Advisory Opinions - Supreme Court: We’re Not Santa Claus

Episode Date: June 27, 2024

Sarah and David return for a truly prolific episode covering another SCOTUS decision day and revisit where they stand on originalism and its faults. The Agenda: —Doctrine coded vs. culture-war coded —Did the government coerce social media companies in 2020? —David, you ignorant slut —Interpreting “corruptly” —The accidental release of Idaho abortion case —Is SCOTUS strategic in its opinion release schedule? —The problems with originalism —Trump immunity case delay Show Notes: —National Rifle Association of America v. Vullo —Bantam Books, Inc. v. Sullivan —Lawrence Solum’s law review article on originalism Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French. And if you're just tuning in for this podcast, on the one hand, things will get more interesting in the next few episodes. On the other hand, this is far more true to what AO actually is. So take that for what it's worth. But David, we had two opinions from the Supreme Court come out today, Wednesday morning,

and I don't know, I'm just in a good mood. How are you doing today? I'm actually in a really good mood. And I'll tell you one of the reasons why, is this has actually been going back to the Rahimi case to this Murthy case that we're going to talk about here in a minute. If you're a court, if you love discussions of philosophy and doctrine and that really gets you up in the morning, this has been a great short several-day period here for discussions of philosophy and doctrine. It really is. Both of the cases, in fact, that we're going to talk about are really

interesting from the standpoint of philosophy and doctrine. And interestingly, both of them, both the Murthy case and the Rahimi case, which we might revisit a little bit, are not culture war coded in the way that they're philosophy and doctrine coded, and that there's a difference. And it'll be fun to kind of plunge into that. I agree, and that's bringing me joy. So thus far this term, we're at 49 opinions released, over half have been unanimous.

Interestingly, we've had about, I think, 15 6-3 decisions, the vast majority of which have not been 6-3 along ideological lines. And in fact, today we're gonna discuss two 6-3 decisions, the vast majority of which have not been six three along ideological lines. And in fact, today we're going to discuss two six three decisions, one along ideological lines that nevertheless doesn't feel particularly ideological and the other one not along ideological lines that could have been ideological. It was in fact suing the Biden administration. So let's start with Murthy. This is the social media case.

Well, one of them. And again, disclaimer, my husband is the attorney on the other social media case, NetChoice that we might be talking about as well, but has nothing to do with this case. So this sprung out of sort of pandemic law of a sort. People felt like their posts on Facebook and Twitter, et cetera, were being censored or deprioritized

on these platforms, not because of Facebook and Twitter's own decisions, but because of pressure, maybe coercion, from the White House and other administration officials. And so the question was similar, actually identical, to the question in Vulo, the NRA case that we talked about last week. Did this cross the line into coercion, thus turning a private actor, the social media company's actions of censorship

from private action into a First Amendment violation because they were de facto state actors because they were acting under the coercive power of the federal government. The federal government, you know, couldn't simply censor someone's viewpoint by itself. They also cannot coerce a third party, a private party into doing it for them. So 6-3 with Amy Coney Barrett writing and with Gorsuch, Alito and Thomas in dissent. So my 3-3-3 lineup here. Yep. And Justice Barrett writing and with Gorsuch, Alito, and Thomas in dissent. So my 333 lineup here. And Justice Barrett writing for the court saying, no standing and no problem. And Justice Alito writing in dissent, basically saying, what is this standing doctrine that

we're doing? And also first amendment problem. This was another Fifth Circuit case, David. The Fifth Circuit is not doing well at the Supreme Court. No. And as I said, this case could have been coded very much along culture war lines. Look at the Biden administration, putting pressure on Facebook and Twitter to censor conservatives who had disagreements

over the election over COVID and vaccine policies and mask policies, and it just wasn't. That's not the way this case came down. So the majority opinion is divided into two issues here. One, their claims of direct censorship, which I sort of have explained, and two, their right to listen, as in they also had a right to hear from other people who were censored. And Justice Barrett is going to explain why they don't have standing for either of those. Standing, if you will remember, you need, one, an injury in fact, two, traceability, that the government caused your injury, and three, redressability, that the government caused your injury.

And three, redressability, that if we tell the government not to do this, that your injury will be remedied in some way. Justice Barrett, again, writing for the court is going to find they meet none of these. And even if they arguably meet one, they certainly don't meet the others, etc. And a big important part of this is going to be that they sought prospective relief. They wanted an injunction against the government. They did not seek damages. Now, David, you talked about this before, being a First Amendment litigator in your past life. Yes.

Always seek damages. Yeah. So, can we just start there? Okay, this is, I'm so glad we're starting there, because this is a, there, I would say there's three or so keys to unlock understanding of this case. And key number one is, especially when you look at the NRA versus Vulo case that we talked about, we had a question, what does the VULU holding mean for Murthy? And in this circumstance, what's very clear

is the difference between VULU and Murthy. As VULU, the court was looking backwards at information to say, did the conduct in the past actually violate the rights of the National Rifle Association? Here, what the plaintiffs are saying is, you need to block conduct in the future. There's future conduct that you need to block. Now that doesn't mean that the past conduct is irrelevant,

as we'll get to. It just changes the analysis from a very straightforward, here is what they did and did that violate the law, into a much more speculative, we're going to enjoin them from future violations because of what they might do. And what they might do is a different analysis. Now it's very relevant what they've done in the past to what they might do, but what they've done in the past isn't dispositive to what they might do in the future. So the fact that this was forward-looking,

that they're examining the forward-looking relief really is absolutely critical. But Sarah, what's interesting about this case is it's still the case that to analyze whether or not they should block the Biden administration from conducting similar activities in the future. They did go back and look back on the findings of past

conduct. And this is really important in a broader sense because the origin story for a lot of this is the Twitter files controversy. And that's I'm using the Twitter files in this broad sense to not just encompass Twitter, but really social media. But the Twitter files controversy is sort of shorthand for what happened shortly after Elon Musk took control of Twitter or X now. He dumped into the public square a bunch of documents detailing Twitter's interactions with both the Trump campaign, the Biden campaign, and the federal government. It was very complicated. It was done in a very weird way in which you had Twitter threads rather than conventional

news articles. And even people relatively versed in all these issues would have trouble following the story from the Twitter threads. And so then what people did is they looked to trusted voices to say, well, tell us what all this means. And the way it was sort of coded on the right was, what this means in the bottom line

is the Biden administration intervened, forced a bunch of censorship. And that the Biden administration was in kind of cahoots and partnership with social media companies to systematically suppress the expression of the plaintiffs in this case, as well as, you know, many, many other people. And what the Barrett decision does is kind of detonate that whole narrative.

It detonates it pretty decisively. There's a footnote four. It says, the Fifth Circuit relied on the district court's factual findings, many of which appear to be clearly erroneous. So it detonated the initial district court opinion. Then it also, Barrett very carefully goes through each of the individual plaintiffs and shows that they can't actually tie the social media censorship to government action in the way that the NRA could tie government action and to private acts against the NRA.

