Advisory Opinions - The Brooding Omnipresence of the Law

Episode Date: December 1, 2022

The AO marathon continues as David and Sarah catch up on Supreme Court hearings. In this feature-length episode, they explore the line between lobbying and bribery, raise eyebrows at the historicity of the "independent legislature" argument, and debate the extent to which the 303 Creative case is about speech. Also: the Jan. 6 prosecutors may have caught their white whale. Show Notes: -Oath Keepers founder convicted -303 Creative’s oral argument Learn more about your ad choices. Visit megaphone.fm/adchoices

maple syrup we love you but canada is way more it's poutine mixed with kimchi maple syrup on halo halo montreal style bagels eaten in brandon manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore you ready i was born ready so Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And wow, do we have lots of stuff to cover today.

And Sarah, we can't even really get through all the stuff we should be covering today, dictated by the news cycle. This is a busy time. We've got a seditious conspiracy conviction related to January 6th that we're going to talk about. We've got a huge, huge free speech case that we're going to be talking about, 303 Creative. We've talked about it more, but we're going to be prepping you for the oral argument on Monday.

We've got independent state legislature, Moore v. Harper, to talk about some bribery cases. And that doesn't even get us to a giant immigration case that was argued yesterday that we'll be talking about soon. There's so much. Before we dive into what is a very good podcast today, I just want to offer a quick exhortation as we enter the Christmas season. Now would be a great time to buy a Dispatch subscription. Buy one for yourself, gift it to yourself, Merry Christmas to you. Buy it for somebody else. We have an awful lot of listeners on this podcast. And for yourself, gift it to yourself. Merry Christmas to you. Buy it for somebody else.

We have an awful lot of listeners on this podcast. We're blessed to have a lot of listeners on this podcast. And you know what? I know not all of you subscribe to the Dispatch. Now, I'm not going to say that if we run into each other in casual conversations and I find out you're an AO listener, but you're not a Dispatch subscriber, that we're not friends anymore. No, we love all're an AO listener, but you're not a Dispatch subscriber that we're not friends anymore. No, we love all of our AO listeners,

whether or not you're a Dispatch subscriber. But what I am gonna say is, you're just not getting the whole cake. You're getting only some of the icing here if you're not subscribing to the Dispatch. So if you want to enjoy and feast upon the whole cake and not just a corner piece with some icing please go ahead and subscribe to the dispatch or if you know somebody who would love a subscription to the dispatch gift them a subscription this christmas season now on to the main event why

don't we start with seditious conspiracy sar Sarah, you had an interesting tweet summarizing the, or summing up the conviction in the case. Stuart Rhodes, the head of the Oath Keepers, the founder of the Oath Keepers, has been convicted of seditious conspiracy. Kind of your implication was like the prosecutors caught their white whale. This is not your normal kind of conviction, is it? These are hard convictions to get.

I mean, this is seditious conspiracy, man. This is the big time. They're rarely brought as cases and they're even more rarely won when they are brought. Now, I do think this is worth an asterisk though, David. Getting the conviction at trial is sometimes the easiest part because now we're gonna do the appeals after this.

And first of all, because the trial had a bunch of different charges and a bunch of different defendants, the actual outcome is a pretty nuanced outcome from the jury. That can sometimes help, but it can sometimes hurt because if you can show that any of the findings are mutually exclusive, totally inconsistent with each other based on the facts,

that itself can be a way to win that appeal. But when it comes to seditious conspiracy, of course, the real problem is the First Amendment. This idea that attempting to overthrow the government, like, that's your free speech right, to complain about the government. Now, in this case, of course, unlike

most seditious conspiracy cases, you do have January 6th. Right. You know, oftentimes, these are caught in co-ate, you will you know it's people chit-chatting about how they want to blow up the brooklyn bridge and so you arrest them and you charge them with seditious conspiracy and it's like well but they you know didn't do it and what's

sort of enough yeah how far down the attempt road do you have to walk? That's right. Right. Here, they certainly have more. Nevertheless, this is going to be a wild and wacky appellate process, I think. So it's a little too early in my book to do the full legal analysis on seditious conspiracy related to January 6th. And we also saw our first acquittals in January 6th trials so far in this exact case. Right. Yeah. It's a complicated case with a complicated outcome. The top line, of course, is the founder of the Oath Keepers has been convicted.

But you're right. You can not only say the american government is corrupt and needs to be overthrown you can form like a revolutionary cell that talks about all the ways it needs to be overthrown you can talk about recruiting people to your revolutionary overthrow the government cell you can talk about how violent revolution is necessary in the present circumstances i mean there have been think pieces that have been published in far right newspapers, well, not newspapers, online publications. That's how old I am, Sarah. I use the term newspapers. There have been, you know, on far right publications, there have been a few op-eds that basically say armed revolution right now or armed

resistance is called for or on the verge of being called for. Nary a peep, nary a peep about any kind of prosecution because this is protected speech. I've told this before, but when I was visiting Cornell Law School during the interview process, I remember we were driving by this little house in the countryside and there's just a big pile of cars in front of it. And, you know, when that happens in, say, Tennessee, you think, oh, they're having a midweek Bible study. But the department chair said, oh yeah, that's where a revolutionary cell meets, leftover from the 1960s. So they're still aging.

They were your aging revolutionaries still plotting the overthrow of the government in a small ranch house in Ithaca decades later. So, yeah, you've got a lot of freedom. I mean, there is a famous First Amendment case where a guy is saying, the first thing I'll do if I'm drafted is I'm going to get a rifle is I'm going to shoot President Johnson. Acquitted. So I think you're right though.

The thing that was really dispositive here is you had a lot of talk, a lot of talk, a lot of talk, and a storming of the Capitol. Except, and this is where the jury verdict gets kind of interesting.

So some people were acquitted of the seditious conspiracy charge, but two were convicted. Cool beans. However, one, you know, Stuart Rhodes, let's just take him because he's sort of the head guy here, we're told. Stuart Rhodes was convicted of seditious conspiracy, but acquitted of, for instance, conspiracy to obstruct an official proceeding. So that was the vote to certify the 2020 presidential result on January 6th. That's an example of where you're going to go up on appeal and say, okay, you know, for instance, David,

everything you just said would all work then if the jury then convicted him of because there was sort of this fruition, if you will, of the seditious conspiracy. because that's why they acquitted him on the obstructing an official proceeding, which then leaves you far more with the cosplay club that is then First Amendment protected. As I said, this appeal is going to get wacky and wild because you're going to end up having to combine the nuanced jury verdict with the First Amendment arguments. And like I said, these are hard convictions to get and they're even harder to keep. Yeah. You know, because on the one hand you say they had an arsenal on the other hand, well, they left their arsenal in their hotel room, you know, so it's, but a jury verdict

certainly helps on some of that, right? Juries, you're not on appeal going to challenge the credibility of witnesses. So for instance, if, you know, the Stuart Rhodes in this case didn't take the stand, but like if Stuart Rhodes took the stand and the jury just thinks he's a liar on appeal, you're done with that part. So there's plenty that they now have in their knapsack, the prosecutors to go up on appeal. But like, this is part of how this works, right? The appeal now is going to dive into the law itself of seditious conspiracy and whether all of those elements,

