Advisory Opinions - Supreme Court Texas Abortion Law Ruling Said What?

Episode Date: December 13, 2021

If you woke up this morning thinking about Jussie Smollett, the Texas abortion law, California gun rights, and California vaccine mandates, then this is the podcast for you. David and Sarah dive into a legal issue that might overturn Smollet’s conviction, analyze the Supreme Court’s decision to permit a very narrow facial challenge to S.B. 8, discuss Gavin Newsom’s swing-and-miss, and wrap up the main portion of the pod with a discussion of vaccine mandates in San Diego schools.   Show Notes: -Whole Woman’s Health v. Jackson -9th Circuit vaccine mandate ruling Learn more about your ad choices. Visit megaphone.fm/adchoices

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Offer ends April 12th. $49 annual fee applies. See home club for details. $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And I just want to start with a bit of an apology. I mean, in some circumstances, we might have done an emergency pod after the Texas SB8 decision was announced. In fact, that would have been a lot of fun, but I had a good excuse, Sarah. My oldest daughter was graduating from the real UT. So we were in Knoxville when the decision was handed down and we were also helping her move

and her and her husband and, and, uh, baby Lila helping them move. So it just, it wasn't in the cards. Sorry. Um, another time we would do an emergency pod, but this one, so just mea culpa family commitments had to Trump emergency pod, our deep apologies. But, uh,

this is still, it's only Monday. I mean, this is pretty recently after the decision. Uh, and so we'll just dive into it. We're going to do that. We're also going to talk about a Ninth Circuit vaccine mandate case that denied religious exemptions to a school vaccine mandate in the Unified School District

of San Diego. But before we get into those two cases, let's start with another case. Just a brief discussion of a state criminal case involving Jesse Smollett. That was also his. He was convicted. And I know, Sarah, you had some thoughts on it. So let's start with your thoughts. Then we'll dive in to the Supreme Court. Yeah. So remember, this is the hate crime hoax case.

He says that he's attacked. They yell racial and homophobic slurs at him and then put a noose around his neck. There's countless number of man hours spent by Chicago PD on this. It comes out later that perhaps he hired the two men who attacked him, that they were friends of his from the show or whatever else, these two brothers. were friends of his from the show or whatever else, these two brothers. And so he is charged and convicted on five of six counts on lying, filing false reports, yada, yada. First of all, a juror has come out afterwards to discuss it. One of the female jurors, it was a split six, six female male jury to say that actually they knew right

away they were going to convict him. But they wanted to go over all of the evidence again. So they took about nine hours to deliberate. It just gives me some faith in our jury system, not the outcome, but the process. I like that, that they went in. And even though they, I guess, had the votes at that point, they were like, you know what, though? There's a lot of people watching this. A lot of people want confidence in it. Let's just make very sure that we're sure about our opinion after reviewing the evidence. But something stands out to me, David. So several months ago, I think it was back in June, the defense raised a double jeopardy problem.

And the judge declined to dismiss on double jeopardy grounds. The case went to trial, but they have preserved that for appeal. And I'm looking at it and I'm thinking, it kind of looks like Cosby to me, David, I'm not sure this conviction is going to stand. And I understand it's sort of a small ball conviction, but it's gotten a lot of media attention. Yeah. So I kind of thought it might be worth talking about.

You and I talked a lot about the Cosby case. He got out of prison on double jeopardy grounds. Remember that they had a non-prosecution agreement, which in that case paved the way basically to force Cosby to testify at a civil trial. And his comments at the civil trial were then used against him in the criminal trial. Kind of a no-brainer on double jeopardy grounds. However, when it comes to trials, guilty pleas, all of that, it does get kind of messy. So on trial, for instance, usually double jeopardy attaches when the jury is sworn in or the first witness testifies. It can vary a little from jurisdiction to jurisdiction. But basically when the trial starts, double jeopardy attaches.

Okay. In a guilty plea, it is normally when the guilty plea is accepted, actually. So the court has to accept the guilty plea. That's when double jeopardy attaches. Although, interestingly, there's a bit of a circuit split on that. All right. So here we get, though, to Smollett. Remember, there's the controversy over the fact that the first prosecutor drops the charges against him. And then there's discussion over why was that prosecutorial misconduct at the time? It was a slam dunk case in a lot of ways, as obviously has been evidenced here by this trial. She agrees to drop the charges in exchange for him relinquishing his $10,000 bond. But that's it.

