Advisory Opinions - Supreme Court to Hear Affirmative Action Challenge

Episode Date: January 25, 2022

On today’s podcast, David and Sarah celebrate 200 episodes with a discussion of two key college admissions cases the Supreme Court took up. Plus, they preview Sarah Palin’s defamation trial, and look at a circuit court judge’s unusual opinion.   Show Notes: -Students for Fair Admissions Inc. v. President & Fellows of Harvard College -CNN: “Why the Sarah Palin v. New York Times trial will be an 'excruciating experience' for the paper” -Judge VanDyke’s Ninth Circuit opinion Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And let's just dispense with all opening pleasantries and dive in because I have so many tabs open, Sarah, about dealing with today's show. I can't even begin to describe all the things we're going to cover. Well, before we do that, happy birthdays are in order. Happy birthday to you and happy 200th episode birthday to the pod.

That's true. Pod 200. It snuck up on me. We need to do this sort of thing where we do a special pod at some point. Maybe it's pod 500 or pod 1000, but pod 200. And it's just a normal pod on a normal day other than my birthday, which thank you for your birthday wishes. Mystery Science Pod 2000.

That's what we'll do. There you go. There you go. So Sarah, today the Supreme Court, people thought it was going to be a boring orders list, not a boring orders list. Do you want to talk about the boring parts of it before we talk to you about the exciting parts? Look, even the boring parts weren't boring, but sure. So first of all, on the cert denials, you see a whole bunch of Oklahoma cases because they

already granted their let's revisit the Oklahoma no longer as part of Oklahoma McGirt case from two terms ago. And so then they chucked all the other ones. Same with all the vaccine mandate cases. You'll see a whole bunch of denials on the other vaccine mandate cases. Another cert denial, though, is the proxy voting case. This is McCarthy suing Pelosi because Pelosi changed the rules so that members of Congress can vote by proxy. He argued that was unconstitutional. And the Supreme Court, very predictably, in my opinion, said, we don't mess with the House rules. Now, if it were just the House rules, of course, this would have been a nonstarter entirely entirely. There is, you know, some stuff in the constitution about needing to be there in person. There's certainly history about members having to travel

and quorums not being met because members couldn't travel, you know, snowstorms or whatever. But not at all surprised that the Supreme Court does not want to get into the business of telling the House Speaker what their internal rules need to be so that was denied certs granted um the taser the company that makes tasers so the ftc brought an antitrust suit against them and they said yeah but we think you're unconstitutional and so they granted cert on that but interestingly not on the constitutionality of the FTC. There were two QPs presented. They only took the first one. And that's going to be more of a jurisdictional stripping, whether Congress did, could strip the district court of jurisdiction to hear the case in the first instance, which also means I think this case will continue going up and down. Not the last we've seen of the FTC's constitutionality. Fun times. So quick question. Sarah, have you ever been tased? I have not. Oh, you haven't. got a taser in college and he had it in his hand.

And I said, what's that? And he said, a taser. And I said, oh, you mean like shocks people and incapacitates them? Yeah. Does it work? I don't know. And he tased me. Does it work? I don't know. And he tased me. Well, David, I have a couple of questions. A, what did that feel like? But B, did you feel that there had been a restriction of trade on that taser in the moment that you were tased? An unfair restriction? Well, I was completely unaware of any monopoly around the taser at the time. So it wasn't on my mind at all as I immediately dropped to the ground and writhed in agony while he cackled maniacally over me.

Boys are fun. I'm so glad I have one. Last cert grant is, I'll just read you the question presented. Whether the Ninth Circuit set forth the proper test for determining whether wetlands are, quote, waters of the United States under the Clean Water Act. set forth the proper test for determining whether wetlands are, quote, waters of the United States under the Clean Water Act.

You will hear lawyers talk about, well, particularly Supreme Court lawyers, talk about WOTUS, waters of the United States, all the time. So we've got another WOTUS case. But the fact that the QP is phrased as whether the Ninth Circuit

set forth the proper test, yeah, the answer to that's always no. We already know. I don't know why we're hearing this case. All right. But of course, there was one more cert grant, David. Yes, yes. This is a big one.

This is a big one. Now, Sarah, is this being heard, this term? Ooh, so David, this is fun because I love when advisory opinions disagrees with other Supreme Court experts. Oh, I like it. OK, so SCOTUS blog and Washington Post. Anyway, a bunch of the tweets I'm seeing say that the Harvard and North Carolina affirmative action cases will, quote, almost certainly be heard next term. But David, I think there is a chance they're being heard next term. But in fact, this is usually the last conference to put cases on for this term in the April sitting.

And because they consolidated Harvard and North Carolina into a single case, they actually only granted three cases today, which by my count of they've scheduled February, they have not scheduled March and April. By my count, there is enough room for this to go on the April sitting or for them to say like, oh, it's kind of tight, nevermind, sitting or for them to say like, oh, it's kind of tight, never mind, and then push it to next term. I think, however, I think that there's a pretty good chance that it gets put in April. So we'll see. But I disagree with everyone that it's almost certainly next term. I think that it's 55-45 April sitting this term.