whether a reasonable jury could have convicted on all of those elements without offending one's First Amendment rights. Yeah, it's going to be, this thing is going to be fascinating to watch on appeal. Absolutely fascinating. I'll be curious which lawyers take it because the lawyers at your trial in a case like this probably are not going to be your appellate

lawyers and this presents really interesting legal questions and so for a lot of lawyers this could be very fun to be on the defense side but also in our current environment where law firms are no longer sort of championed for their John Adams-esque representation of the British soldiers, I wonder who will take this. It's very different, I think, than the Guantanamo Bay defenses where there were a lot of big name law firms that went to defend Guantanamo Bay prisoners. In part, I don't know. I find I always found that interesting, David, because intuitively that made sense to me why somehow that was like, okay, in the grand scheme of things, don't get me wrong, law firms got a lot of grief for it. Yeah. But it'll be nothing compared to this, I think.

lot of grief for it yeah but it'll be nothing compared to this i think oh i have a thought i have a theory on that i have my theory is that you were watching in post 9-11 guantanamo bay two things going on at once one you had a republican president who was um the architect of this military policy so you're going to have more sympathy from democrats who are opposed to elements of the other is it was the last fading vestiges of really the hardcore anti-war left. So, you know, one of the really interesting phenomenon of recent years is the hardcore anti-war left is gone. Code Pink, do you remember Code Pink?

Where is it? it's really interesting it's just pretty much i'm not saying it's completely gone that there are some people but as a movement the hardcore anti-war left right and isolationism by the way it's worth mentioning is different than anti-war yes they are different movements correct but sort of that hardcore anti-war. Yes, correct. They are different movements. Correct. But sort of that hardcore anti-war left that you saw throughout much of the Cold War, throughout the Vietnam War, really sort of a defining element of their advocacy. In fact, the most hawkish group of people in the United States between the two parties in the Ukraine war are Democrats. in the Ukraine war are Democrats. And I think that the anti-war movements or the hardcore anti-war movement pretty much died out during the Obama administration, interestingly enough. The Obama administration kicked up the drone war. That's one of the ways it substituted for fewer

boots on the ground in some places. I think ISIS really, the rise of ISIS, really torpedoed the anti-war movement. It was so grotesque. It was so horrific and arose under Biden's watch, I mean, Obama's watch, where Obama had to take military action. That's the stuff of something where i'd like to see a read like a 6 000 word long read on well if only i knew someone who could write that david uh well look i think call me crazy call me pollyanna but i love the american justice system and the only way the american justice system works truly and at its best is when we have great advocates taking up both sides of hard legal questions. Yep. to go to their law firms and really think hard about whether this is something your law firm

would be interested in. Not because I am rooting for the Oath Keepers here or rooting for January 6th, but again, the model of our justice system from the very beginning, literally, is John Adams representing the British shoulders. This is so similar, It's striking, right? I mean, history doesn't repeat, but it rhymes.

And I hope people will not dismiss out of hand the possibility that they're the person that needs to represent the most unpopular guy in the room. You know, this is where you could count, because there are serious First Amendment implications, this is where you could count because there are serious first amendment implications this is where you could count on old school aclu like you could set your watch old school aclu would show up and everybody would hate them you remember i loved when the aclu sort of enjoyed your hate yes they were like sith lords it was like your hate fed them but

they were going to be there defending the most unsavory people and their right to free expression now to be clear i do not necessarily think this is a first amendment defense that there's a lot of facts here that are very different from your sort of classic we're just sitting around yeah and i don't have the whole trial record exactly exactly so do not take this as saying oh david and sarah think stewart road should not have been convicted absolutely not i'm not saying he should win on appeal nope right we're saying he needs top level legal representation on appeal. That's what we're saying. So, um, should we move on to three Oh three creative? No, we've got the cases that were argued on Monday, David. Of course. Okay. Let's talk about those first. More crime. Let's do more crime.

Uh, these are fun crimes. They're not, no crimes are fun. That's a terrible thing to say. Your children just heard me say that. But for some reason, I found this one fascinating. All right. First up is Mr. Percoco. See, it's just fun to say right off the bat, David. Yeah. Love that name. All name team. So Mr. Percoco was a longtime aide to Andrew Cuomo, the governor of New York. He steps down from his senior aide position to run Andrew Cuomo's reelection campaign. And then he comes back six months later and is back to being a senior official. Cool. In that interim period, he accepts $35,000 from a land developer to avoid having to enter into a labor peace agreement with local unions, whatever, whatever, right? And by the way, that land developer gets what he wants from the government. But Mr. Percoco during those six months was not a government employee.

He wasn't accepting a government salary. And so he's convicted at trial, basically for bribery. It's called honest services fraud. And he's sentenced to six years for violating that statute. Pretty long time. And this is up on appeal as several honest services fraud cases have come up over the last decade or so. Uh, as like, this is just way too broad. You're basically allowing a jury to convict people for, we don't like that guy. This feels icky. And we saw this in the McDonald case. We've seen it in several of these cases, actually, when it comes to what can actually form the basis for a bribery conviction. And so, Yaakov Roth is the lawyer here. And yes, David, I did go to law school with Yaakov.

Of course you did. Thanks for asking. I guess I went to law school with yakov of course you did thanks for asking i went to law school with jack smith you did yes um so their argument morphed a little bit over the course of this argument i know yakov will not like me saying that but it sort of went into the argument where they kind of were going to try to hold a line that, look, if you're not a government employee, you cannot be convicted of bribery. Over the course of it, Elena Kagan, for instance, was like, okay, what if you quit your job at 9am, accept the $35,000 and go back to work the next day at 9am? Then can you be convicted of bribery? And he's like, yeah,

yeah, sure. That's clearly bribery. And so there's a line drawing problem when it comes to this, but that was nothing compared to what the prosecutors got in this case, which was how do you differentiate a really good lobbyist from a bribe taker? Yeah. know for a variety of reasons the government had no good answer to that question which if you're wondering how is that possible isn't that what this entire case is about didn't they have a year to prepare this i know yes the problem is at trial they basically tossed out a lot of their what their best arguments on appeal would have been because they went for kind of the easiest path to conviction. And in doing so, lost a lot of their appellate theories, which is just fascinating, David, because as we talked about, the trial lawyers in these criminal cases are usually different than the appellate lawyers. in these criminal cases are usually different than the appellate lawyers. And at trial,

you've got two sides. One side is desperate to keep someone out of jail and one side is desperate to put someone in jail and they're going to take the easiest path they can get to get there. You don't take like sort of fun theoretical jaunts through the law in a trial, especially in a criminal trial, but on appeal, it can leave one side or the other with their hands tied. So here was the three-part test that she, the government, outlined in terms of the difference between a lobbyist and a bribe acceptor. Whether supervisors and subordinates recognize that someone is effectively operating as a government official, whether the individual has the power to command

other employees to take a specific act, and whether there are trappings of a government role. Literally, no justice bought that. Nobody liked that one at all. At one point, Justice Gorsuch asked the government to explain the origin of that three part test, of course, noting that it was certainly not in the text of the actual bribery statute. And she responded that they were inherent in the nature of being a public official. And here's where you get the best line of the oral argument. And here's where you get the best line of the oral argument. Ah, the brooding omnipresence of the law, says Justice Gorsuch.

