Advisory Opinions - Supreme Court Weighs Death Row Prayer Wish

Episode Date: November 12, 2021

On today’s podcast, David and Sarah talk to Erin Busby, Supreme Court co-counsel for John Ramirez in a critical death penalty religious liberty case. They walk through oral arguments and discuss the mysterious "silent justice." Then David and Sarah talk billboards. Yes, billboards. And they wrap with a discussion of misconceptions of self-defense and the Kyle Rittenhouse case. Show Notes: -Ramirez v. Collier oral argument -City of Austin, Texas v. Reagan National Advertising of Texas Inc. oral argument Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Sasquatch here. You know, I get a lot of attention wherever I go. Hey, Sasquatch, over here. So when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. Welcome to the Advisory Opinions Podcast.

This is David French with Sarah Isger, and I'm super excited about this podcast for a couple of reasons. One, we have an incredible guest about a case that I have strong feelings about that who Sarah is going to introduce. And then I got to admit, I got to admit the next thing we're going to talk about, or one of the things we're going to talk about is Sarah was right. I was wrong. I care about billboards. I care passionately about billboards. I'm all in on billboards. All right, so that's number two. Sarah's going to give us an update from the Federalist Society Convention, which is going on. She claims that's the nerd prom.

I just thought that was any gathering of advisory opinions listeners. And then we're also going to talk some about the Kyle Rittenhouse case that is literally burning up the online spaces right now with commentary. Sadly, Sarah, there's not the same attention being paid to the Ahmaud Arbery trial that is going on at the exact same time.

But they're not as fully into the testimony. It's just now unspooling. But Sarah, you're at FedSoc. Well, not literally right now, but you've been going to the FedSoc convention. What's happening? The Federalist Society convention is back in person at the Mayflower Hotel in downtown DC, and it is nerderific. So technically, the program began this morning, nerderific. So technically the program began this morning, but Wednesday night is the traditional

drinking of the judges. And many a judge was spotted in the Mayflower lobby. Judges, these are all circuit judges. I saw Judge Bumate, Judge Grant, Judge Oldham, Judge Van Dyke, Judge Jones,

of course. That's my judge. Judge Pryor, Judge Smith. I mean, it was a smorgasbord of appellate federal judges. And everyone seemed really happy to be back in person looking forward to the big prom tonight, which Tom Cotton will be speaking at. That's at Union Station. But I'm going to head over this afternoon, David, and see if I can't talk to some people, get some on-the-record comment in the hallway.

That would be great. And, you know, find some friends of the pod, even if they're not willing to sort of say it publicly and get some of their thoughts on the Naught Dog Doctrine. I mean, that would be, you know, you know when we'll reach the absolute pinnacle is when the words gnaw dog appear somewhere. It's true. Somewhere.

There was mention of the 333 court. Of course. Conversations. The, of course, Texas Solicitor Generals were in full force in their, you know, all the previous ones. So that was fun. Anyway, yeah. So I'll report back more on Monday. But this is, there's not a whole lot nerdier than the Federalist Society Convention. Well, that I would say in all the best ways, in all the best ways, the audience of the Traveling AO podcast might have them beat. And I say that with all the love and affection and

regard in my heart. So Sarah, we have a guest. Absolutely. So Erin Busby is joining us. Aaron is a graduate of Harvard Law School. I am sorry to say this is a full Harvard panel today. years apart from her incredible legal career. She is the co-director of the University of Texas Supreme Court Clinic that took on as co-counsel the Ramirez v. Collier case. This is the Texas execution case about having an outside spiritual advisor in the room, whether you could have audible prayer, touching of hands. And that was argued this week. It was a barn burner. So we wanted to have Erin come in to have her tell us what she thought of how it went and, you know, just to break down some of the issues with a true expert. Thanks, Sarah. It's really great to be here. So why don't you tell us what the case is about? Like, how did we get here? Because honestly, there are some procedural things about how this case makes it here that Allison Ho,

partner at Gibson Dunn, wife of Fifth Circuit Judge Jim Ho. By the way, Aaron's husband is Texas Supreme Court Justice Brett Busby. Anyway, but Allison Gibson had a amicus brief in this case for Texas that laid out, I thought, very well some of the procedural history and why it's tough. Yes. So this is one of the issues that the court asked us to brief was exhaustion under the Prison Litigation Reform Act, which people call the PLRA. And that is a law that says that you have to exhaust any of your administrative remedies before you bring suit. And in this case, before you bring suit. And in this case, there was a changing legal landscape. So for years and years and years, Texas had chaplains in the execution chamber, but only Christian or Muslim chaplains. Flashback to a few years ago, a Buddhist prisoner filed suit saying, I should get to have a spiritual advisor in the chamber.

The state says, no, we don't have any. It goes up. The court stays it and says, no, this is clear discrimination. And importantly, by the way, Kavanaugh stays it and says, you can do one or the other. You can go up or you can go down. And Texas is like, cool, we're going to go down. We're going to just say- Nobody gets anyone. No problem. But it's really important that Kavanaugh is part of that.

Yes. So Texas says nobody in. During that period, a case comes up through the 11th Circuit and the 11th Circuit says it's a constitutional violation to say no spiritual advisor in the execution chamber. And the court does not overturn the 11th Circuit stay. Texas case comes up after that, and the court, in fact, stays the Texas execution in a case called Gutierrez and says, you know what, go back and tell us if it's really a security risk to have somebody in there. While that is going on, Texas changes its policy and says you can have an outside spiritual advisor. This happens around the same time that Mr. Ramirez's execution dates are being set. First, he has one set for September of 2020. They file suit saying we need a spiritual advisor in the chamber. It's COVID.

The state really doesn't want to pack like three or four people into a tiny room together. And they say, if you withdraw the suit, we'll withdraw the execution date. And so that's what happens. It all happens within about four or five days. Flash forward to February of this year, the state resets the execution for September of this year. And Mr. Ramirez starts with what's called the prison grievance procedure, where basically you fill out a form that says, I want my pastor in the chamber. And then the prison has 40 days to respond and say, no, we're not going to do that.

