Advisory Opinions - Supreme Court is Back

Episode Date: October 5, 2021

On this week’s episode, Sarah is back from the Galápagos Islands just in time for the Supreme Court’s fall term. David and Sarah jump right in, starting with a rather spicy speech from Justice Samuel Alito. Our hosts also discuss a case with conspiracy theorist Alex Jones, a professor who is suing UCLA, and the high court’s upcoming cases. Show Notes: -From SCOTUSblog: Alito blasts media for portraying shadow docket in “sinister” terms -Why I Am Suing UCLA, by Gordon Klein at Common Sense with Bari Weiss -Justices add five new cases to their docket from “long conference,” including Cruz campaign case -SCOTUS oral argument schedule -Wikipedia page on Baphomet Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French, and welcome back, Sarah Isker. You are in the Galapagos Islands. David, it was incredible. It was the best trip I've ever taken. Not even close. So it's hard to think of highlights. not even close. So it's hard to think of highlights. So first of all, um, the trip was sort of like a family friendly Cialis ad. Um, we were, it was mostly retirees,

um, but like really active, awesome retirees. So we just had the most fun with, um, our people on our ship and, um, highlights. I don't know, like the snor our ship and highlights. I don't know, like the snorkeling was incredible. The water was so cold, I actually hyperventilated. We had people get mild hypothermia. It was 62 degrees. We did wear wetsuits, but it wasn't enough. But in exchange for the unpleasantness of hopping in the water,

I got slapped by like a 20 foot Manta and spent like 15 minutes with just like me and a sea lion playing in the water, you know, going, you know, upside down and making circles. And we just had, she and I had the best time. That's unbelievable. Now, do you fly directly to the Galapagos islands or do you? Oh, goodness, no. So, DC to Miami to Guayanquil, which is an Ecuadorian sort of port city, and then Guayanquil to the Galapagos, and then a a short little Zodiac ride to our boat. It was 38 people of passengers, I guess, on the boat. Yeah. That's fantastic. And so you spent the whole week on this little boat?

Yeah. Oh, man. That sounds great. That sounds amazing. I mean, we had internet in a technical sense, but like 1988 internet, which was great. You could, you know, if you had an emergency, okay,

you could maybe send a text, but that was great. If you had an emergency, okay, you could maybe send a text, but that was it. You weren't getting or sending photos or big emails or anything like that. So it was awesome. Totally unplugged. Oh, that's amazing. So my dream vacation,

one I'm wanting to take with my son, and we intend to do it, we're going to fly down to, I believe, Buenos Aires, and then get in a boat and go past the Falklands, South Georgia Island. And if it's good enough weather, you spend the night in Antarctica. Well, I just want to tell you, there's another place to see penguins. Do you want to know where it is? Where? It's the Galapagos. It is the only penguin that goes north of the equator. And it's the Galapagos penguin.

And there's only 2,000 in the world. But we saw at least a dozen of those 2,000 in individual little settings. So, you know, we saw a good percentage of the entire population of Galapagos penguins. That's amazing. That sounds like just an incredible trip. Well, while you were having the time of your life, Sarah, I was on the struggle bus back here in the United States of America. I did a podcast on Monday. It was good with Greg Lukanoff. I mean, Greg is no Sarah, but it was a good podcast. And then on Thursday, I had a guest lined up it was going to be an interesting hot topic that is

like dominating the religious news right now and then 10 minutes before my internet goes out like it's been shot in the head and I was like what is going on well there we had some some landscaping work being done and I thought uh-oh run downstairs run out the back door and there they are holding in their hands the sliced in half fiber optic cable actually holding it like it's a uh yeah okay yeah that's like Chevy Chase National Lampoon in 2021 yeah holding it with this sort of in 2021. Yeah. Holding it with this sort of combination of guilty and apologetic look on their faces.

Yep. And they immediately pledged that they would splice it back together again. And I told them that I don't think that's how it works with fiber optic cables. Not that I'm an expert, but it turns out that's not how it works with fiber optic cables. So yeah. So we're recording this marvelous podcast on my iPhone hotspot.

So, let's see how it goes. And it gets fixed this afternoon, allegedly. So, we shall see. But while we're plunging ahead on my Apple iPhone, let's take advantage of the good reception for now and just dive in. We've got a bunch of stuff. We had an Alito, a very spicy Alito speech at the University of Notre Dame. We had a really interesting, wild, quasi-conclusion to the Alex Jones defamation lawsuits that's worth talking about, a lawsuit filed against UCLA, some interesting cert grants, and some

oral argument in a case including a lawsuit against my beloved state of Tennessee filed by the ungrateful jerks from the state of Mississippi who are a little bit, I don't know, prickly, Sarah, that we have pumped only 400 billion gallons of groundwater from one of their aquifers. That's so weird that they even care. It's so ridiculous. I mean, cry more, Libs. How silly of them. And for those Supreme Court nerdery fans, but probably more likely West Wing fans, of which I am referring, of course,

to the epic television show from the early aughts, yesterday was Red Mass, and the Chief Justice attended, and that means one thing. We're back, baby. The Supreme Court OT21 live. It's happening. It kicked off today with that case you were just talking about, but this feels really good because they are doing

sort of a hybrid COVID, pre-COVID argumenty thing. And we are recording in the middle of the first argument. So we're going to wait until Thursday to give you a full read on how the hybrid arguments are going. You can listen live as you could during COVID, but they've gone back to in-person argument. and they are going to try to do something where each of the justices still get to ask questions in seniority order so the big question today will be justice thomas yay or nay yeah because i've enjoyed hearing from him me too yeah and frankly like if you're um so my husband the advocate really liked the old way and i have argued uh he will not be surprised that that's because he has a competitive advantage in that

way that's he became a supreme court argument uh advocate in certain uh rules of the game but as a supreme court watcher listener the asking questions in order where each justice gets you know, five minutes or whatever, first of all, lengthens argument time, which I enjoy. And second, it's much, I think, easier to know what issues justices care about, where their heads are, and to do some head counting. Whereas in the old way with the advocate ping pong, as I like to call it, where one or two justices would just use the advocate to whack the argument ball over to the other side. You didn't really know where anyone in the middle stood because they were rarely the ones asking the questions.

