Advisory Opinions - Supreme Court Weighs Ban on State Aid to Religious Schools

Episode Date: December 10, 2021

David and Sarah have another action packed pod. First, the US Solicitor General weighs in on whether the Court should hear the case about whether Harvard’s admission policy violates race discrimination laws. Then they talk about a case that was argued this week at the Court that looked at (once again) whether states could refuse to allow voucher money to go to religious schools. Then the 9th Circuit had some feisty dissenting opinions when it upheld California’s ban on high capacity magazines for guns. And lastly, should judges be able to pick their replacements?   Show Notes: -Wall Street Journal: “Federal Courts Aren’t Royal Ones” -New Yorker: “On “Succession,” Jeremy Strong Doesn’t Get the Joke” Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And before we dive in to our podcast, Sarah, is the phrase shots fired appropriate? Because what Jonah did. Oh, absolutely. Yeah, no. Jonah Goldberg is, it's inappropriate. It was offensive. Hurtful. Hurtful? Hurtful. It was an act of aggression, really.

No question. An act of aggression. What we're referring to, and I almost hesitate to even say it because it was so beyond the pale, over the line. Jonah has long wrongly called the Flagship Dispatch podcast a niche podcast or niche or however you want to pronounce it. But he went further. He called us the least dented can on the 50% off shelf.

What? Yeah. I mean, first of all, if it's in a can, I don't know why dents matter. Second of all, 50% off some Campbell's tomato soup sounds amazing right now.

I've had the stomach flu for many days. And I mean, some chicken noodle soup is all I'm living on at this point. So how dare he dinted Campbell's chicken noodle soup? How dare he? How dare?

How dare? What is it? Time for the Bugs Bunny. Of course, you know this means war.gif. But yeah, we're coming for you, Jonah Goldberg. We're coming for the remnant. We are. And there's nothing you can do to stop us.

So let's just state that. Let's just state that clearly, unambiguously for the record. Petty insults will not protect you from our rise. Petty insults only provoke and motivate. That's all they do. All right. With that out of the way, with that response to unprovoked aggression out of the way, I'm really excited about this podcast because, Sarah, on topic number two, because topic number one is going to be Harvard, topic number two is going to be a main religious liberty Supreme

Court oral arguments yesterday. Topic number two, we're going to invoke two classic advisory opinions legal terms. One is gnaw dog doctrine, and the other one is zombie precedent. But how we're going to get to that, you're just going to have to wait and hear. And then we're going to end up with topic number three about the Ninth Circuit's en banc decision upholding California's large capacity magazine ban. And then we'll end up with,

we've got time with topic number four, senior status. So we've got a lot, but Sarah, launch us with Harvard. So we've talked about this case. It's been percolating now for years, back to 2018, 2017 maybe. And this is the case

about Harvard's admissions policy and whether their consideration of race is unconstitutional, whether it discriminates against Asian American students applying. They lost at the district court. Sorry, the Asian American students, you know, this group

that was representing them, lost at the district court, lost at the appellate court. They filed for certiorari at the Supreme Court. It came up at conference over the summer in June, and CVSG. So the Supreme Court asked for the views of the Solicitor General's office. That was an obvious delay to the whole proceeding. And there was speculation over then whether it could still be heard this term. Well, yesterday, the Solicitor General's office filed their thoughts, a brief from the Solicitor General. There wasn't actually much surprising

in the brief. They don't think the Supreme Court should hear the case. Surprise. Yeah. The Circuit Court got it right. They applied all of your metrics, you know, factors that the Supreme Court has asked them to apply. Also, Harvard isn't doing anything wrong here. Also, don't take this case. XOXO, year. Also, don't take this case. XOXO SG. The question, though, for me is now looking at a calendar and the Supreme Court's calendar of conference dates, does this have time to make it into the blockbuster OT21 term? OT, by the way, you're going to see that thrown around a lot. OT means October term. So like the fiscal calendar, OT 21 lasts until into 2022 to June of 2022, but we still call it OT 21. So OT 21, David, has Second Amendment. It has abortion. It has religious liberty. All we're really missing at this point, frankly,

this point, frankly, is affirmative action. So the Solicitor General filed December 8th. That gives 14 days for Team Concevoy, the law firm representing the students in this case, to file their reply brief. That puts us in the last few days of December, but the first conference date for the court is then January 7th ish. Actually, I should be looking at a calendar now while I'm doing this. Yeah. January 7th, that Friday. Uh, the tradition of the chief justice has often been to hold over a case that they're going to grant for one week, presumably because they sort of keep a pile of cases that they're thinking of granting that are presumably going to get granted and then have clerks go check them for procedural problems, any sort of little boogeymen lurking in closets so they don't have to dig the case later, dismiss for improvidently granted.

dismiss for improvidently granted. And so that would mean that it would get granted on the 14th. And here's the thing, David, it's hard to say what the cutoff for the last April hearings will be. Will it be the 14th or the 21st? I think it'll be that 21st conference this year. It'll be a close call, but you're right on the cusp of it, which is all to say, I think the Supreme Court can grant this for OT21 if they want to, and I think they can punt it to OT22 if they want to. This is, of course, assuming they grant it.

I think they will. I think they grant it, and I, well, I think they punt, then grant. You think they punt to the next term? Punt to next term and grant. All right, I'll take grant it. Well, I think they punt, then grant. You think they punt to the next term? Punt to next term and grant. All right, I'll take this term. I think they keep it. Okay, all right.

Well, this will be a good advisory opinions bet off. Yeah. No stakes, though. We've not defined stakes. But I say punt and grant, and you say... Oh, you know what the steaks are? What? A can, a dented can of delicious tomato or chicken noodle soup.