And then you have to file a step two and say, no, I really want my pastor in the chamber. And they have another 40 days to say, sorry, we're not going to do it. And then you can sue. So what happens is in the course of this, he says, I want my pastor. They say no. And then he says, no, I really want my pastor. And they say, oh, we changed the policy. You can have your pastor. Great. So that happens in early May. And everything looks pretty good. In early June, someone, I believe the chaplain at the prison, tells Mr. Ramirez, you know, your pastor's going to be in there, but he can't touch you. you know, your pastor's going to be in there, but he can't touch you.

And Mr. Ramirez says, wait, you know, the chaplain always touched people in the chamber. It's been done for years and years. And so at that point, he files another grievance that says, I want my pastor to pray over me and lay hands on me in the chamber. And the person responds and says, no, we're not going to do that. No touch. He files the step two and waits. And he waits 30 some days. And it's now a month before the execution date. And he files suit, it's now a month before the execution date and he filed suit. Just despite that,

he hasn't yet received the answer to the second one because it's a month before the execution date. The judge Hittner here in, well, in Houston sets a schedule and says, okay, if you're going to file for a preliminary injunction, do it by this date. Uh, and that's what happens. So that is the, the procedural posture of this case is a complaint was filed. The state had not answered the complaint yet. They responded to the

motion for stay. So because of all of this, you have some procedural things with it, but you also have this idea of purposeful delay, a question about sincerely held religious belief, or simply trying to put off your execution. And this is what's going to get us into the meat of all of this. Yeah. One of the weirder things about this case is that the state didn't put any evidence in the courts below in responding to the motion for stay, either the district court or the Fifth Circuit. And then after cert was granted, a couple of weeks after cert was granted, the state sent a letter to the Supreme Court saying, we'd really like to lodge some evidence that you need to decide this case. And came up with the prisoner's grievance file and two declarations. So that's something that someone,

a prison official has signed and said, this is stuff I know about. But nobody's ever gotten to depose or cross-examine or anything. They're just there, and they're lodged with the court. Right. So if there's any fact questions, the court has to send this back down. I would assert so, yes. All right. So we enter the oral argument. You start with Sepp Kretzer, who I talked about in this pod before, by the way. David, remember, this is the potted plant lawyer in his initial petition to the court. And I was saying that for a solo practitioner, I was like, wow. And then I looked at his bio and resume and was like, nevermind. He better be this good. Like he's impressive. So he argues for Ramirez. Um, then the solicitor

general's office, the U S solicitor general's office comes in for an argument with Eric Fagan. Uh, and then you have Judd stone, the Texas solicitor General representing Texas. Judd, by the way, three arguments in one sitting. I mean, man of the hour. Saw Judd last night, and I can report that he is remarkably alive. Still running on adrenaline, Sarah. Still running on adrenaline. I will tell you, he looked like he even may have like showered or eaten something. It was, it was really something. Um, so, all right, David, we get into this case and a lot of this, um, is, you know, the standard for what religious practices can be allowed versus the interest of the state in having a risk-free, botched-free execution. Big picture, David, what did you think?

Big picture, I feel a little ranty about this in some disc discreet ways interesting i think you and i are going to disagree on this case oh i think we're going to disagree on this one so i can't wait so i feel a little bit ranty on the beginning sort of the opening jab at the sincerely sincerity of the religious beliefs okay so you know when you started with thomas sort of because it seemed like what we were having was a lot of discussion about the cases that other cases that were not this case. And so what about this other situation and this other situation, this other situation, this other situation, and a lot of concern about things like, well, what late filed petitions and all of these other petitions. So I'm very leery of inquiries into sincerity of religious belief.

As were they. They are very concerned about how you do that inquiry. And at the same time, it is different than, well, we should discuss the differences between RFRA and ARLUPA and how every justice pronounces ARLUPA differently. our lupa and how every justice pronounces our lupa differently. But just to jump to the punchline here, there is a difference in prisoners asserting a religious belief in terms of the additional motivation they would have to have a non-sincerely held religious belief for the purpose of delay. And it's a little different when you're talking about wanting to have a beard at your job or something. Like there's sort of like a why else would you be saying that?

Whereas if it delays your execution, well, we kind of know why else you'd be saying it. And Erin, why don't you give us a real quick RFRA versus Arlupa primer? Do you mind? Sure. Well, I mean, in very important ways, they are essentially the same. And the standard is supposed to be the same. Well, just literally, I mean, RFRA is the Religious Freedom Restoration Act of 1993. Arloopa.

And wait, how do you pronounce Arloopa? I usually say Raloopa. Raloopa, Arloopa. There was like Ray-Lupa thrown in there at one point. I think Breyer was saying Ray-Lupa. So that's the Religious Land Use and Institutionalized Persons Act. Which is why everyone says some variation on Ra-Lupa, because that's a mouthful. And it's essentially a difference in coverage. Now, when Congress passed RFRA, they thought they could apply it to, or at least they say they thought they could apply it to everything, you know, all laws. And the court came in, the city of Bernie case and said, no, you can't, that federalism, you can do it. It applies to all federal laws.

So Congress essentially looked around and said, can we apply it somewhere else? And so they passed RELUPA, which applies oddly enough to land use and people who are in institutions, largely prisons is the application. And those laws were both intended to reinstate the standard that the court had mostly applied prior to Employment Division v. Smith. So if a rule or a law is a substantial burden on a sincerely held religious belief, it is the state's burden to show

that it's the least restrictive means of furthering a compelling state interest. And Ralupa, for example, is really specific that it is the state's burden on that second half. The prisoner has to show that it's a substantial burden on his sincerely held belief. But after that, the state is the one who has to show stuff. Now, the court and the legislative history says that we need to give deference to prison officials. Essentially, it's hard to run a prison.