And even in the dissent, Alito acknowledges, for example, that the censorship here is more nuanced than in the Vulo case. And so what's very interesting about this is it doesn't just really articulate, I think, a pretty sensible standing doctrine. It also, to do so, detonates a really expansive narrative that had taken hold on the right. David, you ignorant slut. Oh no. That's what Eric Metaxas said to me in our debate

after I had my opening statement. He turned to me, he didn't say David. He turned to me and said, Jane, you ignorant slut. Okay, just if you're not old enough to get that joke, that is a joke. Yeah, it's old Saturday Night Live. Yeah. And that's such a great skit,

and I kind of just feel like everyone should stop listening to this podcast immediately. Go watch that and now come back. Yeah. We'll wait. Okay, so I am going to disagree with you on the outcome of this case. I agree with Alito in dissent, but I certainly

Agree with the whole way it's laid out. I just think my balance falls on that side versus this side And I want to read some portions of it. So just on this prospective relief versus Damages, I'll just read this note of caution from Justice Barrett and the majority. Here, a note of caution. If the plaintiffs were seeking compensatory relief, the traceability of their past injuries would be the whole ball game. But because the plaintiffs are seeking only forward-seeking relief, the past injuries are relevant only for their predictive value. If a plaintiff demonstrates that a particular government defendant was behind her past social

media restriction, it will be easier for her to prove that she faces a continued risk of future restriction that is likely to be traceable to that same defendant. Conversely, if a plaintiff cannot trace her past injury to one of the defendants, it will be much harder for her to make that showing. In the latter situation, the plaintiff would essentially have to build her case from scratch, showing why she has some newfound reason to fear that one of the named defendants will coerce her chosen platform to restrict future speech on a topic about which she plans to post, in this case, either COVID-19 or the upcoming election. Keep in mind, therefore, that the past is relevant only

insofar as it is a launching pad for a showing of imminent future injury. So, I feel like everyone right now is going, okay, if this is so obvious that they should have sued for nominal damages, then why didn't they? And David, first of all, this whole like you can sue for nominal damages thing, to some extent is new. The Supreme Court only, what, one term ago, two terms ago really said that nominal damages in sort of these civil rights contexts

is even like a thumbs up. But in this case, it's actually not 1983. This isn't about state actors. This is federal. So you're not even implicating qualified immunity, but they would have run into some immunity problems quite likely. For sure, given the, yeah. And so this is not one of those cases where like, It would have run into some immunity problems quite likely.

And so this is not one of those cases where like, oh, they're such morons for not pleading nominal damages. But I think as it turned out, it was a mistake that it was probably worth going through the hassle of pleading the nominal damages, though it still could have been thrown out and they would have ended up in the same place because of the immunity. They could have said, we don't even need to reach whether they violated your First Amendment rights or not, because they would be immune regardless, which is again, it's different than qualified immunity, but the result was going to be the same. Regardless,

it's going to make this much, much harder. Okay, so I think you ran through the majority pretty well. Injury, in fact, she had to identify a real and immediate threat of repeated injury that existed at the time she sued. Well, there's a few problems with that. The pandemic's over. She had been posting about pandemic stuff. The White House has gotten rid of their task force to find misinformation online or whatever working group they had at the White House. So, you know, this forward-looking thing was a real problem on injury, in fact.

On traceability, she had to establish a causal connection between the actions of those officials and her censorship. Well, of course, Facebook already had policies about taking down misinformation and disinformation. They were doing it beforehand, and then they just were doing it more or constantly sort of in communication with the White House. And it was really hard to prove which actions the platforms took in response to that pressure and which actions they were taking anyway. They obviously left some posts up that the White House wanted them to take down. They took down others that the White House did want them to take down. So the traceability, I think, was just really messy in this case, as opposed to Vullo. Vullo is such a straight

shot on all of these because it's just the person who's actually responsible for taking adverse action. They say the thing that's not really a veiled threat so much as an out loud threat because she's a moron, and they then do the thing that they very clearly said they weren't going to do because of her threat. So it's a one, two, three punch, and here it's just really, really messy, which I fully acknowledge, though I'm going to disagree with the majority opinion. Last one was redressability.

She needed proof that a preliminary injunction would reduce the risk of her future harm to at least some extent. So remember what she's asking for is an injunction against the Biden administration and future administrations presumably, not to talk to these social media companies and tell them to continue their policies of taking down this information that they don't like. Well, the problem is that's already been going on and the platforms didn't change their policies. I.e., if you tell the government to stop, there's just no evidence that these third parties are going to change their behavior. So is there even a redressability function here?

Okay. I think those are all great arguments. As I said, it's not that I think they're wrong. I just think on balance that Justice Alito wins the day. So I want to walk through some of that. One, he's going to talk about compare Vulo. And he says, look, in Vulo, the alleged conduct was blunt. The head of the state commission with regulatory authority over insurance companies allegedly told executives at Lloyd's directly and in no uncertain terms that she would be, quote, less interested in punishing the company's regulatory infractions if it ceased doing business with the National Rifle Association. The federal officials' conduct here was more subtle and sophisticated. The message was delivered piecemeal by various officials over a period of time in the form

of aggressive questions, complaints, insistent requests, demands, and thinly veiled threats of potentially fatal reprisals. But the message was unmistakable and it was duly received. The principle recognized in Bantam books in Vulo requires a court to distinguish between permissible persuasion and unconstitutional coercion. And in Vulo, we look to three leading factors that are helpful in making that determination. One, the authority of the government officials who are alleged to have engaged in coercion. Two, the nature of statements made by those officials. And three, the reaction of third parties alleged to have been coerced.

In this case, all three factors point to coercion. Now, of course, the majority doesn't dispute this. They just never reach the First Amendment question at all. And David, I think my take is that what I'm sort of seeing from the majority is a bit of sleight of hand. They don't want to do this. And standing is always a really good way to get out of having to get to the meat of it,

because I don't think they would have of having to get to the meat of it, because I don't think they would have been able to get around the meat problem. There is a coercion First Amendment problem here because they were able to throw it out on standing. They don't have to reach that. And I get why they don't want to get to the meat because there's a pandemic law feel to this. Look, they were doing this thing at the height of the pandemic, at the height of sort of January 6 post-insurrection stuff. They're doing the best they can.

Clearly this opinion would sort of be a shot over the bow. Don't do this sort of thing anymore. Someone might have standing pretty soon here. We want to allow some leeway to government officials to talk to these organizations, but they would never talk to the New York Times this way. And believe me, I know because I've been the government official speaking to the New York Times. The difference is because the New York Times would tell you to go pound sand.

You have no power over the New York Times. Whereas the administration, because of Section 230 and the threats around changing Section 230, antitrust violations, has a lot of persuasive, let's put it, power over these social media companies. So here's my issue with that reasoning. My issue is, okay, you want to... The problem you have here is you have a situation in which I don't think the Alito dissent fully recognizes that the traceability issue here really, really is important because these social media companies were making decisions about misinformation, disinformation, et cetera, way before the facts of this case arose.

In fact, if you want to look sort of vaccine disinformation and misinformation, Facebook got very alarmed after the 2019 Samoa measles outbreak. So this is pre-pandemic, pre-Twitter files, all of this. And this was a situation where you had vaccination rates dropped from the mid 70% to the low 30%, and there was 83 people died out of a population of 200,000 of a measles outbreak. And a lot of that turned out to be driven.

And a lot of folks believe that this was driven by American, like the Robert F. Kennedy group, right? And so these companies made these decisions well before, so here's Metta making decisions well before the pandemic. They'd always had moderation policies, many of which, by the way, when I say I agree with the majority,

that is not me saying I agree with social media moderation policies. I have been for years sort of standing lonely on this hill that so big social media companies should broadly follow First Amendment principles in their moderation. But you have a situation where the social media companies implemented their own policies, and then you have this situation where there is a flood at the height of the pandemic of

people pressing from all sides, including government officials, by the way, pressing on all sides to clamp down or to ease up. And so this, this, you know, the one of the questions that I have is what's the difference between a Biden administration official saying, hey, take down X posts because it violates your social, your, your moderation policies, or we're going to take some action against you versus Josh Hawley saying, you need to leave those posts up, or we're going to reform section 230. This is where the Vulo case, I think, provides the example of how you do this. When you can trace action, reaction quite precisely,

then you've got your coercion. You can show that tracing and that causality. Here you have the government is one voice, but it's not one voice. There are multiple governmental voices pouring into social media from both sides, and both sides have real governmental power who are pouring into social media.