Yeah, yeah. No, I'm going to be very fascinated to see how this goes and we'll break it down on Thursday. But yeah, from a standpoint of court analysis, the COVID way was far better. I mean, it was just far better. And you felt like there's always this old saying that lawyers shouldn't read too much into oral arguments, which is sort of a little bit dishonest because everyone's analyzing every syllable from oral argument as if it's going to predict everything. That was sort of like a fail-safe,

just in case everything goes differently than oral argument seems to predict, which it does on some occasions. This gave us a much greater insight, a much greater insight into where the justices were. And so I really appreciated that. So I'm looking forward to seeing how the hybrid way goes. But Sarah, shall we talk about Samuel Spicy Alito. Yeah, it was funny. While I was gone, I left as Democrats were really just agonizing over the infrastructure bills, the two sort of dueling bipartisan bill and the reconciliation bill.

And I came back and they were still battling over that. I was very confused what had gone on in the course of a week when it sounded like the exact same conversations were going on. So I'm still getting caught up on everything that happened in that. Although at a sort of 30,000 foot level, nothing happened. The Supreme Court's long conference happened where they granted some cert petitions, which we'll talk about later. But like the only thing I really came back to that I was like, hey, what now? Was that Alito speech, which short version? Yeah, sounds about right.

Yeah. So he basically, I'll just set it up for the listeners and then I'd love to get your more extended thoughts. He basically took on the critique of the quote-un unquote shadow docket. Now his speech was titled emergency docket. So right there tells you somebody is a little spicy about the very term shadow docket. Which I already loved. I was already,

you had me at emergency docket. Yes, exactly. So he, but he makes arguments that frankly, um, he's listening to advisory opinions because obviously, of course. Um, and you know, for all we know, he might, because there were signs in there that he's kind of online, uh, that we'll get to, but he was basically saying, look, this, the, the, the nickname, the shadow docket, is part of the problem here, but that what we're really dealing with is actually pretty conventional litigation practice that only seems more consequential because there have been a greater number of important cases that have come to the court in this very particular procedural posture, cases that have come to the court in this very particular procedural posture, which is requests for emergency relief that get fast-tracked in the lower courts and then are

under the rules of appellate procedure and the Supreme Court rules and all of the relevant rules also get fast-tracked to the Supreme Court. there's been a rise in these kinds of cases. So if there's going to be a rise in these kinds of cases, then of course there's going to be a rise in Supreme Court adjudications of these kinds of cases, which all to me sounds right, which is exactly what we've said. If you're trying to issue quick national injunctions against consequential executive branch policies or other policies, then there's a specific kind of fast-track litigation track. It's fast-track litigation, and it gets to the Supreme Court fast. And the Supreme Court then, if it was going to put it on the regular docket,

these are requests for emergency relief, and putting it on the regular docket in many ways would act as a de facto denial of that emergency relief because it then drags it out for sometimes the better part of a year. So I think on the merits, he's just right. I mean, there's just been more cases like this that have come up,

and so therefore, naturally, you're going to see more decisions. I mean, is that, but I do have one critique, but I'll save it. Yeah, here's some quotes. The goal of his lecture was, quote, to dispel some imaginary shadows. Ha ha, get it? And that others had said the court was acting, quote, sneaky or dangerous. That the Supreme Court is a dangerous cabal deciding important issues in a novel, secretive, improper, in the middle of the night, hidden from public view.

So look, to some extent, do I think that those are straw men? I mean, yes, of course, they are a bit of an exaggeration on what the criticism has been and doesn't really address the substantive criticism, which I think is reasonable to grapple with. That being said, this idea that people have that we should just get rid of the shadow docket, Will you agree to banning the shadow docket or what? That's crazy. And for the left to want to ban the shadow docket is even more bizarre. I have not done all the statistics, but when you have the majority of states with Republican state legislatures, the left is going to be the one benefiting from emergency relief at the Supreme Court more likely or wanting emergency relief from the Supreme Court more often than the right, give or take. So that's strange. What people are

actually complaining about who know what they're talking about, and Justice Kagan, obviously an example of this, is not the existence of the shadow docket, but how it is being done. When the court is deciding things with only 72 hours and they don't have briefing, are they really a competent litigation court? And I think there is some merit to that. Not that I necessarily agree that they shouldn't decide things in 72 hours or that they need full briefing, but I understand the problem. If you have a court that works at a certain pace and people who are competent at a certain type of appellate review, and then you ask them to decide something in 72 hours without that briefing, yeah, I see the problem there. Now, the question is, what's the solution to the problem? Because if you take longer to decide these things, a month, let's say, that means the party who is

being harmed doesn't get relief for a month. Or you're entrusting a lot to circuit courts, often three-judge panels, not the entire circuit court. That could be pretty random in terms of what judges that you get. So I think everyone needs to take a deep breath on the shadow docket, actually identify what problems they have. Is it inconsistency of outcome? Is it that there's not full briefing? All of those things.