It's very complicated. They know about it. And so it does say you have to give deference to prison officials. But there's also a bunch of stuff in the legislative history about how prisons were petty and vindictive and were going around burdening people's free exercise of religion all over the place. And that's why they have to pass the law. So you have a little bit of a tension in the interpretation there. I mean, a little bit. It's like on the one hand, you can't burden their religious belief

without the least restrictive means. And that's on the state to prove that there's no other way to do it, except we should also give a lot of deference to the state. Those are deeply intentioned. Okay. So David, freak out. Yeah. Let me jump in. I'm not going to freak out, but I'm going to jump in and jump in with firmness on this point. Okay, so as a practical matter, I understand from sort of this sort of real world practical sense of what about this sincerely held religious belief prong? Is it possible that someone is going to sort of concoct a religious belief in the interest of staying in execution? To take an absurd hypothetical, let's suppose a previously non-religious prisoner says,

I'm a member of the First Church of the Chippendale Dancers, and I want them in the execution chamber with me while I'm being executed. and I want them in the execution chamber with me while I'm being executed. And generally what, and this is actually quite relevant, listeners, to those of you listening in on vaccine stuff, the sincerely held religious belief aspect of this is actually quite relevant to a lot of the controversies around vaccine religious exemptions because a ton of people are coming forward with vaccine religious exemptions from religious traditions that don't acknowledge vaccine religious exemptions because a ton of people are coming forward with vaccine religious exemptions from religious traditions that don't acknowledge vaccine religious exemptions.

So for example, if you're Catholic and the Pope has said, no, I mean, the COVID vaccine, A-OK, if you're Southern Baptist and there's no Baptist tradition, but you say, well, that might be the majority position of my religion, but I'm in the minority position of my religion, and I don't want to take the COVID vaccine. As a general matter, the court's not going to weigh in for a lot of establishment clause reasons, for example. The court's not going to sort of weigh in and say, you may believe something sincerely, but it's not a sincerely held religious belief because they don't like to go there. They don't like to go there. So they'll do other things like substantial

burden or much more focus on state interest. So let's say somebody asserts themselves as the first church of Chippendale dancers. They're generally not going to say, no such church. And the person will respond, there is now, there is a church of one, which there can be under the American constitution. Instead, they'll say, you know what? Chippendales in that five by five room doesn't work. There's a compelling state interest in the safety of the procedure, and that's just unacceptable risk. So you don't even have to get into the sincerity of the belief. Footnote, is anyone else wondering how Chippendales was the first thing that came

to David's mind? I don't know. I was trying. So the first thing I thought of. The cast of Hamilton, Chippendales, what have you been watching? I actually had a, here's the answer to that question. I just sent somebody a happy birthday, Jeff. And there is a Chippendales happy birthday, Jeff. There we go. That's famous and stupid. And for some reason that popped in my mind. Good, because the other reasons were bad.

Yeah, I know. I know. I just, now listeners, my face is now suddenly really red. Very red. But anyway, I wanted an absurd example. Fair. It's an absurd example. So generally what the state will do is they don't like to do that sincerely held thing.

They don't really like to go there. Sometimes they'll go to substantial burden, but a lot of these things are much more dealt with by the least restrictive means, the compelling governmental interest. So, you know, and it is acknowledged that there are some prisoners who can be, what's the phrase we'd be looking for? Vexatious litigants. They will litigate a lot of stuff because they've got a lot of time. I'll never forget one of my first cases ever that I worked on. I had a really weird intern experience because we've already talked about the first case I ever volunteered on constitutionally was the hot, sexy, and safer case in the First Circuit, Sarah. The first case I ever interned in when I was an

intern at the U.S. Attorney's office in Eastern District of Massachusetts was a guy who's a prisoner who sued the state of Massachusetts for a crime Satan made him commit. And he also sued Satan. So, yeah, that was fun. So anyway, the so you have this sincere that sort of stab at dealing with the sincerely held religious belief. But what begins to become clear to me is that what the court was really worried about was, well, how other cases that were not this case, as I said earlier, well, how close to the injection site can somebody lay hands? Other things about, well, what about people who are slow on making these sort of claims?

Are we going to be flooded with these kinds of claims? And what was interesting to me was it seemed to me that there was a couple of ways that were very effective to respond to this. And one of them, Seth said, if the state is so worried about these things coming up in the last minute, all they have to do is actually tell us what the rules are. Now, this is something that is really important. And I thought Aaron did a nice job of explaining, like, the state here wasn't telling them what to do until the last minute. And in fact, you filed before you even had this final answer from the state. And so a lot of this sort of parade of what about all these last minute requests, if the

states set the rules and they set the rules in advance, then you can litigate this stuff in advance. The other thing you can do is you can say, yeah, there's an absolute compelling interest in safety and there might be issues with laying hands on a person close to or in the proximity of the injection site, but that's not this case. And then the other thing is, what about this flood, Sarah, this flood,

the flood we heard about of litigation about capital punishment? How many executions were there? Trivia question. I bet Erin knows this off the top of her head. How many executions were there? Trivia question. I bet Erin knows this off the top of her head. How many executions were there in 2020 in the United States? I don't know off the top of my head, but I believe it's less than five. No, no, it's more than that, but it's 17. Were some of the federal ones in 2020? Yeah, well, yeah, yeah, yeah. So there's 17 total executions in the United States.

That flood, that tsunami of cases that they're not equipped to handle, my goodness, their poor docket. How can it handle such a flood? And so that was something that was, all of these things were, it felt like I was reading an argument about the case that wasn't this case. And that, that, that's what got, that's what triggered me. Now, I always tell my students that when you're going in for argument or when you're writing your brief, the Supreme court is thinking about the case after the case, after your case, like that, that is their job. That's what they do. As a general matter,

they're not super interested in your case specifically. Now, that's a little different in capital work, right? Death is different. But it's also different when you're dealing with RELUPA or RFRA or other free exercise cases, because there's precedent that says you have to decide on a case-by-case basis. And so to a certain extent, like, that's just it. Like, I'm sorry that that means you're going to have to decide on a case-by-case basis, But that is, in fact, what the law says. Do your job. And courts handle it. Do your job.

You aim in, Erin. Do your job. Enough from this side. Now it is time for me to come in. All right, David, when you and I talked about this case previously, heading into it, and just sort of our armchair predictions, pre-oral argument, pre-briefing actually, because we talked about it just when it was granted cert. I said that I thought in the end they would say yes to the prayer, audible prayer, and no to the

laying of hands. And that's how I enter this oral argument. I have to say that after the Ramirez side of the argument, the top side, I was like, never mind. They lose. Ramirez loses, I think, entirely. And I actually thought that the... So first of all, just to talk about that argument a little, Justice Kavanaugh... So you have this two parts to argument these days. You have the 30 minutes where it's the free for all, and then we go through everyone for questions. And by the way, it's been pointed out to me that perhaps a better way to do this is to have everyone get to ask a question first, one question, and then have the 30 minutes of free for all. But regardless, I love it this way.