And social media is making its own independent decisions that already had said, we're going to deal with misinformation as we define it on the platform. And then social media rejects the government sometimes and agrees with the government sometimes. And in that circumstance, it's just, there's 19 different reasons why it gets much more messy than Vulo, even though, even though I definitely agree

with Vulo in the Vulo holding, this is just, what's the tattoo again, Sarah? Different cases with different. Other cases presenting different allegations and different records may lead to different conclusions. Right, and I don't, you know, I. It's so convenient to just read it right off my arm. I know, I love it, I love it.

And it's on two arms now, you know, no. But it's, but I find a lot of the Alito dissent persuasive because I am very concerned with this line between jawboning and coercion and I'm very much a fan of the Vulo decision. This case just wasn't Vulo. Okay, I agree that this case wasn't Vulo and that Vulo's a rifle shot and this is like shotguns and confetti and you have to piece out what's what.

But I do want to take up Justice Alito's point on the traceability because his point on traceability is not to compare it to Vulo, but to compare it to other standing cases from the court where they were like, yeah, sure, they're standing, no problem. That I think people all were super pumped about these standing cases that I agree with Justice Leto are hard to square with this. So in Department of Commerce versus New York, this was the 2019 census case about adding the citizenship question to the census during the Trump administration, considered one of the big losses for the Trump administration at the Supreme Court, now reading from Justice Alito's

dissent. There, the state claimed that it would be hurt by a census question about citizenship, the state of New York. The state predicted that the question would dissuade some non-citizen households from complying with their legal duty to complete the form, and it asserted that this in turn could cause the state to lose a seat in the House of Representatives, as well as federal funds that are distributed on the basis of population.

Although this theory depended on illegal conduct by third parties and an attenuated chain of causation, the court found that the state had established traceability. It was enough, the court held, that the failure of some aliens to respond to the census was likely attributable to the government's introduction of the citizenship question. He's going to continue to talk about this. He says, it also would have been difficult for New York to determine which non-citizen households failed to respond to the census because of a citizenship question and which had other reasons. Nevertheless, the court did not require New York to perform that essentially impossible operation because it was clear that a citizenship question would dissuade at least some non-citizen

households from responding. The point here being, you don't need to prove exactly which White House emails caused exactly which posts to be taken down of the plaintiffs, similar to how New York doesn't have to prove which illegal aliens weren't going to answer the citizenship question, because the point was that the White House complaints would cause some additional posts to be taken down, just like adding the citizenship question would cause some illegal aliens not to answer the census. So again, back to the same citizenship question,

census question. No one could say with any certainty that our decision barring a censorship question from the 2020 census would prevent New York from losing a seat in the House of Representatives. And in fact, that result occurred despite our decision. He also talks about the Massachusetts VEPA case. Now this one, I think, has been really sticking in Alito's craw for a long time.

So that's about the EPA regulating greenhouse gases, causing global warming and causing Massachusetts to lose landmass as the oceans rise. And they were found outstanding for that. Look, I think largely that case was just a mistake and the court's been trying to cabinet ever since. Alito's going to throw it in their faces nonetheless. He says, in Massachusetts VEPA, for example, no one could say that the relief sought reconsideration by the EPA of its decision not to regulate the emission of greenhouse gases would actually remedy the Commonwealth's alleged injury,

such as the loss of land due to rising sea levels. The Court's decision did not prevent the EPA from adhering to its prior decision, and there was no way to know with any degree of certainty that any greenhouse gas regulations that the EPA might eventually issue would prevent the oceans from rising. So again, the comparison here is, okay, so if you enjoin the government in this case, we don't know that Facebook's gonna change its policies. Just like if you tell the EPA

to reconsider their greenhouse gas policy, you don't know that they're actually gonna change their policy. But that was still found to be a redressability of Massachusetts' injury that they're losing landmass. So I've mentioned this before, Justice Alito time and again points out the inconsistency in standing doctrine at the court. And this

is his final line. The doctrine is cheapened when the rules are not even handedly applied. I'm sort of with Justice Alito. I'm with Justice Alito on the overall. I think Justice Alito would probably want less standing overall. Judge Newsom, for instance, has been on the podcast talking about how he's like standing for all. I actually am pretty agnostic between the two. I just want it to be even-handedly applied. I think there's good arguments for either one, but what's not working for me is that the census and EPA case seem to be like, oh, we kind of do want to reach the merits of this one. And this case is so clearly, no, no, no.

Vulo is what we want the law to be. And in this one, we don't want to mess with it because it'd be so hard to draw the line between emails the White House sends to Facebook that are like, hey, what you doing? That are coercive versus not coercive. So they didn't want to reach it. So they went to standing.

And I am with the dissent, David. So I hear the dissents lament, which is actually quite similar to the way we've lamented about standing and has led a lot of listeners to say, you just need more standing experts on the podcast to help you make sense of this. Message received.

I agree with that. I would love to get somebody who's- We have the best standing expert. Go to our episode with Amanda Tyler from Berkeley Law School. She is literally the expert on standing. True, true. But there are others who've been clamoring,

clamoring, not really clamoring, but saying, hey, raising their hand. If you want another perspective. Professor Tyler literally writes the book on standing for law schools, so, so one case is interesting. Two cases is double eyebrow raising. Three cases is a trend.

Okay. So case number one, the case number one, which is United States versus Texas, which is 2023, no States versus Texas, which is 2023. No standing for Texas, right? No standing- Against the Biden administration over immigration. Correct.

Okay. Huh, interesting, interesting. After the Hawaii travel ban case was heard, after the census case was heard, all of that. What does this mean? Wait, what? I did not expect that. Case number two, Mipha Preston.

Against the Biden administration over abortion medication. No standing. No standing, okay. Case number three, okay. Now both eyebrows are up. Like my forehead is crinkling and it is no standing. Now there was standing against the Biden administration in the student loan case. So you cannot say.

And a lot of people thought there wasn't standing there, actually. But this was a case where I actually did not think this would be decided on standing. I did think that they would come out this way, but I didn't think they'd toss it on standing. Failure on my part. This was obviously the better way to decide this way. But yeah, interesting, David. Three, the trends. decide this way. But yeah, interesting, David. Three big cases on three big, giant culture war

case, culture war issues. And three of them, each one of them turning back a right wing effort to bring the Supreme Court straight into the thicket of a public policy debate. And what it seems to me to be happening is that a majority of the Supreme Court is saying to sort of, it's more salient right now with the legal right because they're bringing the more aggressive challenges to the court to sort of, because it's a 6-3 court by Republican nominees, they're going to be much more aggressive in bringing their cases. If I'm left-wing activist, I'm not thinking, man, now's the time to just run to the Supreme Court

to expand our legal agenda. But it seems to me you take all of this together, and then especially when you overlay it with non-standing decisions like Alabama Voting Rights Act, for example, independent state legislature in North Carolina, that the Supreme Court is saying to sort of the legal right broadly, we are not Santa Claus. Yes.

And that is being- This is not an all you can eat buffet. Exactly. It's a la carte, my friends. You're ordering and you're paying per item. Exactly. Exactly. And look, a lot of people in the media will not hear this message.

We know this, that if there's an element of the next several cases that is, you know, that the left is upset about and there will be, there will be cases decided as the term, and we'll talk about one or two of them, they're gonna say, see, you know, there will be cases decided as the term, and we'll talk about one or two of them, they're gonna say, see, look at the legal right, can get what it wants.