He doesn't have to admit guilt. There's no incriminating stuff. It's $10,000. And the question is, is that more similar to Cosby or less similar to Cosby? On the one hand, the Cosby one has an actual implication at his trial. Right. No question that the Cosby verdict to me is correct, as horrible the outcome as it may be.

But here there's still a reliance factor, David. He paid $10,000 in exchange for that being dropped $10,000 to Jesse small. It may not be a lot of money, but this needs to be precedential in that sense. So it is a lot of money. That's a lot of money. Um, on the other hand, no guilty plea, no admission of guilt, nothing that implicates him at his then when charges are filed. I don't know. It's kind of sketchy. I think this is a real issue for appeal. It is an issue for appeal. I mean, because the fact of the matter is he's walking into court essentially having paid $10,000 for the offense to begin with. Now, as you're saying, it doesn't necessarily implicate the

Cosby situation where the fact that he entered into that Cosby entered in the non-prosecution agreement then created his forced the dynamic upon him to create the incriminating testimony. Here, I didn't follow this case nearly as closely as about half of Twitter, I didn't follow this case nearly as closely as about half of Twitter, which seemed to be pretty obsessed with it. But my sense is that the is, if you've been charged and a charge has been dropped on the condition that you incur a penalty of some sort. That's right. Was that the penalty?

Even though there was no admission of guilt, that's not that different than an Alford plea. The problem is, of course, none of this is in writing, though it's all it was all known at the time and in newspapers, et cetera. I mean, it's a mess. Thank you, Chicago, for once again proving what a fantastic jurisdiction you are in so many ways. But that's all to say, keep an eye out on that because now he may choose not to appeal because this may not be worth it. I don't expect him to serve jail time, but we'll see.

But I don't know. He could want to appeal this because I think he has good grounds to appeal it. Yeah. Yeah. You know, I do think that's a very that is a very intriguing legal issue. Very intriguing. But let me circle back to something you said earlier about the jurors. Look, there have juries have not always been great in this country,

especially in the civil rights era in the South. I mean, in pre-civil rights era, post-Reconstruction, I mean, good grief were their problems. But of late, of late, there's a really good case to be made that jurors are sort of a firewall helping keep us sane at the moment. In tough and complicated cases, jurors have weighed in in a way that's incredibly sober and serious and reached just conclusions in some of the most high-profile cases in a way that does build confidence in at least one aspect of our system.

And so, you know, we point out a lot of things that are broken on this podcast. One of the less broken parts of our system, and certainly one that's been functioning pretty darn well, is the trial by jury, particularly in some really

high-profile cases of late. So shout out to you jurors. I'll even defend the OJ jury. Go for it. I want to hear this. Look, you can disagree on the outcome that they reached, but they reached it for the right reasons. They didn't believe the prosecution had met its burden and it's beyond a reasonable doubt. And so if you're not totally sure that this person committed the murders that they were charged for, you should reach a not guilty verdict. And they did. And if you're gonna fault one way or the other, they faulted the right way.

You know, I'll say this. I'm not, I don't quite buy it. I don't quite buy it, Sarah. But I will say this as a half step of agreement with you. As someone who watched the trial pretty obsessively back in the day, one thing that I realized, and I was very brand new in my legal career, but I was already at the point where I could notice that, wait a minute, what you're seeing on television is not what the jurors see. So if you're watching it on TV, you were seeing all of the arguments made to the judge. You were hearing all of the back and forth about evidentiary rulings. And so if you were watching the whole thing, including all of the arguments about evidence and motion practice before the judge, it was a lot more damaging to OJ than just what the jury saw. If you take out all of that other and you just watch what the jury saw, what the jury saw wasn't the same. What the jury saw was less damaging to OJ, less compelling against OJ. But I

still, I still can't get my head around that verdict. I still cannot get my head around that verdict. So yeah, jurors, the jury system, as I said earlier, certainly had major systemic flaws decades ago in an entire region, an entire American region, and is still imperfect. But by golly, of late, jurors have been sort of a bulwark against, you know, they've been an institution that's been working of late. So I just wanted to give them a shout out. If you haven't heard the theory that OJ's son is really the one who did it and he was protecting him, I don't know. It'll raise reasonable doubt.