And then talk about what actual solutions would be, because it's not. It is not, not, not getting rid of the shadow docket. So look, I found Justice Alito's speech sort of dispelling the y'all let's just end the shadow docket nonsense to be sort of helpful. I'm just not sure that's the conversation we really needed to have. I feel like that can be left to us. What I wanted Justice Alito to talk about was, hey, there are some problems with this. How could we? What are possible solutions to the problems that we have and why we should or shouldn't adopt those solutions? I am very open to the idea, by the way, that while there are problems, there are no better solutions,

that this is the best, worst system or whatever. Yeah. So I wanted to hear more of that. Yeah. I would have liked to have heard, well, you know, of course the rhetoric, of course what happened is because he used pretty strong rhetoric

and because he singled out in for in particular a an atlantic essay um for a particular scorn that became a lot of the news but i'm with you i would have liked hey i'm going to explain to you a b c and d why under the rules and this is you know this quote-unquote shadow docket or emergency docket is pretty necessary why justice delayed is justice denied when it comes to regular order for a lot of these emergency relief requests um and just kind of a dry way of walking through it you can you know spice it up a little bit i mean he has spicy al after all. But there's one thing that does kind of stick in my craw a little bit, to use an expression, and that is the scornful dismissal of oral argument. Because, you know, I have done emergency docket style cases for, heck, most of my legal career was actually

emergency docket style work, which is file for a preliminary injunction, either get it or don't. Then the next thing you know, whether you win or lose, the losing side is appealing to the circuit court. And a lot of my cases were resolved one way or the other pretty darn fast in the shadow docket method but not we just didn't hit the supreme court of the united states but under this emergency docket kind of practice but you know what was constant or nearly constant not not all the time but we all we almost always had oral argument it It's actually not that burdensome to go ahead and have an oral argument. These, you've got litigators,

like your husband, Sarah, if the Supreme Court told him you have 48 hours to prepare an oral argument on an injunction motion to the Supreme Court, he would get there in 48 hours and he would be ready to go. He can do that. These advocates can do that. Emergency hearings just aren't that uncommon at lower courts. So the idea that we don't have

advocates who are used to preparing in 48, 24 hours, that's no. 12 hours, eight hours. Yeah. That happens. So I want to ask you about his analogy. So he compared their emergency procedures to EMTs versus doctors. He said, you can't expect the EMTs and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way. is not of the essence in the same way. First of all, I personally thought that was actually a really good analogy for sort of exploring the problems and the potential solutions and why there might not be solutions that we actually want to put in place because you are going to trade off the level of scrutiny, if you will. And I don't mean that in the judicial, like strict scrutiny term, but the level of, the level of review with time, uh, similar to like, yep, CPR can cause broken ribs or you can wait and, you

know, get it on an oxygen machine, uh, back at the hospital. Do you want to spend that 30 minutes or would you rather have potentially a broken rib? Um, and so we've decided that like, yes, when EMTs get on the scene, they're going to do CPR, even if it's not the best option that we have in medical technology, because the technology that would be better takes longer. Right. I thought that that was a good analogy. And the thing that I liked about it is in the EMT analogy, just as you said, Sarah, there is full medical treatment that follows. The EMT is not the provider, unless the patient expires, is not the final provider. It's the initial provider. And nine times out of ten, more than nine times out of ten, when you're dealing with an emergency docket case, at the end of the day, the case isn't ended by the decision. It is then put in a particular procedural posture, remanded back to the lower courts for sort of normal order

or additional proceedings in response to the specific order. The reason why it often feels final and is de facto final is that the court has given an indication of where it believes the law stands. And so litigants who are operating, who now have this sort of preview of where the court thinks the law stands, a lot of times they're just going to go ahead and settle because it's just frankly not worth it to then litigate three more years, four more years to try to get it back to the Supreme Court to see if the Supreme Court will change its mind based on additional facts. Talking about the Texas abortion case, what the law was in that case, of course, was who the proper parties were to sue. Right. Not the underlying constitutionality of the Texas abortion case. We have talked at length

about whether they should have given different better tea leaves on that question, um, rather than sort of give no tea leaves and whether no tea leaves were tea leaves and all of that shenanigans. But in terms of the stay posture, you know, it's like stabilizing the patient in that case. You know, if you deem the patient stabilized and they're still in a coma, like that's not great for their prognosis. But in the Texas case, the stabilizing was, hey, yeah, we don't think that you sued the right plaintiffs.

Go back down and try again or consider this. And of course, now we have a case that Arkansas felon lawyer who, yeah, that guy who we've talked about. And that will be on the substance of the law, which at this point, at least pre-Dobbs, nobody thinks is in question. So anyway, that's all to say, I thought Alito's speech um you know it was spicy it was more about the media coverage I as a avid court watcher wanted it to be a little chewier a little more substantive I appreciated the EMT analogy I appreciate that he was speaking to undergrads and law students in the Notre Dame community and the media and that he wanted to give a broader speech, I think if I were on the Supreme Court, I would be endlessly

frustrated with the media coverage of the Supreme Court. Endlessly. Because it is so often headline driven and less court procedure driven. I'm not sure this speech does anything to change that. Oh, no, no, no, no, no, no. When he's Samuel Spicy Alito, the emphasis on spicy is always what's going, that is always going to drive the coverage. That's always going to, he made very good points, but that's going to drive the coverage. But I do think he flat out overreached when he said it would be, I believe the word that he used was ridiculous to describe, to say about the argument that there should be oral arguments, ridiculous. No, and in some ways, so briefs actually do take a long time, real briefs, Supreme Court briefs.

I think that you could have a world in which you do the emergency briefing up to the court, which are much shorter, far less involved. And then you could have short emergency oral arguments that actually, unlike the main oral arguments for the court, where they have hundreds of pages of briefs, not only from the parties, but from a Miki. I mean, they're drowning in paper with every single detail that they could want. The arguments are interesting for us. I think they can synthesize some of the briefs in a helpful way. But by and large, the justices probably don't need oral argument in their main cases. But in the emergency docket, it's arguable that it's way more important because they're not drowning in paper. They don't have everything they need, and they can really pepper the advocates and expect them to come in as experts,

teaching them what they need to know about this case that they're supposed to decide in three days. So I actually think it's the opposite. I think it'd be wildly helpful. And I know one Supreme Court advocate who lives in my house that I think would be quite good at it. Oh, he'd be great at it and probably enjoy it. I mean, yeah, I would enjoy it more. Stressful, stressful. But then once you're in the moment.