Anytime that we get more argument is great. Why? Because in this case, with the 30 minutes of argument time, as you mentioned, Justice Thomas started off the argument, which was nice. And then Justice Kavanaugh, it was just body blows for 20 minutes of the 30 minutes. And Justice Kavanaugh at one point stopping to say, you know what? You're doing good. You're doing good. But now I'm going to ask more questions and just more body blows. I thought that the Ramirez case got a lot weaker, substantially weaker through the course of that. Obviously, that was the intention. You go then to the Solicitor General's argument, and I thought the Solicitor General did the most harm to the Ramirez side. It's interesting because in his briefing, the United States

briefing, it looked like they were kind of Team Ramirez. And then in the argument, and then in the argument um with friends like these man aaron i'm sorry to say so first uh there was a lot of flim-flamming around from the solicitor general over like the bureau of prisons what they actually do what they're actually okay with at one point he was like well they're not okay with it but it has occurred you. And you're like, what? Justice Alito was like, that's not particularly helpful. But a couple of points that he made, one, that using the term execution isn't helpful here. That in fact, there's two phases and the court should consider at least differentiating between the first phase, which is sort of the getting things ready phase, and perhaps having a spiritual advisor touch your foot or something in the getting ready phase is just a very different compelling interest that the state might have

versus the second phase, which is the actual injection of lethal drugs in a very specific order where they're checking for vital signs. There's things that they need to listen for. I thought that was like, I was like, oh, well, now Sotomayor or Kagan, I forget which one had a good response. Well, you let the prisoners audible prayer themselves, right? So it's not, it can't only be that you need to listen for things. That was good pushback, but nevertheless. So the federal government does allow an outside spiritual advisor, but their room is bigger. And you have to have then an additional security personnel with that spiritual advisor.

He notes that the risk is non-zero. Someone can faint. You know, death is different in the sense that you don't know what someone's going to do when this person that they've been ministering to is being put to death, not even intentionally. Also, Eric Fagan used advertent or inadvertent, and I did not know that advertent was a word. I thought inadvertent was an orphan negative, where we don't have advertent, but at least according to the U.S. Solicitor General's office, advertent is a word. So advertent or inadvertent, they could disrupt the execution again by fainting, by having some sort of just over emotional reaction to seeing someone they know well be killed in front of them. And then you get to Texas's argument. And look, Judd Stone got

beat up a little by Sotomayor and Kagan, no question. But it wasn't nearly the body blows that Kavanaugh was laying on Team Ramirez. And Judd's best arguments were the room is too small. This has been this has gone up and down and up and down. That amicus brief that I mentioned from Allison Ho was done on behalf of the families and particularly the victim's son, who they have traveled from around the country to this execution date only to have it postponed. Now they've had three execution dates. Whose fault was that? Whose fault was that? Whose fault was that? I thought that Texas answered that pretty well, which was to say we said he could have an outside pastor.

We said that because that was then in response to you used to be able to have an inside pastor, a state official. And it never occurred to us that state official wasn't audibly praying or laying hands on the prisoner. to us that state official wasn't audibly praying or laying hands on the prisoner. We assumed that when it said an outside pastor observer, that the word observer was relatively clear, meaning they could observe. Observe doesn't mean audibly pray or lay hands. And so Texas didn't know. It was so clear that they didn't mention it in their brief to the court. It didn't come up until oral argument. Thank you, Erin. Thank you. I was just going to say, intervene, intervene here, Erin, at any moment. Yeah. And also, I mean, valid points about the size of the room, et cetera. But they are letting the outside advisor

in the room. He will be there. Correct. Correct. And so in terms of touching, not touching, we are talking a matter of feet at most, more like a matter of inches in terms of what the risk is. And he's not an employee, but he, you know, the chaplains and the witnesses who were in that room hundreds and hundreds of times, they may not have the same relationship, but they do know the prisoners.

Some of the prisoners they were at the very least friendly with. And there simply has never been a disruption caused by a spiritual advisor. I mean, states have seriously messed up executions before, but they didn't need any help. The Oklahoma one was mentioned several times and that was not caused by any outside person. But OK, so let's break this down now. So first of all, in order for the stay to be granted, y'all needed five votes, not four to grant cert. You needed five votes to say the execution. So we know based on oral argument that it is very unlikely that your five votes came from Kavanaugh, Alito, or Thomas.

And by the way, we never hear from Gorsuch through this entire argument, not once. He's, of course, given three opportunities, called on by name, and we don't hear from him at all, no questions. Barrett we hear from, and she asked the same question to all three. And to me, this is the question, the question, how do you define the state's compelling interest? Because if the state's

compelling interest is to have zero risk in the execution chamber, then they're always going to win. But we also know that it can't be that they get to say we need zero risk and therefore we always win. It has to be something else. When your side was offered that question, I thought it was the weakest answer because basically the answer was the state's risk is the compelling interest, which is messy for you guys because then how much risk is supposed to be tolerated? So what is the state's compelling interest, Erin? I would say that the state has a compelling interest in making sure that the execution is safe enough, not zero risk of consequences. And they do have some interest in safety, but it's just safe enough for it to work

efficiently, effectively. I think that there is a rule of reason here that would apply. And what's that meme that you see sometimes on Twitter? It's like this entire leaning building, and then it says there's a plank that says, the reasonable man standard,, it's like this entire leaning building. And then it says there's a plank. This is the reasonable man standard. And it's American law. As with a lot of these things, there's a rule of reason that comes into play here.