That is perfect. A dented can of the soup of the winner's choice. Yes. Excellent. I love it. I love it. All right. Well, let's talk Maine.

Yes. Let's talk Maine. This case is really interesting. If you want to use the word niche, it's kind of an interesting kind of niche factual situation that is super unique to the state of Maine. exactly like this, but Maine has some districts that are sort of small enough to where they don't actually have school districts, where they don't actually have a school necessarily in your age range in the district. And so what Maine does is it gives you in these very special districts, these very unique districts, gives you money essentially to go and get education somewhere else. That's a hyper simplified version of the facts.

Doesn't really impact a lot of people. But what Maine does is it says, you cannot use this money for religious instruction. This money cannot be used for religious instruction. You might be thinking, wait a minute, hasn't this been decided before in the context of vouchers? Hasn't it been decided in kind of every which way that it doesn't violate the establishment clause to allow vouchers to be used at religious institutions? And hasn't it been decided that if vouchers exclude religious institutions, then that violates the religious liberty, that violates free exercise?

Hasn't this all been decided? And the answer is, well, we're not going to cut to the very end. But the main defense... One might have thought the answer was yes. The main defense, Maine's defense is, wait, there's a difference between status and use. In other words, what the Supreme Court says is we can't exclude a religious institution on the basis that it's a religious institution, but we can exclude religious instruction from the program, religious instruction. And one of the principal precedents in their support is a case

called Lock v. Davey, which is from some years back where the Supreme Court did in fact decide that a scholarship program, that the state of Washington could exclude recipients of state scholarships from using their scholarship dollars to train to be a minister. So in other words, an explicitly religious use for the money could be excluded, but you can't exclude, this would be the main argument, you can't exclude on the basis of a school's religious status, you't exclude on the basis of a school's religious status. You can exclude on the basis of actual religious use. And so, Sarah, you've listened to the arguments.

What say you? First of all, fun fact, I know Joshua Davey. Joshua Davey, the guy from Lock v. Davey, he went to Harvard Law School. I just like doing this now to get David's reaction. Sorry, guys. That was actually just for David, not for all of you listening. And I appreciate it. Apologies. It's just turning into a fun game. So this was an unusual argument for me in that I thought the justices did a very effective job of beating up on everyone

across the board. And to some extent, I thought all of the justices beat up on everyone, which isn't quite accurate, but more so than some of these cases. But I want to focus on the argument from Maine's Solicitor General, because that's where I think the beating up went, was particularly persuasive in some ways, because for the people who want to use the funds for religious youth school, you know, that was actually basically the same argument we've heard in all of these cases. Yeah, but doesn't the state have some ability

to not fund religion? Isn't there some play in the joints? And the answer is yes, there is some play in the joints. And it's always hard in those cases to define why, like, well, this shouldn't be the play when you're on the offense if you will so it was really to the defense that i thought the ball was gonna live or die and um the defense being main the defense being main yeah and i thought that they took an unusual route here so i want to read the Chief Justice's colloquy with Maine.

Let's suppose you have two schools. School A is run by Religion A, and that religion has a doctrine that they should provide service to their neighbors. So they're running, they set up a school, and there's nothing in their doctrine about propagating their faith. So it looks just like a public school, but it's owned by the religion. Religion B also has a school, but its doctrine requires adherence to educate children in the faith. And the school has infused every subject with their view of faith. Would that first school get funds? Mr. Taub, yes. Would the second school get funds? Mr. Taub, no. Chief Justice Roberts. And that's because of the difference between the two religions, right? Mr. Taub. That's because their program is specifically instilling and promoting religion in students. And the other

religion does not, says the Chief Justice. Mr. Taub. That's correct. Chief Justice Roberts. So you're discriminating among religions based on their beliefs, right? Mr. Taub, I would not say that. Religions can have whatever belief they want, but if they want to take part in Maine's tuition program, the education service they have to provide has to be the service that Maine is purchasing. education service they have to provide has to be the service that Maine is purchasing. I think that is the whole argument right there, summed up, in that they say that they can discriminate between religions based on the doctrines of those religions. And so it got

messy from that point. I don't know that that's the argument that Maine needed to go for here. I think it was a little broader than maybe they wanted to make because at points it became inadvisable, right? If you've lost the chief justice, there is no way to win really at this point. And you have Justice Alito going through this sort of parade of horrible examples about religion. Like, well, if they use, I mean, really at one point the guy explains for one school, they use the chapel, but they're using it for assemblies and not for religious service. So that's okay. But if you use it for religious service, then it's not okay. So Justice Alito just says, okay, so how would this apply to schools that don't teach anti-religion, an atheist school, for instance? Nope, that would also violate Maine's rule, he says,

because that is not neutral toward religion. Great. What about Unitarians? That's probably neutral towards religion, even though it is a religion. Cool. And the guy then volunteered. And all the Unitarians listening said, sounds about right. Yep. That feels right. So the guy's like, look, if there was a school teaching white supremacy, we would also, I think, nix that, even though right now we don't because we haven't ever had that problem. We've only had, you know, potentially a religious issue. But in theory, we could also ban a school that teaches white supremacy.

And Justice Alito goes, great, what about critical race theory? And there's just this very awkward pause. Mr. Taub. So you're asking whether that school would be eligible, which is just a buying time thing at that point, because like, yeah, that's what he's asking. Justice Alito.