Too much laughter in the room. That's one of those examples where the justices are laughing at you and not with you. And it's not a good sign. So it seems very clear to me that this conviction is going to get overturned. I'll be very interested in the line that they do come up with. They may just decide not to draw a line in this case. They could always just overturn this conviction and say, we don't know what the line is, but this ain't it. Because there's been so many of these cases, I do expect a little bit more than that, but they don't have to. But, you know, David, when I worked in Texas in in the 2011 legislative session, I worked for Rick Perry's former chief of staff.

That guy was the most powerful lobbyist in Texas. Right. And I this whole argument, I thought of him in mind. First of all, obviously, he gets paid for all of his work. He's a lobbyist. So in terms of the exchange of money, everything's the exchange of money. He had enormous influence in the government. And you look at that three-part test, supervisors and subordinates recognize that someone is effectively operating as a government official. I don't even know how you're supposed to judge that. The individual has the power to command other employees to take a specific act. Well, he would call people and tell them to do something who were in the government, and sometimes they would do it. And whether there are trappings of a government role. I don't know. He went to lots of government parties. He was seen at things. He knew Rick Perry really well. You'd see them together. And that's a lobbyist. That's clearly

a lobbyist, not a bribe acceptor. Now, on the other end of that spectrum, you do get Justice Kagan's hypo of the guy leaves for a day so he can accept a bribe. And so, you know, where the defense, Mr. Prococo's team ended up was something like a nexus to official power. Basically, you need to be selling your official power. It can be, this was his line, it can be official power you have right now, or it could be official power that you expect to have tomorrow or next week.

So the idea being, okay, if you already have accepted a job and you're going into office, you're a cabinet member, for instance, and you sort of hoard up all this money in the run-up to heading into your secretary position, and then as soon as your secretary fulfill all the obligations for the money you just took, now we've got the foundation for a bribery conviction. Interestingly here, there are some arguments that that's exactly what Mr. Percoco did, but they sort of gave those away at trial, which is, again, sort of an important part of this

and will not be part of the final decision. So that was bribery case number one, David. Yeah, what's interesting to me is when you first look at the case and you're thinking, wait a minute. This guy wasn't even in government and he's paid thirty five thousand dollars to influence. How is that? What? How is this guy even prosecuted? And then you saw the test and you're thinking, what on earth is that test? And there's this term retconning. Retconning is sort of a term

that means you sort of go backwards to revise the timeline or you sort of reverse time or it's hard to describe, but essentially you're trying to harmonize seemingly inconsistencies in the story. That's what retconning is. I feel like they retconned this test to try to protect this conviction because here's his situation. He was an aide to Andrew Cuomo. He had served as executive deputy secretary

in the executive chamber. At the time of the scheme's inception, he had left his job, his state job, so he's out of his state job, but to manage the re-election campaign. Despite formerly leaving state employment, he held onto and used his executive chamber telephone desk and office where he continued to conduct state business. And Percoco represented, he had a guaranteed position with Cuomo's administration after the election. So I can, when you know those facts, you can say, oh, I can see what's going on here. The dude was kind of not really sort of a private citizen, maybe not, still using government resources.

And so this test that they created seems to be a per-coco test. That if you're this dude, then this is bribery. The other problem though is, David, that the other side of the bribe can also be convicted. And it doesn't put them on great notice for who is committing fraud on a services fraud and who is simply a good lobbyist. So in this case, like this land developer believes he is giving money to the let me give you two versions. Right. He believes he's giving money to a very close person to Andrew Cuomo to help convince the government to do a thing like every other lobbyist he's ever hired.

So how could he possibly be convicted or charged even? On the other hand, this guy has found the six month opening where he can pay Andrew Cuomo's closest aid to get this thing done. And so he does it right before he goes back. Brilliant. It's a bribe. But the problem is you've got to come up with a legal test where both sides of the transaction have fair notice that they're committing a crime.

So even if you argue that Mr. Percoco did, you still have a problem because in this single transaction, you would have to be able to say that the land use developer also had fair notice, even if you don't charge him in this case. Right, right. It's a mess. Percoco's going to win. Yeah. He should win.

He'll probably win 9-0. Yeah, I think he wins 9-0. He should win 9-0. But it's still smelly. Oh yes. Oh, it happens all the time on the Hill, by the way, the chief of staff or whomever will leave for a hot second, usually like a month, sometimes two months to go work on their bosses reelection campaign. Yeah. You know, you go back home, you hang out, you have a good time, you get paid by the campaign and you know you go back home you hang out you have a good time you get paid by the campaign and you know you're coming back as the chief of staff so what like that's the bribe window now right and while i just hang out your single right i take kagan's hypothetical that like well what if it's a day yeah but if it's a known quantity it doesn't really matter how long it is

as long i mean i guess like i know I'm going back in 10 years. Well, probably not. Like your dude could die or it does become far enough away at some point. But I think six months when you know you're going back and your guy's definitely winning reelection. I don't know, David. All right, case number two.

This is also the Andrew Cuomo administration. And it's also going to be a yucky feeling one. So a lot of people are really stumped why the Democrats didn't do as well in New York. What happened? I'm really stumped. Let me tell you about the Buffalo Billion, David. Okay, let's hear about the Buffalo Billion. I don't know that that was a great name, especially as it ends up with, you know, various fraud charges. Like, that makes it sound icky right off the bat. But 2012, Cuomo launches a $1 billion campaign to develop Buffalo.

It's called the Buffalo Billion. This developer, Simonelli, secretly works with a bunch of people he has inside the government to ensure that he basically can win the bid. So for instance, he makes sure that the bid includes that you have to use whatever computer system or, you know, that he already uses stuff like that. And lo and behold, he wins $750 million of the bid. He also does the project, no complaints. And so they charge him with traditional wire fraud. And the argument here, is it the loss from the government? Because right, the $750 million wasn't a loss. Nobody can argue that was a loss.

He did $750 million worth of work. Right. So the theory is that he deprived the government of a right to control. In this case, he had a secret and his secret was valuable. And his secret was he'd rigged the bidding process. Nobody defended the right to control theory. And I don't mean the justices. I mean, the lawyers.