It's super stressful, though, when you have like a month, two months to prepare for argument because you just spend it's like a gas. It fills the container in which it exists. And so then you're just preparing constantly for a really long time. And that can be more stressful, in my view, than like, OK, you got to go throw the pass. Like, that sounds fun. Yeah, exactly. And yeah, as I said, litigants are ready for, I mean, you know, the litigating attorneys,

are they ready for this kind of stuff? There were times when I would file a motion and then you get a call from the court clerk and they said, three o'clock in the afternoon, be at court. Okay, here we go. Let's go. All right, let's move on from Samuel Alito to Alex Jones is a transition we've never said before. Interesting update. The reason I put it on here on our little list is not that Alex Jones lost his defamation litigation. And just to remind people of what he did, this is Alex Jones, noted radio host, podcaster, conspiracy theorist.

call who was knocked off of social media in part because he had accused the Sandy Hook, the grieving families of the Sandy Hook mass shooting of being fakes. Here's one of his quotes. I've looked at it and undoubtedly there's a coverup. There's actors, they're manipulating, they've been caught lying, and they were pre-planning before it and rolled out with it. Just, I mean, just flat-out malicious lies, and he was sued and he lost. But what was interesting about this, Sarah,

isn't just that this awful person lost. He lost on a default judgment. Yeah, explain that. Yeah. So essentially what happened is that in a very unique kind of default judgment, a normal kind of default judgment is when somebody sues you. Let's say I sue Sarah, and Sarah just doesn't answer. She doesn't do anything. She pretends like the lawsuit doesn't exist. And after a sufficient period of time, it's almost like saying you forfeited. It's like challenging you to a, it's like there's a scheduled football

game and your team doesn't show up. Well, you're granted the win. It's a forfeit. And so a default judgment, that's the normal way a default judgment happens is you sue somebody and they just don't respond. And then you get the default judgment and then you try to collect whatever money you can. This one was even more unique than that. In a lawsuit, once you file a lawsuit, you are entitled to conduct what's called discovery. And that means you can get all of the documents that are either relevant or calculated to lead to the discovery of relevant information, take depositions, put people under oath and ask them about the case. And they have to turn all this stuff over. They sort of have to, unless the documents are privileged in some way, they have to just give you what they've got. And yeah, it can be really intrusive and it can be really voluminous.

Well, it turns out that Alex Jones just decided not to give up his documents. And this goes all the way back to May of 2018, that he was told to give up documents, give up the internal records of his show, of his own documents. He just didn't do it. And the court told him to do it and told him to do it and told him to do it. And as the court says, it is clear to the court that discovery misconduct is properly attributable to the client and not the attorney, especially since defendants have been represented by seven attorneys, seven attorneys over the course of the suit. And so what the most extreme remedy for failing to comply with discovery is default. You're deemed to have surrendered. And it is rare, Sarah. I mean, this is rare. It's like watching a unicorn sprinting

across a road. But that's what happened. That's how bad this dude Alex Jones is. He doesn't just lie. He refuses to cooperate with legal proceedings against him so he got a default judgment entered against him and now it's going to move to damages phase and i hope they roast him on a legal spit um but it it was a very strange outcome and one that i think a lot of people didn't quite understand what happened and if possible made him look even worse? A couple things. One, it'll be interesting to see after the damages phase whether he's just judgment-proof. You know, you can get a claim against me for a billion dollars

and you don't get a billion dollars. I don't have a billion dollars. So that's the end of that. You can only take what someone has. And even then, there are limitations depending on the state, whether you can take their home or their car and things like that. So curious about that. My impression is that he might be relatively judgment-proof, but we'll find out, I suppose. Two, default judgments are something that is more likely to get revisited than almost anything else. This one seems less likely, honestly.

But for instance, when you get a default judgment against you for failing to show up, courts are more likely to look at that if, for instance, service wasn't right or you were in the hospital. You have some really good excuse for why you didn't know to show up. In this case where he does know, anyway, just noting that unlike some other judicial findings, you see defaults get revisited more often. Yeah, yeah, you do. You do. But I am also very curious about the judgment proof, but you know, there is also the possibility of garnishing, you know, all these garnishing his future income. I've done that before that can be particularly satisfying. But yeah, I just thought that was an interesting resolution. And, and of course he mischaracterized it as an attack on his free speech rights.

Right. You know, that I'm acting as if this litigation has nothing to do, I'm acting as if this judgment is against my free speech rights when it's really a punishment for defying, basically defying the rule of law itself. But, you know, we wouldn't expect

a sort of a truthful response from Alex Jones. Can't say I was shocked by the outcome. All right. Next. Next. All right.

Now, there's this interesting... And I want to get your opinion on this, Sarah. I want to get your opinion on this. Okay. There is this lawsuit, Barry Weiss wrote about it, that was filed by

UCLA professor. And essentially the allegations are pretty... So the allegations are... I'll give you the basics and then I'm going to read you something. And I just, I want the Sarah Isger blink reaction to this. Okay, you have a professor. His name is Gordon Klein. He's a longstanding professor at UCLA's Anderson School of Management. asking that he grade his black students with greater, quote, leniency than others in the class. Quote, we are writing to express our tremendous concern about the impact that this final exam and project will have on the mental and physical health of our black classmates, unquote. So Klein is asked to grade people differently on the basis of race, and he refuses, and he gets subject to a firestorm, an absolute firestorm of critique,

up to and including death threats. He is briefly suspended from his job. A petition circulated demanding that he be fired. I mean, really out of control stuff. I mean, here's an email. You are a typical bigoted, prejudiced, and racist, dirty, filthy, crooked, arrogant. And then here's some anti-Jewish slurs are in there. Too bad Hitler and the Nazis are not around to give you a much needed Zyklon B shower. So that was an email. And there were police officers outside of his house. And so he's suspended. UCLA eventually reverses the suspension.

