Advisory Opinions - Texas Abortion Law Gets Supreme Court Date

Episode Date: October 26, 2021

On today’s episode, David and Sarah celebrate the Supreme Court finally bending to their will and then preview the upcoming oral arguments regarding SB 8, the Texas abortion law. They then move on to a discussion of a wild case involving videotaping police, highlight Liberty University's problems with sexual assault, and then wonder whether an important free speech case is dead or just "mostly dead." Show Notes: -United States v. Texas -SCOTUSblog on oral arguments in the Texas abortion law case -303 Creative v. Elenis -Kristen Waggoner letter -ProPublica “The Liberty Way” -Sarah’s piece in Politico Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. 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. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and we've got developments. We have developments in the SBA Texas case that we're going to talk about. And there's really a couple of important developments to discuss. One are the developments in the case

itself. And two, that I think, Sarah, there's basically at this point irrefutable proof that we are driving the agenda of the Supreme Court of the United States. No question. Yes. I mean, of the Supreme Court of the United States. No question. Yes. I mean, there's no other conclusion to draw here other than... Pure causality. Pure causality.

So here's what's going to happen. The Supreme Court has decided to hear oral argument. Now, those advisory opinions listeners now know you're jumping up and down in your seats, you're punching the air in your automobiles as you're jumping up and down in your seats, you're punching the air in your automobiles as you're driving because you're saying at last, at last our voices have been heard.

There's oral argument on an emergency docket case. So they're going to hear oral argument on November 1, and I'm reading here from SCOTUS blog, in a pair of cases challenging the Texas law that bans nearly all abortions after the six weeks, six week of pregnancy. In two orders issued on Friday afternoon, the court granted requests by the Biden administration and a group of Texas abortion providers to leapfrog proceedings in the court of appeals, but it allowed the law to remain in effect for now, a decision that drew a stinging dissent from Justice Sonia Sotomayor. And the two orders are interesting. The first says the application was going to be treated as a petition for cert before judgment, which you're going to explain to us. But the petition

was granted limited to one question. May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, and other state officials or all private parties to prohibit SB 8 from being enjoined. So that's the question before the court that will be discussed on November 1. So first, what is a petition for cert before judgment? So this is all getting very exciting in the nerdiest ways. As you said, an emergency docket case, which now they have moved over to cert before judgment, set for oral argument and expedited briefing. It is everything we wanted and more, David. Now, what is a writ of certiorari before judgment? This is where normally you would take your court of appeals case decision and you would petition for certiorari before the court. Now, sometimes you would ask for en banc review at the circuit level,

wanting all of the judges of the circuit to review it. And then after that, you might look for certiorari. But regardless, you have either a panel opinion or an en banc opinion for my circuit court for your petition for certiorari, as I'm sure you can guess. A petition for a writ of certiorari before judgment means exactly that. You are trying to get review from the Supreme Court before you have that circuit court opinion or an en banc opinion, nothing from the circuit court. You're going straight from the district court. They are very rarely granted. And what makes this so delightful is of course, that's not what they were asking for. They were asking for a stay on that emergency docket, something we've seen again, the court do repeatedly this summer. Justice Alito refers it

to the full court and they're like, yeah, we're done with this. We're tired of the Supreme Court Commission criticizing us over seven hours on a Friday. We're tired of Sarah and David providing us really good advice. We're just going to take it and treat your asking for a stay as asking for us to review your case before the circuit court gets a chance to. And that's what they mean when they say the application is treated as a petition for a writ of certiorari before judgment. So first of all, that's pretty exciting for me. Like I'm already on my tippy toes, ready to go. Second, limiting the petition, of course, to this single question presented QP is also pretty interesting. As you will note, if you listened carefully to what David read as the QP, the word abortion does not appear. because, for instance, many news articles say the court is reviewing two abortion cases next month

or the court has two chances to restrict abortion rights in the country, etc., etc. No, no, no. Dobbs? Very much so. Totally agree. I will take no issue with even news articles that say the court is most likely to find a way to restrict abortion rights. Like, fine, you know what? Whatever tea leaves you want. We obviously make really nuanced tea leafy arguments here, but I know you don't have room in 300 words. I'm fine with it. that this is a vehicle for restricting abortion rights, because what it is a vehicle for is figuring out what to do about any constitutional right where the state deputizes citizens with these bounty hunting type laws. Now, what I will say and what Sonia Sotomayor