Oh my gosh. No, it will not. It will not. It will not raise reasonable doubt. 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. we'll break it down. So the bottom line is, let's just repeat, this is not a case in where abortion rights were substantively at issue. In other words, this case does not directly implicate Roe and Casey. What this case implicates is the ability of a state to fashion laws to evade effective pre-enforcement challenge to likely unconstitutional laws. In other words, typically when the state passes a law that you

believe is likely unconstitutional, you're going to have a clear opportunity to challenge the enforcement of that law before its enforcement. In this circumstance, the law was deliberately designed to avoid a pre-enforcement challenge and to allow the law to go into effect before there could be an effective court ruling on its constitutionality. before there could be an effective court ruling on its constitutionality. And so the way they did it is getting rid of state enforcement of the law, almost entirely, the almost is important to what we're going to talk about, and throwing the enforcement of the law into the hands of private parties who file their own lawsuits.

We've talked about this. If you're a longtime advisory opinions listener, none of this is new. And so then the question becomes, what can you do to block enforcement of a law that under current Supreme Court precedent is plainly unconstitutional, under current Supreme Court precedent, but doesn't provide for state enforcement. And the answer, by and large, that the Supreme Court gave is, effectively, you can't. You can't. Now, there's a little bit of a caveat to that, but effectively you can't. And we'll just walk through the majority, the fundamentals of the majorities holding here. And the fundamentals are the following.

Number one, the attempt to sue the judges and the clerks to block enforcement fails. And we'll get into the reasons why. Number two, the attempt to block enforcement by suing the attorney general fails. At the same time, the attempt to block enforcement by suing some random dude who doesn't intend to sue anyone under the law fails. What does succeed is that the attempt to block enforcement of provisions of Texas law against specific licensing officials succeeds. But that doesn't do anything really to the underlying private lawsuits.

That's the basic holding. And Sarah, nobody can see you moving your hands like that. And she was kind of moving her hands like in the universal sign. Maybe. And I agree with you. That's the interesting key question we need to drill down on. But that's the interesting key question we need to drill down on but that's the basic holding the fundamental um the the fundamental argument of the dissent uh and i'm not talking

about sotomayor i'm talking about the chief justice the fundamental argument of the dissent is basically i'm gonna that they're gonna agree with a lot of the majority except they're gonna say hey you're gonna be able to you should be able to sue and get relief against state court clerks to essentially block the filing of the case entirely. And because essentially otherwise, if you don't permit that, you've just evaded, you've just created a system that permits rampant temporary deprivation of constitutional rights, and it really threatens our constitutional structure. So that's the basics of it all.

Sarah, what were your thoughts? Well, as Josh Blackman over at Vala Conspiracy said, he, I thought, phrased this really nicely. My prediction based on oral argument was really, really wrong. I can't remember the last time I misjudged a case this badly. I tried to read the tea leaves and I got burned. Ouch. But as he notes, I wasn't alone. More than 80% of the fantasy SCOTUS crowd predicted a 6-3 reversal. Wrong and wrong. Yeah, so I just all wrong. All my thoughts wrong. Even as the case dragged out and everyone was like,

ooh, this is pretty good for Texas. I was like, no, it's not. It's not. Just wrong. That's why we play the game, right? Yeah. That's why you wait for the opinion. That's right. So, okay. First, some interesting backroom questions. Who, since the chief was in the dissent, the mostly dissent, who actually assigned the majority

opinion? There's an argument that it was Thomas who assigned the majority opinion to Gorsuch, knowing that he would have to partially dissent from the part about the medical licensing professionals. So that's just sort of weird right off the bat of like Gorsuch writing this, how, why, why not Alito? Why not Thomas? Also, you know, our own Declan Garvey of the Morning Dispatch was like,

how do we describe this decision literally in terms of, was it 5-4? And I'm like, uh, no, kind of not. It was 8-1 on part of it. It was 5-4 on part of it. And it was 4-1-4 on part of it. So yeah, if you're not a close follower of the Supreme Court, this was just a hard one to explain in short order. So right, it's 8-1 that the medical licensing people can be sued. It's 5-4 that everyone else can't be sued. And it's, well, 4-1-4. 8-1 that the judges can't be sued? And it's, well, 414. 8-1 that the judges can't be sued? Right.