The legal right knows that it can't. Well, and can I just take a point of personal privilege? When you read either the majority or the dissent, retelling of the record in this case, again, as a former communications professional who worked in these types of jobs, stop doing this nonsense. Knock it off. So there's a big difference when you're the rapid response director from the White House. Your job is to put out statements to the media, do public things. And Justice Alito discusses this a bit in his dissent as well about the bully

pulpit. Yes, presidents have a bully pulpit. It's a pulpit. It's public. You're saying the thing publicly. That's very different than what's going on here. They're threatening these companies privately. They're asking them to take down stuff privately, to change their policies privately. I have no idea why the rapid response director for the White House is talking about policy issues with third-party media platforms. That's not your job. You shouldn't be threatening them with policy retaliation, nor should you be really dealing at all with their policies,

their internal policies at all. So don't do that. It's not your job. And again, I think because I was at the Department of Justice, I'm an attorney, not in a bagillion years would I have been doing any of that because it would be so obvious that that's a really, really bad idea. Now, that's different than I have infinite numbers of private emails to news outlets, including by the way, I do have emails with Facebook and Twitter for anyone who's just in an alfoya and like just to prove me wrong. But my emails are like, hey, actually, there's a really funny exchange statement where I

use Twitter of leaving up a fake account for Rod Rosenstein. And I go at them and I'm like, this is not his how, you know, this needs to be taken down immediately. And again, that's that is my job. Yes, it's private and I am asking them to take down content, but it's an account purporting to be a federal official that I represent. And then it turns out like, nope, it was his.

He had a Finsta, but like a fake Twitter. Oh my gosh, that is so funny. That is so funny. You will also see my extreme apologies to them. But what you raise here is interesting. A very large number of the interactions that you saw between the government and the social media companies was along the lines of what you're talking about.

Hey, this thing that's up shouldn't be up because it violates your policies. And so an impersonation account at that time, I mean, pre-Elon and the detonation of the blue check system and all of this stuff and everything, it was a different environment. But a lot of what was happening was the government interfacing with social media companies

through the same channels that members of the public, that state government officials could use to alert them to alleged violations of their own social moderation. Yep. I think that is different. I also think that policymakers at the FBI in discussions with social media companies, talking to them about how to spot disinformation, Russian disinformation, et cetera, is different, even when they're wrong and even when they make a mistake, as they did about Hunter Biden's laptop, for instance, that to me is quite different than the rapid response director, whose job it

is to sort of combat negative information about the administration. It's going to be very easy for that person to conflate negative stuff they don't like with misinformation and tell companies to take down stuff that it's on the I don't like it side. And that's why I think comms people should probably be staying away from this. So David, we do have breaking news, speaking of other cases that are coming down different ways. Okay. So the Supreme Court just a few moments ago accidentally posted their decision in the Idaho abortion

case. They have since taken it down. We do not have a copy of the decision, but it is clear according to Bloomberg Law, the Supreme Court is poised to allow abortions and medical emergencies in Idaho, according to a copy of the opinion that was briefly posted on the court's website. And I would just like to say that I've won 20 bucks from a friend of mine who bet me that that case was coming out the other way. So Idaho, remember, had a law that they passed

that said that there could only be abortions when the life of the mother was threatened and the federal government sued claiming that this was in conflict with. And therefore the Suprem the supremacy clause won out, with MTALA, this is emergency medicine, which says that you must provide emergency care to people. And the Supreme Court, at least to some extent,

is going to say that yes, Idaho must comport with MTALA's emergency care provisions in the federal law when it conflicts with their Idaho state law. I assume we'll now be getting this opinion tomorrow. This is very different than the Dobbs leak. As best I can tell, this was not a draft. It was posted on the website, meaning that someone who basically was going to post it

tomorrow accidentally posted it today, which meant that it had already been to the printer. It's already sort of run through all the traps. Very different than a draft being leaked by someone with access to an earlier version. This appears to be the final version. It appears to just be a mess up rather than an intentional leak. Wow.

But it doesn't look great, competence-wise. No, man, come on, guys. Okay, so this is, yeah, um, this is fascinating. So it's basically, essentially, that they're going to dismiss it as improvidently granted with Thomas Alito and Gorsuch dissenting. Ooh, that's even better because I believe that I talked about how clearly there were justices who wanted to dig this thing because the two sides had fact disagreements, obviously wanted to get to the Supreme Court, so pretended

that they did not have fact disagreements along the way. The federal government had argued that they do not require abortions in the case of mental health issues. Idaho said that they did. Idaho said, of course, we don't require you to wait until sort of your life is clearly threatened or whatever. And the federal government said, yes, you do. They had fact disagreements and the Supreme Court doesn't care about your fact disagreements.

It's a clear case for digging. Wow, a dig. Yeah, yeah. This is, this is Holy smokes. I mean, on the release, it is not Holy Smokes on the decision, but my goodness, Sarah, it fits a pattern, doesn't it? It is fitting a pattern here of, you know, some of these big aggressive, you know, sweeping cases. The Supreme Court, like, nope, not now.

Not with these plaintiffs, not on this record. Really fascinating, but to be clear, it appears that if you're gonna dismiss as a providently granted, it's gonna restore the district court decision. Right. And the district court decision was blocking the Idaho law.

And so this is a wow. And David, for those curious why it's the district court decision that goes back into effect, that's because this case came to the Supreme Court in a really, really weird way. The justices granted the case before it had been heard by the circuit court. So I don't want to... Actually, you know what? I will run through the whole thing for those who are lawyers listening to this podcast. If you're not a lawyer, you know what? Don't even worry about this next couple sentences I'm going to say. So the stay on the lower court order will lift. The lower court order will take effect, the state will then, I'm sure,

appeal to the circuit, there will be arguments and ruling, and whatever then happens, it will very likely just come back to the Supreme Court at a later date. But part of that will get all those facts, pieces worked out, and there will then be findings about those facts from the lower courts that the Supreme Court can just accept rather than have the advocates argue about it. So my guess is that this dig is going to say, we just granted this too soon, and we should have let the process play out through the circuit court. So that's why the district court order will go back

into effect fun times. But OK, David, more to come on that. Let's now do the Snyder case because we did talk about this after oral argument, and this case has some interesting implications. This is about section 666, 18 U.S.C. 666, that says it is a crime for state and local officials to corruptly solicit, accept or agree to accept anything of value from any person intending to be influenced or rewarded for an official act. Now, this is the other case that's going to define the term corruptly in the criminal code.

The other case is the January 6th case that we're still waiting on. That's the Fisher case. This one is about a local mayor who gives a million dollar contract to some trucking company, and then they give him $13,000 after that decision's been made. They say it's because they hired him as a consultant and local law allows him to be employed and accept employment from others. And a jury convicted him anyway. And he argued that in fact, this 18 USC 666 only affects bribes for state and local officials,

not gratuities. Bribes are what you get ahead of time. Either they pay you the money ahead of time so that you will make the official act or they agree to pay you after your official act has been completed, which, you know, sure the money comes afterwards, but it's still an agreement

for a bribe that happens in advance. So, this was a 6-3 decision along ideological lines, Justice Kavanaugh writing the majority. And I'll just read a little bit of his. This law prohibits state and local officials from accepting bribes that are promised or given before the official act. Those bribes are punishable by up to 10 years imprisonment. The question in this case is whether 666 also makes it a crime for state and local officials to accept gratuities. For example, gift cards, lunches, plaques, books, frame photos, or the

like that may be given as a token of appreciation after the Official Act. The answer is no. State and local governments often regulate the gifts that state and local officials may accept. Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuity. Rather, Section 666 leaves it to state and local governments to regulate gratuities to state and local officials. And as he says, bribes are payments made or agreed to before an official act in order to influence the official with respect to that future act. American law generally treats bribes as inherently corrupt and unlawful. Gratuities, on the other hand, are kind of a hot mess. Some of them are okay, like giving someone a picture frame or taking them to lunch.

