Advisory Opinions - The Plastic Cutlery of Damocles

Episode Date: April 12, 2021

Fearing that death or disability will remove Justice Stephen Breyer from the Supreme Court when a Republican is in the White House, progressives have begun urging the senior Democratic appointed justice to retire so that Joe Biden can nominate a younger successor while he has a chance. Is Justice Breyer likely to retire anytime soon? David Lat joins today’s show to give us his take. Stick around to hear David Lat and our hosts chat about Biden’s 36-person Supreme Court commission, a new opinion involving California pandemic law, Google v. Oracle, and lawful orders from police officers. Show Notes: -David Lat’s Substack: Original Jurisdiction, and novel: Supreme Ambitions -David Lat’s posts on Breyer: “Will Justice Breyer Retire? Reading The Clerk Hiring Tea Leaves” and “Confession Of Error: Justice Breyer Is Hired Up For October Term 2021” -Ritesh Tandon v. Gavin Newsom -Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark -Campbell v. Acuff-Rose Music, Inc. -Orin Kerr’s Twitter thread on lawful orders and Pennsylvania v Mimms -“A Tale of Two Rap Songs” by David French in The Dispatch Learn more about your ad choices. Visit megaphone.fm/adchoices

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A creamy drink where smooth matcha meets subtle floral notes. From our airy lavender cream cold foam. Only this spring, only at Starbucks. Ice Lavender Cream Oat Matcha Tea Latte includes dairy. we have a guest and the guest is there for a very specific reason because they have a very specific, super cool kind of expertise that we want to go into, whether it is, you know, we had the space reporter at the Atlantic once. We've had all kinds of fantastic guests. We've had the Olympic curling coach. We've had so many guests, but rarely, I can't remember if ever we've had a guest that's just into all the stuff we're into. So this is going to be almost like a co-podcast with David Latt.

Sarah, do you want to introduce David? Oh, I would love to. I have known David Latt since I was a baby, baby law student. David loomed larger than life, and we'll get into some of the reasons why back in my era of law school, where he was the, uh, secret anonymous blogger that was outed. I think, I think my three L year you were outed. Um, but the, my, my kindest memory of David is that we were, and it's a humble brag. It's like not even a humble brag. It's a full on brag. Um, David was bowling

at the white house. I got invited along with his friends. I, at the last minute, I did not have any socks. He gave me a pair of his socks so that I may enjoy the full experience of my first time at the white house and my first time bowling at the white house. And it was super surreal and cool. I never gave him back the socks. I still have them to this day. He is now the author of, as a original jurisdiction, this incredible newsletter. If you like our podcast and you're like, boy, but I'd really like to do it in written form. Let me introduce you to original jurisdiction. It touches on the legal corporate world of law firms, lawyers of the week, opinions of the week, and of course, all the top line stuff. You'll see some overlap, but most importantly, you'll get a really smart and different take. Highly recommend it. It's called Original Jurisdiction. And if you want a fiction form, Supreme Ambitions is this incredible

novel he wrote. Highly, highly recommend. David, welcome to the podcast. Long overdue. Thanks so much for having me, Sarah, David. It's really great to be here. I hope the socks were clean. They probably weren't. That would be better, right? So I got a question. David, why were you bowling in the White House? Like, this seems like an important part of your biography that is like part of your biography is implied from the fact that you're bowling at the White House. Because that just doesn't happen to most of us. It's never happened to me. So what was the occasion? What was the occasion? So I was living in D.C. at the time. I had practiced law for a while.