Nobody thinks that's okay anymore because it doesn't really like what secrets are material? Who gets to decide that? Everyone has secrets, David. That was the drama of this argument. We don't need to spend too much time on this, but clearly there is some amount of bid rigging

that is illegal. And then there's some amount of sort of secretly helping yourself in a bid that is totally immaterial to maybe why you won the bid or whatever else. And so the justice is struggling with that. Again, I think you're sort of seeing the horseshoe theory of, of at least judicial, uh, ideological philosophy meeting where the

left and the right thoughts on criminal justice issues actually are meeting up more and more these days. Originally, I remember it was just the liberals and Justice Scalia back in the day. Yes, right. And then we were like, Justice Gorsuch will take up that mantle. Less so these days. It's actually becoming just more accepted, maybe because of sort of this textualist thing

on the right and the left has maintained their, you know, what, pro-criminal? I'm joking. But again and again, we're seeing a lot of these convictions be like, was this person really on fair notice? Is this a real theory of the law that's actually in the statute itself? Or did you just make this up and you found a jury that was like, yeah, we don't like corruption. And clearly this is corrupt to some extent, but corruption isn't what's illegal. And I thought it was interesting in the previous case where Justice Thomas has this, you know,

line of thinking that it didn't look like anyone was following, but I wouldn't be surprised if he writes a concurrence. And he's like, why didn't the state prosecute this? Like, isn't it possible that like the state doesn't think that this is corrupt? This is how they want to run their state. This is what the political process is for. This is how they want to run their state. This is what the political process is for. This is why you have people up for election. And that you, the feds, just kind of swooped in here to basically make a state crime a federal crime. And, you know, I think DOJ had a great answer to that,

which is lots of things are state and federal crimes. And the feds will come in and prosecute some of them. So the state doesn't jump in at the same time. They wait. And vice versa, by them. So the state doesn't jump in at the same time. They wait. And vice versa, by the way, the state often charges first and the feds wait. So I don't think that it proves exactly what he's saying it proves,

but there is something there, this idea that like maybe states should be prosecuting their own fraud stuff more. This was a fraud against the people of New York. You know, a couple of things. One, the more you read about these cases, the more I think the Showtime show Billions, if you might remember that, was a documentary. Oh my God, it was the dumbest show. It was so great. He doesn't have to accuse

himself when the DA's wife is having an ambiguous relationship with the defendant come on i mean she works for him maybe she's sleeping with him whatever whatever all of the log rolling in new york over public bidding and everything like yeah it was it was it was just describing the cuomo administration sarah that's all it was doing. I think the better example is from Hamilton. Corruption is such an old song that we can sing along in harmony and nowhere is it stronger than in Albany. Good, that's good.

His colony's economy is increasingly stalling and honestly, that's why he's just public service seems to be calling me. Keep going. The other thing is, I think what you're seeing is the difference between what you would call. Wait, sorry. You're right. Cause the next line is the best line of the whole thing, David. Okay. Yep. Do you remember the next line? Nope. No, I do not.

I practiced the law. I practically perfected it. Yes. Perfect. Man. I love that musical. Anyway. Okay. I'm done. I'm done. I swear I'm done. The other thing is the difference between sort of an ideology and a legal philosophy. So old school conservatism, Republican conservatism was very law and order. And so the criminal procedure cases, it was almost as if the Bill of Rights ended at two.

So it was, well, three, because everyone agreed no quartering of troops. But after that, after that, it was going to be really dicey if you were in front of a Republican appointed judge. But thanks to the Federalist Society and sort of this really consistent, coherent, decades-long philosophical project that says, hey, look, let's look at the original meaning of the text. Let's look at what the text actually

says. All of a sudden, guess what happens, Sarah? The entire Bill of Rights comes alive. And yes, and so I think that's what's happened over time is that this sort of law and order ideology has been replaced by an originalist legal philosophy. And when you have an originalist legal philosophy, all of the rights and the Bill of Rights, all of the text of the Bill of Rights comes alive. And so it's not just one and two anymore. It's not just free speech, free exercise, religion, and right to keep and bear arms. It's all of it. And I think that that's one thing that you're seeing, which I think is quite welcome, honestly, because I think our system doesn't function nearly as well when you have, say, a Democratic appointed

judge who's got a dimmer view of one and two and a stronger view of the rest. And then Republican appointed judges have the strong view of one and two and a dimmer view of all the rest. Look, they're all there. They're all there. I like it. Yay, due process. All right. Okay, David, the next two things we're going to do, I just thought that it was really helpful, both for listeners and frankly, for us in advance of the Harvard and North Carolina affirmative action cases when we did a little foundational work before the arguments. So 303 Creative is being argued on Monday, and we are going to delay taping to listen to the argument to cover that. Our episode will still come out on Tuesday. Do not worry. So we're going to do a little foundation laying on the legal questions being teed up in that case. And then Moore versus Harper is being argued on Wednesday.

So same thing. We're going to delay taping. It'll still come out on Thursday, but we're going to do some foundation laying on that independent state legislative doctrine theory as well. So that way, in case you want to listen to the argument, or just in case you're going to feel kind of lost when we spend an entire episode on each of those oral arguments, we want to give you a little primer. And by little, I mean the rest of this episode. Now, if you're noticing that Biden versus Texas isn't on that list, that immigration case that was argued this week, I know it's because we can't do it all. So we're going to delay that one.

And that's actually going to be discussed after we do three Oh three creative and more the following episode, we will do that immigration case. And then of course the potpourri of the other fun cases that were argued in this session, David, I, we cannot, I'm going to let you have dessert first. I am. We're

going to do these in order. We're going to do 303 creative first. I know this is your baby in a lot of ways, but we will leave time for Moore versus Harper. I demand it. So you can't just stuff yourself with pumpkin pie. There will be turkey. No, I morvey harper is super important so we will leave time we will all right so before before you go i'm just gonna set some really basic stuff on 303 creative so this is the colorado anti-discrimination act it's the same thing that came up in the Jack Phillips Masterpiece Cake Shop case. This time, we're dealing with the services clause, if you will, the accommodation clause is what it's called, and the promotions clause or the communications clause. So there's two different clauses at issue here. Although frankly, the promotions

and communications clause got short shrift in the brief. So it'll get short shrift in this podcast as well. So two key components on that first accommodation clause, a public accommodation may not directly or indirectly refuse service because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. So that's the first thing to note. Second, the posture of this case is a little unusual because this is all coming pre-enforcement. Yes. She has actually not opened for customers her business, which would be 303 Creative LLC, she wants to design custom wedding websites, but we don't have her denying service. And that will become an issue

in this case as we'll get to. And the last thing that I think is important to set up here is that this is really going to turn on two cases as these all do. Is this Hurley or is this fair? And Hurley is that Irish pride parade in Boston case where the organizers don't want to have a float in their parade. And long story short, because we'll get into the details of it as we talk about this case, the court says, correct, that is speech to have to include someone's float in your parade that you don't want to include. On the other hand, fair is where the Supreme Court says that law schools must allow military recruiters on campus. They say that's not speech. To the extent there's any speech like telling your students that there's military recruiters on campus, it's incidental to conduct, allowing people on campus. And if you think those two things sound pretty similar, yep, that's what this entire oral argument is going to be about. Is this Hurley or is this fair? David, tell me your foundational things that you're looking for heading into this argument, what you find interesting about this case, and then I'll go through some of mine.