Some of them are not. Some of them reek. Some of them smell kind of okay. And state and local law distinguishes between those different types. And he notes, if a federal official accepts a bribe, federal bribery law provides for a 15-year maximum prison sentence. By contrast, if a federal official accepts a prohibited gratuity in a separate part of the law, federal gratuity law sets a two-year maximum prison sentence. So it would be really weird if a state and local official is subject to 10 years for a bribe or a gratuity, but federal officials get 15 years for a bribe

and only two years for a gratuity. As he says, as relevant here, 666 also originally extended the gratuities prohibition to most state and local officials, that federal gratuities provision that had the two-year punishment. But after only two years, Congress reversed course. They amended 666 and thereby avoided the law's possible application to acceptable commercial and business practices was all that they said, which Justice Kavanaugh is going to argue means gratuities. And he lists six reasons why the case comes out

the way it does. The text, the way the text is written implies that the thing happens before, right, Before the Official Act. Second, the history with that whole amendment thing that I just read. Third, the structure in the federal one. They do bribes and gratuities as separate parts of the law. And in fact, nowhere else in any criminal law are bribes and gratuities put into the same section like this. Next, the punishment makes no sense. Why the feds would get two years for a gratuity,

but the state and local officials would get 10. Federalism, this should be up to state and local authorities to decide what's a good gratuity versus a bad gratuity. And last, fair notice. The feds say they don't mean to include all gratuities, just bad ones, but they have no definition of what are bad gratuities versus not bad gratuities. And this leads to the great concurrence by Justice Gorsuch, David, which I assume you loved.

Yeah. And I'm just going to read the bulk of it. Call it what you will. The court today speaks of inference from the word corruptly, the statute's history and structure and associated punishments. It discusses concerns of fair notice and federalism. But the bottom line is that, for all those reasons, any fair reader of this statute would be left with a reasonable doubt about whether it covers

the defendant's charged conduct. And when that happens, judges are bound by the ancient rule of lenity to decide the case as the court does today. Not for the prosecutor, but for the presumptively free individual. Lenity may sometimes as it does today go unnamed. It may be deployed under other guises too.

Fair notice or fair warning are especially familiar masks, but make no mistake, whatever the label, Lenity is what's at work behind today's decision, just as it is in so many others, rightly so, I am pleased to join. I know. I love that dissent. So can I share my unified theory of crime blind spots? Oh, like it. Okay. So I have a unified theory of crime blind spots between the right-leaning and the left-leaning jur- right-leaning and left-leaning jurists in this country. Right-leaning jurists have a blind spot

when it comes to violent crime. Left-leaning jurists have a blind spot when it comes to non-violent crime, white collar crime. And so what I've seen is, I would say right-leaning jurists have a blind spot when it comes to drug crime slash violent crime. So the paradigmatic example of that kind of blind spot would be in my view, the Employment Division V Smith case.

I feel like that's a drug war distortion case. If this was not involving the smoking of peyote, a hallucinogenic drug, I think the case would have come out differently. And you can look at many ways in which especially at the height of various crime waves, the criminal procedure. So for example, the way in which the Supreme Court

has crafted doctrines that broadly permit no knock raids, for example, I think that's a product of a violent crime blind spot. But on the other side, what's remarkable to me, when you look at a lot of these white collar criminal statutes, they're terribly drafted. What's obvious from them is that there's sort of this congressional attempt to say, we don't want dishonest people making money dishonestly, or we don't want public officials

behaving in a way that's dishonest and stinks, smells bad, is gross. And so you tend to have some of these more broadly written statutes that, you know, the word corruptly, for example, is not a self-defining word. It's not obvious what corruptly means. And so you end up with a lot of these pretty broad and vague white collar criminal statutes that sweep in, in theory, an awful lot of conduct that might be smelly or might be gross, but it's really hard to articulate necessarily or prove how it's criminal. And I feel like this case, like I feel like Gorsuch is one of the few people who doesn't

suffer from either blind spot. He's right down the line on both sides, which is one of the reasons why he's sort of the most criminal defendant friendly justice. And I think a lot of the more left leaning justices, and this I think true also in the criminal justice reform world, I've talked to a number of people who are on the conservative side of criminal justice reform who say that one of the roadblocks that they have

on trying to reduce mass incarceration is the reluctance of people on the left side of criminal justice reform to apply some of their reasoning and rational ous on decreasing prison populations to nonviolent white collar crimes. And so that's my unified theory is that depending on sort of what's the origin story of the crime that we are reviewing, it has a subtle influence depending on sort of the judicial channel you come or born from. So that's my unified theory of blind spots. I like it. So for those curious, because again, this was a six, three decision along ideological lines,

Justice Jackson wrote the dissent for the three liberal justices. And as she puts it, Snyder's absurd and atextual reading of the statute is one only today's court could love. And her point is that the word intending to be influenced or rewarded, that rewarded means something that happens after. So I just want to read the statutory text again. Anyone who corruptly

solicits, accepts, or agrees to accept, quote, anything of value from any person intending to be influenced or rewarded for an official act. And Justice Kavanaugh actually, of course, answers the dissent. And he says, in isolation, the word rewarded could be part of a gratuity statute or a bribery statute. Either, one, a reward given after the fact with no agreement beforehand, a gratuity, or two, a reward given after the fact pursuant to an agreement beforehand, a bribe. And then he goes through again all those factors in this case, which make you believe that it would be number two in this case, going back to his six

factors. I think he has the better reading of it. I agree that the word rewarded in isolation, I would say means anything after the fact. But in the context and especially Congress amending the law, and the distinction that there's a gratuity section separate from the bribery section for federal officials, rewarded in this case means you agree to something ahead of time and then you're rewarded for your official act after. And look, I'm not for people getting gratuities that are definitely bribes of a sort. $13,000 to me is way different than a lunch.

Yeah, much different. Congress would have to do this. Again, Congress should feel free to do this. But by itself, I'm with Justice Gorsuch that given that it leans that they didn't mean to include gratuities in this federal statute, if it's not clear and it feels like it leans that way, then definitely we don't put people in 10 years of jail because they're a state and local official and if they were feds, they would only get two? No! That makes no sense. So I think this decision comes out right. I think you're exactly right about

the distortion versus clear eyedness of some people. Overall, Snyder, two thumbs up from me. Total agreement. A.O. Hive mind restored. And yeah, in complete agreement about this. Look, if a gratuity is an inducement, it's a bribe. Because the gratuity would act to be, conceptually, if you're saying that we don't want to influence official acts, in my view, that would mean I would have to have a reason to expect the gratuity before I made the decision. And if I have reason to expect the gratuity

before I've made the decision, doesn't that make it a bribe? Also, the other element of this, which I thought was fun, was, wait a minute, do you realize how much if you criminalize gratuities, how confusing this could get? And it's so funny because I thought about, when I was in elementary school, kids would compete with each other at Christmas to give the teacher the best present. And it's so funny because I thought about when I was in elementary school,

kids would compete with each other at Christmas to give the teacher the best present. I don't know if this was the case in your public school growing up, but in mine, Sarah, Christmas was a big deal in our classroom because all of the students would flood the teacher with gifts. And I can easily imagine a situation in which a particularly prime gift

from a student could influence a teacher. Hint, hint. But yeah, it just seemed to me, and just one other point of order, you know I am no Christian nationalist. We just had a podcast where I said, I don't like that Missouri, I mean, sorry, Louisiana is mandating the 10 commandments in every classroom. But by golly, can we not pass laws with section 666? It's like the 13th floor, you think they should have just skipped it? Yeah. I'm just, I'm not mandating it, like not in a like a Christian authoritarian way, but it's just so jolting to read again and again.

It's weird to say. Section 666. I just keep thinking that's the foundation for a horror movie text, like a horror movie script. By the way, can I just say something about, so, you know, just dipping into Twitter for half a second on this. Oh no. Okay. Oh no. So here's a tweet.