That would be, do you realize if, so the story is the Harvard and University of North Carolina racial admissions challenges to racial admissions were both granted and consolidated. This is something that we've talked about a bit. Well, not a bit. We've talked about quite a lot, actually, over the months and years. This was something that was one of the cert petitions sort of hanging out there that a lot of people were watching. And so they were both granted. Don't know if they're going to be heard this term. If they are, holy cow, this term. Are you kidding me? This last week of the, the last week of opinions, we're just going to have to go ahead and go five days a week on advisory opinions. Because it's going to ever happen. No, no, it's one of the best things, one of the best things. But this is, this is pretty darn big. And I want to, I want to sort of go back through some of the evidence and the claims here.

And so basically in this group, Students for Fair Admissions are challenging affirmative action, and they're challenging affirmative action in an interesting way, less because of its impact on white students, although that's certainly an element lurking in the background because it is dealing with sort of the overall racialization of college admissions. But a lot of focus here on Asian American admissions. And this is where the evidence is particularly interesting and particularly compelling. And so let's focus on Harvard, for example. So Harvard, the evidence is that Harvard has an enormous race focus in its admissions. that there's evidence that's been admitted in the record that senior officials at Harvard are sort of constantly monitoring the racial composition on the incoming class,

that there are specific things such as a LOP list that includes data points like legacy status, recruited athlete status, financial aid, eligibility, and race. Ethnic stats are at the forefront of the analysis throughout the admissions process. And the result of all of that is a remarkably stable sort of admission, set of admission stats regarding race by year. So in the cert petition for the students for fair admission, you look at stats that say between 2009 and 2018, for example, the percentage share of African-Americans in the class never was lower than 10 and never was higher than 12. There was a greater variability in the Hispanic share of the class, never lower

than 8, never higher than 12. When you looked at the Asian American share of the class, it was never lower than 17, never higher than 20. 17 was an outlier. 18, 19, 20 is the normal number. 18, 19, 20 as the normal number. Well, how do you achieve such remarkable uniformity? Well, you achieve such remarkable uniformity by having different standards on the basis of race. And what you find is that if you are applying and you're in the, depending on what academic, do you pronounce it decile, decile? I pronounce it decile. Decile. Let's go with decile. So depending on what academic decile you're in, your opportunity or chances of admission vary wildly and significantly by the race of the applicant with Asian Americans consistently, not just consistently, but in every single decile,

either having the lowest chance of admission or tied for the lowest in the third decile, you've only got a 0.6% chance of admission if you're Asian American, which ties for white students. But white students have a higher rate of admission than Asian American in the same decile. So do black students. So do Hispanic students. Put them all together. So do all applicants. And so what you have here is a really interesting case where essentially what students for fair admission are doing is they're going to the Supreme Court and they're saying your holistic standard where you're supposed to look at all the kinds of – the diversity is actually turning into a crude counting exercise by all of the standards. And that, in fact, a historically disadvantaged minority in the United States, and if you don't think Asian Americans have faced some legal persecution in the United States, up on that, that in fact, a historically disadvantaged

minority in the United States is the one that faces the highest bar for admissions and perversely enough, but in part because of that higher bar for Asian American admissions, you've got a better chance being a white applicant at Harvard than an Asian American applicant at Harvard. And it seems to me, and we can move on to North Carolina in a minute, that if you're going to ever have a case where, and very cleverly in the cert petition, Students for a Fair Admission begins with some famous quotes from justices, current and former justices of the Supreme Court, that if you're ever going to, for example, if you're ever going to have the law reflect some rhetoric like this from Chief Justice Roberts, discrimination on the basis of race is illegal,

immoral, unconstitutional, inherently wrong, and destructive to democratic society. This is one of your better test cases for that proposition. And it's also a great test case for the proposition that all of this rhetoric that you've given before about holistic analyses and we're looking at race is but one of a big range of things that we look at is really a pretext for some really pretty crude race-based balancing and admissions. Sarah, your thoughts? Yeah. I mean, just, yeah, there's a reason that since this case was filed in the district court in Massachusetts when I was at the Trump Justice Department, everyone knew this would go to the Supreme Court. That was filed in 2017. And here we are. Yep. Yep. yep yep i mean it was in many ways a perfect storm of facts and i haven't even gotten to one of the more offensive aspects of it aside from the the reality that a historically

disadvantaged minority in the u.s actually ends up facing the highest challenge for admissions into one of the nation's elite universities it's's that when Harvard was doing its, quote-unquote, holistic analysis, that it found recurring characterizations. The discovery in the case found recurring characterizations attributed to Asian-American applicants, such as quiet-shy, math, math, science oriented, hard workers. In other words, the holistic analysis kept downgrading Asian students, quote unquote, personal rating, which that even starts to get even, you know, just in my mind, grosser.