Yeah, so I like to refer to this case as masterpiece to the masterpiecing. Because if you go back to Masterpiece Cake Shop, this was the case where Jack Phillips refused to design a custom cake. was refused to design a custom cake. Those were the keywords, custom made cake for a same-sex wedding ceremony. He said he would have sold an off-the-shelf cake, but not a custom cake. Now, why did that really matter? Because let's not talk case names, Hurley Fair. Let's talk about things. Let's talk about services versus speech. Okay. So as a general matter, if you're providing goods or services, goods or services like hamburgers, furniture, you name it, you can't say, I'm going to sell my hamburger to everyone but gay people, or I'm going to open up my furniture shop to everyone except women. You don't have a constitutional right to do that. And if there's a non-discrimination statute that

says you can't discriminate on the basis of sexual orientation or race or gender, you're not going to be able to say, I have a First Amendment right to discriminate in my provision of goods and services. How do we know this? Well, a case called Newman versus Piggy Park. Newman versus Piggy Park dates back to the civil rights era. And someone refused to serve his sandwiches to black customers. And then he asserted a religious liberty right not to serve black customers. And do you know how there were two words the Supreme Court used to dismiss that case, to dismiss that argument?

Patently frivolous. Patently frivolous. So we know if you're just providing goods, then you're not going to be able to say, well, I have a religious freedom right under existing precedent to deny that, to deny the provision of goods. But if you are speaking, if you are speaking, if it is your speech, then that's when Hurley comes in. Or if you want to go before Hurley, that's Barnett. You know, in this circumstance, the West Virginia v. Barnett was that you don't have to say the Pledge of Allegiance. That wasn't a case with a conflict with a non-discrimination statute, but it really was, can the government tell you to say something you don't believe?

That was the key issue in Barnett. But in Barnett, you were saying it. In Hurley, the distinction is they weren't saying anything. They were including a float in their parade. Right. And in Rumsfeld v. Fair, they were including military recruiters on their campus. And in Pruneyard, a case we've talked about a lot as well, they were allowing teenagers with a petition inside their mall. Two of those you had to do and one of them you didn't. And so what is protected speech versus what is simply speech incidental to conduct? For instance, in Piggy Park or in any of these cases, not only can you not refuse to serve someone based on those protected characteristics, but you also can't put up a sign saying that you refuse to serve them and then say that that's my speech.

This is me. See, I wrote a sign that says I don't serve black people. Now, if you come in my store and you're black, I have to serve you. I get that, but I'm still going to put the sign out because that's my speech. Like, nope, nope, nope. That is speech incidental to conduct. And so, and that is going to get a little bit to that communications clause that's also at issue here. But again, it's kind of why it's not interesting because it's all about that accommodation clause and which way that gets resolved to decide whether then a signage is incidental to conduct or is it speech that's incidental to protected speech? The reason why I think Hurley is not as applicable

is imagine, this is even beyond Hurley. So the 10th Circuit opinion, which we can get to the lower court opinion, which was wild. Nobody's defending that in any of the briefs, by the way. Nobody took up the banner of the monopoly of one theory so just to let's dive into it for a second so the 10th circuit found that it was speech that it was protected and so you're like oh 303 creator is going to win and they're like but the government

actually satisfies strict scrutiny in this case they have a compelling governmental interest in preventing discrimination because each artist is a monopoly of one. And so Coloradans, you know, their government has a compelling interest in allowing Coloradans access to that service, which is a monopoly because it's an artist and no one else can create something the exact way that artists can create it. Yeah. No, that's a no on compelling on that being a compelling state interest the monopoly theory of artistry yeah it was wild so you can speak and well it was pure speech the phrase that the the 10th circuit majority opinion used was this is pure speech. Now, here's where I have a distinction between Hurley. Imagine Hurley, except the LGBT group that wants us to march in Hurley says,

I want to march and parade organizers, you need to design my float. Yeah, I think that's right. And so that's why I think even the Hurley case doesn't quite get it. And it actually veers more to Barnett because it is not actually just include me in the speech that I am making myself, period. It is write my speech. It is design my float. And that's why I think this case is actually so much stronger than Masterpiece Cake Shop. Because if you go and you go back and you look at or listen to the Masterpiece Cake Shop oral argument, the time spent trying to figure out whether designing a custom cake was speech was, and what are the, what's the line between speech and services was considerable. Here, it's speech. It's going to be hard to say it's not speech and it's not that it's not 303 creatives speech. That's going to be really tough. And we'll take a quick break to hear from our sponsor today, Aura.

Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com

to get $30 off plus free shipping on their best selling frame. That's A-U-R-A-Frames.com. Use code advisory at checkout to save. Terms and conditions apply. Well, I want to present Colorado's argument and the solicitor general. So by the way, in both 303 creative and more versus Harper, we're going to have three people at the podium because the solicitor general's off office was granted divided argument time as well. Because I think Colorado has a creative argument here. And their argument is, I'm going to read a little bit from their brief. The accommodations clause does not aim to suppress any message the company might express. The company is free to decide what design services to offer

and whether to communicate its vision of marriage through biblical quotes on its wedding website. to communicate its vision of marriage through biblical quotes on its wedding website. The act requires only that the company sell whatever product or service it offers to all, regardless of its customer's protected characteristics. The act does not, as the company claims, compel a Hindu calligrapher to write flyers proclaiming Jesus is Lord. It requires only that if the calligrapher chooses to write such a flyer, they sell it to Christian and Hindu customers alike. What a business chooses to sell remains entirely up to the business. The company can define its services however it likes,

including offering only websites that include biblical quotes describing marriage as the union of one man and one woman. And David, so let me tell you. I don't follow the Hindu calligrapher analogy. Oh, yes. So if their argument is, if a Hindu calligrapher offers religious pamphleteering as a service, then the Hindu calligrapher has to write Jesus as Lord.

Nope, other way around. So they're actually making more of a ripeness argument here that because this is a pre-enforcement challenge, we don't have the facts to know whether what she is saying and then purporting to want to do really would violate the accommodations clause. So if all she says is

she wants to make custom wedding websites, then yep, you're going to violate the accommodations clause. But what their argument is, is, but that's not what you're saying. You actually want your business to do. So just define your business differently. If you define your business as offering biblically inspired wedding websites that follow the biblical tradition of marriage or the biblical definition of marriage, however you wanna phrase that, then you can, I think, and this is what I will be so interested

if it comes up at argument, this idea, you can say all of my wedding websites have a bride and groom tab. They all have a quote at the top about, I don't know, the importance of marriage between a man and a woman. The man takes his wife, blah, blah, blah, Adam's rib. I don't know. And that's at the top of all the wedding websites or it's somewhere in there. And like, it's beautiful. There's doves everywhere. But if a gay couple comes in and wants a bride, groom, Adam's rib wedding website, you have to offer it to them

also. You just can't turn them away because of their protected status. So let me give you a better example. Scott and I walk in and ask for a wedding website for Scott and Sarah, and she creates a Scott and Sarah wedding website. It includes our nice little love story. It has a bride and groom thing. It has biblical quotes everywhere. And then a transgender couple walks in also named Scott and Sarah. Their point is she can't turn away that Scott and Sarah and serve me Scott and Sarah because she just created the exact same website with the exact same words. It turns out this other Scott and Sarah have our exact love story. Cool. Then that's the violation of the accommodation clause. And so you have these two briefs.