This embarrassing accidental posting of the Imtala decision shows what all SCOTUS observers already knew. They release opinions strategically, not just when they are ready. Instead of releasing it with the two today, it appears they will be taking out some other trash later. No, no, this is not what that shows. You could have everything from an opinion

that is in actually in its final form, but they're waiting like a final sign off or a confirmation from a justice or there's a million different explanations for this. Maybe this didn't get in in time to be uploaded for the 10 a.m. Maybe they just received it for tomorrow. I mean, come on people people. It's so frustrating.

People love conspiracy theories. I know, I know. And it's just, it's undisprovable. That's the best part. It's undisprovable and it absolutely fits with about a billion people's priors. So let's roll with it. Let's run with it. All right, David, two other interesting things. One, the Oklahoma Supreme Court with it. Let's run with it.

All right, David, two other interesting things. One, the Oklahoma Supreme Court struck down the first in the nation public religious charter school. This was a Catholic charter school in Oklahoma that was going to be public funded. Yeah, that's like a public

school as a charter school that was going to be public funded. Yeah. Like a public school as a charter school that was going to be religious. Look, the Oklahoma Supreme Court wrote 39 pages, but they could have written it in one sentence. Na, dog. Yeah. Again, for those new to the podcast, we haven't had a lot of Na, dog doctrine cases of late. This is the most Na, dog doctrine case I've seen in a long time because let me read to you from the Oklahoma Constitution.

Article 2, Section 5. No public money or property shall ever be appropriated, applied, donated, or used directly or indirectly for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher, or dignitary, or sectarian institution as such." And we're done. Well, not really, Sarah.

That's kind of a Blaine amendment. And so, it's already, you know, in the Trinity Lutheran case, a very similar provision in Missouri was ruled out of bounds. It wasn't entirely struck down, essentially, but if you're talking about a government program that funds private entities, then the fact that a private entity is religious should not disqualify it from participation in the government program on federal constitutional grounds. But what's different about this case and what makes me agree with you on the NAWDawg isn't the Oklahoma Blaine Amendment. It is, if this is a public school,

it's about as clear of an establishment clause violation as you're going to find, because what you're talking about is this would be run by the diocese. This is a public school run by the diocese and the way to deal with this. And so the only way to make this constitutional is to say the charter schools are private schools, that a charter school is not a public school, that charter schools are private schools. And we know that private schools can in fact receive government funding through voucher systems, et cetera, et cetera. But here, you know, when I looked at this initially, and we talked about this initially,

Oklahoma was very clear that this was a public school. The Catholic Church cannot run a public school. I'm sorry, that is, this is 101 stuff. Sort of by definition, right? There's like definitional problems. If the Catholic Church is running it, this is 101 stuff. Sort of by definition, right? There's like, definitional problems. If the Catholic Church is running it, it's not public. If it's public, it's not run by the Catholic Church. Exactly.

And so, you would have to have a finding that charter schools are not public schools. Well, that's a really hard, you know, that a lot of that will depend on individual state regulation, etc., etc. But Oklahoma has said very clearly charter schools are public schools and then it's going to fund a public charter school, religious school. No, no, no, no, no. That's, we don't even have to get to the Blaine Amendment. We can just stick with the federal, constitutional First Amendment Establishment C clause, which was also part of the grounds for this decision. So that's why I'm not dog it.

All right. Next up was just an interesting, as Ilya Soman from George Mason put it, Monday was a terrible, horrible, no good, very bad day for Biden's new student loan forgiveness plan. Two different federal courts ruled against it. Both decisions were by Obama-appointed judges, which bodes ill for the plan's chances on appeal. This,

remember, after the Supreme Court strikes down Biden's Student Loan Forgiveness, which was $400 and some billion under the HEROES Act, they then try to move forward under the General Education Act provisions for about $150 billion or so of forgiveness. In doing so, they had these arguments that, again, were just really stretching any statutory claims for the law. They were better claims, but still a stretch like saying, the law says that after 25 years, the debt goes away. It's like, well, no, actually, what the law says is that something happens after 25 years, you know, that the debt goes away. And it's like, well, no,

actually, what the law says is that something happens after 25 years. Maybe it's that they default if you haven't been able to pay back your loans in 25 years, for instance, two federal judges saying this probably implicates the major questions doctrine, as in Congress needed to speak more clearly if they wanted to give the education secretary the power to wipe away $150 billion in student loans. Or one judge actually said, and even without the major questions doctrine, I think you lose this case. So David, this just fits squarely within that op-ed that I wrote for The New York Times

last week. There were so many people on the left, activists, cheering on these moves instead of putting that pressure on Congress. I'm not saying Congress is going to pass student loan debt relief, but they might have done something more reasonable, as in maybe there was some relief to be granted to some people in small amounts or for small groups of people.

But by simply sitting in the Rose Garden, jumping up and down about how awesome it is to get everything you want, and then being mad at the Supreme Court when they say no, and then going back and getting a slightly less awesome but still totally awesome thing, and then getting it struck down again, this is going to end up with nothing when Biden leaves office. And what did you get activists by not trying to work through Congress? You got less than getting nothing from Congress because you didn't even put pressure on Congress. You didn't even have a real conversation about what legislation might look like, what was

possible. And all the public pressure is gone because most people just think that it's happening, happened, and that the problem's been resolved. One other thing to just, I think, raise, and I want to table more discussion of Rahimi probably until after the term because I just think that Rahimi is like peeling an onion of, in a good way, in a good way,

I like onions, peeling an onion of complexity in a good way, in a good way, I like onions, peeling an onion of complexity and philosophy, legal philosophy. So it's going to be, end up being one of the most consequential decisions of the term for understanding the philosophy of the individual justices, I think. So I think that's going to be, let's have more discussion about that later. But also, let's, later, but also let's the Supreme Court took the gender reassignment, minor gender reassignment surgery medication ban, Tennessee's ban, and is going to hear that case next term. And that might be the biggest culture war case of the next term. And it's going to be very, very interesting to see the interplay between the traditional state ability to regulate medical procedures or other kinds of procedures impacting minors

and the interplay between that and the rights of parents. And with the 14th Amendment issues mixed in there as other 14th Amendment issues mixed in there as well. My general view, as I've articulated many times, is that it does fit within the traditional state authority to regulate permanent life altering treatments of minors. So for example, there's state regulations of tattoos, for example, there's state regulations of tattoos, for example. There's state regulations of ear piercings. You know, there's state regulations of things much less severe for minors, much less consequential

for minors than gender reassignment surgery. My guess is that it is going to fall within that traditional state province of regulating medical procedures regarding minors. But there is going to be a very interesting parental rights argument mixed in there as well that will have a lot of resonance beyond this case. And so it's not as necessarily clear to me how it will turn out, but it's going to be maybe the biggest culture war case of the term. Fun times. All right, last up, you flagged an interesting

Twitter thread from Clark Neely over at the Cato Institute. I'll just read a portion of it. I'll have more to say about Rahimi, but we knew all along the text history tradition was unworkable. How? The Bruin majority asserted and dictated that permitting requirements are constitutional. But they most certainly are not.

They're utterly ahistorical. That was a major tell, which explains why there were so many concurrences in Rahimi. Particularly with access to deadly weapons. Is a surface-to-air missile an arm? Why not? Pragmatism will play an enormous, if unacknowledged, role in driving case outcomes and therefore in shaping doctrine. Your choices as a justice are to, one, accept that fact and explicitly account for it in your analysis, or, two, insist that you've found an objective

analytical framework that produces consistently congenial to us modern outcomes without pragmatism interest balancing. As predicted, there was never any doubt about the outcome in Rahimi, quote, bad man stays in jail. But to accomplish that result, the justices had to uphold a statute so palpably deficient, overly broad, procedurally deficient, that it would never have survived a First Amendment style scrutiny. First of all, David, did we coin bad man stays in jail doctrine? I don't know if it's not a we, it's a you. This is you. I mean, that's what I took away from this, right?