Well, and I think for those listening, just again, imagine if the personal rating of all the black applicants had stereotypes in it and was downgrading every black applicant and then see why this is a problem. Yeah, yeah, Yeah, exactly. Exactly. Now, here's what's interesting. And here's the other can of worms here. It also turns out that there were some other aspects other than academics and race that were pretty predictive of an advantage in admissions.

And the top one, it seems by far, unless I'm misreading this chart, Sarah, was not race, was athletic rating. That's right. Athletic rating. So Harvard, which, you know, Ivy League isn't going to win a national title in much of anything. Athletic rating is giving them an extremely high admissions advantage. And you know what? That sounds an awful lot like a previous podcast. The varsity blue case. Well, and let's also break that down because the two, like what's right after that is legacy admissions. And lo and behold, if most of the

people who used to go to Harvard are white, then the legacy admissions chunk of that is basically going to be a white affirmative action program. And on the sports list, again, please note that Harvard doesn't do that well in the major sports you're thinking of, but they recruit athletes for all these other sports, sailing, fencing, tiddlywinks for all I know. And again, those students actually tend to be overwhelmingly white. So in several of their programs, they are putting the scale on white students. And then when it comes to several of their programs, they are putting the scale on white students. And then when it comes to sort of their merit-based admissions, they're saying, well, now we have to put the thumb on the scale for, you know, black and Latino students so that we

can have diversity in our student body. Well, guess what? There was another way to have diversity in your student body of experience and viewpoint. And it would affect your legacy and sports admissions. Yeah. It is really, let me put it this way. If you're saying that we're sitting here trying to create this incredible, holistic potpourri of American students so that people are having this extraordinary academic experience, drawing from people from all kinds of backgrounds. There's a lot of factors in here that are inconsistent with that, unless you're saying that a top-notch sailing program is something that is really helping students. I don't know, Sarah. I'm sure there are other admissions schemes at other universities, but if you're wanting to defend the holistic standard, the array of facts that you're facing in this Harvard case, these are some bad facts.

They're bad facts. So UNC also has, you know, again, trying to apply the more quote unquote holistic, the holistic admissions standards. There's a lot of bad facts there that, you know, in actual reality, things get pretty crudely racial. So, for example, in reviewing applications, again, this is from the cert petition from Students for Fair Admission,

admissions officers focus intently and sometimes crudely on an applicant's race as revealed by online chats. Man, isn't discovery something else, Sarah? I quote, I just opened a brown girl who's an 810. That's an 810 SAT. If it's brown and above a 1300, put them in for merit Excel scholarship. Quote, still, yes. Give these Brown babies a shot at those merit dollars. Oh, dear God. Uh-huh. Uh-huh. Uh, I quote, I don't think I could admit or defer this Brown girl.

this brown girl. Perfect 2400 SAT, all five on AP, one B and 11th. Brown? Heck no, Asian. Of course, still impressive. Do you think that's the holistic analysis the Supreme Court had in mind? Wow. That's a little heartbreaking, honestly, because you think of each of these kids. If you have kids out there who've either gone to college or applying for college and how much work they've put in over and there was all of this incredibly sort of soaring rhetoric about holistic processes. skeptical slash cynical back then. But I realized, and a lot of people realized, nope, this is going to get pretty crass. This is going to get pretty crass, and they're going to put window dressing around it, but it's going to be pretty crass. And I have to say, Sarah, I wouldn't want to be in Harvard or UNC shoes going into this oral argument. And funny, you should mention that because the court consolidated the case for an hour total, they all have to split time. And I will imagine that the Solicitor General's office will ask for

time as well. So I think you're going to end up with five advocates here. Um, so I think you're going to end up with five advocates here. Um, though it'd be really funny if Harvard or UNC was like, no, no, you do it. We don't want to do this, but they won't. We will end up with five advocates. Well, sorry for the, the people bringing the case. We'll do both then Harvard, North Carolina. And then I think the SG's office will be part of it. Because if you remember the reason this got punted so far was because the Chief Justice asked for the views of the Solicitor General's office, CVSG. And so now that they've taken the time to brief their views, I imagine they will ask for argument as well, but we'll see. You know, I don't remember if I advise your opinions, listeners will remember this,

or if you remember, Sarah, but I've served on an Ivy League Law School admissions committee. Ooh. Yeah. At Cornell Law School back when I taught there in 1999 to 01. And we didn't have have stuff quite that crass, but there were some disturbing stuff that went on. In one case of, one of the most clear-cut cases of anti-Christian discrimination that I'd ever seen in my life, that fortunately I was sitting there on the committee and I was like, guys, I'm here. You know, like my CV makes this guy look like a pagan. Why are we, why are we, and some of the quotes about him, and they were based on the fact that he went to a Christian undergrad, went to seminary, and he worked for Dan Quayle's short-lived presidential campaign. Things like, I don't want that God squatting here or that Bible thumping