says while banging her fist slash gavel on the table over the course of six pages is yes, but they should have done something else. They should have granted the stay and then treated it like a petition for certiorari before judgment. Fair enough, but they didn't. So then we're done with the abortion part, if that makes sense. And so I understand as we've gone over Sotomayor, Kagan and Breyer, the first time this went up said, surely there's a way to allow people to have constitutional rights in the interim. We're not sure what that way is. We still don't know who to enjoin, but let's just start enjoining some people and we'll figure it out later. Fair enough. And as we've discussed, that's what the district judge in this case tried to do. He wrote a very lengthy opinion, but in the end said, I enjoin the state of Texas. You people figure out who you're supposed to

enjoin, whether it's district clerks, I mean, court clerks, whatever. And we had, by the way, several people from Texas and other states actually write in because I made the point that in Texas, at least, there is no discretion on the part of the clerk. And as one person said, you can file a dead cat. And that is actually, I guess, a phrase that I was unaware of, but love and will now be using at all of my parties. So that's great. Now, yes, David. I was just going to say on the injunction point, what's really interesting, because there's this other case, there's two cases, two orders. This one, I'm really interested in.

This is the key words. These are the key words. May the United States bring suit in federal court. So that's may the United States bring suit in federal court. David, you have anticipated what I was going to tell you, which is I have solved this case for the justices. Okay. Now I will say, whereas I think a lot of the time, like in politics, for instance, when

I say like, I have found the easiest way to get from point A to point B, you can pretty much guess that they will also take the easiest way. There's a certain efficiency to politics. That is not true at the Supreme Court. So David, I'm going to explain to you the easiest way that the justices can resolve this case correctly. And I'm putting that in quotes, but I think we all kind of agree that there's a correct outcome here. I'm not sure anyone doesn't think there's a correct outcome here. But that doesn't mean the justices tend to not always take the fastest point between point A and point B because of the unintended consequences. But let me give you the fastest point. So David, as you know,

as we've discussed, the 11th Amendment, so the first one after the initial ones, right? This is like happy fun time. Number 11, the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subject of any foreign state. Now, what that means in lay terms is that you can't sue the state of Texas. But as we discussed in Ex Parte Young, which we've talked about a lot in the last few weeks now, they've created this fiction whereby you can sue the attorney general of the United States to get an injunction or the governor or a prosecutor, whatever. But you can't sue Texas.

However, you know what that 11th Amendment doesn't say? That the United States can't sue Texas. can't sue Texas. So you get around the ex parte young problem really quickly with that one lawsuit, the one brought by the Biden administration. Now, as we've discussed, their standing question for answer is that Bureau of Prisons facilities are mandated to provide certain abortions. And so they would be violating the law either way, a law either way. They don't provide the abortion. They're violating this federal law. If they do provide the abortion, they're violating this Texas law. Hence their standing. They get around sovereign immunity because they're bringing it on behalf of the United States. And so we don't need to worry about who to sue. And David, and David for relief, the court can hold that Texas did deputize then all citizens of the United States

to act as agents of the state. And so what you do is in join the state of Texas, no sovereign immunity problem, then say that anyone suing under the statute is hereby declared an agent of the state of Texas so when they go into court, they would be enjoined because they would be acting as the state of Texas.

There you go. I solved it. Interesting. Interesting. And I do like the way it sort of implies the potential of what they in the 18th century would call a grapeshot injunction. I don't think they would actually call it a grape shot injunction, but I'm reminded

of grape shot, you know, or canister, which was, you know, you, you turn a cannon into a giant shotgun and spew pellet deadly pellets at the enemy. But think about this, the breadth of this potential injunctive relief. They're seeking to obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties. Wow. But then they don't have to, if they use my logic, you don't have to then deal with the ex parte young problem. Now, they may decide that they want to deal with the ex parte young problem because I think you have five justices on the court right now, at least four and a half, who really don't like legal fictions. Legal fictions are not very textualist or originalist or sensical. And so they may want this opportunity

to say, actually, we're getting rid of Ex Parte Young and we're just going to reevaluate what the 11th Amendment really means. But if they don't want to visit Ex Parte Young, it's not like every citizen in the United States is enjoying somehow. It's only if you try to sue under this law that you become an agent of the state of Texas and thereby are in joint. Does that make sense? It does make sense. And it would be earthquake-ish to use an emergency docket case to reevaluate Ex parte Young. It would be. docket case to reevaluate Ex Parte Young. It would be. So I can imagine them essentially moving in your 11th Amendment direction as kind of a simpler, neater, cleaner approach to this.