Yeah. Mr. Taub. So I think that is something that the legislature would have to look at. I mean, that one's closer because frankly, I don't really know exactly what it means to teach critical race theory. So I think, I think the main legislature would have to look at what that actually means. But, but I, I will say this, that, that if that, that if teaching critical race theory is, is, is antithetical to a public education,

then the legislature would likely address that, right? Because his whole argument is it needs to look like a public education. And so that's what the state's interest is in, is in providing a public education where they don't have a public school. Teaching science with a religious view doesn't look like a public education, therefore it's out. Teaching white supremacy, well, we don't teach that in public schools, so it's out. Critical race theory, the problem with that is, basically, if it starts being taught in public schools, then it looks like a public education. Now, of course, the school also, sorry, the state provides funding to elite private schools that in some ways look nothing like a public education. Their sports facilities don't. The number of AP classes they offer, I'm sure, don't look anything like some of the public schools. But they're saying that's just a better version of the public education,

not different. And that's where I think this got messy. I think, interestingly, the chief's question there on discrimination among religions tells you also kind of what the chief is thinking about the Harvard case. The chief doesn't like discrimination. He's against it. How many times does he have to tell you? His famous quote, the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race. So same with religion. David, what would you take?

My take was a lot of gnaw dog at Maine. A lot of gnaw dog in the end. A lot of gnaw dog. Yeah. Yeah. I mean, there was mutual beating up, but there was a lot of gnaw dog at Maine. And Maine, quite frankly, walked in with a pretty rough case. Because if your argument is what we're essentially trying to do is to replicate the main public education experience as much as possible, but by policy and practice, you really don't. You really don't. And then you're sort of left with saying, well, the main way that we try to replicate the public education experience isn't really in any other material way other than prohibiting religious institutions from participating. Yeah, he at one point referred to it as the core part of a public education is not being

taught religion. It's like, wait, really? That's the core element of a public education? Maybe. I don't know. I mean, I could imagine a situation where Maine walks in and it says, our voucher dollars or whatever, our funding is tied very specifically to Curriculum X. And if you're a private school, it doesn't matter if you're religious or non-religious or whatever. If you're not teaching curriculum X, you're not getting the dollars because curriculum X is the main public school curriculum.

They're going to have a better case there, a much better case there. That's not this case. Except that they don't go through the curriculum of all the schools they're giving funding to. They just ask whether you're religious. And that's it. They're not asking these other private schools how they're teaching the Crusades. The Crusades came up, by the way, a few times in this.

Basically, what if the school in every, it's a religious school, but they don't teach religion, except when it comes to teaching history, they've got a view of the Crusades that might be different than what your public school teaches. It doesn't say which side, but I'm assuming it's like pro crusades but everything else um you know is the same as the public school what about that and like there's not a great answer to that he's like well it kind of depends i don't know we'd look into it the school could bring a challenge

the part the problem for me was you're not asking any other school how they're teaching the Crusades or anything else for that matter. They don't do any inquiry. And this is how I think the 6-3 court has changed how arguments work is that Kagan, for instance, in her questioning, wasn't really at that point even defending the main system at all. She was really arguing that here, these schools sort of do an as-applied challenge, if you will, not a facial challenge. You're asking them all these hypotheticals, and she asked, like, go through what's actually come up. And in one case, the school, they asked the school, wait, are you religious? And the school basically never

responded. And in another case, it was the auditorium case, are you using your chapel? Is it mandatory to go to the chapel? Well, yes, but not for religious service. It's just our largest building. So that's where we have our assemblies. So it's not mandatory religious service. That was fine. And then that's it. And so there was some question over the standing problem, some question of whether this case where the school at issue is a Orthodox Jewish school that at least it was a little unclear actually, maybe teaches traditional values on same-sex marriage, unclear, does not hire homosexual teachers, and there was this whole back and forth that I didn't fully follow on, teaches a certain role of women or that men are superior to women,

something to that effect. The record as it was explained during oral argument was confusing. Justice Breyer goes down this line where he's talking about the not hiring homosexual teachers. And the guy says, well, under the Maine Human Rights Act, that's allowed. And Justice Breyer gets confused and says, right. And it takes this back and forth of who's on first for Justice Breyer to realize that in fact, in Maine, the school is explicitly allowed to refuse to hire teachers because of their sexual orientation, because of the school's religious status. And so that can't be a way to distinguish this case because it's a different

part of Maine's state law. So hard case for Maine to win once I saw that Roberts back and forth. Oh, yeah. Maine is losing this case. The interesting question for me is not, is Maine losing? But whether or not this is going to mean that Lock v. Davey is zombie precedent. Totally zombie precedent because as they tried to distinguish it, first of all, Lock v. Davey was always weird precedent. Yes, it was always weird. Yeah. Did you walk through the Lock v. Davey, the full back and forth of what Lock was?

No, I did not. I just very briefly summarized it. I think it's worth explaining how it's so similar in a lot of ways. And now it's going to be like eating brains in the corner by itself, moaning lightly. It is lurching around the land. Yeah.

But yeah, the facts of Locke were, I mean, this, once you open up a scholarship program for use at private institutions, could you say, no, you can use it for instruction at a religious institution, to study, to get a graduate degree in biology from a religious college. And vice versa. You can use it to study religion at a non-religious school. But you could not use those dollars to train to be a minister. So here you had a pretty narrow restriction on the use of funds, but the program itself, the scholarship program itself, was not implemented to advance or arguably inhibit religion except for inhibiting or not facilitating the training to be a minister. And so essentially what happened with Locke v. Davey was this was the status use distinction. In other words, we're not quite willing yet to say that once you open up a state scholarship program that we're going to require you to send some of those dollars to seminary.