And then, as Sarah mentioned, I had an anonymous gossip blog about federal judges called Underneath Their Robes, which I pretended to do while I pretended to be a woman while doing. And this sort of federal judiciary-obsessed woman by the name of Article 3 Groupie, after Article 3 of the Constitution, which establishes... Oh, I remember this. Yeah, so I did this blog, as Sarah mentioned. I got outed in the pages of The New Yorker by one Jeffrey Toobin, who's certainly been in the news for his own reasons. And then

after that, I moved to D.C. to take a job at a politics blog called Wonkette, which at the time was owned by Gawker Media, which of course is now like the dearly departed Gawker Media. But anyway, while I was in DC covering politics, covering law, I got to hang out with various people. And some of those people were old friends of mine, not even from the media world, but from the legal world. And one of them was Ken Lee, who was working in the White House Counsel's Office. And I think he's the one who

invited Sarah and me and others to go bowling at the White House. And I guess this is kind of like a humble or not so humble break. Now he's a Ninth Circuit judge. So he went bowling with this current judge, but he was not a judge back then. He was just a young lawyer in the White House counsel's office. So David, this week on original jurisdiction in the newsletter, you had a great post on whether you thought Breyer was going to retire based on these tea leaves you were reading. And then, and this is the most dispatched thing ever, and I love it so much. You got new information and the next day you were like, just kidding guys, I'm totally revising my prediction based on this new information. There was no defensiveness, like, well, it doesn't matter because actually I'm sticking with the original.

Very, very dispatch-esque. Walk us through it. Yeah, so no, like you guys, I go where the evidence takes us. So what happened was I was working on this post trying to figure out whether Justice Bryer would retire based on his hiring of law clerks. And the way this works, of course, is justices get four law clerks to help them out with their work at the court. These are typically young lawyers who clerk for lower court judges, and then they go to the Supreme Court. They're hired in these one-year stints, and the justices tend to hire them fairly far in advance. So if you have a term that starts in October, and the clerks usually change over in July, by the way, usually they're hiring these clerks one or sometimes two

years in advance. So if a justice is thinking about retiring, sometimes they start slowing their hiring of law clerks or even stopping it because as a retired justice, they only get one clerk. And this clerk helps the retired justice with book projects and speeches. And if the retired justice decides to sit with lower courts, which fun fact they are allowed to do, and they sometimes do, the one clerk helps out with that. But there's a big difference between one clerk you get as a retired justice, four clerks as an active justice. And so when you look at the past four justices to retire, Justices O'Connor, Souter, Stevens, and Kennedy, everyone but Kennedy made tweaks to their law clerk hiring

before retiring. And if you had been following that, you would have had a hint that they were retiring. So I tried to do the same with Justice Breyer. And Justice Breyer typically hires really far in advance, like a year or two years before the start of the Supreme Court term in question. The next term starts this fall, October of 2021. And based on the information that I've been, that I've gleaned, because I cover this topic pretty closely at original jurisdiction, I thought he only had two clerks. And so that's an unusually low number. Usually he hires four clerks, you know, a year or more in advance. And hiring two clerks isn't even that big a problem because what you can do is you can

take one clerk as your retired justice clerk for one year, and then you can defer or postpone the second clerk for the following year. So I thought, huh, it looks to me like he's retiring. And then, of course, minutes after I published this thing, I get reader emails saying, wait, hold on. course, minutes after I published this thing, I get reader emails saying, wait, hold on, he's actually hired all four clerks for this fall, fall of 2021. And not only that, the fourth clerk that he hired, he hired within the past few weeks, within the past month. And so it just seems to me that if you're a justice thinking of retiring, why would you hire four clerks and then basically

tell them, psych, like, sorry, that job you thought you had, you don't have it anymore. Now, look, the court does have this tradition of taking these so-called orphaned clerks and finding them homes with other justices. So when Justice Scalia passed away, when Justice Ginsburg passed away, the clerks they had already hired got sort of farmed out to other chambers. So it's not like these kids would be jobless, probably, but it's still, you know, not exactly what they signed up for. They thought they'd be clerking for one justice. Now they go to another justice. Sometimes they have to wait another term

or two, the timing changes. So it just seems to me that if he's like really so actively hiring law clerks, like right now, he's not, he's not going anywhere. But when you gave those examples of previous justices, three of the four followed that pattern. One of them didn't, but also that's in order. Kennedy was the most recent one to retire and he didn't follow the pattern. What do you think was going on in the Kennedy chambers? And do you think this may just be the new norm? Yeah. So great question think I think two things about Justice Kennedy. One, he was very conflicted, apparently, about retirement and made his decision fairly late in the game. And even those four law clerks that he taught, he hired, who later wound up with other justices.