at the school. And I said, whoa, hold on. And to their credit, everyone flipped on a dime immediately and kind of realized what they were doing and even apologized to me afterwards, which was really interesting. And then later on, so he got into Cornell and later on, I got an application when I worked at ADF from somebody who was a graduate of Cornell Law School who had worked for Dan Quayle and gone to Christian College and Seminary and I hired him. So I got him into law school and I hired him. Hmm. The conveyor belt into Frenchism. Yeah. Interesting. Okay. So that's going to be fascinating. Next topic. We have so many. What's the next one you want to hit, Sarah?

Oh, let's do the trial that's starting today. Sarah Palin's lawsuit against the New York Times. Yes. Yes. This case is very interesting. So if you don't have, if you don't remember this, after Steve Scalise and other congressional Republicans, Scalise was critically wounded. There was essentially an assassination attempt at a significant portion of the Republican caucus from a shooter named, well, I don't like to name these shooters. A shooter tried to assassinate a big portion of the Republican caucus. tried to assassinate a big portion of the Republican caucus.

And by the way, Sarah, have you ever thought what would have happened if he'd succeeded? All the time. I was traveling with the Attorney General overseas and they woke me up in the morning to tell me what had happened. And I went and informed the attorney general and woke him up. And at that point, we did not know just how bad it was.

So yeah, at that moment, we had to operate under the assumption that a large portion of one party's congressional caucus had potentially been murdered, assassinated. Yeah, it's just horrifying. It's just horrifying. And it's very similar. When something is attempted but doesn't succeed, we often memory hole it pretty fast. But I mean, it was horrifying. And we came so close. And if it weren't for a couple of incredibly courageous police officers who were right there in that moment, because there were senior leaders in Congress

who were president of the baseball field, goodness knows, I mean, your mind doesn't even like to contemplate it. But that's not what the case is about. The case is about a New York Times editorial. And here are the key parts of the editorial. And I'm going to read this and it's worth quoting, worth reading because this is the heart of the case. And here's what the editorial said. Was this attack evidence of how vicious American politics has become. Probably. In 2011, when Jared Lee Lochner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords

and killing six people, including a nine-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that puts Ms. Giffords and 19 other Democrats under stylized crosshairs. Conservatives and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. their right. Though there's no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right. Importantly, David, two days later, they issued a correction. That was June 14th, 2017. On June 16th, 2017, here's the correction. An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.

The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized crosshairs. Right. Now, why would the Times so quickly apologize? It would so quickly apologize because of reporting in, drumroll please, the New York Times, which had gone and done actually excellent reporting on Jared Lee Lochner after the shooting and had pretty much described him very thoroughly as a person who, for lack of a better term, had lost touch with reality. Just lost touch. There was never evidence of a link between him and Sarah Palin. And here's a quote, for example, from some of the Times' own reporting.

As he alienated himself from a small clutch of friends, grew contemptuous of women in positions of power, and became increasingly oblivious to basic social mores, Mr. Lochner seemed to develop a dreamy alternate world where the sky was sometimes orange, the grass sometimes blue, and the internet's informational chaos provided refuge. And then his online screeds that people discovered quite quickly were utterly incoherent, definitely not related to anything to do with Sarah Palin. They concluded such thoughts. Well, I won't read them, but they're often just strings of numbers, for example, and connecting them with years.

And they make no sense, no sense at all. And so, you know, the real question, I don't think, Sarah, is did the New York Times in that initial op-ed, is that defamation? I think yes. I think yes. What does the prompt correction do is an interesting thought. I mean, one idea says you had defamation followed by mitigation of damages. In other words, the quick correction mitigates the damage, but it's going to be a very, very interesting trial. We haven't talked about this case at any length at all, if ever, but I'm very interested in your thoughts. Well, so initially this case was dismissed and then the appellate court reinstated it. And that's

why it is back up again and why it's been so long since 2017. Now, Sarah Palin has a high bar to meet as of now. A public figure, and we have talked, David, quite a bit about this standard and the haziness, perhaps, of what a public figure is. Sarah Palin, however, nothing hazy about that. She has clearly invited public figure status. And so then she will need to prove under current standards that the New York Times operated with actual malice when it published that sentence. Now, okay, so a few things. A, how this trial will actually go. B, what the outcome of the trial will be. And C, on appeal, is the actual malice standard going to hold up so a how this trial is going to go not good for the new york times because we're going to see behind the curtain of how the sausage

gets made um speed uh sort of the separateness of the editorial board process versus the reporters that they clearly never reached out to and never saw it. And, you know, the sloppiness that can happen when you're trying to get something out the door and you have a deadline and you happen to work for the New York Times. So I would expect that to be very embarrassing for the New York Times over the next, I think it's a two-week trial they've slated for. As far as the outcome, I can give you reasons why Sarah Palin will win, and I can give you reasons why Sarah Palin will lose. So why Sarah Palin may win. A jury's not going to like this. And so even with the high standard of actual malice, it's not impossible to imagine a jury who says, yeah, the New York Times hated Sarah Palin.