to send some of those dollars to seminary. And it was kind of out of step with where the law had been heading for a while, even when it was decided all the way back in 2004. And it's never really been much of a precedent to begin with. It's really always been pretty cabin to his facts because moving on after Lockheed Avey was just one case after another after another that basically said, look, if you create a public program that does not have

a religious purpose for the government program, but if religious institutions want to participate in that government program, you can't discriminate against them because they're religious. That's the general state of the law right now. And Lockheed Davey was always kind of off in a corner, fighting off zombification from the first 24 hours after the opinion was handed down. And now I think the zombification is just basically complete. Although I think it's distinguishable. Now, I think it still leaves Lockheed Davey

totally cabined to its facts, but I kind of think Lockheed Davey has been cabined to its facts the whole time. So maybe by zombification, we just mean the recognition that it's been cabined to the specific facts. But in Lockheed Davey, you could, as you said, use that scholarship to go to a thoroughly religious school and you could use it to take, you know, let's say your major is biology, but you want to take classes in theology, even compulsory classes and evangelism, Bible, religious doctrine. You could do all that under Locke v. Davy. You just couldn't pursue your major, I guess, in ministry. Well, here, I think the public school education is much closer to a major in public school where you then take some compulsory classes in spirituality and the Bible, or in this case, the Old Testament. there is no way for a public student to be to have a major in a degree for entry into the ministry in you know k through 12 so it's like lock v david doesn't even apply

right right yeah but i think the status use distinction in, at least in the oral argument, was ultimately kind of so irrelevant compared to the discrimination argument that that's what makes me feel like, and I agree, I think Locke v. Davey from day one was a highly fact-specific, cabin-to-its-facts case. And maybe what I'm, you know, so it was always a bit zombie-ish but it's like you know and Walking Dead and many other zombie universes Sarah you can when you're fresh zombie you can kind of look alive you can kind of look alive but when you're 17 year old zombie all the rotting has taking place I mean there's just not much left to you.

So this is going to make, nobody can look at Lockheed Davey right now after this, especially after this decision and see anything but a zombie. There is nothing lifelike left in Lockheed Davey. Two last points on this case. One, big picture. I wonder whether we're about to see more 6-3 opinions

from this term than we saw in the previous term. That'll be interesting. Two, the private choice severing the tie gave the money directly to the religious school, everyone thinks that the state could decline to do that. That the state can just say like, hey, we don't have public schools available everywhere. And so we're going to pay these private schools to take students who would otherwise be in a public school, like they were public schools, you know, based on your zip code or whatever else. And the state could simply exclude religious schools from that. The problem here, and the problem in so many of these scholarship-y cases, is that it's actually those parents who get the tuition money or the scholarship, and then they get to choose where to use that scholarship. And that's

what breaks the tie of why it is not an establishment clause problem, because the state isn't actually funding the religious school anymore. This came up at oral argument also, any more than someone who gets their social security check, who then tithes to their church. Well, the state isn't funding that church. It was the person's choice to tithe to their church. Well, the state isn't funding that church. It was the person's choice to tithe to their church. That's not an establishment clause problem, even if their only source of income is their social security check. Yeah. The money follows the person. Similar again to GI Bill. The money follows the soldier. And so, yeah, these kinds of programs where you're giving money to individuals to accomplish a public purpose and then trying to regulate how the individual uses the money to accomplish that public purpose with a specific anti-religious discriminatory animus here, that kind of restriction is going to be struck down every which way except the lock v-day v-way and the lock v-day v-way is limited to only the lock v-day v-way so it seems and i i want to dwell

for a minute on your six three um point i think you i think you might well be right. I think one of the things that Breyer and Kagan did before Justice Barrett got on the court was they very strategically used their ability to create supermajority precedent to limit the scope of relevant decisions. Like Masterpiece Cake Shop, people forget that was a 7-2 case. And so they were able to, I think, very strategically use the desire of many on the court to have more consensus and maybe perhaps incremental decisions in favor of broader in scope decisions for the sake of consensus. But if you're at 6-3, that's a super majority all by itself. There might be

less of a willingness of, let's say, five of those six to be more restrained. And so I feel like there's less leverage that, say, Kagan or Breyer have to construct these seven twos, for example. Yeah, and I think also on the institutionalist axis, just a lot of cases this term don't really have an institutionalist interest, or if they do, it cuts against the liberals instead of for. So, for instance, one of the institutionalist concerns that I've mentioned for the Roberts, Kavanaugh, Barrett, higher institutionalist justices is guidance to the lower courts. And so having a more bright line rule provides better guidance for lower courts to be able to

follow Supreme Court precedent. Sometimes that's going to favor liberals where the bright line rule leans a little to the left, maybe. But in these cases, the liberals are actually the ones wanting less of a bright line rule, more of a like, oh, hey, what if we just say that for this Jewish school, Maine cannot fund it, but not really have a test at all from this case? That's not going to appeal to institutionalists. No, no, no, no, that's not going to appeal at all. And when you don't have to take half a loaf to put together a strong majority, you're much less likely to take half a loaf. And so, I mean, now a shining example, a counter example to that is, of course, Fulton.

In Fulton, there appeared to be, for a time, a majority that seemed to be willing to take the full loaf and get rid of Employment Division v. Smith. But two of our institutionalists said, eh, slow your roll on that because we don't know exactly what will replace it. what will replace it. And we don't have a great, which goes to a classic institutionalist guidance for lower courts kind of formula that says, wait a minute, we don't want to replace something with nothing and the something that maybe part of this court wants to replace Smith with, we are not fully on board. And that's where I get to say, I know Davey. I'm a friend of Davey. And Smith, Smith is no Davey. The court's interest in not being able to overturn Smith without something to replace Smith is a real problem because Smith is used in lots of cases every year, all through every circuit. Not so with Davey. Davey's always kind of been off at its corner eating its toenails.

Wait, that's not zombie behavior. Isn't it, though? Maybe a little? I mean, I'm familiar with all zombie extended universes. Well, in my view, this isn't like a full zombie yet. Right now, it's just like a weird kid who may or may not have a zombie virus and so he's just like chewing on his toenails yeah oh no no he's a zombie and this is the you have departed from zombie canon here and the re and the listeners will back me they will back me here come the carrots making their

way up field 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 cashbackCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. Okay, are you ready to talk magazines? I am.

