Advisory Opinions - The Arrest of Judge Hannah Dugan

Episode Date: April 29, 2025

Sarah Isgur and David French are joined by Amy Howe and David Lat, of The Dispatch’s extended legal universe, to debate whether the Supreme Court should be more transparent. Sarah and David then separate  fact from the fiction in the arrest of Judge Hannah Dugan. (Also: should there be cameras in the Supreme Court?) The Agenda:—Cameras at SCOTUS?—SCOTUS oral argument goes off the rails—Calling other lawyers the “L” word—The arrest of Judge Hannah Dugan—Immunity doctrine is a mess—Louis Vuitton and criminal contempt—Old Whig No. 5—Trump admin and disparate impact—Harvard Law Review’s DEI Show Notes:—Apply to work at SCOTUSblog!—Judge helps criminal escape in 2018 Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur. That's David French. David, exciting podcast today. First off, I just feel a certain pep in my step with Dispatch Law slash SCOTUS blog as part of our family and all the more so because today we are announcing an even more extended universe of the Dispatch Law extended universe. We've got David Latt. That is fantastic news. That is fantastic news.

That is fantastic news. No, I've been so excited by watching all of this unfold and I've been particularly amused by the online reaction, which in many ways seems to indicate that you're exactly in the sweet spot you wanna be in, Sarah, that there are people on the far left and the far right who are horseshoe theorying right around this Skoda's blog dispatch merger. And that it is completely awful because

the dispatch is far right and it's completely awful because the dispatch is far left. I do feel bad. There were a bunch of people on Reddit who were like really upset about this because they just have never read the dispatch. They never heard of the dispatch. And so they're like going online and like, oh my God, these like right-wing Trumpy trolls have taken over SCOTUS blog. But you know, Reddit folks, like do some research.

I don't know what to tell you. Like that's not my fault that you don't know. Also along those lines, by the way, May 15th is going to be our first dispatch law slash SCOTUS blog extravaganza. That will be the equity docket oral argument. By the way, just side note, David, one reader wrote in and suggested, what about the short order docket?

And I know, I know you love equity docket, but can I just explain his thoughts behind this? Because I really did like it. He said, as defined by Merriam-Webster, short order means preparing or serving food that can be cooked quickly to a customer's order. It is also used as an adjective to describe particular types of food like hamburgers, sandwiches, and french fries. As such foods are short order items, those can be cooked quickly to a customer's order. Are not stays and preliminary injunctions short order remedies items. Those can be cooked quickly to a customer's order. Are not stays and preliminary injunctions short-order remedies? Those that can be applied quickly to a party's request? As opposed to the medicinal and DEI-sounding natures of interim relief and equity docket, the image that short-order docket conjures up

is that of a busy luncheonette serving the standard diner fare as opposed to the gourmet menu items that are characteristic of the Merits docket. The customers know they're not getting the filet mignon, but they know that what they are getting is going to come out quickly. What's more, the surly disposition of your average short-order line cook is one probably shared by your average Supreme Court Justice inundated with requests for emergency stays, wishing they were doing something else but nevertheless pumping out plate after plate

of burgers and fries just to get through the lunchtime rush. I mean, I like short order docket only because of all of that effort. Right? That was phenomenal. Yeah, I mean. It's really thought out and it kind of, I think is catchy. Yeah.

I'm gonna try it out today, okay? Okay, okay. But we don't have any short-order docket cases to talk about today. Well, no, but this May 15th extravaganza is going to be the short-order docket oral argument, the first one we've had in a long time now, David, about the birthright citizenship case. And so more to come, but appointment viewing here. We'll have the live blog at 10 a.m., of course, when the argument starts over on SCOTUS blog. And we'll do a little after argument analysis with the extended universe. Amy Howe reporting from the Supreme Court. As I said, more to come, but mark May 15th, if you're into this kind of stuff, we'll have an extravaganza. As I said, a short order docket extravaganza.

I don't know, it's rolling off the tongue nicely. Let's see. So David, I thought we would have our first extended universe conversation because Amy Howe and I discovered that we have so far only one violent disagreement and it is on transparency at the Supreme Court. So how about we invite everyone over and we'll do a little extended universe convo. Oh and speaking of SCOTUS blog David we have our first job opening. SCOTUS blog is hiring a managing editor. You can check out the job post at thedispatch.com. The managing editor we are looking for will be smart, creative, and organized person who is interested in

the Supreme Court and would like to help produce incisive and impartial legal journalism and is excited about working with the broader dispatch media family to revamp the blog and expand its coverage. So check out the full job posting at thedispatch.com. We're excited, future managing editor. All right, now it is time for the delu. That's right, the dispatch extended legal universe for the first time together. Sarah Isger, that's me.

That's weird for me to say myself, but who else is gonna do my superhero introduction? So you're already, now that you're grand poobah, you're already referring to yourself in the third person. That's right. David French, David Latt, and Amy Howe. Welcome, DeLu. It's just like a little too close to DeLulu for me.

Okay, but speaking of DeLulu, Amy, you just came from the Supreme Court arguments on Monday morning. And normally, we might not have even talked about the argument. We certainly wouldn't have needed you to rush home to tell us, but things went a little off the rails. Yes, they did indeed. And I will say that this was not a case that I was covering for the blog.

The wonderful Ronald Mann from Columbia is covering it for the blog. So I really was there just to watch and it did not disappoint. This was a case involving the Individuals with Disabilities in Education Act and the Americans with Disabilities Act. And Ramon Martinez was representing the student in the case. And so pretty much from the get-go, he was talking about how the school district had changed its argument from the brief in opposition because the school district was the respondent in the case. And I'm sitting there and I had a pretty good view

of the council table and I just kept thinking, I can't wait for Lisa Blatt to get up there. And there were, it was spicy, as one of my fellow reporters said on Twitter after the argument because she took umbrage, I think is a nice way of putting it, with Ramon's characterization of the respondents having changed, the school district having changed its position. And first she said it was an out of body experience, which, you know, is Lisa. But then she accused them of lying. She used the word lying, which in law world is a big deal. That's a big deal.

Justice Gorsuch kind of stopped her and said, are you sure you want to use those words? Um, and she did. She did in fact want to use the words that she used. So the argument continued, um, for a while. And then justice Gorsuch said, I want to come back to that. And basically to make a long story short, he had been going through her brief. And he sort of read her a series of quotes from her brief.

And he basically said, wouldn't a reasonable person read this as sort of saying that to make a long story short again, that you did, in fact, change your position. And she, you know, in the end said, fine. But I'm really not capturing the moment. Um, you know, well, that makes some sense because why we actually are meeting today in our first day Lou, we need to figure out a way to pronounce this DELU, dayu, Delu, I don't know. Okay, but anyway, we're meeting for the first time

with our powers combined, a la the, what was the environmental group where they each have rings? I'm just thinking of the Justice League here. Come on, David Lat, you're my age. This is what we used to watch. It's not the power, it's the power, not Power Rangers. The Wonder Twins? Captain environment, wasn't it Captain environment?

Okay, whatever. I was thinking of the Wonder Twins. Thanks,. Wasn't it Captain environment? Okay, whatever. I was thinking of the Wonder Twins. Thanks, David. Wonder Twin powers activate. Oh. No, like the- Shape of? The Captain environment, they each needed their rings

of wind, earth, water, and something else to combine in order to create Captain Planet. It was Captain Planet. That's what it is. I'm too old for this. Okay, well, they can only make Captain Planet when they're all together and put their rings together. That was Captain Planet. That's what it is. Yeah, I'm too old for this. Okay, well, they can only make Captain Planet when they're all together and put their brains together. That's the point.

