able to trump that interest in life. Now, and so that's where the difference lies. This is not sort of like a medical procedure that is purely affecting only one individual, where you would have a stronger religious liberty interest. But if the state recognizes the right to life of the 15-week-old baby, unborn baby, then your religious liberty interest is going to run up against that brick wall.

Don't you also think, though, that when you look at Church of the Lukumi Babalu'i cases, church of the Lukumi Babalu I cases about when a generally applicable law can be exempted for religious practice that even if lemon is a zombie haunting our journey, Smith, Smith, uh, no, wait, what do I mean? Smith? Yeah. You mean Smith, even if Smith is Even if Smith is... I mean Smith. Yes, yes. Yeah, you definitely mean Smith. You know, when zombies are in advanced state of decay, it's really hard to tell them apart. I know. That even if the Smith test, which is the...

This was about using peyote. Mm-hmm. Fine. Even if that test is maybe going by the wayside and we'll get a new test potentially or something coming out of this Coach Kennedy case, that this is going to be exactly the type of law that you can't just claim a religious exemption from? It's about as, I mean, it's going to be, even under the revised Smith analysis, if you're going to have a 15-week ban, what they would have to

say to expose it to strict scrutiny is that any exceptions for say the life or health of the mother render it not generally applicable. That's a tough one to make. Tough, tough case to make. And unlike in the Babalu case, which is about animal sacrifice, so that involved an ordinance out of Florida that forbid the unnecessary killing of an animal in a public or private ritual or ceremony, not for the primary purpose of food consumption, that was clearly targeted at a religious practice. This is not. Right. Right. True. So I don't think it goes anywhere. I think your reason works and my reason works.

But it is- I think my reason will be the reason of the court. I think you're probably right. My reason is more philosophical. Uh-huh. Yeah. But- Yeah. Look for a judge quoting Sarah on Advisory Opinions, not David. All right, last question, the one I started with. Canada has a licensing requirement and a firearms course that you have to take, but then they have will-issue laws.

However, they don't have a Second Amendment. Would a licensing requirement violate the Second Amendment in your view, David? That is an interesting question. Let me give you my answer based on what I think New York State Rifle and Pistol is going to say. I think that a will-issue regime, a will-issue regime that has a reasonable process, in other words, reasonably expeditious process, would be constitutional. In the same way that a will-issue handgun carry permit regime is constitutional, that I think the court would find that. Now, the devil would be in the details if you have a licensing scheme that is so onerous that it delays your ability to promptly obtain means of self-defense, introduces a degree of subjectivity that would belie the sort of will issue aspect of it.

But I really think that I'm pretty convinced, and I could be totally wrong, and if I'm wrong, I will open the podcast by going mea culpa. but I'm pretty convinced what the Supreme Court is going to do in New York State Rifle and Pistol is basically outline a second amendment that provides for a right to keep arms in the home and provides for a right to bear arms out of the home, but also provides for a pretty wide range of state regulation, provided that my right to keep and bear arms is not denied on a subjective basis. In other words, that I have to prove a need, that I have to prove, you know, I have to prove to somebody that I'm, that I have to, you know, in the shall issue or in the may issue states, you typically have to

prove a need. But something that puts my ability to obtain a weapon and the subjective determination of a government official, that will be struck down. But a process that has objective criteria, that has a will issue component to it, if you pass the objective criteria, I'm going to predict would pass constitutional muster with this court. I think so, too. No problem. Mm hmm. Well, that was shorter than my long answer. I just wasted everybody's time. Yeah, sure. But I wanted to explain because I think a lot of folks don't realize the extent, especially gun owners and people who are very educated in gun rights, they don't realize that your gun rights are almost entirely right now, because the Supreme Court of the United States has really only defined

a pretty narrow range of gun rights, a very narrow range. Right now, it is a right to have a gun in your home for self-defense. That's your Second Amendment personal right right now. Everything else is dicta, and the Supreme Court's going to decide whether it expands that with a right to bear arms outside the House, which I think they will, but it's not going to be anything goes. It's not going to be close to anything goes. And another point worth making, you could not have a licensing regime for speech, for instance, but we do have permitting for some speech. And in this, I think the second amendment is different than the first amendment in terms of a licensing regime and the reasons behind it and the onerousness of that regime on exercising the right. But I think the permitting type regimes in the First Amendment context are pretty analogous to a licensing regime in the Second Amendment context.

And when you could have them, how, you know, there'd be a point at which you would make them unnecessarily onerous, unnecessarily restrictive, things like that. But of course, David, as Judge Kevin Newsom has pointed out, our First Amendment law and our Second Amendment law are so wildly different right now. And I know you want to sort of merge this time, place, and manner type world together, but something's going to have to happen to make those more similar because they're two weirdly, totally different right now. You know, and for those who say, well, wait a minute, if I can't have licensing for the First Amendment, why would there be licensing for the Second Amendment? We don't say, for example, that

felons can't exercise First Amendment rights, but we do say that felons can't exercise certain kinds and categories of felons can't exercise Second Amendment rights because as much as I think there are First Amendment elements and First Amendment doctrines that could be instructive as we construct a Second Amendment jurisprudence, at the end of the day, they are different liberties. They are different liberties. For instance, you still have to have a building permit to build a church. Just because it's a church doesn't mean that you get to say, First Amendment, blah! But then there's some

restrictions on zoning or on various other height restrictions, etc. So anyway, an interesting question and well done Canada. That seems like a good thing you got going. I'm not going to extend the podcast, i'll just add my uh to that so fine fair enough

so we have 18 opinions to go that's a much more manageable number while still getting the supreme court out potentially for july roughly speaking we probably have four or five more hand down days for those 18 opinions, about five of which are bucket one cases, leaving about 13 of which which will be split between. Sorry, I meant bucket three. Yeah, the top bucket, 13 of which will be split between buckets one and two. Yeah. So, Sarah, I have to say we turned five boring Supreme Court cases into a pretty fun podcast. You always think that. I always think that. Well, if you agree with me, listeners, that this was a good podcast, please go rate us

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