Yeah, now this case is on Bonk Night Circuit. So this is no, you know, not, this is no 2-1. 307 judges heard it. 307 judges heard it. 307 judges heard this case. Yeah. This is, and this is, I'm going to be interested in your opinion

as to whether this is going to be taken by the court because this is a classic case of what test you apply dictates who wins. And so the question was, to what test is applied to a California regulation that limits magazines to 10 rounds or fewer? OK, so just to put this in context and just a little bit of firearms minutiae for a minute. What really, you know, in the assault weapons debate, the assault weapons debate, what is an assault weapon? An assault weapon is a semi-automatic rifle that looks like a military rifle.

What it is that makes any semi-automatic rifle sort of more lethal than your average, say, deer rifle, which many of them are semi-automatic, is the magazine. Is the magazine. AR-15s typically hold a 30-round magazine or a 20-round magazine. And that means just that's the amount of fire, the volume of fire you're going to be able to put out until you have to change a magazine. And so really, in my view, the argument over assault, so-called assault weapons is a cosmetic argument. It is against guns that look their military style. If you want to talk actual firepower, it's the magazine. That's where the argument is. And so California says 10 rounds or fewer. That's not the law in Tennessee, for example. This is

highly state-dependent. And then the question is, can they do that? Can they limit a magazine to 10 rounds or fewer? And so, Sarah, you read the whole thing. The issue here, in my view, was decided when a majority of the court said, we're not going to apply the text history and tradition test. Instead, we're going to do a level of scrutiny test, and it's intermediate scrutiny. And that means the judge gets to do what the judge wants to do with intermediate scrutiny. The judge gets to do what the judge wants to do with intermediate scrutiny. So before I jump on the everyone hates intermediate scrutiny bandwagon, which I get it. Like, yes, intermediate scrutiny. Like if rational basis is that the government always wins and strict scrutiny is strict in theory, fatal in fact, I agree that intermediate scrutiny by and large is whatever the judge thinks.

You know, using your own hat, being in our culture. You think this works or not? I don't think that's the main problem here. I think the main problem is that the U.S. Supreme Court had every opportunity to say when it comes to the Second Amendment, intermediate scrutiny applies. They didn't. They said, history, text, and tradition. And as the Ninth Circuit, you are bound by the Supreme Court.

And the very fact that they're saying they use this two-part test under intermediate scrutiny to determine whether something passes Second Amendment muster is not what the Supreme Court created. They don't have this two-part test. Therefore, you're not following Supreme Court precedent. Therefore, you're making it up. Therefore, I think you have a problem. Now, we already know the Supreme Court has taken the New York case that was argued in November. You and I talked about it. I think that if the Supreme Court issues a test out of that, that by the way will not be this, whatever this is, that's not going to be the Supreme Court's second amendment test. This seems like a very, the timing works,

This seems like a very, the timing works, everything about this works, that this would be sent back down, GVR granted, vacated, and remanded in light of their opinion in that case. I think there's some chance that they grant it also, depending on how that case comes out. Maybe this, because of whatever reason, isn't a great candidate for GVRdom, in which case then I think they'll grant cert. So I think either this gets GVR'd, or if they're sick of the Ninth Circuit, or the New York case doesn't really have to reach this question, then I think they'll just take it. There were quite a few concurrences, two notable dissents, one from Judge Patrick Bumate, who I went to law school with, and Judge Lawrence Van Dyke, who I went to law school with. Know them both quite well. Patrick and I worked together at the Department of Justice. We're buddies. But I want to focus on, I know, again, just for David,

on footnotes. I think so much. So there's this back and forth that Judge Van Dyke has with one of the judges in the majority as they're trying to create a metaphor using cars. Judge Van Dyke is talking about how we don't ban cars even though uh car accidents are more probable um the misuse of a car is more probable etc the guy in the majority the judge in the majority says it's more akin the magazine ban is more akin to a speed limit. And at first I was like, actually, yeah, because banning cars would be more like banning guns and a speed limit.

Sure. And so then we're talking about what the speed limit is. And so Judge Van Dyke says, fine. Perhaps if I use the majority's own analogy, it might click. If California chose to impose a statewide 10 mile an hour speed limit to prevent the very real harm of over 3,700 motor vehicle deaths each year experienced from driving over 10 miles an hour, no one would think such a response is rational, precisely because even though the many deaths from such crashes are terrible, they are comparatively rare occurrence, although much more common than deaths caused by mass shootings. But David, I actually think that both of these analogies are wrong. The car banning analogy and the speed limit analogy.

If you actually want to do something that's close to magazine limits, it's a governor on the car that you can't purchase a car that can go over 80 miles an hour, let's say. And then the question is, well, look, the vast majority of cars can go over 80 miles an hour. Many of the car accidents that result in death are from people using a car at over 80 miles an hour. people using a car at over 80 miles an hour. But there are reasons that someone might need to go over 80 miles an hour or might be concerned that they would need to go over 80 miles an hour. My wife is in labor. We need to get to the hospital. I'm going 90, man. I think that's the better analogy, don't you? Yes, except hovering in the background is, of course, there's a Second Amendment that gives you this explicit right to keep and bear arms where I don't have...