All right. So that's one case, Sarah. There's another case here, and it's notable for two reasons. One, this is the case not brought by the United States, not brought by the Biden Department of Justice, but this is the whole women's health case brought by private parties. And the first notable thing is one of the counsels for record for the defendants, in other words, defending SB8 is my very old friend and former colleague, Heather Geblin Hacker. Heather, I started working with her, gosh, all the way back in 2006 at ADF. And she is now in private practice in Texas. She's an awesome attorney and an awesome person. And I know her. Sarah, do you know her? I do not. Oh, okay. So I know somebody that you don't know,

just listeners for the record. Now, this other case is less well-defined than the case brought by the Biden administration. The court accepted cert on this case. it did not designate what the question presented would be and the two parties have very different ways that they have framed the question presented now interestingly neither one of them mentions abortion because again the core issue here is related to the procedural posture of the case. Who can sue whom? And in this case, Whole Women's Health question presented is about as simple as it can possibly be. The question presented is whether a state can insulate

from federal court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil action. So it's just a broad question. So those are the two cases, Sarah, and they're set for oral argument one week from today. That's right. Now, of course, Whole Woman's Health has the ex parte young sovereign immunity problem because Whole Woman's Health is the same as you. They can't sue the state of Texas. And so you end up with a much

messier problem. And this is why I say that there's a really good chance the justices won't take the shortest line between point A and point B, because one could imagine another law like this that implicates a constitutional right, that's a bounty hunting provision, where the United States doesn't sue about it for whatever reason. And so you'd be left with the same problem. And what, you'd always have to have the United States come in in order to get pre-enforcement review? That doesn't feel quite right either. So I'm really looking forward to the oral argument on this. Yay. One quick notable thing, Sarah. And if you hear me kind of chuckling as I talk, it's because we've literally stopped this podcast two or three times because of the fact that I couldn't read a question presented correctly and other various random mistakes that I've made. But anyway, we're on the right track now.

There already has been an amicus brief filed so far, and this was in support of granting cert. And this is further evidence that people are just listening to our podcast because the thing that we have said from the beginning is if you enable a sort of a bounty hunting provision that can be used to prevent the exercise of constitutional rights in one area, there's nothing to say that you can't do that in other areas. And we have specifically used the example of firearms. For example, imagine a law that was passed that could allow you to sue someone who sold a firearm. And so there was an amicus brief in support of CERT filed by the American firearms and on behalf of the firearms policy coalition. And they said they're interested in this case because the approach used by Texas to avoid pre-enforcement review of its restriction

on abortion and its delegation of enforcement to private litigants could just as easily be used by other states to restrict First and Second Amendment rights. So there you have it. Yeah, so that was the firearm folks wanting the court to take up this case in support of taking the case. And all other amicus briefs now on the merits of this question are due on Wednesday. So that's fun. 5 p.m. Get them in. Quick, quick, quick like bunny. All right. So Sarah, save me from the struggle bus and take control of this podcast for a moment for our next topic. All right. So as you said, the briefs and everything on SBA are due by the end of this week. So we'll have lots of briefing to talk about. And of course, the arguments are set for next week. This is fast, like we said in the emergency docket.

But to go back to the regular merits docket, remember that the court on Fridays generally has conference where they look at cases to take. And one of the cases that is up for conference this week is another qualified immunity case that court watchers think has a decent chance of being the vehicle by which the court will revisit the qualified immunity doctrines that you and I have been talking about now for months. I just want to read you the first sentence of the introduction. In recent years, some justices have called for a re-examination of the qualified immunity doctrine, period. That's literally how the whole thing starts. It's like the biggest understatement. And it cites,

Will it Jay concurring? Higginson, CJ dissenting. Will Bode's law review article is qualified immunity unlawful? I'm sorry, guys. I note that you don't include another law review article by Scott Allen Keller,

and I find that egregious. So I'm not sure it'll get granted because it doesn't cite that law review article. But nevertheless, all right, this case involves officers who were trained by their police department to understand the First Amendment rights of citizens. It was a specific part of their training. Nevertheless, when they saw a car that they thought was involved in a drug deal, they pulled the car over and the guy in the car stuffed a sock in his mouth. They assume that the sock contains drugs. They tell him to spit it out. Then they try to get it out of his mouth. They all fall to the ground. Then this dude nearby is watching the whole thing.