If you say, for example, the state has a compelling interest in the safety of the execution, not a zero risk execution. It has a compelling governmental interest in a reasonably safe execution. And then you can do things like, say, regardless of the identity of the pastor or spiritual advisor, they have to go through a training process. They have to spend X amount of time actually familiarizing themselves with the execution chamber. They can be instructed exactly where to stand. They can be required to attend even say a rehearsal of it, not with the actual prisoner, of course, but with somebody else. You can do things that are completely content slash viewpoint slash religion neutral,

applying to who the advisor is and the procedures. You can even say they have to pass background checks so that your pastor isn't like Vinnie the Butcher Johnson from the first church of Dexter. So you can do all of these things that satisfy this compelling governmental interest. But the compelling governmental interest cannot be zero risk because then every single additional person other than the executioner himself

is going to add to that non-zero. So that would be no pastor in the execution chamber at all. Which is indeed what Texas wanted for the Kavanaugh point where it was like, you can either have more state pastors or you can have no pastors. And they were like, cool, we've got our answer then. And then you have Alabama who does allow this. That was used a lot. And I thought Kavanaugh made a good point, which is like, so one state does something and now the whole thing is ratcheted up to whatever the highest level of service is in some way. And that's where the Solicitor General also did some damage here, where he said BOP would have a huge problem with laying of hands, even though they do allow an outside advisor in. In the 13 executions that the federal government has performed, uh,

in the last four years, three years, whatever. No, even less like year and a half. Um, yeah, it was a year and a half. They did 13. Um, 11 of those had an outside spiritual advisor and he was like, having someone in the room is different than that person, you know, having a loud singing or prayer touching. And he basically said BOP would have an issue with that. And they have, you know, having a loud singing or prayer touching. And he basically said BOP would have an issue with that. And they have, it was, he was unwilling to commit factually to what all has happened in those 11. Uh, so, okay. Count your votes. There was touching in at least one of those 11. I will say that, but, um, yeah, so, uh so three seem pretty obvious on each side, right? Three, three, three.

It's always the way. And so we're left thinking about the chief and Justice Barrett and Justice Gorsuch. Now, Justice Gorsuch said nothing. But he's been very criminal defendant friendly in past cases. Yes. And you can't always go by what justices did when they were judges. But there's a really interesting Tenth Circuit opinion by then Judge Gorsuch called Yellow Bear versus Lampert, which is a Ralupa claim by an inmate who was in protective custody who wanted to use the prison's sweat lodge. This is a prison that actually did have a sweat lodge for its Native American prisoners, but it was in the main yard. And the prison didn't want

to have to lock things down to get prisoners from protective custody to the sweat lodge. And when that comes to the 10th Circuit, the three judges there with Justice Gorsuch writing say, to Scorsese writing say, essentially, no, this rule is not the least restrictive means of furthering a compelling state interest. Now, there was evidence that they locked things down for other reasons to take people for medical things and stuff, which certainly helped the inmate. But he was very strong on the individualized consideration of the circumstances and of the claims and on that the state doesn't get to reduce risk to zero. The state had pointed to things like, oh, even if we're not putting him in danger of being attacked, the people in general custody will see him and that

raises risk. And the court was having none of it. So that makes me a little more optimistic about silent Justice Gorsuch. So let's, we won't make Aaron since she was actually a litigant, make this prediction. But Sarah, what's your prediction? I think that there'll be some splitting of the baby in the sense that,

yes, the state does not get to have a zero risk execution chamber. I don't think they will say that. But I think that they will be far more deferential to the state. Because I just I mean, it is tough with those three. Right. Barrett Gorsuch and the chief were very noncommittal in their questions. But I don't see how you can have this one-way ratchet to what's next.

And these sort of delays, the emergency docket, you have to remember that, of course, this gets granted on the heels of the Texas SB8 kerfuffle on the emergency docket criticisms. And so it's not surprising to me that of the two votes you needed to get to five, it's going to come from those institutionalists who are trying perhaps to show that the emergency docket does function, that the death penalty docket is functioning. That doesn't mean though in the end

that this is going to be a winner. And it has been a little schizophrenic, right? They did tell Texas that they could just exclude outside people. And then they're like, no, nevermind. You can't exclude outside people. So I think in the end, I thought that the best outcome was the solicitor general's suggestion of sorts, which is to think of this as two different events and the state's risk of this as two different events. And the state's risk tolerance in those two different events can be quite different. So in tort law, I don't know, I assume you guys also learned this, BPL, burden equals probability times loss. And so here, the loss calculation is different in those two phases.

When something goes wrong in phase one, you know, if the guy faints in phase one, like, you know, delays things a little bit. If the guy faints in phase two and he hits the IV line and all of a sudden phenobarbital is, you know, flying all over the place and, you know, it is catastrophic, as they said many times during there. So if the amount of loss is different, then the burden is different, even if the probability of loss is the same. And I think that if you apply that to this, you end up with something like what the US Solicitor General was suggesting. Interestingly, even though I thought he was the most persuasive advocate there in terms of the position he was holding, and I understand the U.S.'s interest,

I almost did think it was a little unfair to Ramirez to have the U.S. there as an advocate. But I think in the end, they'll follow the SG. Yeah, I should probably make one sort of Yeah, I should probably make one sort of factual clarification of the USSG's account of there being two stages. To some extent there are, but it's maybe not the way people would imagine it because the very first thing that happens with nobody in the room other than the medical people is that all the lines get started and it's all hooked up yeah you're right and then they do all the reading the judgment and the praying and everything and then from a different room the medical people start the drugs going through the ib um and so that that is happens. And in... It is still a different problem, though, if he faints and falls on the IV line when there's only... When there's nothing going through it. Yeah. Yeah. Now, at least one of the federal agreements, they said to Father O'Keefe, you will step away for the consciousness check. And so that would happen,

I presume, slightly after the drug started to flow when you thought he was no longer conscious. So I understand what the USSG was saying, but I'm not sure it's as clear-cut.