Yes, 8-1 that the judges can't be sued. Anyway, messy, messy, messy. Very messy, very messy. I thought that Gorsuch's opinion was very non-institutionalist, which makes sense. You know, this is what we have said at Ex Parte Young. This is what we've done this whole time. We're not going to make an exception. This isn't as extraordinary as people think it is. And we don't change the law for extraordinary reasons, or else there is no law if every time we change it just based on what we think might be extraordinary. In general, I'm very sympathetic to that argument. The problem for me is that

ex parte young is already made up. This isn't real. And so if you're going to make up ex parte young, it's a little hard for me then to say like, yes, here, but no further. Well, it's interesting. Let me stop you but no further well it's interesting you let me let me stop you for one second because it's interesting you use the phrase non-institutionalist because if this was a precedent precedent precedent decision which in an interesting way disrupts institutional norms. So when I read Gorsuch, I was reading, my goodness, this guy is absolutely dedicated to precedent in this here decision.

Yeah, but that's because it wasn't about the precedent. It was about not changing what the court does because one side argues that this is exceptional and so we need to create exceptional new law just to deal with this. That's what Gorsuch was rejecting. The fact that he rejects it by falling back on Ex parte Young, I think was a byproduct.

But that, yeah, I guess I'm just curious about the term institutionalist or non-institutionalist in this context, because he's rejecting a change in precedent driven by extraordinary circumstances, which seems pretty. It's an interesting. Yeah, I mean, I take your point, except I just don't think that he was saying we're relying on precedent because it's precedent. That's not to me why he was relying on ex parte young. Right. It was. Oh, he had reasons. He had reasons. He had reasons. Okay. So there's one part though. Well, there's two parts worth really diving into here. The first part is the medical licensing people and why this very narrow opening is a lot bigger than I think people are acknowledging. And all the write-ups, right? It's 5-4, Texas law stays in place. There's no one to sue. Abortion is shut

down in the state. That is... Okay. So by allowing any of these lawsuits to go forward, they're allowing lawsuits to go forward in federal court. That's a very big deal because here's what's going to happen. This lawsuit can proceed now against the medical licensing professionals in this current iteration in a pre-enforcement posture. You will then have a federal court saying that the law is unconstitutional. Now, the remedy can only be against the licensing professionals. So the law is unconstitutional. And as a result, because you are the only people party to this lawsuit, you may not not give licenses to potential abortion clinics because of this law. That part, I think, is going to be very frustrating to people.

But that first part is kind of where the money shot is. Yeah, yeah. You're going to have federal courts saying that this violates Roe and Casey. And that, while not binding on state courts, is used for its persuasive reasoning in Texas. And so all the state courts are going to have to at least grapple with the fact that a federal court interpreting federal law and precedent is saying that the Texas law is unconstitutional.

That's not a small thing to come out of this case. And in fact, probably is the compromise with Kavanaugh and Barrett to keep this case alive. And so to say that this was some, you know, I think that actually Josh says, you know, I tried to read the tea leaves and I got burned. Yeah, you got the vote count wrong in some ways, but the outcome is not going to be that much different. There is still a pre-enforcement lawsuit that you can bring. You will still have federal courts finding SB8 unconstitutional, and that will still then reverberate through the rest of the judicial system, having the same outcome that would have been the case anyway.

Mind you, of course, the state court's already finding summary judgment against this. They're not putting in injunctive relief at this point, but this is working its way through to the result that was inevitable, at least in a pre-Dobbs world. Yeah, no, I agree with everything that you just said. The fact of the matter is, if you're going to get a ruling in joining these licensing officials on the basis that from taking any action in their official capacities on the basis that this law is unconstitutional and you're a state trial court judge or a state appellate court judge no it's not binding on you but if you're doing your job if you're doing but but by the way if you're doing your job this job, this was already directly contrary to precedent. Again, with the big pre-Dobbs caveat to it.

But yes, absolutely, securing a judgment from a federal court that this law is unconstitutional and entering limited injunctive relief, even if it doesn't enjoin everyone in the world from filing a lawsuit, does act as a quite effective legal defense to any of these lawsuits. It's crazy, by the way, a screw up on the part of Texas for not seeing. They worked so hard to make sure there weren't any state officials who could be sued in a pre-enforcement review, and they just didn't check all the cross-references, it looks like, to see that state licensing professionals, officials would still be responsible for enforcing the title as a whole once it was amended. So it actually was an interesting oversight and one that I wonder, when we get to California, whether they will fix. Yeah, exactly. So Texas almost hacked the system.

But one wonders if there wasn't an almost hacked the system, if it was- When they found something else. Exactly. Or if they just do what basically Robert says, which is, hey, look, I mean, ex parte Young is president of this court. We can tweak it and we will now tweak it,

which is essentially the Roberts ruling, which is, no, we're not going to allow you to sue judges. Judges aren't really adversarial to you. They're not adversaries. They're adjudicators. But we'll let you block the clerks from processing these lawsuits. And that strikes me as the potential, if there wasn't this sort of needle that could be threaded here, that is a potential alternative.