By the way, the officers weirdly ask him to help them. That's strange. But then they get things under control. He goes back, gets his iPad, basically, and starts recording. And here's from the petition. What petitioner recorded was dramatic. While Flores refused to release the sock from his mouth,

one of the officers pinned his forearm on Flores' head. Another officer pinned Flores' arms behind his mouth. One of the officers pinned his forearm on Flores' head. Another officer pinned Flores' arms behind his back. The officer then punched Flores in the face six times in rapid succession. It goes on and on. However, then all of a sudden, Sergeant Bothwell called out, camera. All of the officers had attended the Denver Police Department's training, explaining that citizens have a First Amendment right to record the police while performing their duties. Nevertheless, they call him over. They tell him they want to see it. He was afraid that if he let the officers have access to the video, they would make it disappear, quote unquote. So he lies and says like he can't find it. It must be gone.

Then they grab it from him. They look for it themselves. They can't find it because they appear to be iPad illiterate. So they let him go. Um, and so he is suing them for a violation of his First Amendment rights. It's an interesting QI case because it involves police, but it doesn't involve that split second decision making, of course. Right. They were trained on it. And so some of the question, if we don't revisit qualified immunity entirely, is this wasn't clearly established under law law perhaps, but they were literally trained that it was against the law. So can it, do you have to have a judicial finding that's clearly established or can your own boss tell you that this is clearly established? Uh, so a lot of interesting things

here. We will look to see whether they, they can take this case right away, in which case that'll be next week that we will tell you. They can punt the case and push it off to a future conference, probably the most likely, especially if they're thinking about taking it. Or they can just deny cert, and that'll be in that long list of cases that just gets denied and we never know why. Yeah, that's an interesting case because it allows me to rant for a moment because one of the problems that I've long had with qualified immunity and this whole notion of clearly established is what they do is they rest the clearly established concept on existence of prior case law as if police officers on the beat are reading the federal reporters

or are routinely receiving sort of like updated briefings of developments in the law and the Sixth Circuit Court of Appeals. I mean, this is one of the things that has really kind of bothered me, not kind of has, definitely bothered me, is a lot of this clearly established stuff rests on fictions. It rests on the notion that these police officers are keeping up with all these circuit court cases. And of course not. Of course they're not. So the idea that the Sixth Circuit has decided something, maybe at best, Sarah, they might

get a quick note about it. Somebody might brief them about it real quickly. But the idea that they understand the unreasonable search and seizure law to that level of specificity coming from the Sixth Circuit or the Ninth Circuit or the Tenth Circuit or whatever circuit is a fiction. However, with this, if there's actual training on it, that is an interesting distinction. I mean, that is absolutely an interesting distinction. And I could imagine a situation where the court decides to say, okay, it's not like we're going to just sort of throw qualified immunity out the window. We're going to start the chipping away process. And this might be one of the ways

in which they start the chipping away process by saying, hey, look, if you're actually trained, it's clearly established. Yeah, and this is nice because it's pretty egregious. The guy grabs the iPads like, I don't see the video in here. I can't find it. Another officer says, as long as there's no video, it's OK. If there's just a photo, that's fine.

As long as there's no video. I mean, they're not specifically saying why. But right. It's because they don't want it to go viral that they were punching a guy on the ground. Yep. Exactly. Maybe in violation of his rights. So they violated someone else's rights.

Fun times. Yeah. Okay. So we'll see about that. That's one that, again, who knows? It might just sort of disappear into the ether. But here's a case that we're kind of resurrecting a little bit. And it's one that we've talked about before. And this case is called Arlene's Flowers versus Washington. And this is a

case that a longtime advisory opinions listeners are pretty familiar with. This involves a woman named Baronelle Stutzman in the state of Washington who would not do a custom floral arrangement for a same-sex wedding. And this is a case that people had sort of high hopes on Baronelle's side that if the Supreme Court overruled Employment Division v. Smith in the Fulton case that we talked about a lot, that the court would essentially, the court would grant vacate revan, GVR her case. In other words, say Baronelle basically wins because Employment Division v. Smith or that her case needs to be re-evaluated in light of new religious liberty protections because of Employment Division v. Smith being overruled. Instead, Employment Division v. Smith was not reversed, overruled, in the Fulton case. And then the Supreme Court did not take, denied the writ of her cert petition,