Can I just say something about this fainting hypo? Uh-huh. All right. I just say something about this fainting hypo all right I am not an expert in fainting I faint a lot I'm a fainter okay you're a fainter has it ever been accompanied by a leaping somersault into a substantially different area of the fainting. Because my understanding of fainting is a collapse, not a convulsive leap. So if I'm holding somebody's foot and I'm kneeling and I faint- It's a very small room, David. It's an incredibly small room. The federal room is what, twice as large, Erin? Just by volume? That is what the SGC-

But again, might I just interject with some... you know, we have a lot of listeners who are experts in a whole lot of things. And I would love to hear from a listener who has an example of someone who's kneeling with their hand on a foot and the faint involved an affirmative somersault five to six feet forward. David, I just think you're wrong on this. You're being snarky. But the truth is, if you faint, if you're standing at the foot of a table that someone's laying on and you faint, you could easily move that table and that would jerk the IV out. You're just wrong. But the state could require him to kneel. Correct. Correct. So if I'm kneeling and I'm touching his foot and I faint, and then the other thing is how many fainting incidents,

Erin, have there been in a execution chamber?, how many fainting incidents, Erin, have there been in a execution chamber? That's totally unfair in this case, though, because we haven't, we've just started this of having outside people in the room. So is there an anti, is there like a specific anti-fainting training that you have to pass to become a prison chaplain? All right, we're off here.

David, make your prediction. Okay, I'm going to say on audible prayer, 6-3 or 7-2 in favor. And I'm intrigued by the silence of Gorsuch. I'm going to say, I'm going to change my earlier prediction. I think he's going to prevail on the laying on of hands with some heavily caveated that it has to be done in a very specific way that has to be where there's no danger to the IV line, etc. And so I'm going to say he wins.

Erin, you win. You win. I hope so. To be honest, I think the most likely thing is that the court gives some guidance on how to analyze this and sends it back for development of the factual record, which there was no development of the factual record in the court below. And this, this court does not like to decide things in that, that posture. So I hope that they give some strong guidance on how the courts below should handle this. But I think that's the most likely. All right, Erin, thank you so much for joining us for this little break. Thanks, Erin. Thanks. Erin Busby from the University of Texas Supreme Court Clinic, co-counsel on this case. That's the sound of fried chicken with a spicy history.

Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. So, Sarah, thank you for bringing Aaron on for a couple of reasons. One, it was fantastic to have an ally talking about that case. Pretty helpful to have someone so versed in the facts. You know, you and I talking about these cases, we're not so steeped in the record like an advocate is.

And so that's always helpful, as we argue, to have a referee of sorts on facts. Yeah, and that's exactly helpful, as we argue, to have a referee of sorts on facts. Yeah, and that's exactly what I was going to say, just to be able to have somebody who just knows the facts so intimately. Because that's one of the things about litigation is if you're an actual litigant, and I remember this from my litigation days, it was so frustrating to often listen to media accounts.

And even the best reporters, the best commentators, just because of time and all of the things they're covering, they don't know the record like you do. And you're often sitting there going, but, but, but, but, but. And so it was great to have Aaron in and talking about that. So thank you. And also thank you, Sarah, for highlighting the billboard case. Yay. Okay. So you were not on board with the billboard case at the beginning. And I told you

this was going to be a First Amendment case that was important. It is on what is content-based restriction. So to back up a little, and we've mentioned this before, but when it comes to the First Amendment, you can't discriminate on viewpoint, for instance. We know that. That's sort of like on one end of the extreme. Democrats can speak at this podium, you know, on this soapbox, but Republicans can't. That's obviously going to be a no. On the other side of the spectrum is time, place, and manner restrictions. You don't get to have a bullhorn on the soapbox at 2 a.m. It doesn't matter what you're saying. The city can ban that. Now, in 2015, we had a case called Reed v. City of Gilbert. This was Justice Thomas, and it basically changed everything about

First Amendment, that spectrum, if you will, and that sort of middle part of the spectrum, and what is content-based regulation. And the city of Gilbert, this is in Arizona, they said there are no outdoor signs allowed without a permit, except these 23 categories of exceptions. Right. They included ideological signs for non-commercial purposes, and they can be of a certain size and up for any length of time. Political signs. They can be up, but they can only be 32 square feet, blah, blah, blah.

They can only be up 60 days before a primary election and up to 15 days following a general election. Then there were temporary directional signs relating to a qualifying event, directing pedestrians, motorists, or other passersby to an event hosted by a nonprofit organization. But you could only have those up 12 hours before the event started and only one hour after the event ended. So there was a church. They didn't have a set location. So they would meet in different places and they would put up signs about it. And basically the city sign ordinance person followed them around finding them.

And so they went to court and said, look, you have all these exceptions. You say there's no signs except all of these people get to have signs, and we don't, and that is content-based discrimination, and that violates the First Amendment, and Justice Thomas said, yeah, you're right. Interestingly, and this will all be very relevant to where we're headed, very relevant to where we're headed. Concurrence by Alito, Kennedy, and Sotomayor. Concurrence by Breyer. Concurrence by Kagan, Ginsburg, and Breyer. So if you add up to the current court, Alito, Sotomayor, Breyer, Kagan, you've got four votes that were in concurrence on Reid, as in, in this case, we agree they are discriminating on content,

but we're not really signing on with the justice Thomas. Um, some, well, that'll be relevant to this justice Thomas was strict. Scrutiny applies to any content based restriction. So fast forward to now Austin, the city of Austin in Texas, says billboards that are on the premises can be digitized. Billboards that are off premises, first of all, you can't build any more of them. But if you already have one, you can't build any more of them. But if you already have one, you can't digitize it. And so they asked to digitize their off-premise billboards. They were told no.

They sued because they argued that that is a content-based restriction because the on-premise billboards can only advertise on-premise stuff. That's what got me, Sarah. And that is it. Is that content-based? Yes. And I thought what would really get you is an oral argument, the discussion of barbecue.

Well, as we've discussed, I'm not that passionate about barbecue. But I am passionate about free speech. I'm also, I'm not that passionate about barbecue, but I am passionate about free speech. I'm not Steve Hayes passionate about property rights. And that's a callback, listeners, to something you may have missed. I'm not going to assume that everyone listens to The Dispatch Pod, but there was a famous... Because this is the flagship. It's not hard to imagine that you would only listen to the flagship. Yeah, this is the flagship. So in one of our secondary podcasts, we called the Dispatch Pod, Steve Hayes, our fearless leader, discussed property rights as the central fundamental organizing principle from which all rights flow.