Now, that's not quite the actual malice standard, actually. But I I wouldn't be shocked by something like that. Now, even under the actual malice standard, could they find that the New York Times, you know, when they asked them on cross-examination, do you read your own paper? Are the editorial board members going to say no? They're going to have to say yes. Okay. Did you read this article that, you know, the one David referenced that described the motivations for the shooting? Yes. Then how could you have written this? Like, that's the actual malice proof that you knew the truth and decided to write something opposite.

And look, I think the truth, for what it's worth, actually is going to be something like, yes, I read the New York Times. Yes, I sort of read that article. Maybe not in the depth that I could have. But by the time I was writing this, I had misremembered it. Yep, I read it. I just, I remembered it wrong. I thought it said that there was a connection and it said there wasn't. And I didn't go back and reference it while I was writing, which I regret and I should have. And in that case, you haven't met the actual malice standard. So this gets to why Sarah Palin may lose because the actual malice standard is nearly impossible to prove. You would need something in writing saying, hey, you know how that shooting had nothing to do with Sarah Palin? We have this huge platform and it would really

help defer some of the heat going on the Bernie Sanders team right now if we could say that in 2011 the same thing happened on the right. Ha, let's do it. No such email is going to exist. And I honestly don't think even consciously anyone thinks that way. So that's why Sarah Palin may lose. However, the actual malice standard, I feel like, is not long for this world. And David, you and I have talked about this. We have a judge on the D.C. Circuit. I think we have at least it definitely won. I think we have two Supreme Court justices interested in rethinking the actual malice standard because it is a textual to the extreme. The First Amendment says nothing about the distinction and defamation law between public figures and not public figures. It's caused enormous chaos because, for instance,

there are people who become public figures against their will. The controversy in question is what made them a public figure. And so then when someone writes something libelous about them, do they need to prove actual malice when they didn't invite it? The law says no up to a point, you know, like, so you become controversial, you become a public figure over the single controversy, but then you go on TV and defend yourself. And now we're several months later and now you're just taking speaking gigs about it. Well, now can they libel you and you're a public figure? It's messy. It's atextual. Now, the reason to have the actual malice standard, of course, is that we, as Americans, have decided to give news outlets the benefit of the doubt. We want them to be able to make

honest mistakes. And the problem with getting rid of the actual malice standard as david mentioned with the correction issue is the correction maybe mitigates damages but it don't change the initial mistake even if it was an honest one and so what you would have is some chilling effect in theory on journalistic publications to make sure that everything they write is incredibly accurate and not libelous which i'm sure a lot of you are sitting there saying like, that sounds good to me. Um, but I, I can see that both ways. Also compare it to the UK system where they actually have very heavy libel laws, if you want to call it that. And it doesn't make their journalism more accurate, actually, at all. They have more rags than we do,

and their rags print more insane stuff than ours do. So if you think that if we simply change the actual malice standard, we get the press corps you've always wanted, there's no particular evidence of that either. Regardless, this case that is going to trial today, as we said, I think has a long shelf life past the verdict. We'll see.

I agree that it's going to have a long shelf life. And I think there's a couple of things here. One is I agree with you completely that it's entirely possible that the New York Times Sullivan standard, this actual malice standard, may go away. Traditionally, what is the definition of defamation law traditionally had been a matter of state law. And so states would impose different standards of, you know, different standards and definitions of defamation.

This is a judge-made standard by the Supreme Court. There's another option here, which I think is interesting, because the actual malice standard is this. It is proving that publication was made with knowledge it was false or with reckless disregard of whether it was false or not. And in my experience, the reckless disregard prong is pretty weak. So knowledge it was false becomes really the way you win. The reckless disregard part of this becomes, let's just put it this way. Knowledge it was false, that's the big beach body that is kicking sand in the face of the scrawny, reckless disregard standard. And imagine, David, here, again, imagine on cross-examination. Okay, so you read the New York Times.

You did read this piece back when it was published. Do you know how to Google? Yes. So when you were writing this, how long would it take you to Google your own reporting on this issue? Approximately three and a half seconds to have those results pop up, and then maybe another two, 90 seconds, two minutes to scan to find whether there was a connection. So you didn't take, total here I think, three minutes to double

check your memory on this. That is the definition of reckless disregard, Your Honor. Yada, yada. Yeah. And then what makes it much, what I think makes it this worse and why these are really rough facts for the New York Times, it was their own publication that did the key reporting

here. Oh, I think that's the most, if she wins, it will be because of that. Yeah. You know, it's a much different cross-examination than, were you not aware, Mr. So-and-so, that 72 hours or 48 hours after the shooting, Rolling Stone magazine had, different deal, different deal. But when it's your own publication, then that makes it really, really difficult. But this is a case to watch. There are, I cannot remember the last time, I mean, literally cannot remember a time in my adult life where there were more interesting and relevant defamation cases pending than

right now, than right now. And I should mention one of those is Fox News being sued by Dominion and Smartmatic who make election voting machines, and that husband of the pod is counsel of record in the representing Fox in the Dominion lawsuit. That is a defamation lawsuit. And the outcome, if this were to go all the way to the Supreme Court, lickety split or whatever, could affect the laws applied to that case.