He told them when he made the offer, you know, FYI, I'm thinking about retirement. You know, who knows what might happen. So he was genuinely conflicted. And Justice Kennedy, you know, he was the swing justice, he was kind of conflicted on everything. Like he was famous Linda Greenhouse, New York Times profile of him where he's like comparing himself to Hamlet or something. I mean, he's like, he's like constantly like all over the place. And you can see that in his jurisprudence. But personally, too, I mean, I've never been to dinner with him, but like, who knows how long it takes him to order dinner. But anyway, I think that with him, he was very conflicted and he wanted to hire those clerks to keep his options open. I don't think Breyer is quite as flighty. The second thing

about Justice Kennedy, as many of your listeners probably knows, you know, he was very obsessed with his media coverage. He was very conscious of being in the public eye. And I don't think he wanted to reveal something as important as when he would retire by his hiring of law clerks. He follows the media. He knows that people read these tea leaves and look for these clues. And I think for him, he kind of thought, hmm, you know what, I don't want to tip my hand in this way. I don't know that Justice Breyer is as concerned. I mean, I think Justice Breyer cares more about his media coverage than some justices, like, say, I don't know, Justice Alito. But, you know, on the other hand, I don't know if he's quite as obsessed with it as Justice Kennedy. So based on the opinions, if Kennedy's opinions

are a clue that he's always conflicted, never quite with briar should we have a nine-part test balancing which clerks he's gonna hire for which term david sorry i go ahead well i was just gonna say there seem there seems to be this emerging pattern of uh conservatives get upset at their justices for their decisions and progressives are starting to get upset at their justices for their decisions and progressives are starting to get upset at their justices for not retiring. I would expect quite a reaction if he doesn't retire at the end of this term. And it's impotent. It doesn't really matter. And I'm sure Justice Breyer would have anticipated that if he chooses not to retire. But I'm still anticipating quite a reaction. when a Democratic president and a Democratic Senate could appoint her successor. She said no. And then what ended up happening was she passed away during Donald Trump's term. And with the Republican Senate, she was replaced with the conservative Justice Amy Coney Barrett. And so

a lot of people are looking at the current Senate, which is 50-50. And they imagine, wow, what happens if a Senate senator has illness or a senator passes away or something like that, or a senator resigns in a scandal? And what if the control of the Senate flips to the Republicans? Then what? And of course, many progressives even imagine these nightmare scenarios of, well, even if Biden is still president, what if they sort of pull a, you know, Mitch McConnell, Merrick Garland, okay, you nominate someone. And if we control the Senate, we just won't give this person a hearing or a vote. And so that's why a lot of people are telling Justice Breyer to retire immediately. Paul Campos, who's his law professor, even wrote an op-ed for the New York Times saying,

don't even wait till the end of their term, like retire now, like tomorrow. Because if the Senate, you know, if the Senate changes hands in the middle of the term before the 2022 midterms, you know, we could be stuck. So I agree with you. I think people are not going to be happy. But I think looking at the 2022 midterms, it looks like Republicans have more seats up than Democrats. And Justice Breyer might be thinking, yeah, you know what, I'm in great health. You guys talked about his speech, the other episode where he spoke really quite eloquently and thoughtfully for two hours. I mean, he's definitely very with it. And he's looking at the 22 Senate map, probably, you know, he used to work for the Senate on the Senate Judiciary Committee, he does follow politics. And he's seeing that the Democrats

might even pick up seats. So he probably thinks, why should I retire? One other fun fact, one of the leading contenders to replace him is Judge Katonji Brown Jackson, who is a federal trial judge in DC, and she's been nominated to the DC Circuit, the very influential appeals court in Washington. And people think she might replace him someday on the court because she's very highly qualified, and she's a Black woman. And of course, President Biden made that promise that he would appoint the first Black woman to the Supreme Court. So originally, I kind of thought, well, maybe the chance to have his protege replace him would encourage him to retire soon.