Now we're together. We agreed to meet together because we were gonna talk about transparency in the courtroom and in short, whether there should be cameras in the courtroom. So I just wanna go around quickly to the question, should there be cameras at the Supreme Court?

You only get a one word answer. We will dive into your fuller answer in a moment. Amy. Yes. Lat. Yes. French. No.

Sarah. No. Okay. So representing team cameras, I mean, Amy, it's my bad luck that today happens to be the day we're having this argument, I feel, given that you're now having to come here and describe to me the looks on people's faces. That is exactly right, because I will say, live audio is certainly better

than not having anything at all. And it's a big improvement from what we had before COVID when we used to not get the audio until the end of the week. And we still don't get the audio of the opinion announcements, which I will continue to grasp about. But you don't get the facial expressions, you don't get the body language,

you just don't really get the vibe in the room. And I think also, I think people would be more likely, certainly, people do listen to the audio when they're really interested in the case. I think people would be more likely to watch it than to listen to it because if you watch it on C-SPAN, I think they do put up the pictures of the justices, but you can tell who's talking.

The Supreme Court, most oral arguments, it's a pretty big courtroom, but most oral arguments, they allocate 50 seats for the public. And so a lot of the big arguments, sometimes that will, and they've started a lottery, I'm trying to figure out how many seats they actually allocate through the lottery as opposed to standing in line. But if you're a member of the general public, if you're not a lawyer, you don't know somebody at the Supreme Court, for a big case, if you're not willing to stand in line for a couple of days,

your odds of getting in are pretty slim. And when the Supreme Court is hearing arguments in these big cases like birthright citizenship, presidential immunity. Well, Dobbs wasn't a good example because it was COVID so the courtroom was closed, but affirmative action, like people deserve to see the Supreme Court in action. Okay, Amy's arguments largely rest on civic education,

which you know is my weak spot. So David French, you're the one who's going to have to rebut Amy's initial salvo. Yeah. So I hear all that. Let me just go back to something a listener said. This was two or three years ago that your podcast has gotten me to listen to Supreme Court arguments, because when I listen to Supreme Court arguments, I hear public discussion the way it should happen. That this is what we're missing in American public life are people who are engaged in serious high-minded discussions without going into personal attacks. I mean, with the partial exception of today, apparently. And I was thinking, why is that? Well, one of the reasons why, obviously, are the norms of the legal profession itself,

which are, there are rules of civility, there are rules of decency, in essence, that come into play, and there are norms of decency and civility. And so part of it is a product of the system, but also part of it, I think, was a product of the fact that this is not happening for viral camera moments.

And I think this might sound weird. You would almost be able to persuade me to allow it to happen if the minimum age for clerks was 45 years old. And I'll explain why. I think one of the things that has happened that has so cheapened the congressional experience is that you have this situation

where you have people who are wanting, obviously they're politicians, they wanna get their name out there, and then they have these very young staffs congressional experience is that you have this situation where you have people who are wanting, obviously, they're politicians, they wanna get their name out there, and then they have these very young staffs who are like, oh, you need to go viral, this is viral. So you've got this older person, maybe they're 65, 70, and they're like, I don't know about this InstaTalk stuff, and then you've got their 26-year-old staff going,

sir or ma'am, look at a million views, this is incredible. And so you've kind of got this dynamic where you've got a younger cohort sort of egging on an older cohort and I think it creates a, too many temptations. So I do not think judges are a, well, I admire many, many judges. I do not think judges are a unique form of human clay.

And when you put them up against the temptation of virality, and then you combine it with a younger generation that grew up on virality, I think you're creating the conditions to destroy that very special thing that still exists that would cause an advisory opinions listener to say, I listened to Supreme Court arguments to reassure me about the health of the Republic.

I think that would start to go away. David Latt, adding cameras in the courtroom will destroy Republican forms of government. It's an extinction level event, David Latt, defend it. So I just don't think that's the case. And this is partly an empirical question. So let's look at some data. We have had cameras in the court, in the federal appellate courts, in a number of them at least,

including the court where I clerked the Ninth Circuit for years now. We haven't really seen these types of problems. I actually am kind of surprised that we haven't really seen viral clips from these arguments, but we generally haven't. So I think that's part of it. I think we just don't have any kind of factual basis for thinking this kind of thing would happen.

And then the other thing I would point out is, you need to look at the people who would be involved. For better or worse, the Supreme Court bar is an extremely elite and insular world. And so these people are not looking for the clicks. They're not influencers. They don't make money hawking things on Insta or TikTok. Their credibility, their reputation,

that's their currency. They want to preserve it. So you're not going to see people getting up there making jury arguments and inherit the wind kind of speeches That's just not what wins cases and clients hire them to win cases so I think a just based on the empirical evidence from the circuit courts and be The incentives for the actual actors in this particular system. I just I agree with Amy I just don't think we're going to see these problems. And I think the benefits of transparency

and civic education just far outweigh the possible cons. And the last point I'll make is, look, if this, I proposed actually a while ago, trying this as a pilot program. If we tried this and it didn't work out, guess what? We can just undo it. But right now, we have no data. We have no information.

So let's just try it and see how it goes. Amy and David Latt, do y'all agree that cameras change the presidency? Or no? Do you think different people run for president because of television cameras? I can't imagine why anyone would want to run for president. I think it changes people's conduct once they're in office, and it changes how's conduct once they're in office

and it changes how we select them. People think of that famous debate with sweaty Nixon. Oh, exactly. It changes how we select them, David Latt. So if you know that your Supreme Court justice is now going to be, to Amy's point, have this civic education aspect where people are gonna be watching

that Supreme Court justice and more people, because now people are going to be paying attention to the Supreme Court more than they ever have. It's going to change who presidents select for Supreme Court justices. No more nerds of the Gorsuch, Kavanaugh, Barrett variety. We're going to have, you know, quippers, let's call them, people who are good at quips that I've now made the word quippers. I mean, we do have that civic edgy. I mean, that to me is really the function of confirmation hearings these days. Like, you don't actually learn that much about the nominee or how they you don't learn that much about how the nominees are going to vote necessarily. But I feel

like there is a still this is sort of my soapbox about confirmation hearings is there is a still, and this is sort of my soapbox about confirmation hearings, is there is still a civic value. People are sort of reminded what the Supreme Court does, what issues are likely to come before it. And, you know, the nominee is on television for a long time. And, you know, they're all good on TV. I mean, that's part of... Yes. And confirmation hearings are bad for this reason, right? Like, does anyone think this is a good way to do this? Is there a better way to do it? I don't know. I think there's no way around it.

I don't think there's any way around it, but it has become a circus. And that's my point, is these things devolve into circus. And I get what you're saying, David, about the empirical measures, you know, ninth circuit, et cetera. But it's very hard to get people to pay attention to circuit courts, period. Even, you know, even as important as they are, like, I feel like one of the public services of this, of this podcast is we have introduced to the public

circuit court opinions and the, and the importance of circuit court opinions, but it's niche,, it is niche. And so it's just a different environment. Amy. I think all of these same arguments that were marshaled by the Supreme Court to try and oppose live audio, and none of them have come true.

The one problem we have had, they started live audio five years ago, in May of 2020. The one argument, the one problem we have had was the toilet flush. And we wouldn't hopefully have had problem with Live Audio. Why do you call that a problem? That is-

Slate wrote a whole article about it. You're winning the argument with that. Like more toilet flushes? Okay, I might tune in. I mean, it was Roman Martinez's argument and he was back at the court today. Well, you know, I would say also, these two have a history.

It seems that when Blatt v. Martinez is on the card, you definitely want to watch that fight because they also did the Warhol case, which was also one of the most interesting and entertaining arguments of the past couple of years. So I think I need to look at these sort of calendars and see like, oh, when are Lisa and Roman mixing it up again? Yeah.