But he took severe reputational damage. He took financial damage. All right. So from that standpoint, he seems to have a pretty solid case, but I want to ask you about this. Okay. So here is the email that he wrote. Indeed. Okay, good. Because your restatement of the facts was not complete to me. Please continue. Yes. Okay. So I was just sort of restating the facts kind of the way they've been reported. Yeah. All right. Okay. So here's the actual email that he wrote. And I don't want the fact that I'm going to read this email to in any way justify,

for example, the death threats that he got, but this is the email. Thanks for your suggestion in your email below that I give black students special treatment given the tragedy in Minnesota. Do you know the names of the classmates that are black? How can I identify them since we've been having online classes only? Are there any students that might be of mixed parentage, such as half black, half Asian? Asian, what do you suggest I do? Respect to them. A full concession or just half? Also, do you have any idea if any students are from Minneapolis? I assume they probably are specially devastated as well. I'm thinking that a white student from there might be possibly even more devastated by this, especially because some might think that they're racist even if they're not. My TA is from

Minneapolis, so if you don't know, I can probably ask her. Can you guide me on how you think I should achieve a no-harm outcome since our sole course grade is from a final exam only? One last thing strikes me. Remember that MLK famously said that people should not be evaluated based on the color of their skin. Do you think that your request would run afoul of MLK's admonition? Thanks. Thoughts. I want your thoughts. Yeah. So first of all, the adult quote unquote, resorting to sarcasm, bad idea. And I think that the majority of the pushback he got was because he responded to a request from a student, and maybe it wasn't a good request. But instead of walking through in a respectful manner

why he thought it wasn't a meritorious request, he was sarcastic. I wouldn't have appreciated that if I were the student either. And in fact, feel like I have been on the receiving end of sort of unnecessarily hostile emails from professors when I was asking a genuine question. And I feel like this student deserved that, even if I would disagree with what they were asking. Second, I mean, within the sarcasm, what about the mixed race parentage?

Did I give them half off? Like that was sort of offensive, frankly. And I don't mean, you know, I mean offensive in the like general like, ew, way, not some capital O term, which I don't even know the meaning of anymore. And so look, being suspended for being hostile and sarcastic and intentionally hurtful to a student is quite different than I think, again, sort of your recitation of their recitation of the facts, which is a student asked me for something and I said no. And then all these people were super mean to me and these crazy things happened. That's not why the crazy things happened. And I just feel like we've had this conversation before, David, but the extreme reactions on both sides to everything just isn't helping. So he says when he was explaining this to Barry Weiss, that he got

the email and he was really upset and he took 20 minutes to calm down and write that email. Look, 20 minutes wasn't long enough, man. No, not long enough. 20 minutes. If I'm actually really upset by an email, it can wait till the next day usually. Sometimes it can wait more than one day. And I think if you're an adult who's mature and responsible, probably anytime you were writing a sarcastic email, you should just go ahead and delete that thing. Email may not have been the best response at all. He could have called the student into office hours

and asked them to say more about what they were concerned about, why they thought that was the best path to pursue, why he did not think it was the best path to pursue, that would have been a learning opportunity for that student potentially. And for those thinking like that student didn't want to learn, they're just some woke hipster, whatever, Gen Z snowflake, maybe so. But how are you possibly going to make that assessment based on a single email that they sent when you then respond like a 12-year-old? Yeah. What this struck me is you had a request from a student that was, I believe, an inappropriate request. I mean, even if it's totally good faith, and let's assume it was a completely good faith request driven by compassion for classmates, still you don't grade differently on the basis of race.

Okay? Well, so you have an inappropriate request that can be dealt with. And I'm not going to say, I'm not going to argue that even if he dealt with it completely responsibly and dealt with it with a degree of sensitivity to the situation, that he wouldn't have gotten blowback. I mean, he may have, he may have gotten blowback, but he dealt with it in a way that was frankly unprofessional. That was just, that was flat out unprofessional. So then once people get the unprofessional response, of course, then they escalate as well. Going, you know, as I said, I read this awful threat. He had police protection. I mean, people lost their minds in response to this request. The interesting thing to me is going to be in discovery because so, for example, if you're a, at a public institution, there is going to be an interesting question about if your speech is a general matter under a lot of the circuit court precedents since the Garcetti case, which we have talked about, which I don't like, but the Garcetti case is essentially that if you're a public employee and you're speaking in your official capacities, you're

a public employee, your speech doesn't have any constitutional protection, with a carve-out that says we don't decide this one way or another on teaching or scholarship. And a lot of lower courts have filled that in to say that there are free speech protections in the category of teaching and scholarship. The question that I have is on an administrative matter like this, where you're talking about sort of grading policy, which is not teaching your subject or researching your subject. Is this something that's going to have the same kind of free speech protection? And if it doesn't, is this private email to a student?

Or even if it does, is this private email to the student a matter of public concern when he wrote it? Or is this sort of an administrative action? It's a little more complicated, I think. Now, there could be some due process issues here related to having tenure or whatever due process he's entitled to on campus. But I think this is more complicated. It's been channeled into that culture war woke versus anti-woke paradigm and it i don't know that it fits as neatly yeah and the other issue that i think he has is that i feel like this was not

again on the substance of what he said like as in you weren't suspended because you don't believe in grading different races differently. Because obviously lots of professors don't grade based on the race of their students. So that's not why you were suspended. You were suspended for being an asshole. And that is potentially for cause. It's not really speech related. If you are antagonistic and hostile to your students in a way that undermines sort of the purpose of teaching, for instance, and things like that. for just about anything unless you want to do a straight Garcetti challenge. And even then, if you wanted to do a Garcetti challenge, I would want it to be really pure political speech. This ain't that. It just wasn't political speech, arguably at all, of why the dust up happened in the first place. It was for a student raising their hand and saying something, and then you saying, I know you are, but what am I? Yeah, you know, a more pure Garcetti

challenge might be something that says, thank you for your inquiry about grading policy. I appreciate your concerns for your classmates. However, for the following reasons, I can't grant that request. Number one, I believe it's unlawful. Number two, I believe it's unfair. And here are the reasons. And if people freak out about that, and again, I'm not justifying the freak out, you know, the way in which he had to police for protection. Are you kidding me? That's ludicrous. That's ludicrous. But in horrible and a symptom of where we are in this culture where death threats are just being tossed into the discourse like croutons on a salad. But, you know, if you have an overreaction to that, that's the kind of case as a litigator you walk into and you say it's go time. It is go time.