and we thought, that's it, that's over. Baronell Stutzman has lost, the case is gone, the case is over. Not quite, Not quite. She has filed a petition for rehearing. And what's interesting about this, I've been kind of looking at this with kind of one eye open, and it hasn't, and the only reason I'm raising it, and you can tell me if you think I'm crazy for raising it, it hasn't been denied immediately. It's been pushed through some conferences here. And the reason why they filed the petition for rehearing is kind of interesting. And it goes back to a case that we talked about some time ago as really a pretty wild case. And this was the case brought by, against a web company, or a web company, web development company brought a case in Colorado about being forced to design

websites for, for example, same-sex weddings. They objected to doing that. And I don't know if you remember this discussion, but this was the wild case in which the judges said, yep, it's compelled speech, all right. It is compelled speech, but it satisfies strict scrutiny. And so what the petition for rehearing says is, wait a minute, there's now a flat-out circuit split over this very issue. It involves all the same tension between state public accommodation laws and First Amendment. And essentially, if this court's going to grant that 303 creative petition and issue an opinion, then basically Arlene's Flowers case is still pretty darn salient. And so essentially what's happened is that Arlene's Flowers attorneys, again, whom I'm

friends with and I know quite well, I've worked with many of them for years at ADF, is they're saying, you might have prematurely eviscerated her case. You might have prematurely ended her case because there's a circuit split charging up right before you right now. And I thought that was an interesting approach. It might not work. I mean, we all know the probabilities are pretty bad here. But it is interesting that I think, and it's interesting approach to use this 303 creative case,

which again, you and I have talked about as being particularly egregious and sort of saying, yep, it's speech, and yep, it can be compelled as a vehicle for revisiting Arlene's flowers. What say you? Here's the problem.

They don't want to take it. Wait a minute. Why? Why did you just grab a bucket of cold water, Sarah? Why? It's not that they can't. It's not that they don't know how. It's that they don't want to take it.

Look, I think that the web developer case is just such a better case. This is the, we've talked about it a little bit before, but I believe it is out of Colorado, where the guy doesn't want to make websites. And it's the same Colorado regulation and commission as Masterpiece Cake shop came out of, but to me, websites are so clearly on the speech side. If you want to start tackling this problem,

uh, you want to go with the most obvious flowers are sort of the least obvious, you know, telling someone, um, I always, this is not to be, I don't know, crass or something, but regardless, just put in the word Nazi or Nazi examples for any of these cases. So we want you to bake a cake and we want you to put a swastika on it. Is that your speech? Yes or no? We can debate that. I don't think it's that debatable that I want you to make a website. I want a swastika at the top of the website, obvi. But then I need you to type these words. Obvi.

All Jews are polluting the earth and we need to kill them. And it goes on from there. Can you compel someone to type that on their computer? I think quite clearly the answer is no. And if you don't want to compel someone to do that, then you can't really compel them to do anything else either. Flowers, on the other hand, knowing that you're making flowers for the Nazis or to help further the Nazis or you're making flowers for their cross burning. I don't really, I guess now I'm in the KKK regardless, um, a much closer call. Obviously I'm sure you don't want to, but is that actually your speech, your artistic work? And that's the whole question.

My point in saying all this is not that she should lose her case or that it's a bad case even, but that if you're the court and want to address these issues, you don't want to start with flowers. You want to start with a website. I think what might be going on here, well, I think one of the strategies here is, yeah, the website case is a really strong case. And for those who don't remember this case,

this is one where the court basically said that the reason why you could compel the artist's speech is because the artist is totally unique and that it is particularly compelling to require this particular artist to engage in speech because you can't get this artist's speech anywhere else. The monopoly of one. The monopoly of one, but from this artist. It's a remarkable case. It's a remarkable case.

And so I think what's happening here is actually a pretty shrewd legal move. And again, I know these guys and I like these guys, but I do think it's a pretty shrewd legal move that essentially what they're doing is they're fighting a rear guard holding action to say, okay, just leave our petition for reconsideration hanging out there, maybe for months,

not just for months, but yeah, months, definitely months, maybe more than a year. But take this 303 case, this artist case, reverse it, and then GVR Arlene's flowers under whatever reasoning is used for 303 Creative. And I think it's a pretty interesting tactic.