But yeah, essentially the Roberts opinion is, precedent is tweakable and we'll tweak it to preserve this constitutional order where there is a high premium on pre-enforcement review. trying to engineer and specifically engineer a violation of this court's precedent and the ability to engineer violations of this court's precedent, at least for a period of time. And we see what you're doing. We see you. We know what you're doing and we can adjust our precedent to stop you. So there, and that's essentially the Roberts decision or the Roberts dissent. Which again, I'm somewhat sympathetic to because ex parte young is totally created out of whole cloth. Ex parte young in terms of facts is actually kind of similar. The law put into place had a huge chilling effect because the only way to strike

down the law was to risk getting sued and paying these enormous fines. And so the court was like, oh, okay, well, you can sue the attorney, the state attorney general in this pre-enforcement fashion in order to adjudicate this ahead of time so you're not risking the fines. That's what we have here. In that case, though, the attorney general was sufficient to reach that. what we have here. In that case, though, the attorney general was sufficient to reach that. One can imagine if this was the first case to reach the court in an a la Ex Parte Young fashion instead of the facts of Ex Parte Young, who knows? Maybe the court would have said the clerks were fine. That's where I'm like, well, this is the problem, whether it's qualified immunities, problem, whether it's qualified immunities, clearly established test, or ex parte young,

when you base an entire huge portion of Fed courts on court precedent, you're going to run into weird problems like this. It's not law. It's not constitution. It's just precedent. just precedent. Okay. So not surprisingly, David, California comes out swinging. We have a statement from Gavin Newsom, the governor of California saying, cool, we're doing this now. No problem. I'm sending a bill to the legislature in California that will mimic this in every way possible. $10,000 fine that any person can bring against someone who basically sells an assault rifle or a ghost gun kit in the state of California. Everything else looks very similar. As someone pointed out, a big difference is the abortion restrictions were all getting struck down by courts. That was the need for SB8 that Texas saw. Whereas in California, all of their

gun restrictions have been getting upheld. So it's a little weird to do it this way. But let me tell you why I think Newsom is making a huge mistake, like a big, big mistake. I'm looking forward to hearing this. Go. Big mistake. Like pretty woman style. I'm holding the bags. You work on commission, right?

Big mistake. Gavin Newsom seems to be under the impression that he's going to like show those conservatives at the court how hypocritical they are by doing it with guns and getting that to the Supreme Court. And then they're going to come out with a different opinion. And that's going to show that it was always about abortion. Yeah, you're wrong about this. I don't think Gorsuch or any of these guys think that at all. In fact, they will welcome, welcome the opportunity to have a completely consistent opinion on the Second Amendment that will mirror this opinion

exactly. You are, in fact, giving them the opportunity to be very consistent. Here's what you should have done, Governor Newsom, because this would have been much, much harder. Hate speech. Do it as hate speech. Say anyone in the state can sue someone regardless of whether the speech was directed to them or not, regardless of whether they were actually offended. If someone says something that could be found offensive by someone else. Under a definition of hate speech that you can make up, it's $10,000. The justices, it would have such a chilling effect on free speech, and most respects the number one right in the Bill of Rights.

That would create a real tension, I think, for someone like Neil Gorsuch, real tension, I think, for someone like Neil Gorsuch in a way that the Second Amendment, $10,000 to someone who sells an assault rifle or a ghost gun kit is going to have the exact opposite effect. Yeah. So a couple of things. One, I agree with you completely. I mean, the court is not going to flip around immediately on this issue because guns are involved. That's just not going to happen. I mean, Gorsuch would be happy to do basically find and replace on the opinion

and just swap out guns and the California, whatever, you know, the Senate bill or House bill it is for abortion and SBA. Also, this was briefed to the Supreme Court. This isn't like they didn't think about it. There was a whole amicus brief on this exact issue.