This is a case that I'm drawing the line in the sand on. But, you know, the interesting thing about a lot of First Amendment jurisprudence, Sarah, is rarely, it's not that often that you get that kind of case. Yep. A lot of the free speech cases are the product of envelope pushers pushing the envelope. So it will be very interesting to see how this goes. pushers pushing the envelope. So it will be very interesting to see how this goes. But I thought an awful lot as I was reading it, I was thinking, what was the full email?

Well, and I just am going to say a guess here, David. I guess that advisory opinion listeners are the type who already know not to send an email 20 minutes after you received an email that upset you. So my advice coming out of this case, which is emails are not the best form of communication. And sending emails while you're feeling hot or emotional is an even worse form of communication. It's pretty lost on this audience because they already know that. Yeah. I would say, I will say this confidently. I have never regret regretted deleting an email. I've never regretted deleting a tweet.

So I had this whole dust up in a job that I had once from a boss who was very tough on me, not cuddly. There's not like some happy ending. We're like, no, we're best friends. But I learned so much from it. And one of the things that I learned from him was this person who I was working with, who was an older white male, basically we had had a contract agreement over how we were going to divide the work and the money for a project that

we did together. And my boss was sort of the person who like kind of oversaw this, if that makes sense. And so the contract, they added some work to it. Our client added work. And the other guy said, you'll do the work, but we keep the division of our money. I think it was 50-50. And I wrote back because I was very upset that I was just going to do the extra work and that we weren't changing then what our fee structure was going to be. I wrote back one line, that's not the way it's going to be. I thought that that was actually a pretty simple email back. I wasn't saying how we were going to fix it, but just that his solution was not going to be sort of what it was and he didn't get the final word on it. Whoo! That didn't go over well. He very much heard in my email a tone that while I probably meant to convey it in some deep part of my heart, I did not mean to convey it as obviously as I

conveyed it. My loathing of him. And so my boss called me in and he was like, look, this email was stupid of you to send. I understand that you didn't think this was fair and it wasn't fair, but you should have taken a deep breath. You shouldn't have sent that email because now let me tell you the consequences, regardless of what you intended. He has dug in entirely. He is now, he literally, he asked for my key back to the office so that I would have to knock every time before I came in to the office that I was working from on this project as just like a petty retribution thing. And my boss ended up having to basically pay me additional for the work, which was generous of him. And anyway, it was like a good lesson of like, yeah, I just didn't need to send that email. It was an in-person conversation where I could have said like, hey, I don't really think it's fair that I'm doing

additional work, but not getting additional payment. You're doing no additional work and getting the same additional payment. This guy, but to talk about like disproportionate response, like he called me the C word, like all sorts of things that I thought were way out of whack to the very short email that I sent. But to him, it was just a total affront. And like, yeah, that's not a good response. He should, you know, be committed. But it was a really good lesson for me that if you actually just want the thing that you say you want and not to like start a fight, email, probably not the best way to do it.

Yeah, no question. Yeah. And I think advisory opinions, as you said, advisory opinions, listeners get that. But one of the things that I've always learned in these cases that are, here's somebody who said something and if the emphasis in the news coverage is all on the response, I'm always curious about the original speech. Okay. Sometimes the response and sometimes the original speech

is not all that provocative. It's just a normal sort of communication of a viewpoint that people really don't like and the response is way out of whack. But frequently

what you have is a set of escalations and intentional provocations. Sarcasm is never, never respectful. Right. Truth. Truth. So you knew you were being disrespectful. And I guess you were just okay with being disrespectful to your student, even though

your student's email to you wasn't disrespectful. Why? Like, why did you think that that email allowed you to then be disrespectful? I guess that would be my first question. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app,

you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's

really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r--A frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right, SCOTUS time, SCOTUS time. It's SCOTUS time. Okay, first, we're going to go in just chronological order of how these things came out. Last week was the long conference. That is, well, it's like it says, it's the long conference where they sort of decide a big stack of cert petitions. And so we had five granted, two of which are interesting. And I'm just going to do the brief explanation and then we'll wait for oral argument to sort of dive in deeper on these two.

But the first is FEC versus Ted Cruz for Senate. too. But the first is FEC versus Ted Cruz for Senate. I love me some election law, David. And so rarely does it get to the Supreme Court. The last big one was McCutcheon, the FEC. And that's been a long time. That was like 2014. So super pumped about this, except that it's kind of boring. So this is... Yeah, it's so boring, y'all. It's so boring. It just doesn't matter really at all. I'm already bored. Oh, God. Okay. So Ted Cruz loaned his campaign, his 2018 Senate campaign, $260,000. There is a limited amount of time in which you are allowed to repay yourself out of your campaign funds after the end of a campaign. Ted Cruz, it appears intentionally,

waited until after that deadline and is now suing, arguing that that deadline violates the First Amendment. Now, what's sort of interesting about this is that it isn't really rational, which is kind of a fun First Amendment challenge. Why is there a deadline on the loan repayment? The argument is that there is an actual or appearance of quid pro quo corruption involving loan repayment. But that's weird. It's a weird thing about that. So, OK, we'll just leave that as is. Again, it's on loan repayment under the FEC guidelines for federal campaigns and whether that there is a time limit or there shouldn't be a time limit and kind of who gets to decide. Like, is it up to the FEC to decide that there is a time limit or there shouldn't be a time limit and kind of who gets to decide.