It's a very interesting tactic. I'm just not sure that you get GVR'd on the flowers. Stop it, Sarah. Stop it. You might be right. All right. But I just thought it's worth highlighting. And also, it's a great way to bring up one of my least favorite free speech cases that

I've ever read in my entire life, which is this 303 Creative, where you can compel an artist to produce art because the artist is unique. That's pretty incredible. Anyway, all right, moving on, moving on, Sarah. Let's move into a ProPublica article. We've talked about a couple, and there's not a whole lot to say actually about this, but I just want to bring it up for a couple of particular reasons. And we'll put it into the show notes. But this was a very long article.

ProPublica, for those who don't remember, they wrote this incredible report about a prosecution of some young black kids in the neighboring county for me for crimes that didn't exist. And it was a way to highlight. It wasn't just sort of a one-off injustice. They highlighted a sort of a systematic violation of the rights of children in Rutherford County, Tennessee, just down the street from me, literally just down the street from me. And it was just an unbelievable report. And so they came out with another one. And this one is entitled The Liberty Way,

How Liberty University Discourages and Dismisses Students' Reports of Sexual Assaults. And we were talking about this before the podcast in the green room. And actually, Sarah, I thought what you said was depressing, but worth highlighting. And I introduced this by saying we've spent a lot, I was kind of pitching talking about this by saying we've spent a lot of time sort of breaking down what's true and what's not true about this terrible sexual assault allegation in Loudoun County, Virginia. And it is all over conservative media. I mean, it is all over. And then you can fault more progressive or mainstream media for not covering it that much. They've covered it some. There's been a Washington Post report that confirmed some of the initial

Daily Wire reporting. There's been some other reporting that has rebut confirmed some of the initial Daily Wire reporting. There's been some other reporting that has rebutted some of the initial Daily Wire reporting, but it's been somewhat discussed, but it has absolutely filled conservative media. And my question to Sarah was, I wonder how many conservative media outlets will talk about how at Liberty University, the largest Christian university in the world, located in, you guessed it, Virginia, there are now reports that it has mishandled rape and sexual assault reports for years. It has done it for years.

And some particularly, again, going by the ProPublica reporting, in some particularly egregious ways. And my initial thought was, this was an example of how we build narratives about each other and about opposing points of view by the way we tunnel in our information. So that if you're on the right side of the spectrum, you're going to be very, very, very attuned to Loudoun County. And if you're on the left side of the spectrum, you might going to be very, very, very attuned to Loudoun County. And if you're on the left side of the spectrum, you might be very, very attuned to Liberty, but who's attuned to Loudoun and Liberty? And you had a different response that,

if possible, was more depressing than my thought. Oh, yeah. The reason that nobody cares about this Liberty information is because nobody was under the impression that liberty was a good place to go if you were a woman to begin with. If you thought that Jerry Falwell was a great guy and that his son was a great guy and that the school was a good place and then this came out and it shocked you, I just, where's that Venn diagram? No. There were those of us who were not shocked by this and it fit pretty directly into what we thought was going on. So this is like proof of what was going on, but duh. And then there's those who don't think that

and this isn't going to convince them. So that's why I don't think this story has taken off the way that um you perhaps have wanted it to yeah well and then you actually it's a dog bites man story yeah and and i think there's a need there's an even more depressing angle to this and that is that i think that the more I think about it and the more that I've done sort of our own work, Nancy and I, for example, in the Kanakuk camps story that we wrote about a few months ago, the Ravi Zacharias International Ministries example that I wrote about several months ago, that it feels to me like what's happening are these sexual abuse or mishandling of sexual harassment and sexual abuse type allegations. You tend to care about

them mainly if they skewer people you already didn't like. And it's just a piece of ammunition and a preexisting cultural struggle and a preexisting cultural war. Um, and that if they skewer people, you do like, you're gonna find a way to rally, uh, behind them. And, you know, one of the most depressing things that I saw after, uh,ancy and i reported on the way in which canna cut camps mishandled and ignored red flags that allowed this just unbelievable predator of children to operate on the camp for year after year after year people began to put on social media this phrase, Sarah, I know and I still go. Ugh.