So there's no gotcha here. Right, right. There's no gotcha. And then the other thing is, the thing that's interesting to me is that what is the Supreme Court precedent that Newsom is defying here? There isn't one. Okay, so as you said, as of right now, California's very strict gun control regime has been upheld in the Ninth Circuit. Now, defying the law would be if the Supreme Court rules there is a right to bear arms and that any may issue that may issue regimes around the country should become shall issue regimes. In other words, you have a right. You have a you don't have to seek permission from a state or local official to carry a weapon outside the home. And if Gavin Newsom then says anyone without a permit issued under prior California law can be sued for 10,000, directly defying Supreme Court precedent, then he would be replicating Texas. But he's just not. He's not replicating Texas. This is

essentially my law that is enforceable already under current precedent. I'm adding a new enforcement mechanism to it. So number one, he's not going to test the Supreme Court. The Supreme Court would be very happy to be consistent in its precedent on this point. And number two, he's not even defying precedent. He's not even really defying the law here. Of course, we have to see what an actual bill looks like if such a bill is is ever generated or if this is just a tweet um as of now it's just a tweet and a statement but yeah it's not actually doing what texas did it's doing what texas did

if you're not fully aware of what Texas did. But don't you think my hate speech thing would actually put the court in far more of a pickle? Yeah, yeah, absolutely. Absolutely. If all of a sudden everyone in the state of California was terrified that if they said something that was not considered in vogue with the speech police of the day,

that they could be subject to a $10,000 fine, all of a sudden nobody in California could be subject to a $10,000 fine. All of a sudden, nobody in California would be posting anything on social media, Twitter speaking ever doing interviews and the court, and then there'd be no pre-enforcement review. What a disaster. Yeah, exactly.

And this would be, you know, if you, and it would be very easy to do, you know, there's examples of university speech codes that used to exist in the state of California that have been struck down in court, including by some of my legal teams back in the day. You just put in, say, Cal State, Cal State's old speech code that got struck down in a case we

litigated in the mid 2000s or late 2000s. Put that back in and say, that's the speech code for the state of California. And anyone who violates it can be subject to a lawsuit for $10,000, filed by anybody. And then you get a sense of exactly what structural damage SB8-style laws do to our constitutional superstructure. But yeah, Gavin Newsom, it's a ploy. It's not the ploy that he thinks it is.

It's not clever at all. Again, like everyone else thought of this ahead of time, not even original thinking, and it's not going to do what he thinks. It's going to do the opposite. And there were ways to, I think, force the court's hand. This wasn't one of them.

Lame, lame, lame. Lame. Yeah. But I don't think this is necessarily the end of the line for the SB8 litigation. This could come back up to the Supreme Court in several different ways. Worth mentioning before we leave the topic that the United States won the federal government saying that they can pop in at any point to vindicate a federal right? No. They dismiss that as improvidently granted. Bye-bye. Yeah. And the other thing, it's just worth emphasizing, is all of this right now is a temporary artifact of the reality that Roe and Casey are up in the air.

And by the middle of the summer or by the end of June, we're going to know where Roe and Casey stand. And a lot of this is going to be resolved, especially when it comes to Texas and SB8. What is still going to be hanging out there is the modified Gavin Newsom ploy. In what way will this precedent be used to engineer the temporary deprivation of other constitutional rights? That's going to be sort of left hanging out there. The Newsom ploy doesn't push us, but the potential of an improved Newsom ploy 2.0 is definitely still out there. 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,

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Terms and conditions apply. All right. Speaking of California, Sarah, should we stay in California for a moment and talk about vaccine mandates? Yep. All right. So this is a case.

Earlier this month, John Doe, Jane Doe, and as parents of Jill Doe, anonymous minor child sued the San Diego Unified School District to try to obtain a religious exemption to the vaccine mandate. And what the Ninth Circuit did, a majority, so the Ninth Circuit, a three-judge panel of the Ninth Circuit, but what the majority did is essentially say, look, Employment Division v. Smith controls. This is, in fact, a neutral law of general applicability, even though it contains some exemptions that it permits

from the vaccination mandate, but without permitting a religious exemption. The exemptions it permits are pretty limited. A medical exemption that has to be renewed, certified by a doctor and renewed. And some temporary exemptions that are related to people who are kind of in a transient state,

like maybe they're kids of military or they're homeless. They're kind of moving maybe in and out of school districts. And so they have about a 30-day grace period to get a vaccine. And people who are under these IEPs, individual educational programs, because there's a very complicated regulatory structure around those and interference with an IEP is very difficult. So they're going to grant these three limited exemptions, but not religious exemptions.