Is it up to the FEC to decide that there's the appearance of quid pro quo corruption, or do they actually need to prove that there's the appearance of quid pro quo corruption? The next cool one was Shurtleff v. City of Boston. David, it's right up your alley. You have an alley and this is a kid on a bike just ringing its little bell. Bring, bring, David, bring up your alley. Yes, okay, yes, it is.

It's just... I mean... Okay, so you have in the city of Boston, you have a flag pole and... This case sounds like it's from 1905, to be honest. I can't You have in the city of Boston, you have a flagpole. This case sounds like it's from like 1905, to be honest. Like, I can't believe we're litigating this in 2021. But yeah, continue.

There's a flagpole. And there's a city policy that says the flagpole is a public forum open to all applicants. Hundreds of people have asked for their flag to be flown from the city flagpole, things like, you know, you name it, pride flags, whatever. And so somebody wanted to fly the Christian flag and the courts, I mean, and Boston said no. Case went up to the First Circuit. First Circuit classified the brief display of a private organization's flag as government speech. This gets kind of eye-glazingly complicated, like a lot of the cases where you have public displays of religious symbols on public ground. But there is a, there are both, let me back up and put it this way. This seems simple. It's not simple. But there are circumstances in which there's a government speech doctrine that comes into

play where the government is going to sort of be able to have a point of view in the way that it uses government property. At the same time, once something is deemed to be a public forum, the government speech doctrine tends to retreat and you're supposed to allow a public forum to be open to all applicants without regard to viewpoint discrimination. And so essentially what's happening here is you're having this sort of conflict between whether this flagpole is a true public forum open to all applicants or whether there's a degree of state control where the state is going to say, well, wait a minute, it's all applicants that are going to still be within a sort of a

public, publicly defined set of messages that are acceptable or endorsed by the state government in some way, or at least not condemned. I'm already a little bit, my eyes are already a little bit glazing over with this one. Oh, no. Wrong. Wrong. Because do you know what the main case is in terms of precedent on this question? Pleasant Grove City versus Sumum? No. I mean, yes, but no, not for my purposes of this comment. Okay, go ahead. It's Walker v. Texas Division Sons of Confederate Veterans. That was a case where Texas will, you know, sort of for your vanity license plate, they put whatever you want on it. And this guy's like, I want the Confederate flag on mine. And Texas is like, oh,

yeah, no, not that. And it went to the Supreme Court to determine whether that was government speech. And yes, they were citing Pleasant Grove City versus Summum, whatever. So Pleasant Grove was 2009. This case was 2015. They cited with Texas that that was government speech because a reasonable person looking at a license plate could think that the state of Texas had, um, you know, approved that speech in some regard, right? It's printed on your license and Texas is the one printing it. Do you know who argued that case? Oh, would that be one Scott Keller? would that be one scott keller it would be so i have the mock-up confederate license plate in my house and can't really decide what to do with it because on the one hand i'm very proud of scott for winning the case i cared a lot about it but it's weird that the thing that i would hang

to sort of show my pride in him for winning that case to not have Confederate license plates in Texas? Would have a Confederate, yeah, right. Would be a Confederate license plate. And I would really need to explain that as people walked by or put like a big red X through the light. I don't know what to do with it. So it's sitting in a drawer. Yeah. Yeah. No, this is sort of a niche of a neat... And by the way, we had an argument last night. Do you say niche or niche oh i say both i do too i don't i do too a niche sounds vaguely elitist yeah i think i i yeah i'm

more often saying niche but you're right i guess if i'm saying something elitist, I tend to say niche. But this is the, this is the working man's podcast. So niche, this is kind of, this is, this is niche stuff. Um, and it's really, I, you know, it's re I think it's really going to turn on this idea of an idea of if I'm looking at that flag pole and I'm seeing the flag wave, am I considering that this is what the state is saying or not? I do think it's different than the license plate where you know that the state had to print that. And so if it's on someone's car, I would assume that the state then approved in some respect what's on that license plate. Very different than a flagpole where I would assume, sounds like correctly, that what happens is you go and say,

hey, can I have a flagpole tomorrow? And they're like, sure. And then you raise whatever flag you want. Yeah. Hundreds of approvals, Sarah, and no denials. Yeah. Which is never a good fact. It's similar to Fulton in that regard, the same-sex adoption case where they had never used that power to pull the certification of an adoption agency. That's never a good look. Yeah. Yeah. I think hundreds of approvals with

no denials. And I believe it's the Christian flag at issue, which is a pretty... Yeah. Yeah. It's a cross. It's a red cross on a blue field, a blue sort of up corner with the rest of it is white. And it's just, it's about as anodyne as you're going to find. So this is the kind of case where I said, doesn't happen as much. And here it is. It is a free speech case involving really basic speech um this isn't this is not a flag with a middle finger on it this is like the opposite of the confederate flag case also though in some case um you know yes this flag is a latin cross but in deciding this case they will be deciding whether the confederate battle flag can be flown on that flagpole.