Also led to one of the most interesting lineups of the court with Kagan and the chief in dissent going on about various works of art and literature and her and Kagan and Sotomayor's footnotes like personally attacking each other, some Ipsa Dixit being thrown around. But I will tell you, like, you know, after five years of live audio, like everybody in the courtroom seems to have forgotten that there is live audio. Like, you know, you can see like even in the sense of like when we get to the end of the attorney's sort of allotted time and they go into the Syrian questioning, like the chief just kind

of looks around. He doesn't always even name the justices as he's asking if they want to ask any questions. Like everybody in the courtroom forgets that there is live audio. Okay. So to summarize, what I've heard from Amy and Lat is civic education. It will help educate people about this branch of government that they don't seem to know much about and about the Supreme Court. And maybe they'll be able to actually name a Supreme Court justice instead of the numbers now, which are quite abysmal.

And two, there's really no downsides, that the downsides are exaggerated or perhaps nonexistent. Is that fair? Team yes. Okay, and team no is like, yeah, civic education would be good. We acknowledge that there would be some upside. But Team no also feels like the downsides could be really, really large,

as we've seen with the cameras being introduced to Congress, for instance, and C-SPAN having the civic education purpose, and maybe destroying Congress in the meantime. And certainly, I think, and maybe destroying Congress in the meantime. And certainly, I think changing who runs for the presidency, the sort of Jonah Goldberg, transparency like all things is only good in moderation. Is that a fair summary of our position, French? I would say that's fair. And by the way, talking about C-SPAN reminds me

of one of the fun moments of teaching undergrads this past year. I was teaching a class on how American politics went insane and they could not believe that there was a time where there was a C-SPAN camera that was only fixed on the podium. And all these congressmen would come up and deliver STEM winding speeches to empty rooms.

And no one had any idea that they were empty rooms. And it was like, wait, what? Nobody panned the camera around? No, no, this was low budget. It was fixed. All right. With that, I thus conclude our first meeting of the Delu. Delu? Delu. Del-u.

I don't, maybe we're going to need a new name. I don't know. Thank you for joining us today. Amy Howe, David Latt, David French. And on this, one of the more exciting oral argument days that's really not about the case, just about the fireworks in the courtroom. Before we go, Amy, and statement against my own position, what can you tell us about the body language, facial expressions?

What would we have gotten from a camera that we couldn't get from the live audio? You know, it's hard to capture, which is why we need cameras. That was just this sort of mix of shock and bemusement, I would say. I feel like that's what Lisa inspires in general. Was she wearing the cowboy boots? No cowboy boots. Just a pair of pumps. Lisa, Lisa, Lisa.

The Chief Justice once told, this is Chief Justice Rehnquist, I believe, who once told Ted Cruz, when Ted became Solicitor General of Texas, and Ted asked, is it appropriate to wear cowboy boots, formal ones, snip toe, into the courtroom to present an oral argument?

Okay, so Amy Howe, snip toe cowboy boots are the pointy-toed ones, they're considered formal. Ropers are more blunted at the end. Those are your working cowboy boots. Leases are snip-toe. Most of the cowboy boots you've probably seen are snip-toe if you've seen them around D.C. So Ted Cruz asked this to Chief Justice Rehnquist, also his former boss, and the Chief Justice supposedly replied, if you're the Texas Solicitor General, I think they're required.

We could have like a Supreme Court fashion. Yes. No, exactly. I may have to start coming down to DC with a roving microphone as the advocates enter, or who are you wearing? Who are you wearing? See, this is what cameras would do, bad stuff. All right, thanks guys, we'll meet again.

Good to talk to you. David, that was really fun. Yeah, I love a little bit of breaking news there. And I would have loved to have been in the courtroom to see that unfold. Because that is not the normal way that people interact in a Supreme Court argument. No, I mean, it is pretty normal.

Normal, not that it happens all the time. It is a normal legal argument to say the other side has changed their position. Oh yeah, totally. It is still considered fighting words. Like when you say the other side's changed their position, you are accusing them of trying to pull a fast one on the court, basically is what considered fighting words. Like when you say the other side's changed their position, you are accusing them of trying to pull a fast one on the court, basically, is what you're saying.

And you're like, hey, court, you know, they think you're stupid. They think you won't notice. Which is why you see Elisa Blatvin get her hackles up and say, you're lying. So I practiced for 20, okay, it was 21 years before I became a journalist and many, many, many, many interactions with opposing counsel, including several where I thought opposing counsel was lying. Never said it, never.

The L word. Never came close. I would say that's not accurate. Yeah. I would say that's not correct. That is wrong. That I would- But this is why you hire Lisa Blatt because Lisa Blatt isn't gonna use euphemisms.

True. True. But yeah, I'm not sure. Like I kind of wanna go back and look if I've ever seen the word lying or lied in an oral argument at the Supreme Court of one counsel referring to another. That's a big deal. It is, it is.

Because there's intent in that word. Not just that's not accurate, right? Because someone may mistakenly say something not accurate. Lying implies you know that you are not telling the truth. Exactly, yeah. Well, speaking of bad behavior in courtrooms, let's talk about a judge who recently was arrested. From early morning workouts that need a boost to late night drives that need vibes, a good playlist can help you make the most out of your everyday.

And when it comes to everyday spending, you can count on the PC Insider's World Elite MasterCard to help you earn the most PC optimum points everywhere you shop. With the best playlists, you never miss a good song. With this card, you never miss out on getting the most points on everyday purchases. We do have a long list to get through. We're going to start with the arrest of the judge in Wisconsin and a little revisiting of the arrest of the judge in Wisconsin and a little revisiting of the arrest of the judge in 2018 in Massachusetts. Very similar cases, so we can sort of compare and contrast some of those. I thought we could take just a slight detour into criminal contempt because we have judges who are, at least in theory, thinking about holding executive branch lawyers in

criminal contempt. How does that work? Under what authority? Who prosecutes them? And then our next bucket, if you will, the White House put out a disparate impact executive order. We've got to do a little substance and process on that one. And the Harvard Law Review. What's illegal and what's not if you're a school's law review? Harvard's about to find out. All right, David, let's start with

the arrest of the judge in Wisconsin. We have the complaint. I think the best way to describe this is that there were federal officers there to execute an administrative warrant, a removal warrant basically, for a defendant who was appearing in her courtroom on domestic battery charges. She tells those officers, you know, you can't be here, etc., etc. They're in a public hallway though outside her courtroom.

She doesn't really maybe have the authority to tell them to leave. She tells them to go visit the chief judge. Basically like there's a process for this. You're not following it. Go talk to the chief judge. So they do that, although she doesn't realize that there's basically a plainclothes officer who's still there kind of watching, waiting, seeing how things go. At that point, she meets with the alien and his attorney and then escorts the alien and attorney through the jury corridor, which is not where, you know, out the normal door. Judges don't really escort defendants, I think that's fair to say. However, according to the complaint, nevertheless, the alien

and his attorney end up back in the public hallway where that same officer sees them. They go to the elevator. They go down the elevator. With a DEA agent. Like an officer is on the elevator with them. Yes, okay. But whatever. They end up on the sidewalk. A chase. They like try to execute the warrant. The guy runs. They chase him down. they arrest him. They then arrest the judge. Four, two things they charge her with. One, obstruction, federal obstruction, 18 USC 1505, and two, concealment, 18 USC 1071. So I'll just do a little text on these.