But then when the hiring information changed on me, I kind of thought, you know what? Actually, a reader pointed this out. It actually could make sense for him to retire next year because if she gets confirmed, you know, she'll have had a year on the appeals court, which is a stepping stone to the Supreme Court. And being an appeals court judge is a more similar job, really, to being a Supreme Court justice than being a trial judge. And a lot of justices were on the D.C. Circuit for a very short period of time before getting elevated, Chief Justice Roberts, Justice Thomas. And so giving her like a year or so, a year and change on the D.C. Circuit could actually be good for her, too. So I have a couple of sort of charity bets where if I win, the loser donates to a charity of my choice. I have a couple of charity bets riding on his retiring next year is my prediction, not this year.

Interesting. That's pretty persuasive. Of course, fun fact, the justice who was supposed to be a D.C. Circuit judge that you didn't mention, Elena Kagan, thwarted from getting on the DC Circuit. And so she went straight to the Supreme Court, the only current justice to have done so, and really the only justice to have done so in a long time to not come from a federal appellate court. And she's doing just fine holding her own. I don't think she is worse for wear for not having been on the DC Circuit. What were your big takeaways from Breyer's two hour speech on on the politicization of the Supreme Court and the court packing plan? So now sort of reading it in light of what I think about his retirement plans, I think he was trying to gently tell all the folks calling for his retirement to kind of back off. He's essentially saying, look, the court is not this political institution or a purely political institution.

Look at how the justices ruled against Trump, didn't get involved in the election, et cetera. So if it's not this purely political institution, justices should retire for their personal reasons or when they don't feel they're capable of performing the job. They shouldn't retire for partisan concerns as to who's going to appoint their successor. So I think that's kind of how I read his speech. He's essentially saying, look, I'm going to retire on my own time. And I just don't think these campaigns typically go that well, these campaigns to pressure these justices. They're Supreme Court justices. They're life tenure, and they're like, go jump in a lake. People tried to get pressure Justice Thomas and Justice

Alito to retire in the last year or two of the Trump administration to replace them with younger justices. Neither of them took that bait. Justice Ginsburg, it was going on for years trying to get her off the court. That never happened. I think it's counterproductive i think uh it just it just backfires can i float my i've been overthinking this speech theory around past both of you love this um okay so this is my i've been overthinking this speech and i think i think briyer has had time to look now at the court with Justice Barrett on it and is kind of saying, chill out. This court isn't necessarily what you might be worried that it is to a lot of people on the left, which some people on the right might hear as, huh, this court is not what we think that it is. Am I radically overthinking? I was just thinking that if he was going to be speaking to a group of students, probably 90% of them left of center, and he's giving this big sort of chill out,

this court is not as politicized as you think. There are multiple examples of where Republican interests were defeated at the court, etc., etc. Am I ridiculously overthinking this? And one of the reasons why I'm overthinking this in this way is it fits in with this theory that Sarah and I have been saying that this is a 3-3-3 court, that this is a court that has sort of a three-justice swing vote. Yeah, sure, the court's more to the right jurisprudentially than it was, but it's not what people think. Am I overthinking? No, I kind of agree with you, David. I might change the blocks to like a 4-3-2 maybe with Roberts and Kavanaugh in the middle, but I agree with you and I kind of agree with you, David. I might change the blocks to like a 4-3-2 maybe with Roberts and Kavanaugh in the middle. But I agree with you. And I kind of agree with his point, if that is his point,

that this court is not what some might think it is. I mean, look at Bostock, the case extending Title VII employment protections to LGBTQ individuals. That's not exactly a Republican goal. But lo and behold, it happened. And the opinion was by Justice Gorsuch. It's just not as predictable as you might think. Are there some things that are going to break along traditional 5-4, or I guess I should say 6-3 lines? Oh, absolutely. But I just don't think the analysis is as simple. And if that was his point, which I think it kind of was or is, I see a lot of merit to it. So there have been these long arcs, I mean, Souter's an example, Kennedy, O'Connor, maybe, where justices on either end of the ideological extreme have years-long campaigns to pull justices in the middle closer to their position,

either overall philosophically or on individual issues. Do you think that Justice Breyer can have such an influence or believes he can have such an influence on Kavanaugh or Barrett? Hmm, interesting. I think possibly, but, you know, it's interesting. If I had to pick the sort of justice to like bring people over to like whatever the dark side or whatever, I might actually select Justice Kagan.