And it was really pretty amusing. Property rights is the apex right. And I remember telling, well, Steve, I hope I still have a right to life if I'm on your property. But anyway, what is interesting about this is, so if you have the code here says, an off-premise sign is a sign that advertises a business, person, activity, goods, products, or services not located on the site where the sign is installed. So if I have like a, as I'm reading this, if I have a barbecue joint, well, let's go back to barbecue, and I want to advertise a, if I want to use my property to advertise a different message on a billboard

installed on my property, I cannot do that. So it seems like to me, I've got- Which isn't hard to imagine. For instance, Austin is very known for its sort of community messaging. There's a restaurant called El Arroyo, for instance. It's very famous. And El Arroyo has a sign. Now it's not digitized, so it wouldn't fall into this restriction yet. But every day, the sign is just like a funny message. You can follow the Twitter feed, by the way. And it will be a really fun Twitter feed if you don't follow it. It is not only Texas, but just to read you what today's sign is. It is not only Texas, but just to read you what today's sign is.

I have a fear of giants. It's called FIFA phobia. Wait, I don't even get that one. Maybe that's the point. I dare you to go one day without mentioning how early it gets dark. A fun thing to do in the morning is not talk to me. Just an FYI to everyone. I will eat your pickle if you don't want it. Okay. So this would be banned if it were a digitized sign in Austin. But let me give you another example, which is there is, for instance, a mass shooting in Austin, as there was several years ago. and Franklin's wants to put up on their sign a

message that says Austin strong, or maybe that shooting was at the Salt Lick, another barbecue joint. And Franklin's puts up a sign that says we stand with the Salt Lick. That would be banned under this. And so on the one hand, it's like, well, how is that not a content-based restriction that should be under strict scrutiny? The city doesn't even argue that they have a compelling interest. But on the other hand, I mean, on-premise versus off-premise, that's not really content-based, huh? Right. I mean, if you look at it and you say, so on-premise versus off-premise, if you look at it and you say, so on-premise versus off-premise, it doesn't get, but the issue is the, yes, you're correct at that on the, on the first surface of it. But then the reality is it in re in the real world, it works out to be content based because the, in the real world,

it works out to be content based. And so I think, um, and you know, I, I, we had a great discussion about Ramirez, so we unfortunately have to give this one a little short shrift if we want to get to the Rittenhouse case. I think this is a First Amendment winner of a case, quite honestly. So in those Reed concurrences that I mentioned, all of them were saying in various ways that not all content-based speech should fall under strict scrutiny. There needs to be a little more play in that because cities do have some interest in having just not clutter, even if that's not a compelling interest per se. And I think that the argument, so Cannon Shanmugan, friend of the pod,

And so Cannon Shanmugan, friend of the pod, argued that it was content based. the line of Reed going, applying to this case, that this is content, strict scrutiny applies, we're done, Reed applies. I think instead, we're now going to reach the limits of Reed and cabin Reed to something much more obvious, like City of Gilbert's 23 exemptions craziness,

and that this will be a non-reed case. But an outcome for the billboards and the property owners and against Austin but non-reed reasoning? Nope. I think that the billboard owners probably

lose this. So we've got two cases where David and I are predicting different outcomes, which is fun. Well, you know, because there is a clutter, there is a legitimate sort of zoning

slash beautification clutter interest, but content isn't clutter. Well, so I think they have a problem here also because what they're talking about are off-premise signs that they want to digitize.

So it's not really about, I think they would have a much stronger case if they were Franklin's barbecue with an on-premise sign that wanted to have off-premise speech on their on-premise sign. But that's not actually this case. And so I think you can just easily uphold that you can't digitize your sign the end interesting okay okay well we we'll see we shall see um but i you're right sarah i started reading i was reading the argument reading the briefs and i was like wait a minute this is content-based speech analysis content-based speech and. This is content-based speech, and you're dealing with Steve's property rights.

This is not just a First Amendment case that I like. This is dispatch-branded liberty interests here. And if content-based speech is David's love language, I will just read the El Arroyo sign from November 6th. Leaving the party early together equals my love language. So true. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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It's about to go to the jury. is progressing. It's about to go to the jury. And it's a case that is being, this is being, you can't say technically tried on Twitter, but excerpts of the case are flying around Twitter. Okay. And so everyone's making judgments or many people are making judgments based on the excerpts of the case that's being televised on Twitter. And I want to just sort of zoom out for a minute and talk about some generalized principles before we zoom in to the case itself. Okay. Zooming out, there's actually a lot that is in common with this case, with some of the things we've discussed with police cases, police shooting cases. And it's this, that if you're making it just in the same way that if you're making a self-defense or a police shoot or defense of others, police shooting analysis, the analysis, the legal analysis of the shooting really zooms into the immediate circumstances of the shooting itself. And we have talked about this as there's this sort of background,

there's this category of police shootings, for example, where we call it the police officer creates the crisis, which then the officer resolves with a shooting. But in the crisis itself, the crisis that the officer creates through his or her own mistakes, in the course of that crisis, a legitimate need for self-defense arises. And so then the officer can lawfully exercise self-defense because when you're talking about whether or not the use of force was reasonable and there was a reasonable use of force in defense of self, uh, defending yourself from a death or serious bodily harm, it's a very narrow inquiry. Okay. So a lot of this commentary that people have about what the heck was he doing there? Why is a 17 year old got an AR-15 in the middle of a riot? What is, you know,

that's not neat. Well, I'm not going to say it's irrelevant. Like if there was also evidence that he told guys, I'm going to go hunting rioters, for example, that might be relevant, but it's not all that relevant to these precise circumstances of the shootings. Okay. And so what you have to do is you have to zoom in and look at, there was three people, two killed, one wounded. There were three separate shootings. And this trial is about the specific circumstances when he aimed his weapon and fired at three separate individuals.