So I just thought I'd mention the problem there. And while we're mentioning stuff, can I bring up the wife of the pod? What did wife of the pod? Oh, your wife of the pod. The wife of the pod has worked for Sarah Palah palin oh that's

right worked with worked with sarah palin on a couple of books going way back before this um she has no no involvement anything like this but she has worked with sarah and bristol wife of the pod has yes she lived in wassilla with the Palins for a little over a month back in. And we should be very clear that WAP is different than WAP. Yeah, I wasn't going to go there. I wasn't going there. Just for those of you getting on Twitter,

just be careful. And also I'm going to ask. Getting on Twitter. Don't just be careful. And also, I was going to say listeners who have no idea what Sarah is talking about. Good. Yes. Don't Google. Yeah. Good for you. Just please hear of heart.

Yeah. So those are our mutual disclosures there. 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. Shall we talk about our ninth circuit? Yes.

Guns. Okay. So. This is lit. Now, David, I'm going to be curious because you've given some Fifth Circuit judges grief for snarky opinions. Yes. But this is on a subject that you care about. Oh, grief's coming.

Oh, okay. Grief's coming. Okay, I was curious to see how consistent you'd be. All right, so the Ninth Circuit has another gun case. And Lawrence Van Dyke, judge on the Ninth Circuit, writes an opinion striking down the restriction. However, he concurs with his own opinion. I'll just read portions before we get David's take. I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it, but I write separately to make two additional points.

The first is simply to predict what happens next. I'm not a prophet, but since this panel just enforced the second amendment and this is the Ninth Circuit, this ruling will almost certainly face an en banc challenge. This prediction follows from the fact that this is always what happens when a three judge panel upholds the Second Amendment in this circuit. Our circuit has ruled on dozens of Second Amendment cases and without fail has ultimately blessed every gun regulation challenged. So we shouldn't expect any less here. Second point is related to the first. As I recently explained, our circuit can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review. Given these realities that one, no firearm related ban or regulation ever ultimately fails

our circuit second amendment review, and two, that review is effectively standardless and imposes no burdens on the government, it occurred to me that I might demonstrate the latter while assisting my hardworking colleagues with the former. Those who know our court well know that all of our judges are very busy and that it's a lot of work for any judge to call a panel decision en banc. A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must write a new opinion. Since our court's Second Amendment Intermediate Scrutiny Standard can reach any result one desires, I figure there is no reason why I shouldn't write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court.

That way, I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump start on calling this case en banc, sort of a win-win for everyone. To better explain the reasoning and assumptions behind this type of analysis, my alternative draft below will contain footnotes that offer further elaboration. Think of them as thought bubbles. The path is well-worn and a few easy steps,

any firearm regulation, no matter how draconic, can earn this circuit's stamp of approval. Here goes. And then he has a very pretty normal opinion upholding the regulation. I do want to highlight a few of the footnotes, David. Okay. Footnote one. We really like this not unlimited language from Heller and cite it often and enthusiastically.

Footnote two, we refer to strict scrutiny as a theoretical matter, a thought experiment, really. Our court has never ultimately applied strict scrutiny to any real life gun regulation. Footnote three, here's the deal. Whenever we think the history helps us in upholding the challenge regulation, we're happy to rely on it in step one of our test. But most of the time, the history either doesn't help us uphold the gun regulation, is indeterminate, or is just really hard to evaluate. So we usually skip over it. Number four, it is important to recognize that all the real work in our Second Amendment test is done right here. First, notice how much discretion this gives us judges!

Five, severe is a very strong word and a real workhorse when italicized. Six, another one of our favorite tricks. Once you frame Heller as speaking only to complete and total bans, it's easy to sidestep its holding. Number eight, phew, hard work done. It's all downhill from here. And last. Number 10, we've really gotten a lot of mileage out of this concept.

Well, let's end where we end. Number 12 is the last footnote. Again, it doesn't matter much what we say here. Once we're allowed to effectively balance competing interests under our Second Amendment intermediate scrutiny, it's so easy justifying a regulation that we could easily just delegate this part of the opinion to our interns. The opinion ends and he says, you're welcome. David, give me your thoughts. I mean, okay. I have a few. First, did we say what this case was about? It doesn't really matter. It's a gun regulation in California. Okay. Just to get it out there, it was about the Ventura County public health COVID era, 48-day closure of gun shops, ammunition shops, and firing ranges.