Obstruction, whoever with intent to avoid, evade, prevent or obstruct compliance in whole or in part with any civil investigative demand duly and properly made, yada yada, you're in trouble. Concealment. Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States so as to prevent his discovery and arrest after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such a person shall

be fined or imprisoned for not more than a year. Okay, so David, let's do the substantive part of this first. Assume that everything the Department of Justice put in the complaint is proven out at court because I think this is why we've said previously we don't really do facts on this podcast. If we're arguing over the facts, this is no longer interesting for us to cover. So assume the facts in the worst light for the judge, which is what they put in their arrest.

Do you think that that meets either the textual status for obstruction or for concealment? Okay, it's close on it, but I'm going to say no. And I'm going to say no because when I went back and I reread the, when I reread the complaint, here's what was so puzzling to me, Sarah. So on the one hand it was, okay, very clear. She's gesturing, she's putting him in the jury room,

which seems to be, it looks a lot like concealment. Like, hey, go into this non-public area away from these law enforcement officers. But then the very next thing is he's out in the public hallway, right by the law enforcement officers. One of them rides the elevator with, so they somehow go from the jury room into this area where it had been previously established in this very complaint that it was totally fine for them to be arrested in this public hallway. And so it was very mysterious to me if they've been ushered into this non-public area,

how is it that they're immediately in the public hallway and then riding down the elevator with an actual law enforcement agent, which the whole thing is so weird. They ride down with an agent and then there's the foot chase. They don't grab him in the hallway where they've been told they can grab him. Doesn't make any sense.

And then there was a Twitter thread by somebody who seemed to have knowledge of the courtroom. And this is what I'm very curious about, is that going into the jury room is that the jury room itself is non-public, but it opens straight into, apparently, the public hallway. And so it's very difficult for me to discern and criminal level intent to conceal if he goes right out into the hallway where he can be arrested, but they don't arrest him for unknown reasons. They don't arrest him on the elevator. Like the whole thing is a little bit weird, but the fact that after this criminal concealment, he's in the very hallway where it's been established he can

be arrested is what makes this not make sense to me in some ways, Sarah. Okay, but to back up a little, David, do you think her behavior was appropriate? Do you think that a state judge should be aiding or undermining federal law enforcement? I can totally see a state judge saying, don't arrest people in my courtroom. Oh yeah. Yeah, so I can see if- That's disruptive.

Yes. Yeah, all sorts of reasons you don't want that going on in your courtroom. And I could see a state judge being ticked off if she thinks that's about to happen. But at the same time, is it appropriate for a state judge to usher somebody into a jury room if the purpose is to conceal them from law enforcement

when there's a valid warrant? No, that's completely inappropriate. Like that totally. Even if it's not criminal, it's totally inappropriate. Right, right. No, totally inappropriate. Yeah, yeah, exactly. But the whole, the story, it was obviously

they're trying to paint her as very angry. And if she's angry at the idea of immigration enforcement, well, that's not appropriate. If she's angry at the idea of an arrest in her courtroom, that's appropriate. So, but yeah, trying to hide somebody from a valid administrative warrant, again, which intent is not clear from this complaint to me,

yeah, that would be absolutely inappropriate. I think this all comes down to mens rea, right? What was her mental state? I think that will be incredibly hard to prove potentially. That's why they're giving all of these very like factual facts, if you will. But at the end of the day, let me reread, whoever with intent to avoid, ev day, this, you know, let me reread, whoever with intent

to avoid, evade, prevent or obstruct compliance. So you've got to show that, and this maybe undermines your argument too, David. Like if she thought that by putting them through the jury room corridor, that like, yeah, technically goes to the public hallway, but if they had figured out to turn left and go on the judge's elevator, for instance, then it's public, but no one was going to see them because it's this other part of the hallway and that was her intent, that's not good because I think you could be bad at obstruction and still intend to avoid or evade. On the other hand, if she always intended to put them back in the public hallway, but just wanted to walk with them through the jury room, I mean, that's what's weird. It's like, why did you do it if your intent wasn't to

in some ways evade the officers that you, by the way, sent to the chief judge? So even if you kind of know he's going to end up in the public hallway, you think you bought him a few minutes because you think all of the officers had to go down the hall and now you're going to like sneak him out. Yeah, it's the public hallway, but he only has to be in it for these like three feet. And it's a lot shorter to the elevator than the other way or something or something or something. I would be so much more convinced if the complaint read something along the lines of

she ushered them in the jury room. The jury room has a private hallway that leads to the judge's elevator, which goes down to this street. And by good fortune, one of the agents was on the street, saw him walk out after going through all of this non-public foot chase. That would be a lot more compelling complaint than ushered into the jury room,

immediately goes into a public hallway, with right next to the agents where they don't do anything, an agent rides down in the elevator with them where they don't do anything. Okay, but if it's an intent question, don't you think it matters that she doesn't think there's any law enforcement officers in that hallway anymore for a short amount of time, which is why she moves his case up, adjourns it rather than adjudicates it, even though the victim is in there, the prosecutor, she doesn't tell any of them she's doing this

and instead ushers him through this jury corridor. Yeah, but. I mean, it's weird. Yeah, I mean, I could see it. The question is, does she not know? I mean, there's agents all over. There's a bunch of agents. And so it seems to me that that hypo, if she, you would have to have some facts that she

believed that all of the agents were not in the public hallway. Well, remember in the complaint, it says she sends the agent she sees to the chief judge's office, and then she starts going around and asking other people, are you with them? Are you with them? And trying to make sure there's no one left. She misses this guy who is still there, but in his affidavit, he says she was clearly trying to clear the public hallway of officers at that point. Again, this is where like Ayo, we are not the world's foremost factual negotiators of all of this, but I think we're trying to show you intent's going to matter a lot here. The actual facts, even if they prove all of them, still they're going to have to show her

mental state and what she was hoping to accomplish, even if she knows he's going to go back into the public hallway. But if they can show, I think, that she thought she had moved all officers away from the public hallway, then puts them through this back door so that he's only in the public hallway for the shortest amount of time possible, with no officers in the public hallway, and she personally executes all of that. Yeah, I think that's that might meet the criminal definition of obstruction and concealment actually, but they've got to prove all of those pieces. And as you say, David, you've got some holes in that narrative potentially, like there is an officer in the hallway and he's in the public

hallway, et cetera, et cetera. Yeah, yeah, this is one of those cases, so we should state, we should have maybe stated this right up front, like, look, no one is above the law, so just the fact that you see a headline that says, Judge Arrested, the headline is not Abuse of Power. That's not a synonym for abuse of power.

You always have to say, okay, why were they arrested? What is the evidence? You know, very similar to people who might've thought that people were targeting a Hunter Biden because he was a Biden. Well, what's the evidence? People say you're targeting Trump because of his politics. What's the evidence? You always, what's the evidence here? And so, yeah, I don't, you know, judges are not a special class of person who lives in a law-free zone. And so absolutely they can be prosecuted

for obstruction. But you dive into this affidavit for me, and I look at this, and there's just some elements here that again, even, because remember this is someone stating the strongest possible factual case against the judge, and they talk about the guy walking past agents in the hallway and an agent riding the elevator

down with them. It's a little weird to me, it's very weird to me. Also worth noting, it is important, there's a reason officers go into those public hallways to arrest people, because you've already gone through court security. So it is the safest place for the officers, for the person involved, for the community.

You don't want to go into the courtroom, but you also want to be past security. So this is a very, very common thing to happen. This isn't some Trump administration thing. Nope, that's where a lot of arrests happen. Unlike in TV, though, it's not like you get off the witness stand and the officers then arrest you in the courtroom. For the very reason that you see it in TV, it's quite dramatic.