Yes, of course. The most important part. I'll text Clark right now and ask him. I know. Clark is a very good friend. I've known Clark since I was a law student and hang out with him and his wife all the time. So I'm literally texting Clark right now to ask, is bad man stays in jail a term or did I create

it like I created the word buckets? You did. The word buckets had never been invented. So that's very clear. Now here's why I thought this thread was very instructive, not because I agree with him that permitting requirements are unconstitutional, but because I think that he is hitting on something here that is related to our discussions of text history and tradition.

And it's this, which is when he said, "'Your choices of justice are, one, to accept that fact "'and explicitly account for it in your analysis, "'the role of pragmatism, or two, insist that you found "'an objective analytical framework "'that produces consistently congenial "'to us moderns' outcomes." Yeah.

And that's where the text history and tradition test has really fallen apart to me, is it's, this is, it's as a conceptual matter flawed, and then as a pragmatic matter flawed, and it's gonna result in this exact kind of confusion that actually ends up often as a practical matter pushing you where, Sarah, back to tears of scrutiny. Whether in name or in practice.

Right. So David, I've been reading this 2011 law review article by Professor Lawrence Sollum. He's now at the University of Virginia. This was published in the Georgetown University law Review, I believe, at the time. Anyway, it's this great thing on the evolution of contemporary originalist theory. It's such a great article. I think we'll post it in the show notes for those who want to read it.

It's short too, unlike most law review articles and pretty readable, again, compared to most law review articles. It's my highest compliment, Professor Sollum. And look, he says overall, in terms of defining originalism in all of its various forms, and remember, this is 2011. So we're pre-text history and tradition by any definition of text history and tradition. We're in originalism 2.0 at that point. So he talks about the fixation thesis, which I love the name of that, that I think he coined. And the fixation thesis is this idea that something is fixed at the

time that the Constitution is ratified, whether, you know, semantically at least, it is fixed. That's originalism. Now you can have still sort of a living originalism, if you will, that maybe that semantically fixed meaning should still be then interpreted differently now, all the different variations, but that all of them are going to share that fixation thesis. But here's where the problem comes in, David. There are these three problems in originalism, and I'm going to call them the intention problem, the meaning problem, and the expectations problem. So if you look only at the intentions of the founders, that's going to be very different

than the semantics, semantical meaning of the words in the text. Yeah. The original public meaning, if you will. So original intent versus original public meaning can be in conflict. And then this third conflict, which I think is the one that gives rise to text history and tradition. The third conflict, which is going to create originalism 3.0, text history and tradition, is expectations. That even if the original intentions of the founders, the ratifiers, whoever you want to say whose intentions it was,

is in total harmony with the original semantic meaning of the text, that could still be very different than the expectations at the time. This is your Bostock problem. And I don't think it's a coincidence that text history and tradition, that Bruin, that this Rahimi case, Kennedy versus Bremerton, all of these are going to come after Bremerton. Because Bostock, this is the what does sex mean in Title VII, does it include gender identity and sexual orientation? That the intentions of the people who wrote that law was not to include that. The original public meaning of sex at that point, though, still very much meant the word sex. The expectations of the public at that point were that they were not including those.

So which one do you look to when you've got two of the three? Right. And Gorsuch, of course, is gonna say, well, the meaning of the word sex is the meaning of the word sex, and it doesn't matter what their expectations were or what their intentions were.

And what text history and tradition is gonna do is is it's going to fix the boss stock problem. You know, and that's interesting. That's an interesting analysis. I think that's fascinating. I also think the text history and tradition analysis, especially when you're talking about expectations, really begins to fall apart when you start to think about how dramatically different the words on the page of say the Bill of Rights were with the reality of American life in 1787. The reality of American life was there was a lot of cruel and unusual punishment.

The reality of American life, there was a lot of deprivation of due process. There were a lot of cruel and unusual punishment. The reality of American life, there was a lot of deprivation of due process. There were a lot of limitations. There was a lot of a lot. A lot of it all, a lot of it all. And so if you say, well, okay, if you're gonna go with sort of original expectations, this gets back to the Amy Coney Barrett argument in Rahimi,

which I think was so beautifully stated. Why are you assuming that the legislatures of the time worked up to the maximum level of their power and authority under these constitutional provisions? That's an assumption without evidence. There's no evidence that they were maxing out, much less that they were legal scholars to begin with, but that's kind of my point.

And, and so that's where this gets more difficult and why it is the case, again, to go back to what both Barrett and Gorsuch were saying in different ways, originalism is not like archeology, where you can go and you can find a stone that proves that dating back to biblical times, it shows there was a King David in Judea, right? That's not what originalism is. It's a guardrails for, it's a boundary for debate. It doesn't resolve the debate. And that's a mismatch between method and expectation

just within originalism itself. And I think text history and tradition leaning so much on this expectations and intentions part, right? Cause the intentions you're gonna sort of look for pre-ratification, the expectations might be a lot of post, immediate post-ratification stuff. It doesn't do a lot for me, but because I just think it's boundless.

And it's the same reason why we don't look to legislative history. This is something Scalia was so hot to trot on. You don't do legislative history. Why? Because one legislator's version of anything might not be another legislator's version, and none of it matters because it's not

what they actually wrote down, and it's so susceptible to spin, if that makes sense. Like all you have to do is give a floor speech and you get to change the law that nobody else agreed to write that in there. And I just don't see why text history and tradition isn't a better form of legislative history in a lot of ways, because at least you are still relying on what they actually said they passed.

But it's still someone's version of what they said they passed instead of what they actually passed. And I get that Bostock, as an outcome, upset a lot of people about how textualism slash originalism as only the semantic originalism form. They didn't like that outcome. I get it, but I just don't see how anything else really works. And David, we have an answer from the wonderful Clark Neely. He says, I was wondering the same thing. I think it's you.

That's fantastic. That's fantastic. Clark, this is a super thought provoking Twitter thread and I totally agree that Rahimi was always going to turn out the way that it was and therefore, it's ends justify the means rationalization or at least you can't distinguish the two in a case like this where it was always going to turn out the way that it was because nobody was gonna sign on to a constitutional theory that lets Rahimi have a gun. Thomas.

Sorry, one dude, but you know what, David? You know what I'll say about that? Yeah. You say that if Thomas had been the fifth vote, right? It's really easy to be principled. Totally. When what you're saying is a law review article. And we see this all the time. Justices change when they move into that swing justice position.

We saw Kennedy change, O'Connor less so because she was kind of always in the swing justice position from when she came on the court. But we certainly saw, I think, the chief justice change both when he was a circuit judge to chief justice, like heavy is the head that wears the crown, but I think we also saw a change of the Chief Justice when he went from Chief Justice as just in the conservative majority to Chief Justice the swing vote

before Justice Barrett had joined the court. I think he changed a little bit then too. So, yeah, Justice Thomas is saying he would let Rahini have a gun. I'll believe it when I see that he would be the one giving Rahini the gun. Yeah. Oh, and by the way, one other thing,

one of the, and I'm so glad you raised that. There's a giant difference between I'm offering essentially a law review article and I am the deciding vote. And there's a- It's a Twitter fight. Exactly. And there is something psychologically that happens when someone is put in a decision that I am the decision maker here as opposed to I am the critic here.