ADF wrote 303 Creatives brief in Colorado, not talking to each other whatsoever. ADF never really addresses Colorado's arguments, in my opinion. And Colorado seems totally bewildered by ADF's arguments because of exactly what you said, David. Their example on the Hindu calligrapher makes no sense. Why would the Hindu calligrapher have a Jesus is Lord flyer? And the fact that they're confused by that is part of their ripeness argument that they simply, they, and they say this repeatedly, this is not ripe. You need to send this down. She needs to actually open her shop, define what her business is going to be. And then we can have a discussion about the accommodation clause and then turn away somebody. Correct. Right now. And here's where I think her problem is. And I'll be very curious how this comes up at oral argument,

even under my Scott and Sarah example, David, where it's the exact same words in both wedding websites, she doesn't want to create one of those and she does want to create the other. So it's not just the speech. It is in fact the people and their protected characteristics, protected in Colorado, mind you, but this is what this case is about,

protected characteristics that she is objecting to. It's not the speech itself. Oh, heck yes, it's a speech. It's Scott and Sarah's wedding website with biblical quotations about a man and a woman and Adam's rib. As I said, there's doves flying, yada, yada. Yeah, it's absolutely, totally the speech because the Colorado argument to me seems to be this. We know we are at the bottom of a giant hole at this court. We have no hope on the terms as with in defending the Tenth Circuit decision. The Tenth Circuit decision is indefensible.

I don't know if it'd get a single vote at the court, the Tenth Circuit decision, because of its impact on artistic freedom more broadly, which is essentially as soon as you are an artist, you're a monopoly of one and subject to heightened government control over your, the conduct of your business. Yeah. Nobody's defending that. Like all of a sudden the government can always overcome strict scrutiny as long as you're an artist. That's weird. You have less speech protected as an artist than as a not anyway. And then it's, it's even more than Hurley because this is, you're not just asking to be in the parade with your own float that you've designed. You're asking the parade organizers to design your float. And so what are you doing? And then you're left with sort of what feels to me like a lot of hypothetical sophistry as to why.

Here's a way maybe we can harmonize these two things. And so it seems to me an argument like this, Sarah, if you remand, we'll leave her alone. Which of course has not been Jack Phillips' experience. He's been in litigation for 10 years. So it's a little hard to take their word on that, I will grant you. But David, let's dive into ripeness for just a second because i assure you this will come up at oral argument yes for sure so ripeness is part of that cases and controversies requirement in article three

this is like a a fundamental jurisdictional question it's the name of our podcast. Courts cannot issue advisory opinions. Only we can do that. And so they can't take on hypothetical cases. Right. Yet we do have pre-enforcement challenge reviews on purely legal questions. And so the, the, the way that you have those two harmonize is where frankly, both sides agree on the facts. They just don't agree on the application of the law to the facts. Here, I gotta say both sides don't agree on the facts. I will agree with you that Colorado has a huge incentive

to not agree on the facts. Because they want this to get sent down. They really, really keep suggesting it's not right. And if you think this, it's not right. Now, if this, then we They really, really keep suggesting it's not right. And if you think this, it's not right now, if this, then we win. But if this, it's not right. To the extent you need facts about how she's going to define her business or who she plans to turn away, that is a ripeness problem. You do have to send it down for a record. Now, I think 303 Creative's best pushback on that is in fact, nope. She wants to design custom wedding websites and she simply wants to decide which ones she's going to design. Yeah. And so she's not going to define her. She doesn't want

to just do religious websites. She doesn't want to just do even biblically inspired marriages, frankly. And they, they don't say this in their brief, but it's going to have to be their answer at argument because in that case, then it is closer to Colorado's argument of my Steve and sorry, Sarah and Scott example. Who's Steve? Um, it's my husband's work wife. Steve Lahatsky is the partner at the firm. Wait a minute. Three or three. David, they literally went to dinner the other night with a couple. It was a married couple and Scott had it in our calendar as going to dinner with, you know, Nancy and David Scott going with Steve.

And I was like, what? Do not ask three or three creative to design their work marriage website. Fair enough. Fair enough. Um, I don't know if anyone else's, yeah, husband has that relationship. Anyway, the point being that she, she wants the 303 creative here. Lori Smith wants to argue that like, Nope, I have defined my business and I may want to create wedding websites for

people who have been divorced or people who had sex before marriage or people who are adulterers or whatever else. Right. I just don't want to create wedding websites for gay people. And that's my free speech, right? You don't have to like it, but it's what I want to do. And again, that's a pretty blunt, unpopular thing to say. And they may not say it because they may think they kind of have this in the bag going into the argument. But frankly, I think it's their strongest argument and they should be more blunt about what's actually happening here.

Because Colorado has a point. Define your business however you want. Like with the Hindu calligrapher, say, we make Hindu-inspired calligraphy. But if a Christian walks in and wants to buy your random Hindu calligraphy, because, you know, that's what they think would look cool on their wall,

you have to sell it to them. Right. Even if it's custom, David. As in, someone wants on their wall, this is now terrible because now we're going to be like testing my Hindu knowledge. but you know, they asked for a very specific Hindu scriptural text in calligraphy, but they're Christian. Colorado's point is yes, you don't have to

Jesus as Lord because you're a Hindu inspired calligrapher, but you do have to give the Christian, the Hindu scripture in calligraphy that you would give to any Hindu customer. And I think her answer would be if a gay wedding coordinator comes in and is coordinating and is working with me to design a wedding website for a opposite sex couple, 100% because she's not discriminating against the customer. She's discriminating on the basis of the marriage but i do think the ripeness argument is colorado's strongest argument because the idea that the court is going to say you are because again this is not masterpiece cake shop

where you had an argument that i will sell you this cake that I designed and used my artistic ability on, but not this cake that I would use my artistic ability on specifically for you is a much harder case than I'm creating words and images and all of this using all of my creative free speech powers to advance your message. That's a really hard argument to make under any existing free speech precedent regime. So to me, Colorado, and of course, the 10th Circuit decision is utterly indefensible. And so Colorado has to fall back on ripeness. And as you indicated, hovering over the ripeness thing is 10 years of relentless attacks on Jack Phillips.

I will say though, I think my Scott and Sarah wedding website example that she's willing to create with the exact same words, the wedding website for me, Sarah and Scott, but not transgender Sarah and Scott. And I actually don't know that that's the case, by the way, I am assuming that the facts here that she doesn't want to create same sex wedding websites, but I'm let's go out on a limb and say that I'm right about this. So the exact same words in two different websites, she'll create one and she won't create the other. It's hard to say that that is any more a speech argument. That sounds to me more like an associational argument.