Imagine, I agree, there's not the constitutional issue with the car. In this analogy, you have to imagine there's a constitutional right to drive a car. Keep and bear SUVs, yes. To own and drive a car. Yes. Yeah. No, I do think the governor would be the better analogy. And I do think that you raise a good point that the majority, essentially what's been

happening at the circuit court level on these, on, in this battle between intermediate scrutiny and text history and tradition is that if you read Heller, which is the case establishing or recognizing an individual right to keep and bear arms, if you read Heller, the text history and tradition test is just leaking out all over the pages. It's just there. I mean, and there's a phrase, common use, for example, for a lawful purpose. So if you're possessing a weapon that's in common use for a lawful purpose, if you're reading Heller, now again, this is dicta, but if you're reading Heller, the dicta is

pretty clear that common use for a lawful purpose would be the logical test that you would take from the Heller case. And so what a bunch of circuit courts have been doing has been saying, nope, nope, we're going to do a different thing than what Heller seems to be telling us to do and sort of dare the Supreme Court to do something about it. And the Supreme Court has spent years doing nothing about it at all. Which I do think is, I've been blaming the Ninth Circuit for this, but I think that's a really good point that in fact, I do think the Supreme Court actually bears the blame for this. If they wanted, like, talk about a non-institutionalist case, they provided no guidance, really, to lower courts on what history, text, and tradition means.

Right, exactly. I mean, if you read Heller, I believe if you're reading Heller fairly, you're overturning California's ban because of common use for a lawful purpose. If you're looking at more than a decade of jurisprudence between Heller and now, there isn't really any Supreme Court guidance that common use for lawful, they've not stamped their foot and said, we mean it. We really mean it. And particularly, so two points on this one on the common use. The majority's answer to that is that, in fact, use of ammunition and self-defense is very rare, obviously, to begin with, and that on average, only two point two rounds are used in self-defense shootings. Thus, any more rounds than that are outside the core of the Second Amendment. Judge Van Dyke then runs through a nice little uh we would never treat other fundamental rights this way we don't protect

the free speech of the taciturn less than the loquacious we don't protect the free exercise of religion in proportion to how often people go to church but weirdly i thought this one was the most persuasive we wouldn't even allow soldiers to be quartered only in those parts of your house you don't use much. I was like, well, actually,

I think that's your best. I mean, also, I love the Third Amendment. Like, getting into the game there, nicely done. Yeah. But the other thing that Van Dyke mentions

is just how many cases that the Ninth Circuit has done on this. So according to, again, the Van Dyke dissent, the majority acknowledges that applying our super pliable test, quote, we have not struck down any state or federal law under the Second Amendment. He notes that the court has heard at least 50 Second Amendment challenges since Heller, all of which they ultimately fell on the side of not the Second Amendment right. The Supreme Court then has had at least 50 chances to tell the Ninth Circuit, either you're not applying the right test or even if you're applying the right test, how come it keeps coming out the exact same way, you know, heads 50 times if this is a real test? end, of course, this is the Supreme Court's fault. But as Judge Reinhart, famous Ninth Circuit judge who passed away a few years ago, very liberal, often middle fingers up to the Supreme Court, his famous line was, they can't overturn them all. Right, right. Well, and that's one reason why,

if you rewind the advisory opinions clock for about a year, I was jumping up and down, stamping my feet at the denial of cert on a giant pile of second amendment cases. Because, and I remember we had talked about this, we had talked about how the Supreme Court likes to let precedent mature at the lower court level. And I was it has matured it has gone through puberty it is driving i mean there's a time to give the young dude some guidance here and and so rewind a year there just had not been um the supreme court had just been punting and punting and punting and i'm convinced it was punting and punting and punting because there weren't four justices that felt confident enough to take these cases. But the interesting thing to me is this New York State Rifle and Pistol Association case that is really dealing with the right to bear arms, which is really talking about

under what circumstances will I have a legal right to take a gun outside the home for self-defense. will I have a legal right to take a gun outside the home for self-defense? There's a way to decide that case without giving anybody much more guidance at all. No, exactly. You do it the same way you did Heller. If Heller was history, text, and tradition for the right to keep arms, guess what? We also think that the word bear has separate and distinct meaning from the word keep. Go forth. Yeah.

Oh, what? And then have some words and phrases about reasonable regulations and yada, yada, yada. And then you're off, you know, and then you go. And then this case will be hanging out there saying, pick me, take me. And then there's this nice little part toward the end-ish of Judge Van Dyke's talking about all the cases that the Ninth Circuit has decided in one direction. In those few instances where a panel of our court has granted Second Amendment relief, we have, without fail, taken the case en banc to reverse that ruling. This is true regardless of the diverse regulations that have come before us, from storage restrictions, to waiting periods, to ammunition restrictions, to concealed carry

bans, to open carry bans, to magazine capacity prohibitions. The common thread is our court's ready willingness to bless any restriction related to guns. Respectfully, and anytime someone says that, you can assume it's not that respectful. Respectfully, Judge Hurwitz's claim that our judges' personal views about the Second Amendment and guns have not affected our jurisprudence is simply not plausible. Race ipsa loquitur, which you don't see a lot actually used in a non-snarky way anymore. That actually is a real legal phrase, meaning the thing speaks for itself. But every time I see it, it's more like a clap back now. So race ipsa loquitur with like the snaps. One person, by the way, since I'm not getting to read from all of the different opinions in this case, Judge Hurwitz was in the majority. I believe David Latt

characterized Judge Hurwitz's concurrence as, I've had about enough of Lawrence Van Dyke. And you know what? It seems like this dissent, a lot of it was in direct answer to Judge Hurwitz, and Judge Hurwitz was in direct answer to this dissent. So I hope they went out and got a bourbon afterward, but I'm not confident that that occurred. Well, that's a good reminder to all you law nerds out there listening to Advisory Opinions, follow David Latt. True. And it's a good segue to what we're talking about next.