Um, no, they wait until you walk out in the hallway, duh. But David, this does bring to mind a 2018 situation. A judge in Massachusetts, same exact thing, right? The officers are there to remove him. They're in the hallway right outside the courtroom. By remove him, you don't mean remove the judge. You mean remove- Sorry. The remove the defendant. Yes.

Who is there on, I think, drug charges. Yeah, two controlled substance violations. There was, in fact, an ICE agent in the courtroom. The judge asked him to wait outside in the hallway in accord with district court policy in that court. It's all sounding pretty familiar so far. Then the judge and defense attorney have a sidebar, the first few seconds of which they record with the court reporter. And then the defense attorney says something like, wait, is this being recorded? And then there's 52 seconds of unrecorded time. After that time, the defense attorney says, oh, I think my defendant left some things in the locker room

like some personal items. And the judge says, oh yeah, definitely go get those. And then when they go down to the personal room, a court officer opens the rear door to the courthouse and the guy escapes. So the judge was arrested with the presumption that in those 52 seconds there was a plan to make that happen and therefore the judge was complicit in the obstruction. That was in 2018. In 2022, new administration note, the charges were dropped as long as the judge agreed to report

herself to the Massachusetts Commission on Judicial Conduct. And that actually looked at her forthcomingness and honesty, because she claimed at first that there was no unrecorded conversation. And of course, it turned out there was an unrecorded conversation. Then she said she didn't know how the recording equipment in her courtroom worked. She is currently a judge for the Boston Municipal Court, FYI. So obviously some similarities there. And I'm not telling you like everything that was said before they went off the recording,

etc. But it definitely looked like they turned off the recording to make this plan. I'll just say that. Right. But David, there's one topic that doesn't come up in either of these two situations yet, and that is immunity. So we have absolute prosecutorial immunity. There's absolute judicial immunity. Why aren't we talking about immunity? Well, in the judicial context, the only immunity that has been found by courts is for civil liability, as in you can't sue a judge for something they did as a judge.

But it also has to be like a judicial act that's within their authority. So like a bankruptcy judge holding a murder trial and sentencing you to jail. You don't have civil immunity as a judge from that. But the criminal immunity question here, David, is interesting because on the one hand, the argument goes something like this. We don't want judges harassed with a bunch of civil litigation. That's why they have absolute civil immunity.

But look, if you've committed some crime against the community, being a judge shouldn't shield you from that. If you have a state judge, for instance, who has violated federal law, you should be held to account like everyone else. On the other hand, if we're starting to arrest judges pretty often for things they're doing in their courtrooms, should we be revisiting that thought process? And David, all of this should sound like a pretty familiar conversation, because it's exactly what we were talking about in the run up to the Trump immunity case.

Yeah. Right? Oh, we've never held that a president is immune after they leave office from criminal liability, and for good reason, if they broke the law, they're not above the law when they leave office. But at the same time, we don't want these political shenanigans. So, two items here, David. One, should there be judicial immunity from criminal process? And again, you would still have to prove that it was a judicial act. It's not like you're a judge so you can murder people.

It's more like you're a judge, so if you sentence someone to more time because they're black and you violated civil rights, criminal civil rights laws, could you be prosecuted for that? You did it as a judge. Do you have immunity from criminal prosecution for that? And two, would this count as a judicial act? That's a really hard question here. She's in her courtroom, it's her jury corridor. She is only doing it because she's a judge.

It's not like she's doing it out on the sidewalk. It happens to her. She's not somebody in the gallery going, hey you, the jury room is non-public. But on the other hand, it's not something only a judge can do like hold a murder trial or sentence someone more severely. The courtroom deputy, the marshals,

everyone can move someone through that corridor. And in fact, usually that's exactly who does it, which maybe goes to a problem for her overall on the criminal side as well. You know, if this were Taylor Swift as a defendant and the judge wanted to avoid the paparazzi and therefore move her through the jury corridor to the judge's elevator.

Same idea, right? You're evading someone in the public hallway. Not illegal to do that if it's paparazzi. She wouldn't do it herself. A marshal would do that. A CSO would do that, a court security officer, which perhaps goes to motive here, but probably undermines any claim she has to judicial immunity as well. What do you think? A few things. Number one, immunity doctrine globally is an absolute freaking mess. I mean, what a mess.

You know, you got one kind of doctrine around public officials, generally like your police officers, your deans of public universities. You've got an immunity doctrine around presidents. president you got a different immunity doctrine around judges you got an immunity doctrine around prosecute is just this crazy patchwork quilt of immunity doctrines. And so first global thing is the idea that the incredible complexity. the incredible complexity of holding a public official accountable for unlawful acts is its own problem. This is its own problem, I think. So that's one. Number two, I am, my general disposition,

long-time listeners of advisory opinions will know I'm pretty down on judicially created immunity doctrines. If you want to create immunity, we know how to do this. I mean, this has been done in the Constitution. There have been limited narrow immunities granted in the Constitution. You can grant immunities by statute, for example. So you could have, for example, qualified immunity is a judge-made doctrine that modifies the Klan acts, modifies civil rights laws. I would urge Congress to amend civil rights laws to make very, very clear

what immunities exist and what immunities don't. And I could imagine a situation, Sarah, where I would agree with a world in which just recognizing the vulnerability of judges and prosecutors to harassing lawsuits and to continual levels of harassment that you create additional burdens of proof or additional that rather than preponderance of evidence, maybe clear and convincing evidence, for example, I could be talked to about that.

Let's have that conversation. But this kind of weird patchwork, I am very down on the patchwork that we have, but at the same time, I'm very glad that current law does not exempt judges from criminal penalty. Immunity from criminal law to me is one of the ultimate acts of law is creating an atmosphere of impunity that's ultimately dangerous for a rule of law centered constitutional republic. So I'm very glad there is no criminal immunity, but the overall patchwork, gosh, bad. All right, let's talk a little criminal contempt. This is another part of like, do judges have the power?

We have Judge Boesberg, of course, who is thinking about holding executive branch officials in criminal contempt, the DOJ lawyers. This is over the Alien Enemies Act removal of the Venezuelans, remember, and the three planes and two of the planes take off. But did that third plane take off before his order? And what about the order to turn around the planes? So, the Circuit Court, by the way, has stayed the proceedings around that criminal contempt thing. We expect to hear more on this, but I thought we'd just spend a second on it because, first of all, the difference between civil contempt and criminal contempt. It's really

easy actually, but the names aren't helpful. Civil contempt is to get you to do something. So like a journalist goes on the stand and refuses to say who their source is, and the judge says, I order you to say who your source is, and the journalist says no. The judge holds you in civil contempt and you go sit in jail because the judge is trying to get you to say who the source is. Or you owe a hundred dollars a day until you turn over to the other side those documents, right?

That's civil contempt. It's to get you to do something. Criminal contempt is to punish you. So you're still disobeying a judge's order as you just did in the civil contempt side. But now we're not trying to get you to comply with the judge's order. We're just punishing you for it. That's criminal contempt.

Okay, there is a question of whether the power to hold someone in criminal contempt is inherent to Article 3 power, to the judicial power, or not. And this is going to become pretty important. So in 1789, there's nothing in the Constitution about this, nothing in Article 3 mentions it obviously. But in 1789, so right off the bat in the Judiciary Act, Congress is already talking about the power of judges to hold people in contempt. Fair enough.

There's lots of case law about this. And do you have the right to a jury trial? And does the judge have to be the one who witnessed the contempt thing? What if you did it outside the courtroom? Blah, blah, blah. You can go read law review articles on this, but here's where the rubber is going to hit the road for us. What if the executive branch refuses to be the prosecutor for this criminal contempt? Then can the judge appoint an independent prosecutor as Judge Boesberg has suggested that he would do. Well, well, well, there's a case for that.