And I don't think that places of public accommodation that she's talking about have much of an associational argument like Hurley, where it's actually the float in their parade as they're going down the street. actually the float in their parade as they're going down the street. So if Colorado can move this from speech to association, I also think they have a much stronger argument, but David, you know, all of this turns around those civil rights examples. And I think in this case, you will hear so many quotes from Rumsfeld v. Fair and Hurley with a little prune yard thrown in there. There were dueling quotes in the briefs from each of those cases. And we've talked about this before. Fair

is a messy case. And it's sort of an outlier. Prune yard's an outlier. And, you know, that's where the speech incidental to conduct, but it's associational. It is speech, all of those things. So, you know, an interesting moment in this, when we talk about it after the oral argument will be, do we think that fair or pruneyard are up for review? Let's say. That's an interesting question because I think a lot of cases can only be understood by what is sort of hovering. So a perfect case of a hovering issue to me was Employment Division v. Smith, cue all ominous music whenever I talk about Employment Division v. Smith,

because that was not a religious liberty case that came up in the context of, say, a Baptist church having a Sunday school or having a small group Bible study shut down. It was the use of peyote. Okay, the religious free exercise was the use of peyote. Okay. The religious free exercise was the use of peyote. So this is coming up at the height of the drug war. And as we've discussed, there is a sort of a drug war distortion on a lot of American jurisprudence. So hovering out there

was, do you undermine drug enforcement with this religious liberty case. So I think that was hovering. I think with FAIR, what is hovering with FAIR is national security. So you have, wait a minute, how can we sustain the defense of the United States of America if you're barring military recruiters from the places where the military recruits its officer corps? then hovering is national security. What is hovering with 303 Creative? What's hovering is a long record of really awful treatment of Jack Phillips, just awful treatment. So if Colorado is in any way coming forward saying,

oh, justices, but you have to understand, you know, we don't have any real interest in persecuting Christian businesses. And we, we would absolutely provide maximum deference to their legitimate free speech rights. There's a lot of folks who are going to be sitting there going, uh-huh. A lot of those folks are wearing black robes and sitting on the other side of the bench. Are going to be like, yeah, who do you think you're talking to here? Okay, teed up well.

I said that Moore versus Harper wouldn't take too long. Again, this case is then getting argued on Wednesday next week. This is the independent state legislature case. So the facts and procedural history of this are a little bit long, so I'm going to make them as easy as possible because for our purposes today, setting up this legal foundation, all the back and forth isn't quite necessary. North Carolina's state legislature creates a redistricting map. The state Supreme Court strikes it down under the state constitution saying that it violates the state constitution, which under North Carolina constitutional article one, section 10, all elections shall be free. And they say that that

bans partisan gerrymandering and that this map was too partisan. The North Carolina state legislature basically creates another map. The state Supreme Court rejects it again. Then as a remedy at that point, David, because the election's coming up and everyone's sort of out of time. And frankly, the legislature at that point, and I don't mean North Carolina, I mean any we have this happen every redistricting. Every legislature has an

incentive then to delay because they either get to use their old maps or the only map that's really being debated. And so you have a remedies problem. And so the remedy that has always sort of been accepted is that the courts at that point draw their own map and that that's the map that will be used unless and until the state legislature comes up with a map that passes legal muster. So in this case, the legislature didn't because the state Supreme Court kept rejecting it. So the state Supreme Court's map was the one that was going to go into effect. Then the Supreme Court gets involved in whatever. Again, we don't care. So the question here is whether the state supreme court could do any of that because the federal constitution article 1 section 4 says the times places and manner of holding elections for

senators and representatives shall be prescribed in each state by the legislature thereof but the congress may at any time by law make or alter such regulations, except as to the places of choosing senators. Cue, by the way, Amendment 17, whatever. Okay, so that's what this case is about. But it's imbued with all sorts of very practical problems and kind of wild new theories. This idea that the, so according, this is Cooper and Kirk, by the way, representing the North Carolina legislature, full disclosure, I worked there. It was my first little law job as a 1L

and the guy who's going to be making the oral argument is a dear, wonderful friend. But I think you will find that that's not going to color my opinion of this case very much. So their argument is something like the state legislature, by virtue of the federal constitution, has full redistricting authority within the state and that nobody else really does get to mess with that except the feds, by the way. They do seem to acknowledge that the federal courts can mess with it because, of course, this is simply the federal constitution. The federal courts get to determine the federal constitution. But that, yeah, the state constitution by state courts over a federal matter, which in this case are the redistricting lines for federal representation, nope, that is what is barred by the independent state legislative doctrine.

Now, when you're reading about this out in the world, you're never going to hear redistricting. You're never going to hear that feds can monitor feds, state can monitor state argument, which gets a lot more nuanced than sort of the, oh my God, nobody can ever oversee an election anymore in the state of North Carolina. This is accepted. Like that's not actually quite what's at stake here in my view right now. But I do think there's some pretty good pushback from North Carolina. Remember, this gets really messy and who's representing who and whether who had standing and all of that. So you have the Solicitor General's office and you have North Carolina versus North Carolina. But the argument here is

that the state legislature already did exercise its lawmaking authority to prescribe a redistricting process that requires plans enacted by the legislature to conform to the state's constitution and subjects those plans to judicial review. The argument from the other side is, aha, from the legislature, let's just say legislature versus state. The argument from the legislature is that was an unconstitutional delegation. Basically, you cannot delegate away this federally granted state legislative doctrine. Then now we're back to the state because the legislature has chosen to carry out its redistricting responsibilities in this manner, the question whether state constitutions

independently constrain state legislatures when they prescribe federal election regulations has no bearing on the outcome of this case. In fact, all they need to decide is whether the state legislature could restrain themselves by saying that they want to always follow the state constitution. And if you're wondering about that whole elections shall be free suddenly means no

partisan gerrymandering, state courts are the final arbiter on what their state constitutions mean. So that's not even really going to be at issue here, even though I think it's, there's certainly a fair argument that that's insane. And of course, the federal constitution doesn't bar partisan gerrymandering. And it might be worth noting, though, that one of their strong arguments is, and this is back to the state, indeed, just three years ago, in a case involving a challenge to North Carolina's congressional districts, we've been doing this a long time. Every member of this court, and this is the court that struck down partisan gerrymandering, sorry, that upheld partisan gerrymandering, struck down the idea that, anyway, every member of this court agreed that partisan congressional gerrymandering claims were not doomed to echo

into the void because state constitutions can provide standards and guidance for state courts to apply. That was the Ruscio versus Common Cause case in 2019, David. And it is hard, I think, I mean, that's pretty clear language to say, well, yeah, we did mean that. But as it turns out, state legislatures can't even bind themselves to follow the state constitution it's totally up to them to also decide whether they followed the state constitution so yes you can bar partisan gerrymandering in the state constitution but the arbiter of whether the districts are partisanly gerrymandered is also up to the state legislature uh, tons of amicus briefs in this case, like endless amicus briefs,

including from a lot of conservative legal scholars and quasi conservative legal scholars saying, you've got to be kidding me. There is simply no history for this. And you want to talk about originalism. This is originalism, man. And the text says exactly what it says, meaning that then when North Carolina legislature says,

yes, and we're going to follow the state constitution and leave it to the state Supreme Court to determine what that state constitution means, how are we even here right now? What do you think? Well, let me just sort of put in really blunt terms why there are so many amicus briefs here and why there's going to be a huge amount of attention.