That will, will there be an amicus briefs from daughters of the Confederacy or whatever it is, right? Like, yep, we all get the flagpole now and I'm flying a swastika. Rah. Uh,

so they're lucky that it's a nice, good facts, right? Good facts, uh, for the plaintiffs. But, you know, the court has to consider beyond that when the city can deny someone and i think i think it's pretty obvious they can deny

flying the swastika for instance right and you know it always these kinds of cases always bring out some, shall we say, fringe groups. So, you know, when you have a Ten Commandments on public land, you're often going to have the Church of Satan applying for the opportunity to erect a statute of, what is it, Baphomet, that sort of the satanic goat. Okay, well, you're beyond me on that, but sure. Yeah, yeah. So trust me when... So yes, this is a religious speech. Can they censor religious speech? But in deciding that,

they have to decide whether this is government speech. And if it is government speech, then we can sort of get to that second, like, well, okay, can they deny it because it's religious? If they decide it's not government speech, though, and that's an open public forum, that's a swastika problem. I'm going to call those swastika problems from now on, David. Yep. Or it's a Baphomet problem. We're going to have the goat. You're going to have the goat. Although, you know what? The goat, I will argue,

I don't have much problem with the goat flying because the goat is not also viewed as a threat to certain people's lives. True, but the goat is scary. Have you seen a Baphomet? Not recently. I don't know how to answer that. I feel like I know what you're talking about. I don't know. Yeah, maybe we should. Here's how they could justify it. The GOAT flag. Just say it's in Boston. It's in tribute to Tom Brady. Oh, God. That game lasted way too late last night.

I mean, for the doink, for just a doink. And was boring in some ways. It was boring in a lot of ways. Okay, so last thing. We have the October argument kicking off this morning. We already mentioned the water dispute, an original jurisdiction case, though. So while water disputes are super boring and very fact-intensive, original jurisdiction, there's always something just a little sexy about it.

We'll never talk about it again, though. Okay, so that was Mississippi versus Tennessee today. But also, wouldn't be United States. Now, this one actually, I mean, it's not sexy in our usual advisory opinions, constitutional law sexy. But for like our crim law cul-de-sacs, I don't know. This one was pretty cool. So in the Armed Career Criminal Act, you have to commit your crimes on different occasions. And this guy pled out to 10 burglaries. No problem, right? He's clearly an armed career criminal.

Except that they were 10 different units in the same mini storage facility. So are those 10 different burglaries with 10 different occasions for the armed career criminal act or is that one occasion with 10 different acts within the single occasion as in is it a crime spree um so i actually think that's pretty interesting and what a great set of facts i think a mini storage facility is perfect because the individuals involved were obviously different, but the facility, it's like one place. So I actually am going to be following that one. So if you walk into a Burger King and you hold up all the customers, is that 10 armed and there's 10 customers, is that 10 armed robberies or one armed robbery with 10 victims?

See, that pretty clearly, to me, falls into the single occasion. But the mini storage units, you had to go to each door, break a different lock, go in and rob it, get out, go to the next one, break a different lock. It's at least in between. Interesting. at least in between. Interesting. Walk into a convenience store, break open the cash register, and then walk back and break open the safe.

No. No. No. Okay. All right. So other cases of interest that we have this argument month, which actually only lasts two weeks, state secrets out of GetMo. That'll maybe be interesting, maybe not. The Zubediah case, David, you and I have looked at that one

before. We have the Cameron versus EMW Women's Surgical Center case. You and I are definitely going to be listening to that one. Again, it's about abortion. It will have nothing to do with abortion. But this is where the Secretary of State was defending Kentucky's abortion law, then stopped. The Attorney General then asked to intervene to continue the defense. And the courts said no. So the question is actually whether they declined the intervention correctly or not correctly. Spoiler alert, the answer is going to be not correctly. And the Kentucky Attorney General very much will be allowed to defend that law. It's definitely an abortion distortion case that will be getting outsized attention, even though it's kind of a niche question, Similar to the ex parte young problem out of Texas

in terms of its nichiness. All right, there's a self-incrimination confrontation clause thing, which will be kind of cool. We'll see if it's cool. And then kind of a big one here. This is the Tsarnaev case that we've all been waiting on,

the death penalty case out of Boston's bombing that happened. And we've all been watching that case as it winds its way through. And this is on voir dire, whether the court should have asked potential jurors about media coverage of the case

and should not have excluded evidence that Tsarnaev's older brother who placed one of the bombs was involved in a separate triple murder. So again, that actually legally, not that interesting, but the outcome, very newsworthy, as I think that was sort of a, you know, the whole nation watched that. I was on a plane during that manhunt and was, well, trying to into boston uh and it was yeah it was our um the bombing happened during or right before our reunion our law school reunion that year oh interesting the manhunt was happening in the time after and i remember when they

they got him i actually told the stewardess to tell the pilots that way they knew um very memorable and a whole lot of people very scared that was a pretty awful many hours that was horrible the people of boston so that was horrible have you seen the movie the mark walberg movie i haven't it's very good yeah it's surprisingly good yeah i thought it was fantastic. And you just forget all the twists and turns. I mean, it was... Well, one last thing, because I know you have to go, Sarah. I'm going to say one more thing about the water misers of Mississippi who are husbanding their measly 400 billion gallons of underground aquifer water.

Water misers, yes. The interesting thing is going to be, I mean, interesting is generous. I'm only interested because they're suing the magnificent sovereign state of Tennessee. Do you treat above groundwater differently than the way you treat below groundwater? Because above groundwater, if you had a big lake

that was overlapping multiple states, as some lakes do, well, you know, there's sort of this rule of equitable. There's an equitable rule that kind of gives everyone rights to it as long as nobody's hogging too much. Does that apply to these underground aquifers? Fascinating.

We're going to have maybe seven or eight advisory opinions listeners who are really interested in that beyond me. So for you guys, for you six or seven. I drink your milkshake. I drink it up. Yes. Yeah. I can't, I can't reference. If it's your milkshake, I can't drink it. But that aquifer is, I stick my straw in your milkshake from my side of the table and I drink up

your milkshake. Nope. That's see, that's what if the milkshake, what if the milkshake extends across both sides of the table, but my straw is actually located on your side? I don't know. I'm just quoting, there will be blood, and if it works for oil, surely it works for water. And that's what I did to pass the bar exam in Texas. All right. All right. Well, we will be watching this or I will be watching Mississippi versus Tennessee. So I think that's it. So welcome back, Sarah. Glad you had a fantastic vacation. We will be back on Thursday. And until then, please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts and check us out at thedispatch.com. Thank you.