Okay. Just to get that out there. Okay. A number of people wrote, and I saw this kind of light up Twitter for a while. And those who supported Judge Van Dyke were like, ha ha, look how easy it is to write what you know the other side thinks. These lame people on the other side. And I thought, if I couldn't write what the other side thinks, I'm a bad lawyer. What the other side thinks, I'm a bad lawyer. Okay.

So being able to sort of write a predictive opinion based on the other side's reasoning is just, just to be able to do that says nothing about the merits of the other side. Okay. Because why? Because you get briefs, you've seen, say, draft dissents. You've seen the case law. You've seen all of these things. So being able to sit down and write out how you think the other side would rule on this case is no, that does not mean that the other side's case is specious in any way, shape, or form.

So that's number one. So that was the first thing everyone on Twitter who was saying, oh, look, look how predictable the Ninth Circuit is. Okay. No, you just can do that. I remember my first exam in law school, Sarah, was here's the fact pattern, write the majority and the dissent. Okay. That was the first exam question that I had in law school. So that's not owning anybody. It's not dunking on anybody. There is nothing. This is, this is no, doesn't embarrass anybody on the other side. Number two, if you're frustrated and I am legitimately frustrated with intermediate scrutiny, as we've talked about. By the way, is that an extremely nerd statement or an extraordinarily nerd statement to say, I am frustrated with intermediate scrutiny? My, how nerd it has gotten in here.

So I don't like intermediate scrutiny either. I really do feel like intermediate scrutiny is just a kind of, well, whatever we think is best as the court. And we've said that a lot on the pod, right? Intermediate scrutiny is whatever the judge wants. Yes, we have said that a ton on the pod. I also understand that the Ninth Circuit has been extremely, that intermediate scrutiny in the Ninth Circuit means that the Ninth Circuit has, as a matter of fact, been extremely deferential to state and local regulations of gun laws. You can say that in your majority opinion. Or on a podcast. Or on a podcast. The problem is the intermediate scrutiny grants courts excessive amount of discretion to make what are in effect policy decisions that they prefer. That's fine to say. That's absolutely fine to say. So what you have here is really,

you know what it reminds me of? Do you remember when we had a case in Kentucky at the very start of the pandemic or close to the start of the pandemic. And in a highly unusual procedural posture, a federal district court invalidated this, I believe, is city of Louisville's regulations on worship. And interesting case, I probably would agree with the outcome, although the unusual procedural posture didn't even really allow Louisville to present a defense, as I recall. So listeners, correct me if I'm messing that up. But as I recall, Louisville didn't even have a true full opportunity to present an effective defense. But putting that aside for the moment, the opinion. defense. But putting that aside for the moment, the opinion, do you remember this? This was an opinion that was just all soaring rhetoric and almost no law at all. It was an ode to religious

liberty and kind of read like an own the libs sort of opinion, if that makes sense. And this reminds me of that. If you're a frustrated judge, and frustrated judges are not unusual in American history, they're not unusual now. Justice Scalia was probably one of the most rhetorically effective frustrated judges in American history. There's a way to do that. American history, there's a way to do that. There's a way to do that. This struck me as, I don't know, perhaps the mildest way to say it would be gratuitous. What are your thoughts? So I went to law school with Lawrence. Let's get that out there first. Sorry. Lots of disclosures in this pod. Lots of disclosures. So I like the way you framed this, because actually, if you're interested in why the

Ninth Circuit has become the way that it has or how gun regulation law works, there's actually a lot here that's informative. Unfortunately, it is presented in a snarky manner. And maybe doubly, unfortunately, it is very funny a snarky manner and maybe doubly, unfortunately it is very funny and it's well executed. True. And I say doubly unfortunate because then it did get a lot of attention. And then I think people do,

um, people who aren't actually that interested in the law and where it is and where it's going sort of attach themselves to this and think that you know twitter thread judicial opinions are a good idea so i think it's helpful that it's written in really plain english it It's well-written. I think saying our standard is so standardless that I could write this opinion and it could have come out either way

and I would have been adhering to our court's precedent is an important thing to point out. Yes, I agree with that. But, yeah, I mean, I'm frustrated that it's snarky again, even well executed. And it's not even snarky. That's not fair because snarky to me is something very specific. It's sarcasm with a degrading, um, uh, insulting tone of some kind. Like you're not taking someone's arguments. You're really just insulting them like that snark or dismissing their arguments that's not what's happening here

it's funny and it's sarcastic uh so yeah i mean i guess i would take the the parts that explain the standardlessness of intermediate scrutiny and maybe not glorify the humor. Funny though it may be. Yeah. You know, it's interesting question because there is, this is the kind of thing that a extremely well informed legal pundit could write. It would have made a great law review article.