This is all fallout from 2020. This is. Absolutely. This is all fallout. And this independent state legislature doctrine was sort of one of the last ditch efforts to rescue the Trump presidency by saying, because I'll be honest, Sarah. And, you know, I'm not going to claim I'm the most well-read constitutional scholar in America. I'm not going to make that claim. 2020 was the first time I'd heard this articulated in its strong form in my life. Okay. And so the,

the argument was essentially that, wait a minute, when it says state legislature, that means the state legislature acting completely independently of all other structures and limitations put around it under the state constitution, under existing state law. legislature become total free agents in determining how these elections are run, both in the congressional with, of course, the federal oversight looming there, and critically in selecting electors in the presidential context. And so these state legislatures, the lower house and the upper house, they are totally independent. They're complete free agents. All other actions of the state legislature that limit its own power, including state legislature's role in enacting state constitution, state legislature's role in defining state court jurisdiction, and everything else, melt away, fall away, meaningless compared to the independence of that state legislature in the moment to set

rules all on its own. And I'm, it would, I can't, I can't even be begin to describe how shocked I would be if the Supreme Court upheld some strong version of the independent state legislature doctrine. Now that's not to say though, but there were four votes to take the votes to take the case. That is not though to say that that means that what happened in North Carolina specifically, where you have a very strong North Carolina Supreme court is going to rule the day. Um, think so here's the really practical problem right to me that federal constitutional provision absolutely means that the state legislature must draw the redistricting map and that they cannot delegate that power to other parts of the governor's office or the state supreme court for instance

office or the state supreme court for instance but that's not what happened here they didn't delegate the redistricting drawing to the state supreme court so you're asking me am i crazy because the state supreme court drew the lines yep because now we have a remedies question and remedies are different they're equitable jurisdiction it's not about what the Constitution says or where that power resides. It resides with the state legislature. But at the point that the state legislature didn't draw a map that met with the state constitutional provisions, that's where you move into equitable remedies. And that's where you have courts drawing these maps. Here, David, though, we have a bad actor problem. And let's put ourselves behind the veil of ignorance. It's not hard to imagine either side of this ledger being the bad actor. The state legislature keeps drawing wildly unconstitutional maps. And the state Supreme court is doing the best they can call on the balls and strikes. The problem here to some extent, at least is what if it's the state Supreme court that's being unreasonable and they're going to strike down any map that the

state legislature offers so that they can get to that equitable jurisdiction to draw the map themselves in a partisan fashion, just in a partisan way that they like. That is the only part of this, look, it's up to the federal courts to enforce the federal constitutional limits on redistricting lines for federal office. And the state Supreme Court can exercise that power over state office lines and things like that that i do find more compelling it would be different if they were like nope state legislatures get to do whatever they want see ya that's not actually their argument it's feds regulate federal matters states regulate state matters and here you have the uh as they put it it does not follow that the state constitutional limits may be enforced against acts

governed by the federal constitution. And look, there's a pretty good argument for that. Imagine a state constitutional provision that violated the federal constitution. Obviously there, we would say the federal constitution won. Here, the question is, can a state bar partisan gerrymandering if they wanted to, even though it doesn't violate the federal constitution? And that's where Ruscio has said, yeah. And so you at least don't have the chief justice. And I'd be surprised if you have Kavanaugh too.

So to your point, David, you might've had four votes to take the case. I just don't see where that fifth vote is coming from right now. Um, but it'll be a fascinating and potentially difficult argument to follow. There's going to be a lot of history at the founding of what the state constitutions did and said and meant. Um, a lot of hypotheticals of where this theory goes at its most extreme visions on either side. If you imagine the state legislature are bad actors acting in bad faith versus the state Supreme Court acting in bad faith. It's going to be spicy. Oh, yeah. Oh, yeah. And I'm glad you brought up the fact that this is not what is what is coming to the Supreme Court is not John Eastman's argument.

What is coming to the Supreme Court is not John Eastman's argument in the John Eastman posture of here is good actors who have been complying with election law. And here are bad actors who've concocted something and trying to use it as a means to a really destabilizing end. This is one where there's a lot of history here between the North Carolina legislature and North Carolina Supreme Court and it's messy and it's tangled. And so- It'd be so much easier if we could fix the equitable problem because that creates bad incentives

for the state Supreme Court, frankly. So how, once the state legislature has failed and you move into the remedies question, there has to be a better remedy, but no state that I know has come up with it. I mean, this problem is every 10 years in Texas. Yeah. And the remedy becomes the federal court or the state court, but the federal court redrawing the lines. Yeah. I don't see how you're going to get around that part. And that's what creates this weird incentive tangle. Yeah, exactly.

Exactly. Whew, boy. Lots to look forward to. Lots. Yee! Next week's going to be so much fun! You know what I like? I like that we have started a practice of getting ready for arguments in the way that people do

commentary in advance of the Super Bowl. Because... We have a Steve Kornacki-esque board behind us. You can't see it, but it's there. It's there. Because, you know, how it's just not fun to have a Super Bowl without any pregame hype. So true. Like, could you imagine like a Super Bowl just arises and you're like,

Oh, who are these guys? Could you imagine like a super, the Superbowl just arises and you're like, Oh, who are these guys? Unless you've been fully following it like we do because of our profound fantasy football rivalry. But the pregame hype and commentary is half the fun. So this is our version of,

of the pre Superbowl commentary. And yeah, um, three or three creative is going to be interesting. If I'm the three justices, the three Democratic appointed justices, I'm circling my wagons around rightness. Colorado hasn't taken any action yet.

We don't actually know Colorado's stance towards what 303 Creative is going to do. We don't actually even know what 303 Creative's business model is going to look like exactly. Let's send this all back. I think you sound like Justice Kagan. I can hear her accent right now.

Yeah, exactly. And so I think that that's going to be, that's going to be the real argument. And then a lot of people who are like, wait, no, this is a big, this is the big culture war moment and we want it decided that, no, look, these public accommodation statutes are going to override free speech interests in this context in the same way that the, in Newman versus Piggy Park, the public accommodation statute overrode the asserted religious liberty interest. We need that.

We want that. That's not on the cards here. What's on the cards, you what's what's on the cards i think is our unrealistic this is your decision branching possibility in my view 303 creative wins or it's set back it's not right correct that's your decision tree because that 10th circuit decision uh no that's a big nope that thing is not being upheld so all right you know what i'm going to say now sarah yes i do that's a great pod do listeners that's a great pod all right and listeners thank you for listening please rate please subscribe please check us out at the dispatch.com and definitely come back next

week because it's going to be some we're going to have some good content next week and so we will talk to you then Bye.