So the case is called Young versus United States X-Ray Vuitton, 1987. And yes, this is a case about Louis Vuitton, David. It's about someone making knockoff purses. And then the judge says, don't make knockoff purses and they keep making knockoff purses. Okay, this is a messy case, David. I'll just read this to you so you have a sense of how messy this got.

Justice Brennan announced the judgment of the court and delivered the opinion of the court with respects to parts one, two, three, A, and four, in which Rehnquist, Marshall, Blackman, Powell, Stevens, and O'Connor joined, and an opinion with respect to part three B, in which Marshall, Blackman, Powell, Stevens, and O'Connor joined. An opinion with respect to Part 3B in which Marshall, Blackman, Stevens joined. Blackman filed a concurring opinion. Scalia filed an opinion concurring in judgment.

Powell filed an opinion concurring in part and dissenting in part, in which Rehnquist and O'Connor joined. White filed a dissenting opinion. This is one of those, you're doing a math problem to figure out what the holding is. And in this case, by the way, the judge appointed basically opposing counsel to prosecute the case. And that's where everyone except for Justice White basically is like, you know, you can't do that. But what else could you do? So here's what I'm going to read from Justice Scalia's concurring in the Judgment Only because

I think it is very relevant to what we're doing. With the possible exception of the power to appoint inferior federal officers, which is irrelevant to the present cases, the only power the Constitution permits to be vested in federal courts is the judicial power of the United States. That is, according to Lee, the only kind of power that federal judges may exercise by virtue of their Article III commissions. The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy.

That includes the power to serve as a neutral adjudicator in a criminal case, but does not include the power to seek out law violators in order to punish them, which would be quite incompatible with the task of neutral adjudication. It is, accordingly, well established that the judicial power does not generally include the power to prosecute crimes, and authorities cited therein, rather, since the prosecution of law violators is part of the implementation of the laws, it is at least, to the extent that it is publicly exercised, executive power. These well-settled principles are uncontested. The court asserts, however, that there is a special exception for prosecutors of criminal

contempt, which are the means of securing compliance with court orders. Unless these can be prosecuted by the courts themselves, the argument goes, the efficaciousness of judicial judgments will be at the mercy of the executive, an arrangement, presumably, too absurd to contemplate. Far from being absurd, however, it is a carefully designed and critical element of our system of government. There are numerous instances in which the Constitution leaves open the theoretical possibility that the actions of one branch may be brought to naught by the actions or inactions of another.

Such dispersion of power was the central scheme of forming a government with enough power to serve the expansive purposes set forth in the preamble of the Constitution, yet one that would secure the blessings of liberty rather than use its power tyrannically. Congress, for example, is dependent on the executive in the courts for enforcement of the laws and enacts. Even complete failure by the executive to prosecute law violators or by the courts to convict them has never been thought to authorize congressional prosecutions in trial, the executive in its turn cannot perform its function of enforcing the laws if Congress declines to appropriate the necessary funds for that purpose or if the courts decline to entertain its valid prosecutions. Yet, no one suggests that some doctrine of necessity authorizes the executive to raise money for its operations without congressional appropriation, or to jail malfactors without conviction by a court of law.

Why, one must wonder, are the courts alone immune from this interdependence? The founding fathers of a certainty thought that they were not. It is instructive to compare the court's claim that courts cannot be at the mercy of another branch in deciding whether contempt proceedings should be initiated with the views expressed in one of the most famous passages from the Federalist. The judiciary, from the nature of its function, will always be the least dangerous branch to the political rights of the Constitution because it will be least in a capacity to annoy or injure them. I won't read all of Federalist 78. Y'all know it. It's Hamilton. Even as a purely

analytic proposition, the court's thesis is faulty because it proves too much. If the courts must be able to investigate and prosecute contempt of their judgments, why must they not also be able to arrest and punish those whom they have adjudicated to be in contempt? Surely the executive's refusal to enforce a judgment of contempt would impair the efficacy of the court's acts at least as much as its failure to investigate and prosecute a contempt. Yet no one has ever supposed that the judiciary has an inherent power to arrest and incarcerate. So David, that's meaningful because I think Scalia gets to sort of the heart of a big separation of powers question that's about to be teed up here. And also it's Justice Scalia.

Right. I mean, it seems to me that he's right. And it's kind of moot because of another constitutional provision, which is at the end of the day, the president can just pardon these folks as well. Because this would be, if it's a federal contempt, if it's federal courts, it's a federal charge, there would be, that would clearly, clearly be within the pardon power. I think that the bottom line is, is as the Constitution is constructed, if the president just refuses to enforce the law, there really are very limited remedies for that if Congress will not impeach.

And there's just kind of no way around it structurally. There's just very few, very few guardrails against that. And we are only now learning, and we've said this before, how much our constitutional structure has depended on the honor system running in multiple directions. So including the very idea that Congress, the founders would have believed that Congress would impeach in those kinds of circumstances. Because time and again, in the ratification debate,

she would talk about, and there would be abuses of power that would be raised Under which the response was well, then you're going to have impeachment as a remedy for example abuses of pardon power Where impeachment was going to be a remedy and I was just thinking Sarah as we've been walking through all of this and how much Congress could could rectify so much of this ambiguity could could rectify so much of the same beauty. Could transfer create so much more clarity and create constitutional rationality back within our separation of powers by reasserting itself in it just won't do it. And when it just won't do it we're broken and there's no way to unbreak us under the current system unless Congress will unbreak itself. And it just keeps coming back to this one point because I think you're clearly right.

Like let's say even suppose for the point of argument that a judge could appoint a special prosecutor, could order a prosecution. Well, then the president runs the prisons. That's right. That's what gets so confusing. Yeah. This is turtles all the way down. Yeah, exactly. There's another branch responsible for this. What do you think you're doing? Right. I mean, so they're convicted by the special counsel and the president says, well, we're not taking them to prison. They're not going to prison. I mean,

that's even short of a pardon, but the president can pardon. So it really, one of the issues you have about this, when you're talking about questions like, hey, can the president be prosecuted federally while the president in his office? That's another turtles all the way down. Well, why would a president agree to be prosecuted while they're in office, considering they could order it to be dropped at any moment?

I mean, again, when Congress doesn't do what Congress was designed to do, the system leans heavily on the integrity of one person and that one person is the president. And if the president doesn't have integrity, the system doesn't have controls for that. And that's actually that paragraph in Scalia's Concurring in the Judgment Only that I read about, yeah, each branch requires the other branch to do its job faithfully. This doesn't work if one branch just decides, I'm not, I'm taking my ball and going home. Yeah. And so, you know, we get these questions to the podcast a lot.

Well, what if the president ignores the Supreme Court? What if the president declares he's president for life and we're not having elections anymore? Well, then we don't have a constitutional republic. Like, I don't know what to tell you. Yeah. Like the other branches. We didn't we didn't build in safeguards for one branch to be bad. I don't know what like not wrong, not incorrect, like bad. So yeah, and you know, I harp a lot on Congress, do your job and why isn't Congress doing more?

But here's my example where I think Young versus United States is just wrongly decided. Well, the decision was correct because it's not relevant to this question, but their point about the inherent power to hold criminal contempt hearings and prosecutions in the judiciary. I think that's just wrong. I think Brennan and his friends are wrong for all the reasons Scalia said. And it is then the judiciary stepping out of side its proper role, like the executive branch has been doing.

And as you said, David, the reason is the same. Congress isn't doing what it's supposed to do. But it is just as dangerous. And in some, depending on what's going on, more dangerous for the judiciary to step outside its role and say, I don't think the executive is doing a good enough job prosecuting. So I'm gonna go find a prosecutor.