Yeah. Yes. And so, you know, at the risk of being... Footnote, that does remind me of the best bumper sticker that I've seen all year. I saw it this weekend and it said, Baltimore, colon, actually, I like it. Oh my goodness. But I just, I mean, I'm at the beginning. Well, I'm not at the beginning. I'm

at the midpoint of reaching a level of cynicism about these kinds of allegations that it's just really depressing because I, I, I genuinely think at this point, the fate of women and girls or abused boys is a matter of concern, primarily for those people who want to use their fate as a weapon to discredit people they already disliked. Can you tell me I'm wrong? Meh.

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Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Can you cheer us up, Sarah, with a last topic? Yes. So I published a piece with Politico today that I thought you might be interested in. So we've talked about Justice Harlan on this podcast before. He is the sole dissenter in a lot of those late 19th century cases, but most notably, Plessy v. Ferguson, separate but equal. And he's the only dissenter. And I was sitting there thinking about him a lot this summer and how he's unique to me, or rather totally not unique in some ways to me,

unique in how we talk about our history, which is we tend to try to find people who were perfect, or at least we hold them up as perfect, that their entire lives they were for justice and mercy in the American way. And then later on, someone points out something that maybe they weren't perfect at. And then either we say, nope, they were still perfect. I deny everything you're saying about that person. Or we tear them down or like, well, I guess it turns out we can't have nice things. And what's interesting to me, fascinating to me about Justice Harlan is he is so quintessentially imperfect. He gets things wrong throughout his life, but he's getting them less wrong at every step, if that makes sense. And when we get to Plessy v. Ferguson, he's by himself.

And this guy who by no means had some sort of righteous beacon that was leading him is just like, no, this is right. Everyone else around me is wrong. Here I stand and I can do no other. And I'm fascinated by what creates that confidence in someone. And I think as a society, yes, if we find someone who led a perfect life, by God, let's honor that person. But my impression is that most of these people who do great things through history didn't lead perfect lives, didn't have perfect thoughts,

whether in their own time and certainly not our time, that would be nearly impossible. And so perhaps we should start reevaluating how we pick our heroes, so to speak. And so I said that perhaps we should consider naming the Supreme Court as a way of explaining the role of the Supreme Court to people at a time when its popularity is declining, waning. And I said that I think Justice Harlan might be the right person to name it after. For that exact reason, we're tearing down monuments to Confederate traitors. What about complicated union heroes who, as I said, remind us that our Supreme Court's history may be filled with disappointments and failings, but that there are those who will stand alone to bend its moral arc toward justice? I loved that piece so much, Sarah.

I loved it. piece so much, Sarah. I loved it. For all the reasons you just said, because, you know, look, I mean, we've got to get over this. We have to get over this idea that we're going to be in the spirit of an age that says as soon as we find something bad about somebody, that's it for them. That is it for them. And bad by our standards, which is even more concerning because I'm not sure our standards are correct. We got a lot of problems right now, Sarah. We have a lot of problems. The idea that we're the enlightened generation,

looking back, I mean, there's going to be people who look at us appalled, appalled. And maybe for reasons that we find unpredictable, to be quite honest. And there's another part of it that I really liked. Okay. So here's your paragraph. Congress should name the Supreme Court building after Justice John Marshall Harlan, not in spite of his opposing both Lincoln's Emancipation Proclamation and the 13th Amendment before becoming the greatest defender of racial equality in court history, but because of it. And this is the key sentence.

He of all the justices in U.S. history shows how an intense and unfaltering faith in the Constitution can chart a path to enlightenment. Now, why do I like that so much? I will tell you why I like that so much, because it fits in with my amateur unified theory of American history, which is this, that if you're going to take two hot button dates in American history, 1619, which is the advent of the first slaves to our shore, which symbolized that this new world civilization was going to be very much like the old world civilizations, full of brutality and oppression. And then you take

another date, 1776, where the American mission statement is signed, the Declaration of Independence. It says we're endowed by our creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness. And then that spirit of 1776 being codified in the Constitution, the Bill of Rights, that what the Constitution does in its plain language is put us in tension with the sort of spirit of the prevalent spirit of human civilization, which is domination, exploitation, and abuse. And so that if you actually do look at those words, as much as the founding fathers didn't live up to them, as much as generation after generation has not perfectly lived up to them,