Why do I emphasize this? It's because for a couple of reasons. One, there's a whole line of commentary that says he's guilty because he's there with a gun looking for trouble. No. Okay. There's another line of commentary that says, I saw this testimony about one of the shootings where in one of the shootings, someone admitted that he leveled a gun at Rittenhouse. So now he's going to be acquitted. Wait, there's two other shootings. And so what this case is really going to hinge on is not the question, which I think is a pretty settled question, is to the prudence of a 17-year-old

heading to a riot with a rifle. Bad call. And all these people turning him into a folk hero you see online saying, oh, this guy, he was greatest. I bet not one of them, Sarah, not one of them, if they had a 17 year old son would say, son, here's the rifle, there's the riot, go to it. Not one of them, not one of them. So spare me all that stuff. The guy shouldn't have been there with a weapon in a riot. He shouldn't have been, but that's not adjudicating his guilt in the shootings. Okay. So this is, this is what is the case is going to be about these three very specific incidents. It is also not part of the case as to whether if he had been a young black man and had just done the shootings, would the police have treated him differently?

Those are, those are completely different questions regarding the guilt or innocence regarding these three specific shootings. And that that's, I guess that's the main thing that I wanted to preface because we're going to get closing arguments. We're going to get a jury verdict. And a lot of people are making this case about something other than the very specific circumstances

of those three shootings. So that's my TED Talk. I think that's true. Now, obviously, the prosecutor has gotten in some trouble. Yep. He has been reprimanded by the judge for two separate issues though related um the one that i find interesting in the sense that i actually do think it sets up a situation for appeal he mentioned the defendant's silence after arrest now we can all say Miranda together, you have the right to remain silent.

Anything you say can and will be used against you in a court of law. You have the right to remain silent and to not have that silence used against you in court, including the inference that you stayed silent because you were guilty. And indeed, the judge raising his voice pointed out that that's been well-settled law for 40 or 50 years. What were you thinking? The prosecutor didn't help then also introduced evidence that he had been previously ruled on an emotion against him. And he said, oh, but I thought you left the door open. And in good faith, I thought that things had changed now and that I could introduce it. And the judge was like, what in the world would make you think that without then moving to

reconsider the motion? You don't just get to decide that now it's been introduced and I get to go ahead and move forward, even though there was a motion where the judge ruled against me, the judge is very, very angry at the prosecutor and in fact said, I do not think you are acting in good faith. That is pretty bad to hear from a judge. Yeah, and that's exactly right.

If you think, and we got a lot of law student listeners if you think the opposing side has opened up a line of inquiry that has been blocked by the judge here is what you do you make a motion make a motion that the judge permit you to introduce testimony or evidence that he has previously excluded that is what you do you don't go ahead and try to introduce testimony or evidence that he has previously excluded. That is what you do. You don't go ahead and try to introduce it. And the judge will ask the jury to leave and you will have a nice little discussion over whether the defense cracked the door open on your previously excluded evidence.

But once you do it in front of the jury, the only options, realistically, are we keep going and this is now an issue for appeal or mistrial? And it's been a little frustrating to see a lot of people who in other circumstances would be quite interested in protecting the due process rights of criminal defendants just jumping down this judge's throat because for a lot of reasons, mostly unrelated to the actual evidence surrounding the shootings themselves, they decided this guy's a really bad dude and bad things and he needs to go to jail. And again, the good dudeness or the bad dudeness or the wisdom or the foolishness of Rittenhouse going to that day with that weapon, that's not what this case is about. That's not what this case is about. And when you saw the judge yell like that, if you practice law for any length of time, you know what you're going to see, Sarah? You're going to see a judge lose it against a litigant.

Sometimes justifiably, like I think that was pretty justifiable. You don't mention the defendant's silence. Like this is basic stuff. You just don't mention the defendant's silence. This is basic stuff. You just don't mention the defendant's silence. You don't try to introduce evidence without making a motion to introduce that evidence when that evidence has been previously excluded by the judge. I mean, this is basic stuff. You don't do this. And then you have people on Twitter tearing the judge a new one because he's obviously biased for the defense. He's obviously biased for the defense. Well, I've also got some news.

The system, the legal standards are biased in favor of the defense. Proof beyond a reasonable doubt, that's not a level playing field. So this is, there's a lot of, as happens with a lot of high profile trials, there's a lot going on based on snippets. There's a lot going on based on background atmospherics. But here's what matters. What matters is what are the facts surrounding each specific shooting. Those are the facts that matter.

All right. Well, David, next week we've got some exciting stuff because we have a lot of stuff we've left on the table today that we'll cover on Monday, including more cases filed in the OSHA vaccine mandate. We'll talk about that. Maybe we'll even have a circuit picked by then. Who knows? So Sarah, are you going to make me promote your own husband's event? Okay. In fairness, I learned about the event from you. Okay, in fairness, I learned about the event from you.

So while we were podcasting, I got a direct message from a notable friend of the pod who shall remain unnamed, reminding me of this event. But there's going to be a Zoom event Thursday the 16th at 1245 ET that is going to be about the future of qualified immunity. And it's got a real...

It's a hell of a lineup. It's like Scott Keller. Sarah, Scott Keller. Friend of the pod is an understatement. I think we're a little more than friends. A little more. William Bode, friend of the pod. Joanna Schwartz, Judge Andrew Oldham, and also moderated by Judge Don Willett, friend of the pod.

Judge Oldham is also a friend of the pod, I will have you know. Oh, also a friend of the pod. Saw him last night, friend of the pod. I apologize, Judge. I did not know. Also a former co-worker of Scott Keller. Oh, interesting. Okay. So this is at least an 80% friend of pod panel

on qualified immunity at Harvard. So that's fantastic. I think we can turn Professor Schwartz, too. I think that's right. I think that's right. That's just a matter of time. Yeah, so you can tune in, right? It's going to be live streamed?

It's going to be live streamed. Yeah. So I'll tweet it out. I'll tweet it out because I's going to be live streamed? It's going to be live streamed. Yeah. So I'll tweet it out. I'll tweet it out because that, I'm going to be very interested in it. All right. I'm ending with one more El Arroyo sign. What if soy milk is just regular milk

introducing itself in Spanish? Illegal. That is illegal, Sarah. It's illegal in the city of Austin. No, cannot say that. I lived right across from El Arroyo for a year and it was a real treat to wake up every day to the side. So do the Twitter feed for El Arroyo. It's great. Well, I always say this after every pod offline. I say that was a great pod, but I'm going to say it online. I think this was a great pod today. So please, on the sugar high of this great pod, go subscribe to us on Apple Podcasts. Go rate us on Apple Podcasts.

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