And by the way, I'm a neutral adjudicator in this case. What? No. Yeah, yeah. I mean, it's funny because I'm just totally revisiting the Federalist versus Anti-Federalist debates. And when we read from an old wig, especially an old wig number five,

and this was our class that we had, which was- Wouldn't that be a great bourbon, by the way? Old wig number five. Oh, yeah. Now, the bourbon market is getting a little depressed. I was just hearing last night. Otherwise, I would think that's an entrepreneurial opportunity right there. Old wig branded bourbon from advisory opinions.

The extended universe just keeps growing. It doesn't work as a vodka though. No, no, no. That's 100% of bourbon. So old wig number five, I mean, one of the things that he points out is this is the pardon power and the bottom line is that when that got baked in and it was importing one of the last elements of sovereignty, of monarchy, sorry, of monarchy into and smuggling it into the constitution.

Then you kind of created a little bit of a poison pill there and look i get it i totally get it that. You do want a pardon power a pardon power to exist for sort of these last ditch clemency mercy mercy reasons. ditch, clemency, mercy, mercy reasons that there should be sort of this last ditch kind of appeal, but to place it so completely in the president's hands without any limitation whatsoever. And all it was a poison pill just waiting there the whole time as a, as a means for an particularly unscrupulous person to cast the entire federal system of justice into doubt. And that's exactly where we are right now.

And look, the answer then is not to sort of give another branch extra constitutional powers. The answer is to try to get the branches to assert proper constitutional powers. And that's, again, where we're running up into the brick wall is that the one branch that can properly exert constitutional powers to introduce rationality to the system just will not do it. It just will not do it. And nobody else, even if, Sarah, even if we said,

well, we want the judiciary to beef itself up, it still can't overcome the pardon power. It still can't overcome the fact that the president runs the Bureau, like the prison system. I mean... Yeah, and I don't want the judiciary to beef up. I want Congress to.

And for the same reason that if Congress doesn't do its job, the executive doesn't get to grow bigger and stronger. If Congress doesn't do its job, the judiciary doesn't get to grow bigger and stronger either. All right, let's go to our DEI bucket today, David. So this is all going to stem from a case called Griggs versus Duke Power Company from 1971. And to back up just a little bit more, in 1964, Congress passes the Civil Rights Act in Title VII. We've talked about Title VII

a lot. This is the Employment Discrimination Act. Just to read the really important paragraph, it is an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individuals' race, color, religion, sex, or national origin. Now, that's 1964. In 1971, in Griggs v. Duke Power Company, the power company in question, by the way, had been discriminating in employment on the basis of race and then post Title VII, they stop overtly like discriminating on the basis of race. They implement an IQ test and I think like a reading test or something like that. This has a disparate impact on black applicants, as in more white applicants are able to pass that preliminary test to be whatever

power station line employee than black applicants. And the Supreme Court unanimously holds. Even if there is no discriminatory intent, an employer may not use a job requirement that functionally excludes members of a certain race if it has no relation to measuring performance of job duties. Testing or measuring procedures cannot be determinative in employment decisions unless they have some connection to the job." And basically, Duke Power Company put in the IQ test without ever making the case that like,

having a certain IQ made you better at X job on the line because it had the effect of excluding black applicants at a higher level than white applicants. Bada bing, bada boom. In 1971, we get the disparate impact theory of racial discrimination. It's really helpful because you don't have to prove intent. Intent's really hard to prove, of course. This is the mens rea problem, but now it's like

company-wide mens rea problem, whatever, whatever. Disparate impact has long been a thing that conservative lawyers talk about. This past week, the president signed an executive order, quote, restoring equality of opportunity and meritocracy. And basically what it says is, every disparate impact thing that the executive branch is doing, no more.

You're not enforcing any other executive orders that deal with disparate impact. All of those police investigations and consent decrees that were done on theories of disparate impact. Remember David Post Ferguson, right? It was the idea that they were, investigations and consent decrees that were done on theories of disparate impact. Remember, David, post Ferguson, right? It was the idea that they were, you know, it was a neutral law to like enforce parking tickets or whatever it was, but it had a disparate impact on the black residents. Nope. So they're going to have to review all those consent decrees that were based on theories

of disparate impact. So David,, two things here. One, process. Yeah. Oh, boy. This is an executive order. It's not even an administrative procedures act like went through notice and comment. That takes a while to get into effect as a regulation. But it also takes a while to get out of effect as a regulation. Like if I were to make a pyramid, a pyramid of stability, David.

Yeah. Constitutional amendment. That is your bottom of the pyramid. It is huge and it is stable. It is really hard to repeal an amendment. As such, it is really hard to ratify an amendment. Makes it really stable. Next on my pyramid of stability,

an act of Congress it really stable. Next on my pyramid of stability, an act of Congress. Quite stable. Little hard to pass, but very hard to repeal also. You know, a good hearty meal that plank of a congressional law. We're going to skip right ahead to a regulation that's done through the Administrative Procedures Act. You have to go through notice and comment, all, you know, little hoops. I've complained about that not being very stable. It's a little rickety, but at least there's some, there's some process there, and there's some process to take it away.

Executive orders, I mean, this is like, you know, the three little pigs. Like, this is the house of straw. It's just a president signs a paper, and the next president signs another paper. This is day one stuff. Yeah, and it signs a paper and the next president signs another paper. This is day one stuff. Yeah. And it's signs a paper that has very, very, very, very limited legal effect. I mean, you know, if you're going to touch the regulations that were done with notice and comment.

Exactly. So if you're going to talk about it, and I keep getting this from, you know, friends who are like looking at some of these executive orders and gay Trump did away with the DEI. He did what now? How did he do that? An executive orders and gay, Trump did away with the DEI. He did what now? How did he do that? An executive order. No, that does not do away with DEI. Or Trump just did it, the way I learned about this

is some people were tweeting at me and it was, wonder what David French is gonna say about this. David's for disparate impact liability. I was like, what are they talking about? What happened here? And I looked at it and I said, to continue with your analogy,

this isn't the capstone of a pyramid because a stone implies a decent amount of permanence. This is like if you had tried to gather some rubble together and plant a golf flag in the top of it. That's what this is. It is almost inconsequential legally in any lasting sense and also in an immediate sense in many ways. If you read it carefully,

it's not even it's taking away presidential approvals from regulations. The regulations are still there. He didn't overrule Duke power. He didn't overrule Duke Power. He can't overrule Duke Power. He can't. No. Like he can't overrule Duke Power.

He can't even get rid of the regulation. Exactly. The only thing that I think it can do is ask the Department of Justice to go back and revisit those consent decrees, but those are judicially entered. So like even that's relatively complicated to do. They can revisit it, but a judge will need to sign off. And look, I think disparate impact theory is pretty bad most of the time, the way that it is used to get around needing to prove intent.

It's bad. Consent decrees pretty often are rackets. The monitor that is hired makes millions of dollars for doing very little work usually. That's all taxpayer dollars. It's usually based on disparate impact theory. It's bad. And it's often... You see these consent decrees and it's like, fill out more paperwork about the race of the people you're pulling over.