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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. Well, let's segue then. Let's segue. So David Latt co-wrote this great Wall Street Journal op-ed about judges going senior. So what does that mean? Federal judges have lifetime appointment, as you know, but they don't actually have to spend their whole lives on the court. And they also don't have to simply leave the court. They can do something called taking senior status.

have to simply leave the court. They can do something called taking senior status. That means they both stay on the court and their spot can be replaced because we got to keep paying them regardless of whether they're on the court or not. And so a lot of lower court judges take senior status basically to allow their seat to be filled as they get older. They can take fewer cases, but they don't have to. They can take the same number of cases, at least in the Fifth Circuit. They can't vote on on bonk cases. But that's like the only thing that changes when you're senior status on the Fifth Circuit. And so, as you might be able to imagine, if you can still hear all the same cases you were going to hear do basically everything you were doing as a federal judge but someone can be put in your seat you might play some games with when you take senior status so as to control the president for instance who's going to fill your

seat so even if you're only let's say 60 and you plan to keep working for another 7 years you can take senior status at 60 and let them actually there is some age limit I don't know whether it's 60 I think it's 60 though and let that president fill your seat so that's the first game you can play

but there's been another game afoot David and that's not only picking the president who's going to fill your seat, but picking the judge who will fill your seat. So there was a bit of a kerfuffle a couple of weeks ago, and we've been waiting to talk about it. And then David Ladd wrote this great op-ed in the Wall Street Journal. So it teed it up really nicely. wrote this great op-ed in the Wall Street Journal. So it teed it up really nicely. Judge Robert King on the Fourth Circuit in West Virginia rescinded his decision to take senior status. So he announced he was taking senior status. The Biden administration moved to fill

his seat. He's 81 years old. And it appears he has, of course, not confirmed this, that he didn't. The person who he thought would fill his seat, a former clerk of his, didn't get the nod. And instead, they were going to go with someone else who he didn't want filling his seat. Sounds like he didn't like that person's track record quite as much. And so he simply he declined. That also happened during the Trump administration. Uh, in Indiana, a judge did something really similar. He wanted, uh, the solicitor general of Indiana to replace him, Tom Fisher, but the vice president nixed Fisher. And so that judge, uh, nixed his senior status and was like, that's cool. I'm going to stay then. He acknowledged that. He said, Judge Kane acknowledged his retirement was contingent on the White House nominating his former clerk. So in this case, very similar. Judge wanted his

former clerk to fill his shoes, literally, basically. And when the White House signaled that wasn't going to be the case, he was like, cool, I'm not taking senior status. My 81-year-old butt is going to sit in his chair. David Latt wrote this op-ed to say that the judiciary should do something about this, that it's actually not a great look. Yeah, it's interesting. And I would love to know more about this. I would really love to know more about this because, you know, this this senior status. So this is something that is, you know, the senior status idea is not something that's explicitly in the Constitution. Constitutionallyally it is a lifetime appointment and so in the absence of clear regulation you kind of can do this you can kind of do this um and so yeah i mean i i completely understand the the necessity to or the thought that we should do something um what would be the constitutional something? Okay, that's a little harder to know.

Yeah. But this is bad, David, because look, there's bad on several levels. First, it's bad because you serve for life, not eternity. This isn't, you know, monarchy. So you don't get to hand off your judicial crown to your favorite son. And by the

way, I will note in both cases, it was a favorite son. Not surprising because most judges are still going to be male. The clerks who they're going to tend to be closest to are going to be the ones they've gotten to spend alone time with. Hey, guess what? That's going to tend to be the male clerks because they're probably not inviting their female clerks one-on-one to kick it on their sofas late at night with a glass of bourbon. And so they're going to build that rapport with them. That's okay. That's human nature. I have more female friends than male friends. I'm sure you have more male friends than female friends, David. It doesn't make either one of us sexist, but it probably means that we shouldn't be able to simply choose in a first born sort of sense who replaces us and that person picks who replaces them all the way down the line. It's not good.

I think the idea that I'm going to determine the course of my life tenure and sort of step in or out of the pool, so to speak, based on whether or not my heir apparent has been designated and confirmed. My favorite son is going to carry on my legacy 40 years after I expire. And then when he's ready to go, he's going to pick his favorite son. I mean, where does this, this doesn't end at one pick. No, I, I, I'm in, I'm in complete agreement with you. It's, we're in that area of bad, but constitutional that is particularly difficult to regulate. That's true. That's, that's particularly difficult for the other branches of government to step in here. Now, can the judiciary regulate itself on this point? Yes, to some extent. You could get rid of senior status. Right. You can absolutely get rid of senior status.

You're in or you're out, and that's going to carry just bigger consequences, which I think would affect that maybe just who your successor is wouldn't be the only reason then you take senior status. Are you actually ready to leave, A? B, I mean, I think the judiciary certainly could say, the second you have signed a letter saying you're taking senior status, no take backs. Yeah, I think that that's an interesting question. Would that be constitutional? Could a diminished, a voluntary imposition of a diminished status be made involuntarily permanent? Well, basically once you've said it, there just aren't take backs. You don't have to say it. That's up to you. But like, it's irrevocable.

I think that's I would agree with you. I think that's constitutional. I think that's constitutional. Yeah, I I I am in complete agreement this idea that I'm going to play games with senior status, especially if the games are in any way related to selecting the identity of my successor, that has all kinds of warning flags. And especially because I came up in the practice of law. I started off, I took a cup of coffee in Manhattan working for a Manhattan law firm, but I made partner moving back south and working in Southern law firms. And particularly before the rise of the Federalist Society, and even somewhat afterwards, but before really the rise of the Federalist Society had really kind of permeated at least the conservative side of the legal culture, there was a heck of a lot of backscratching and favor trading going on

in federal judicial appointments. I mean, just an absolute ton of it. I mean, gosh, I could tell stories. And to the point where by the time that there was any sort of set number of vacancies, you kind of felt like you knew who was getting it. And there might be one wild card. If there were, say, three vacancies

to take a non-random example from during my when I was a Ute, a legal Ute, to quote my cousin Vinny, we knew two of the three. We knew two of the three. The third was a wild card. And because of this sort of favor trading, back scratching.