And so the question in that is, if you grant those three limited exemptions, but not a religious exemption, is it still a general law of neutral applicability? And this gets into the strength of the Smith precedent. And what the majority essentially says is, look, because the exemptions that exist do not have any real substantial,

either still continue to advance the district's interest in the health and safety of its students. And they said that the medical exemption to the vaccine requirement advances health and safety or are so temporary or immaterial that they don't interfere with the interest of advancing health and safety of students, that there is no law, A, targeted at religion, or B, inconsistent with advancing the health and safety of the students. Therefore, this is a neutral law of general applicability. Case closed.

This is over. Doesn't violate Smith. No religious exemption. Period. End of discussion. The dissent says, well, hold on. Hold on. You're defining the government's interest all wrong here. What the government's interest is, is not some sort of vague, gauzy health and safety of students. It is the government's interest. This is against transmission of COVID-19. And if you have exemptions that are non-religious that inhibit the government's that that interfere with the government's interest of preventing transmission of COVID-19 and you grant that in some areas, but not religion, then Smith doesn't apply. We got to go to strict scrutiny.

And therefore, we need to hold things in place while this is more fully developed. So that's basically the way this case came out. And I've got a couple of questions and thoughts here, Sarah. One is, so here's thought number one. Thought number one is, why, it seems that San Diego had an own goal here. And that is a lot of the better constructed sort of vaccine mandate scenarios do this. What they really are are mask plus testing mandates with an ability to get a vaccination to get out of the max mask plus testing requirement.

Why, why didn't San Diego do that here? So that's, that's one question. And question number two is, are we ever going to get a court decision on whether or not a vaccine mandate can meet strict scrutiny. To me, that's the much more

interesting question. Can a vaccine mandate meet strict scrutiny? And I say, in some circumstances, it can. Maybe not in this circumstance. Yeah, tell me a circumstance where a vaccine mandate could meet strict scrutiny. I think a vaccine, Yeah, tell me a circumstance where a vaccine mandate

could meet strict scrutiny. I think a vaccine, well, let me back up. I think a vaccine, a mask plus testing regime with a vaccine, if you get, you're exempt from masking plus testing,

if you get a vaccine, would meet strict scrutiny for individuals who are inescapably in close quarters with each other. So if you're working on an assembly line, if you are working as a flight attendant, if you're in circumstances where close contact with individuals is an inevitable part of either your job or your role as a student. I could easily imagine in the middle of a pandemic how masking plus testing or vaccination would meet strict scrutiny.

Although in that case, how do you have a religious objection to the masking and testing? So how do you even get to strict scrutiny? Oh, that's been tried. I know, but like that, you almost fail on the other part, on the other side of the equation to me. Yeah. But that's why I think of San Diego as having the own goal here. Yeah. Masking plus testing that you can escape by vaccination seems to be the way to advance your public health goal

in a manner that could even meet strict scrutiny if a religious objection is raised to it. Going with the vaccine without the masking plus testing and the vaccine only, it's going to be hard for me to see how it's going to meet strict scrutiny. Yeah.

Yeah. Okay. I mean, as we have said repeatedly with pandemic law, the government's interest changes over time. Yes. I should say current. Yeah. It doesn't mean it can't go back up, although it has certainly been waning since the start of the pandemic. Maybe there was a slight spike around Delta in terms of the government's interest or police powers. But, you know, I thought you were going to say you could see strict scrutiny being met with a different type of virus. Oh, yes, for sure. I think that's absolutely correct. Yeah, like there's an Ebola-style, you know, 30% death rate virus, and I think that the government's interest changes.

Well, and also this virus in different settings. So, for example, nursing homes, as opposed to a vaccine mandate if I'm working around people who are 80 and 85 and medically vulnerable, as opposed to a vaccine mandate for 16-year-olds who, by and large, are not threatened by this virus to nearly the same extent as people as they get steadily older. So yeah, I do think that there are different scenarios regarding strict scrutiny where a vaccine mandate could meet strict scrutiny, A, with a different virus, B, with a different virus in these circumstances, and C, where the vaccine mandate is only really part and parcel of a masking and testing mandate. So that's where I could see it. But your challenges to masking plus testing or vaccine mandate are much more going to be related to sort of, you know, for example, that's the proposed Biden OSHA or the Biden OSHA standard. And that one really is much better challenged on the basis of failures in, you know, much better challenged

on the bases that we've talked about before, including does Congress have the authority to do that? Could Congress, did Congress delegate that authority if it had that authority? Does this meet the requirements of the Occupational Safety and Health Act? Those are much more viable challenges than a religious challenge to masking or testing

or masking and testing or vaccine. True enough. Just my two cents. Just my two cents. So that's it, Sarah. I think that's it. Are we done that early? I know.