the words and the concepts themselves are in great tension with the oppression that has dominated much of human history. And so I thought that that was a fantastic one paragraph summary of that tension and how the Constitution resolves that tension towards justice and liberty. Well, David, I have tried to make a nuanced argument on the internet and um i make no promises for how it is received you know already certainly people are criticizing harlan but that's the point right like you pointing out to me that harlan also wrote stuff that you don't like, don't agree with, doesn't comport with our modern sensibilities. Yes, that's what I'm saying. Indeed. Yeah. Or people attacking me as a bad advocate for this. Yeah, I think that actually also fits with what I'm saying, believe it or not. Um, but perhaps most importantly, I got to quote the 1883 letter that Frederick Douglass wrote to Harlan. Part of what makes Harlan's dissent so meaningful through the ages is not

only that he was so clearly writing to us later, my era doesn't agree with this, but I'm hoping down the road someone else will see that there was someone here standing saying this. But that at the time for his contemporaries in the black community, they absolutely were read and were hope. They were seen as hope. Hope for the future, not now. Anyway, so in 1883, Frederick Douglass wrote a letter to Justice Harlan with the famous line, one man with God is a majority. So if you've ever heard that phrase before and wondered where it came from, it actually came from a response to Justice Harlan's

dissent, that the majority was referring to the Supreme Court majority. And what a true and great sentiment. One man with God is a majority. I love that. That is absolutely fantastic. And it's funny what you say about you're getting two critiques. One is, well, Justice Harlan did bad things, which, of course, you directly address as part of the foundation of your whole piece. And the other one is, well, Justice Harlan did bad things, which of course you directly address as part of the foundation of your whole piece.

And the other one is, you said it, which is, by the way, I have to say one of the strangest aspects of discourse now is the following. Sarah Isger tweets, two plus two equals four. Yeah, but Sarah Isger tweeted it yep like this this is where this is basically where we are on an enormous number of arguments that there could be something completely true something worth considering virtuous um interesting nuanced but the fact that somebody i don't like for other reasons said it means that i will not consider it at all one such critique came from a law professor who's visiting at yale law school that was particularly um, given you'd hope that nuance might not be lost on some people on Twitter, but I accept it. And you know what? Again, I'm not actually saying that I'm right, that we should find people who weren't correct their whole lives.

Maybe we should. Maybe we should keep looking for those people. But I get pretty disheartened when Frederick Douglass wasn't perfect, Martin Luther King wasn't perfect, Abraham Lincoln wasn't perfect, and yet I find so much to admire about them. So if I can admire people who aren't perfect, why can't I say that publicly? Yeah, yeah, exactly. And the other thing is, Why can't I say that publicly? Yeah, yeah, exactly. And the other thing is, you know, if he's good enough for Frederick Douglass.

No, but then you have to, like, then there's criticism of, you know, Frederick Douglass and Booker T. Washington that they were, you know, sort of victim blaming in their time, saying that education was the only way out instead of attacking segregation more head-on. Again, seen only through, I think, a very, very modern lens of like, oh, and if you were there, you would have solved Jim Crow, would you have? Right. Exactly. Well, it's a great piece. I recommend that

everyone read it. And before we go, I want to make a plug because we have a live podcast coming up at the University of Tennessee, the real UT. I just find it fantastic, Sarah, that of the UTs that we do a live podcast at first, it is the first UT, the real UT, the founding UT, the university.

We're going to be live in Tennessee on Thursday and November 4th. And this is going to be lit because two things, well, gosh, two big arguments. On November 1st, we're going to have the SB8 oral argument. So this is going to be the oral argument over the Texas abortion case. And then on November 3rd, we're going to have the oral argument over New York State Rifle and Pistol Association.

This is the Second Amendment case that is going to determine what does the right to bear arms mean. And it is going to be enormously controversial. We have not had nearly as much conversation about it, I think, because the SB8, the Texas case, has been sort of dominating Supreme Court discourse. But get ready, next week you're going to really see a lot more ramp up discussion of that. So we're going to have two huge oral arguments to discuss November 4th at the Baker Center at the University of Tennessee. So if you are in driving distance of Knoxville, Tennessee, there's no doubt so many of you are, please head to the Baker Center.

We're going to give you more details as the date approaches, and I'll put it in my newsletter and everything. But until then, we will be back on Thursday. And please rate us at Apple Podcasts. Please subscribe at Apple Podcasts. And please check us out at thedispatch.com. calm you