She's very, she's a very savvy politician. She's, she, I think, because with Justice Breyer, you could say, well, if you were trying to sort of pull over conservative justice as you've been on the court since the nineties, like, you know, what with Justice Breyer, you could say, well, if you were trying to sort of pull over conservative justices, you've been on the court since the 90s. Like, you know, what's the result of that? Whereas Justice Kagan is newer. You know, maybe there's still some hope that she could be this persuasive force. I mean, look, Justice Breyer, Justice Kagan of the liberal justices are the two closest to the center.

And so they're more likely to be able to peel people off. to the center. And so they're more likely to be able to peel people off. I think one thing also that I would mention that Justice Breyer probably might want to enjoy for a year is the power to be the assigning justice when he's the most senior justice. So of course, the way it works is when you are, when, you know, the court decides something, say 6-3, and Justice Breyer is the most senior or longest tenured of those three, he gets to pick who writes the opinion. And if it's a big, interesting issue, maybe he gets to write the opinion for himself. And with Justice Ginsburg around, he didn't really get that for much, you know, any period of time, really. Now, you know what, maybe he wants to say, you know what, I want to kind of be in the driver's seat of the liberal wing for, you know,

at least a year. That's such a good point. And I haven't heard that before. And it's worth just underlying because underlining because Justice Ginsburg hasn't been gone that long. And it's a really, really important, fun, important thing to get to do. So absolutely, man, if I were Justice Breyer, I would absolutely want to like squeeze some more juice out of that, you know, orange. David, do you want to talk more about Breyer? Because I also want to like squeeze some more juice out of that, you know, orange. David, do you want to talk more about Breyer? Because I also want to make sure we talk about the commission, the new Biden commission. Oh, yeah. Well, so let's let's do commission. And then we've got a shadow docket case that I am eager to get my hands on. So let's do commission next, court packing commission. And David, I'm very interested in your thoughts on the composition. This is the commission

that Biden is appointing to study court enlargement, additional Supreme Court justices, judicial reform. Very interested in really two questions. One, composition of the commission. What do you think of the composition of the commission? And two, is this just something to keep sort of the left flank at bay where he can sort of say, look, I got people on this while he does what he really wants to do? Or is this something that we should really focus in on as potentially a precursor to real change, either at the Supreme Court level or with lower courts? Your thoughts? Yeah, so this 36, yes, 36 member commission that the White House announced last week to look at possible structural reforms of the Supreme

Court is going to be considering this issue over the next six months or something like that. I tend to agree with the point you raised, David, that it's kind of a sop to the left. Based on his campaign trail and early presidential administration comments, I don't get the sense that Biden is really the type of person who's so into court packing. But given the vocal left wing of the Democratic Party, he needs to kind of give it at least the time of day. And so appointing this commission is a good way of saying, like you said, I've got people on this. In terms of the composition of it, I think one of your former, I've got people on this. In terms of the composition of it,

I think one of your former, I believe he was on the show, one of your former guests, Josh Blackman, had a good post on the Vala conspiracy breaking down the groups. And it's actually, it leans left, but there's actually a good number of conservatives and moderates on it too. So I don't really have a huge problem with the composition of the commission. It leans left, but look, we have a democratic president. He's entitled to appoint a commission that leans his way. He didn't stock it entirely with people on the left. But one thing that's very interesting in the mandate given to this commission is it is, it's kind of funny, this presidential commission on the Supreme Court of the United States, it is not supposed to make recommendations, but it is supposed to conduct an analysis. And it is supposed to conduct an analysis of the advantages and the disadvantages

of various reform proposals. So it has to walk this fine line between conducting an analysis of pros and cons, but not making quote unquote recommendations. So I think that's another reason why we might think that this is not going to lead to any major reform. It's not like, say, the 9-11 Commission, where they issued all these recommendations and a bunch of them were implemented. This commission kind of thinks, this commission is, I don't know, it just doesn't seem like it's going to lead to very much.