And look, one thing can be said for the rise of the Federalist Society is it has had a positive impact on some of the pure political favor trading that went into judicial appointments. Not, it hadn't gotten rid of it. It hadn't gotten rid of it. It's transferred some of it to within the Federalist Society, but it hadn't gotten rid of it, but it's had a positive impact on that, at least in my view. David, can I end on one other problem in the federal judiciary? We can always talk about problems in the federal judiciary. We all do apologies to our judicial listeners. Something is going on.

I want to tell you, I want to read off to you just some of the judges whose names are complete sentences on the federal judiciary. Stephanie Rose, Dennis Shedd, Carol Stoll,

Pauline Newman, Jennifer Shedd, Carol Stoll, Pauline Newman, Jennifer Zips, Michael Newman, Thomas Rose, Diane Wood, Roger Gregory, Bridget Bade, Deborah Cook, Sandra Lynch, Gerald Lynch, Norman Stahl, Michael Park, Don Willett, Bobby Shepard, Stephen Trott, James Ho, and Stephen Trott, Mark Walker, Frederick Block, Alfred Goodwin. This is just a handful, and they have put up for cloture. Sorry, Schumer filed cloture just a day ago on Jennifer Sung to the Night Circuit. It needs to stop somewhere, David. This is discrimination because Sarah Isger is not a sentence. And David French, I guess, technically is.

It is. I was going to say, all I know is I've got a chance. I've got a chance. It's provocative. It's provocative sentence. It gets the people going. It gets the people going, but I've got a chance. Okay. All right. So I have a pop culture question for you. And depending on your answer, this podcast will either go on a little bit longer or not. Are you watching Succession? Yes. Are you caught up?

session. Yes. Are you caught up? I might be one episode behind, but I am basically caught up. Legendary producer Caleb, however, is freaking out because how is he supposed to listen to this if he is not caught up? Okay. Legendary producer Caleb, you have one week, my friend. You have one week. But more importantly, did you the new yorker profile of jeremy strong who plays kendall oh heck yes okay because actually i now think i could re-watch the whole thing just watching like just hate watching jeremy strong play kendall roy i found that to be well okay we'll let's put it in the show notes yeah we'll put it in the show notes. Yeah, we'll put it in the show notes. It's maybe the best New Yorker profile I've ever read in the sense that I don't think I've ever seen a full profile

where not a single person quoted says something positive about the person who's being profiled. You couldn't find one person to say one nice thing. There was like a, Matthew McConaughey says something neutral. That's about as good as it got. Matthew McConaughey is something neutral. That's about as good as it got. Matthew McConaughey is like, yeah, he is a person. He was, but McConaughey could have been depending on the tone of voice. It could have been an insult or an art or a compliment. I mean, wasn't it? He's sort of like he's intense. Yeah. Yeah. He's a lot or something along those lines but like whoa and

also the quote about the wife where they ask they ask his wife uh hey is it hard to have a method actor you know when he comes home at the end of the day and she's like he is wonderful about really being able to draw that line and being a great husband and father. And then in the same paragraph, he overhears his wife and he's like, she's just wrong. It's actually basically, I'm paraphrasing, this is Kendall Roy pretending to be a good father and husband. What? You sociopath? What? I promise you, it's one of the most remarkable things I've ever read because the other thing about it, when you say nobody says anything really good about him, including his co-stars on an extraordinarily successful award-winning show. Oh, well, not only do they not say anything good, they say bad things.

Yes. Yes. And well, and that was going to lead me to the question that I was going to end the whole podcast on. But for you, legendary producer Caleb, I'm not going to ask that question. But I cannot recommend this thing enough. By the way, not the show.

I just want to say, I actually don't recommend the show that highly, but I recommend this profile regardless of your interest in the show. The show, especially this season, is pretty meh. But the profile, it's fine. It's fine. Yeah, well, okay. I mean, I find myself about three times per episode either laughing out loud or just being stunned in some way by what I just saw on the screen. Kieran Culkin, like if he's not in the scene, I'm not interested. He makes the whole show for me.

But regardless, my point is you don't have to like Succession. It's a very specific type of show for sure to really appreciate the incredible nature of a profile of someone who doesn't know that they're the bad guy in everyone's life. And it's interesting people have rallied to his support since. Jessica Chastain came out and said, no, this is completely unfair. Some other folks have come out and said- And you know I love Jessica Chastain more than anything. So I feel like I need to lend that extra credibility.

We need to reach out to Jessica Chastain in this podcast and see if she'd be willing to come on and defend her friend Jeremy Strong and talk about the latest machinations at the Supreme Court. Either one. Either one. Either one. Yeah, absolutely. Okay, well, read this New Yorker profile. It is absolutely amazing. It's literally, I can't remember the last time I read a profile of an actor that I could not put it down. I just stopped everything I was doing and plowed through to the

end, and it's long. The title, by the way, we will put it in the show notes, but for those of you who are just listening and just want to Google it in your car, on Succession, Jeremy Strong Doesn't Get the Joke. That's the title. Yeah, man. Okay, all right.

Well, this has been a good episode, Sarah, if I don't say so myself. So this is an ideal time when you're basking in the glow of yet another great advisory opinions episode. Please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts. And please check us out at thedispatch.com. And we will talk to you on Monday. I haven't eaten in 24 hours and I'm going to go enjoy a can of tomato soup. At Real Canadian Superstore,

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