Oh good, we solved racism in America because there's now a triplicate copy. Great. All that does is prevent police work. So I'm against disparate impact theory. We're not going to spend an hour on it, but by and large, I think Duke's power plant case, when you go back and look at it, is some pretty bad facts. Remember, Duke used to discriminate on the basis of race, and they're like, oh, we can't do that anymore? Let's do an IQ test. They could have proven intent. They just didn't,

because it was a lot easier to do it this way. It was lazy law. Well, the way I put it, disparate impact, is I think a sound use of disparate impact is to begin an inquiry, not to end an inquiry. So if you do have- Yeah, that should raise some eyebrows, right? Absolutely, you do have dramatic racial disparities

in an arena that should make us begin to ask why. As I said, that begins an inquiry. That should can and should be, I think, a piece of evidence that begins an inquiry. That should, can and should be, I think, a piece of evidence that begins an inquiry. But the existence of the disparate impact all by itself as proof of liability, that is well too far. And we're in this sort of never, never land middle range

between those two points right now. And this EO just doesn't do much about this one way or the other. And this is, you know, actually Sarah, typical of a lot of the EOs coming out of the Trump administration. That they are sweeping in language, even more sweeping in sort of the public description

of them by the administration and the effect by the administration. So that an awful lot of Trump supporters right now are sort of living in a world that they think the EOs created that did not. EOs don't revoke statutes, they don't revoke regulations, they don't overturn the Supreme Court in the same way that firing the JAG officers in the Pentagon doesn't change the Uniform Code of Military Justice, an EO does not change a Supreme Court case. I mean, these are, and yet they're sort of this broadcast out there that is Trump is changing the law in all these very, very substantial ways that conservatives should really, really

like. And if you are somebody who is frustrated with the way disparate impact litigation unfolds right now, this doesn't help you. This is not a meaningful change. And a lot of people are pocketing these EOs as wins and it's all ephemeral, it's all vaporware. Nothing is real here, guys.

By the way, if you're curious about the current state of disparate impact theory at the Supreme Court, Texas Department of Housing and Community Affairs versus Inclusive Communities Project from 2015, just so close to before this podcast started, David, but we never covered this case. That was about disparate impact theory in the Fair Housing Act,

and the court did limit it while upholding it as well. So that's about where things have left off with disparate impact theory at the courts for those who are curious about it as a made-up legal test. Speaking of DEI, some emails leaked from the Harvard Law Review. And boy are they depressing. Editors of the Harvard Law Review nixing potential authors because of their race, suggesting potential authors

because of their race or because of the races of the people that they cited. I mean, it's like some of the worst and grossest quota stuff and exactly what you'd imagine was happening at these schools. But David, some of the question here is, what is actually illegal? And is the Harvard Law Review part of Harvard University? Because they claim not to be,

but that seems to kind of, you know, strain credulity. Yeah, how independent is the Harvard Law Review? Separately incorporated. Yep. So that is a quite, the Harvard Law Review separately incorporated. Yep. That's an important legal fact. Is it a separately incorporated entity receiving federal funds? So if it isn't, then Title VI will not apply.

Yeah, now you're moving into state human rights laws. Would the state human rights laws apply? Okay, so they are separately incorporated. And let's stipulate they don't get federal funds. I'm pretty sure they don't. Maybe there's some grant they apply to, but they don't, they're not just getting Harvard's funds. Right.

But they're benefiting from the name Harvard. Harvard lets them use the name. They're benefiting from all the faculty that Harvard does pay and who do get federal funds. As their advisors and letting them do it Harvard lets them use the name. They're benefiting from all the faculty that Harvard does pay and who do get federal funds. You know, as their advisors and, you know, letting them do stuff outside of class or whatever. Harvard certainly benefits substantially from the Harvard Law Review.

So like, at what point is this a fig leaf, a legal fiction? Yeah, when, how are you, are you gonna pierce the corporate veil here? This, is this something, you know- Like did they create it as a separate corporation A legal fiction. Yeah, are you gonna pierce the corporate veil here? Is this something? Like did they create it as a separate corporation so that they could discriminate on the basis of race? Cause that's not gonna fly.

No, no. There's a lot of facts to explore here. I mean, there's that little Harvard Law Review building on campus. Is that leased from- Gannett House. Yes, is that leased from the university? What is the arrangement? And I genuinely do not know.

I actually think they own it. That they own that land? I think they own Gannett House. Okay, well that's gonna be another fact in the Harvard Law Review's favor. I do think it is much more of an open question. Let me put it this way. It was put out there quite clearly

that this is a liability risk for Harvard, the way the Law Review operates. And we don't know that it is. We don't know that it is. But there was an element of this that I do think is worth talking about to clarify the DEI discussion a bit, because there's the question of, OK, to the extent that if the

law review is connected to the larger Harvard entity, let's just suppose for the sake of argument that it is, that the separate corporate structures are really actually a fiction and it is really part of Harvard, proper Harvard, big Harvard. So let's just suppose for a moment that it is subject to the fair case striking down race-based classification in higher education. What is and what is not quote illegal about DEI? If you see underrepresented groups, does that mean that you are necessarily talking about illegal forms of DEI policies? This is something where there's giant confusion, Sarah. There's a lot of people for whom the words DEI codes now as illegal.

No. Race-based classifications. For example, that a person is white, has X, you know, has to achieve X score, somebody who's black, Y score, Asian, another score. Those kinds of race-based classifications have been clearly struck down. I also think there's no real support that you could make for sex-based classifications, different admission standards for men and women. I think that would run into a buzzsaw. But veterans' preferences, for example, are legal. They're also a form of DEI.

Preferences on the basis of class, for example, are legal. That's a form of DEI. I mean, what about disability-based preferences? That's, I think, quite up in the air. Again, a form of DEI. So when somebody says DEI is illegal, you have to ask, okay, which specific policy are you talking about?

And if it is race-based, okay, yeah. But let's suppose it's the kind of thing like we've talked about many times, Sarah, the Texas 10% rule. The Texas 10% rule is DEI. It is, but it is not a race-based classification. It is aimed at class that has an incidental racial effect. And so that when people are saying DEI is now illegal, no, it is not.

There are certain things that are certainly, but that any people are treating any effort to deal with historically underrepresented books, historically underrepresented populations is de facto illegal now. And it's not. It is the race-based and the sex-based classification that's going to be most constitutionally and legally suspicious. But many other forms of quote unquote affirmative action are not and the conversation has been sort of flattened out in a big way. I think that's true. I think that when it comes though

to what critics particularly hate about DEI policies, but there's also a lack of nuance across the board on both sides, right? It's not that women cannot do certain things. It's that certain women can't do certain things as well as men for the purposes of this. When it comes to sex classifications, for instance, are we just having a nature versus nurture debate in different contexts?

Right. I mean, there are some jobs that just through sheer physicality, for example, you're going to have heavily disproportionate men doing them. That's why I talked about disparate impact raises the question. So say, for example, you're talking about maybe smoke jumpers, you know, these are the firefighters who parachute into the most dangerous places in the world and sort of almost fight fires from the inside out. There is a physicality to that job that is extraordinary.

It's not to say that no women can do the job, but it is to say that if you see a big difference between men and women and say smoke jumpers, that's not proof of gender discrimination. It's not proof, might raise an eyebrow. Are there no women who are capable of doing this? Really? Or only one really?

Might raise an eyebrow, but it is not proof of gender discrimination. All right, David, well, let's wrap it there. This has been a marathon of a podcast, but now that we have the Extended Universe, sometimes they're just gonna be longer. I mean, we're coming for you, Joe Rogan. And May 15th is gonna be

Dispatch Extended Legal Universe, like, on all of the steroids and human growth hormone, because I'm very excited about this. Yeah, this is going to be good. This is going to be the oral argument on birthright citizenship, where as we talked about the previous podcast, nobody knows what it's all going to be about. And it's one of its I think it's the biggest argument of the term this year probably. Yeah. And it happens to be the last one.

And of course we don't know the dates. Like we know what days they are handing argument. Yeah. We know what days they are handing opinions down, but we don't know which opinions come down on which day. So it makes planning in advance a little hard, but this one is gonna be big. We can plan for it. And it probably is the biggest day of the term

so far in OT24. Catch you soon.