See, this is the problem. The SBA thing, it was too much and too little. Yeah. It was an important decision that was actually a lot simpler than I thought it would be. Kind of. I don't know. Yeah. Hey, I do have one funny thing that we can finish on.

Okay. You mentioned IEPs, and Judge Elrod of the Fifth Circuit had a great footnote that we haven't gotten to. It was a couple weeks ago, and it's been sad. It comes out of a case from the Individuals with Disabilities in Education Act, IDEA. with Disabilities and Education Act, IDEA. And she writes this incredibly coherent opinion explaining the outcome. But in footnote two, she says, although the party's briefs, the record on appeal, our case law, and even IDEA itself

contain an alphabet soup of administrative acronyms, we will spell things out for the sake of clarity. Individualized education program as an IEP, for instance. For those who prefer acronymic efficiency, however, are holding as roughly as follows. RISD did not violate IDEA with respect to KS because as the SEHOs correctly found at the DHPs, one, the ARDC's IEPs for KS, which included PLAAFP statements, TEKS goals for KS's grade level, various accommodations in a transition plan, were appropriately individualized in light of KS's LSD. Two, no actionable violation resulted from wrongly excluding ks from the september mdr which reviewed ks's prior fie's fba consultations his iie miss h's report of ks's adhd and ohi tbi and mood disorders and concluded the ks's l slD did not cause him to commit the assault for which he was assigned to DAEP.

And in sum, the D court did not err in holding the KS received a FAPE in the LRE in compliance with IDEA. That's spectacular. Well done, clerk, who did all of that. Wait a minute. Are you saying it was a clerk who did all of that? I think some clerk had a lot of fun in the kitchen and they were like,

ah, looks like a good footnote to me. One other thing on the California case before we move on. Again, about an own goal. So amongst the people who are getting granted exemptions, this is exempted students, despite being unvaccinated or permitted to attend in-person classes and participate in extracurricular activities.

If they comply with non-pharmaceutical interventions, face coverings, regular asymptomatic testing, no similar accommodation is offered to students who are unvaccinated for religious reasons. You're going to have a problem there. You're going to have a problem there because that starts to look much more like singling out.

But anyway, I just wanted to highlight that. And can we revisit something else that we talked about very briefly? Okay. We talked about judicial take uh take backs on senior status yeah and we talked about take backs on senior status and you and i both said okay if it's a take back that is based on trying to dictate my who my successor is in other words, handing down the scepter to the chosen, to the heir, what if it is based on wanting to make sure that who my successor is not? Yeah, same thing.

Not okay. No. Not okay. No. All right. That's the same thing. Same thing. Hey, David, I forget.

Did I do the mailbag question about what happens if a justice dies? No. I didn't? No, I don't think so. I think you just tweeted that out. I didn't tweet it. You tweeted that we would talk about it, I thought. Or emailed. Yes. OK, so we had a question about what happens if a justice dies before an opinion comes out, for instance, in Dobbs, let's say, you know, or one of these cases that's really close. And the answer is very clear. Until the opinion has actually been issued by the court.

If a justice is removed for any reason, that opinion no longer has their vote. So it's not the conference meeting where they sort of do a show of hands. It doesn't matter whether they pinky swore to you the night before that they were 100% sure that was their vote and they weren't going to change it, that the thing's already gone to the printer. None of that. It is the next morning when the chief gavels in the court and issues the opinion from the bench, or at least that was the pre-COVID way to issue opinions. I suppose when they post it online is now the issuance of opinions, though we'll see when we get to June how they're actually doing that. And so, yes, if Justice Breyer announced his retirement, if Justice Thomas got hit by a bus, if Justice Kavanaugh decided to become one of the astronauts to visit Mars,

their vote would be subtracted from whatever side they had been on. And by the way, if you have an opportunity now or at any time to become an astronaut to Mars, I totally understand and excuse your absence on that basis. That's true. And like the court recently said in that Ninth Circuit opinion, justices are appointed for life, not eternity. And so until that opinion is out, you do not get to carry on your posthumous vote. Correct. All right. Well, my goodness, I did not think that our Texas SBA discussion podcast would end up being one of the shortest podcasts we ever did, but there it is. We're concise. We're concise. All right. Well, we will be back on Thursday.

We've got already some topics cooking in the back of our minds for Thursday that you're not going to want to miss. In the meantime, please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts and check us out at thedispatch.com. ¶¶ That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell.

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