And those are different roles and it creates a different sort of, it's a different psychological environment. But one thing going back to this text history and tradition and the gap between the sort of the rhetoric of the American experience versus the reality of the American experience. A lot of people right now, especially on the New Right, want to go back to the old reality of the American experience where you had blasphemy laws and things like this and at the expense of the rhetoric of the early American experience. But you know who wanted the reality to match the rhetoric quite explicitly

was many of the founders who actually often also wrote about their own shortcomings. So for example, there were founders who were slave owners who wrote that slavery was wrong. So there was this gap between their rhetoric and their reality. And so there was a consciousness in the founding generation that the American reality needed to match the rhetoric. And it didn't match the rhetoric yet. This is part of the reason for the rhetoric

was to bring the reality in conformance. And so I think that if you just sort of say, well, look how incredibly restrictive and powerful these colonial era state and local governments were as your permission structure. No, my argument is that a lot of the entire structure of this country was being put at odds with the reality of the country at the time.

And we're being more originalist odds with the reality of the country at the time. And we're being more originalist in bringing the reality and conformity with the rhetoric. It reminds me a little bit of the fight over Brown v. Board of Education and less so over loving this idea that whatever your constitutional jurisprudential theory is, you have to come out the same way as Brown v. Board of Education, which as we've talked about, I think is very possible under a lot of different constitutional theories. Loving is much, much harder.

But the difference is, I subscribe to a theory that if the Supreme Court had said, look, there is not an unenumerated right to marry someone from a different race under our originalist theory, the legal, the political process would have still worked itself out and interracial marriage would still be legal

in all 50 states today. The problem with this decision is if you say that the second amendment doesn't allow Congress to pass a law that prevents Rahimi from having a gun, and you're saying the only way to prevent Rahimi from having a gun is to pass an amendment that changes the Second Amendment, something that is not going to happen.

Yeah. That's a very different constitutional jurisprudential problem you're facing. Um... Mm-hmm. And it's not gonna happen. So, yeah, this is a big problem for any jurisprudential theory that has to sort of run face on into pragmatism as Clark Neely is describing.

So thanks, Clark. Super helpful. Yeah, great thread. Keep them coming. Now look, David, we have decisions coming out 10 a.m. on Thursday, 10 a.m. on Friday, and they have announced, or rather, they have not announced that that will be

the last day of the term, meaning that it will not be the last day of the term. So we are almost certainly getting more decisions on Monday, maybe even Tuesday. Because of that, I think we are going to change our publishing schedule a little here. And our next episode will cover both Thursday and Friday's opinion releases. Because this is a marathon, guys. We've got to be prepared for next week, too. So we'll do Thursday and Friday with an episode that will be released Friday afternoon. And then we'll come back to you Monday with whatever we get on Monday.

Woof. So they've still got 10 cases to go at this point, David. And that's not counting the doubles. So relentless and Loperbright, I'm counting as one that choice and Moody, I'm counting as one, but 10 cases in two days ain't going to happen. I, I now predict that Trump immunity is waiting. I'm, I'm with you, Sarah. I think Trump immunity next week. They're going into July.

I agree. And when it comes out, look, guys, I would bet money that Trump is not going to get everything that he wants. But the way the opinion is going to be written, there is not going to be a trial this year on this case. And I know there's going to be a lot of anger at the Supreme Court over this.

But this case was brought very late in this four year cycle. And if we're going to be upset at this case not being tried before November of 2024, which is I've said before on this podcast, I think it should be, I think it should be tried before November, 2024. But if it's not the primary 1A, number one reason for it is because the case was filed so late and these cases take time. They take time.

And so everyone's going to- I'll also say as far as the delay of just, they're releasing it in July, later than they normally release opinions. This case was the last argued of the term, and it was a day that was added to the term to argue this. But also, we don't know who is causing the delay. The delay is caused by the justices going back and forth in their writing.

Yep, it could be that Alito's like, oh no, I just need a little more time to really work on my concurrence or dissent or whatever it is, concurring in part, dissenting in part. But it also could be an unexpected justice who's delaying it, really work on my concurrence or dissent or whatever it is, concurring in part, dissenting in part. But it also could be an unexpected justice who's delaying it, who's like, you know what? Two weeks isn't gonna make a damn bit of difference in this case.

Because remember, even when you see the opinion, the mandate doesn't issue when you see the opinion. Remember, the mandate is something like the pen. So the pen doesn't go back to any court until, I think, in this case, it's going to be about a month. Unless they change that and say the mandate is issuing forthwith, that would be very unusual as well. But there's a whole lot of stuff that's still got to happen and the justices, the ones you agree with or disagree with, may have just said, getting the law right, getting all of these opinions exactly the way that we mean them and want them is more important than three weeks.

And also if you take the position that the Supreme Court should not have heard it, that hearing it was its own injustice, Jack Smith asked for cert here. This was actually granting This was actually granting Jack Smith's petition, as I recall correctly. But regardless, he had already asked the court to intervene here. He had wanted the court to step in earlier and sort of skip the DC Circuit, which would have been highly unusual. So to say that the Supreme Court should never have reviewed this because there was a circuit court opinion. Well, there were circuit court opinions in all the previous Supreme Court presidential

privilege cases involving Clinton, involving Nixon, et cetera. So it was never the case that only the circuit court was gonna be the last, the DC circuit was gonna be the last word on presidential criminal immunity. That was never the case. So anyway, this is a pre-buttle. Now, I reserve the right to be very upset at the decision. You're just saying you're not going to be upset with the timing. Exactly. Exactly. I think the decision, I've already said what I think is most likely the decision.

Yes, there are official acts that are immune from criminal prosecution that a president can take and they'll be remanded to determine which side of that line, the things that President Trump has been charged with, which side they fall on. But you know, the strong version of Trump winning is the clear statement rule that this is what the Trump team was asking for. This idea that Congress would need to basically team was asking for, this idea that Congress would need to basically say in criminal laws, and this applies to the president. I think that's unlikely, you know, but the Trump team really believes that.

And of course, then the government's position was, no, like not unless like the, you know, president pardons himself or the attorney general gives him advice. And my complaint with all of those tests, by the way, if you don't like the president pardons himself or the attorney general gives him advice. And my complaint with all of those tests, by the way, if you don't like the Supreme Court's decision when they come out the way that I'm predicting, those other two tests don't work. The court was not given a workable test by the very people who were advocates for their side. And it should show you, I think, how unworkable all this is,

that neither of the two sides gave a version of the law that actually can function in real life. Interesting, interesting. My own view was that the Justice Department granted too much in oral arguments on immunity. Well, fine, but then that shows you that the advocates for that position didn't believe that they could actually do the strong version of their argument. When you say that a president can pardon himself, then that's just what's going to happen.

It means that this case is basically stupid and a one-off. When you say that if you're acting on advice of the attorney general, you can't be charged. What? Then that's just also making this case a one-off and that's dumb. But I think the clear statement rule is equally dumb on the other side. And again, what I'm gonna be most upset about

is everyone crying about how they don't like the outcome from either side without offering what the outcome actually could have been in real life. So David, I'm gonna hold you to that. Because remember we had this whole discussion about, well, what about if the president orders a drone strike? Can we prosecute him for that? And my answer was, heck yes, if it is a war crime.

If the president has ordered the commission of a war crime, absolutely, absolutely. But I think that's gonna fit into my version. But you know what, David? Let's hold off, let's get the opinion and then we'll argue about it. Okay. But I think that's going to fit into my version. But you know what, David? Let's hold off, let's get the opinion, and then we'll argue about it. Okay. So with that...

No need for pre-argument of a non-existent opinion. By the way, we're getting some quotes out from that Idaho case that Bloomberg Law has posted from the accidentally posted decision, Justice Alito in dissent. It's a 6-3 decision again, along the three, three, three lines. Alito, Thomas and Gorsuch, Justice Alito writing, the court has simply lost the will to decide the easy,

but emotional and highly politicized question that the case presents. So we'll talk more about that on Friday's episode of Advisory Opinions. of advisory opinions.