Yeah. Yeah. Awesome blog post, super cool podcast. That would have been a lot of reading. Yeah. And look, maybe I'm being prudish about all of this stuff. I fully acknowledge that. Yeah, and look, maybe I'm being prudish about all of this stuff.

I fully acknowledge that. Well, okay, I will. Let me defend your prudishness. We need forums, fora, in this country that are not yielding to the present, that are not yielding to present rhetorical norms. We really, really, really need that. And if there's one thing that we've seen, for example, in the election contest and numerous other categories, extremely controversial spaces in American law, the sobriety and the seriousness of the judicial

branch has made it stand out in the moment. I think there are good reasons why people place greater trust in the judicial branch than any other branch, even though the judicial branch routinely hands down decisions they don't like against partisans of both sides. And part of it is that the judicial branch has traditionally taken great pains to maintain formality and respect in its proceedings. Not always. You can go into some state courts in places and things can get pretty wild, Sarah, and I've seen it with my own eyes. But as a general matter, it is not prudish. It is not prissy. It is not anything else to say. It is important to maintain these norms. It's important to maintain this degree of decorum.

And I'm not even somebody who's all that worried or nervous about sharply worded dissents or sharp responses to sharply worded dissents. But this just struck me as you're veering a little too much into kind of judge on the libs territory. And that's not what we need. I don't know what that does. Well, let me say, I do know what that does in a negative sense. I don't know what that does in a positive sense. And I I agree with you if I read this and it was a kind of a funny law review article. Um, if I read this and it was, you know, on the Volokh conspiracy, um, or, you know, law fair or some kind of wonky legal blog, it would have been a hoot, but I don't need my judicial opinions to be a hoot. but I don't need my judicial opinions to be a hoot.

That being said, well executed. Clerks, who I'm sure had some help, here goes was maybe my favorite part. And probably loved doing it. Like it was probably a highlight of their job. Definitely this will be the highlight of their term. And as I said, it was well written. I have no beef with the writing quality or the humor quality, to be honest.

But you're right. It's a time-place restriction. Okay, very last thing, David. We got a question from someone related to the March for Life. A group called Catholics for Choice was outside the Basilica of the National Shrine of the Immaculate Conception.

They used a projector to project pro-choice slogans onto the Basilica while mass was going on inside. Does this break any laws? A listener asks. Curious what your thoughts were. Yeah, I thought that was a great question. I mean, in one sense, vandalism, does vandalism really apply? Because you're not defacing, there's no damage done to it? Is this a form of trespass? Is this, what is this? It's hard for me to use a projector to place on a building a message that the owner of

the building finds repugnant. And imagine somebody coming up to your house and projecting onto the side of your house something that you thought was horrible and wrong, and it would make it look as if it's coming from you. I was just trying to think, okay, what is a statute that applies? So I think you bring, the problem with the vandalism, as you said, is the damages because they didn't actually deface anything. So you bring a dollar damages claim, sue for vandalism, and recoup your attorney's fees, and that will be the dissuasion

for next time. Can you recoup your attorney's fees, though? Probably depends on the state. I don't know what D.C. is, actually. Pretty doubtful. There's no question you have a property right in the front though, and that they have violated that property right. So trespass would also count, but again,

you have a damages problem. Right, right. Could you get an immediate injunction if you could sprint into court? You could definitely get an injunction and you have reputational harm if you could show damages on that front. But again, damages is the problem here. The legal action I don't think is the problem. I think you easily meet trespass. You easily meet vandalism. Look no further, by the way, than the Supreme Court's Fourth Amendment case on heat sensing equipment. So you can be on public land, sidewalk, street, and if you use heat sensing equipment on someone's house as the police, you have violated their Fourth Amendment, which is unreasonable search and seizure, that's a property right.

Therefore, if you have a property right and not using heat sensing on your property, you definitely have a property right against messages being displayed on the front of your building. Yeah. Yeah. No, I would agree with that. I would agree with that. Don't do it.

Don't broadcast when somebody else is building a message that they wouldn't send themselves. And one advantage of an injunction is, by golly, if you try it again, you're in a world of hurt. True. There's also criminal vandalism and criminal trespass. Right. Right. All right. The end.

All right. The end. The end. Well, this has been, I like that pod. We just popped from one thing to another. Loved it.

Good times. Of course, I, what listeners don't know is after every single podcast, while our audio is uploading, I say, that was a good pod. Every single one. Well, I hope you go enjoy your birthday with Wife of the Pod today. I will try.

I will try. But I've got work to do today. But please come back Thursday. We left topics on the table, y'all. We left topics on the table. There's big stuff we have not talked about. So come back Thursday. We're going to talk about the big stuff. There will be more big stuff we know for sure. Before then, please rate us on Apple Podcasts. Please subscribe on Apple Podcasts and check us out at thedispatch.com. And if you've got comments or questions, become a member of the Dispatch

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