Who's on the commission is pretty interesting, both ideologically, I don't think that's surprising. It's about two-thirds progressive to about one-third maybe kind of conservative, but also it's nearly all law professors. Yeah. And that's interesting. Even some people on the left have complained about that saying, gosh, you know, if the Supreme Court is supposed to be standing up for working people or disenfranchised groups, well, these are all like very privileged people. I mean, these are law professors at very elite institutions. I mean, your alma mater, like Kimberly Robinson did an analysis. I think 80% of these people are either graduates of or somehow affiliated with Harvard or Yale Law School. It's like, not even like Stanford, Chicago, Columbia, NYU, like heaven for fend, but they're all like, Harvard, Yale, like, it's, it's, it's a very, it's a very, it's a very, actually, no, it's funny, I had a reader, I think I had written in my newsletter in original jurisdiction that it's an extremely elite group and a reader complained to say, well, you know, something either is elite where it's not, it can't be extremely elite. So I won't say it's, I won't say it's an extremely elite group. It's, it's, to your point, I think there's a lot of reforms that folks across the ideological spectrum, font or otherwise, could encourage at the appellate level courts or even the trial level courts. But law professors who don't practice in front of those

courts are going to be the least likely to find those types of reforms, know what they are, or find them meaningful, as opposed to like adding justices to the Supreme Court and these very lofty theoretical ideas, you know, instead of like, gosh, guys, you know, we could use some bankruptcy reform that could come, you know, in these judicial commission measures. Yeah, I don't see that, I think. I mean, look, I think I'll be, I think that will produce a very interesting scholarly report. And there are some non-professors like Sherrilyn Ifill from the NAACP Legal Defense Fund, like she's on there, but this is not exactly a very practically oriented group of people. Which to some extent is a missed opportunity.

Well, that's true. Yeah. Yeah. I, well, I have a, I have a question about the, this sort of the, the one psychological aspect of this and let's let you, David, as the cycle, as former article three groupie and therefore psychological expert or expert on the psychology of all federal judges, including the Supreme Court justices, how much does a commission like this function as a kind of perceived, maybe not sword of Damocles, but kitchen knife of Damocles, sort of hovering over the Supreme Court to say, nice little nine-person Supreme Court you've got there. It'd be a shame if anything happened to it, if you do anything too radical. Do you think that has any sort of effect at all? On the justices? Probably not.

It's interesting. I think this talk of court packing, you could kind of think, oh, is this like FDR, where maybe it will change them? But this commission, I mean, you're right. It's not even a kitchen knife of Damocles. It's a plastic knife from the takeout joint. Like it's just, it's not, it's, he's 36. I mean, I mean, really, I mean, what is the joke? It's like you have 36 law professors in the room. You'll have like 37 opinions or 72 opinions. I mean, how is this group? I mean, Josh, Josh's post did a good job of it. How the heck is this supposed to work? I mean, even getting two law professors to work together on an article or book is hard enough.

Having 36 of them? So I just don't see it putting much pressure on, again, these life-tenured, extremely powerful justices who can't be removed except for serious cause. Producer Caleb, can I nominate the plastic cutlery of Damocles as a podcast title? We'll take that as a yes. I think that's solid, Sarah. Yeah, I do too.

Okay, well, so we have about 180 days until we see the results of that, David. Maybe we're going to have to have you back on at the 180 day mark to digest what the commission says. It's fascinating to me that it's, they've timed the commission and given it this mandate of 180 days. And to David's point, that is going to be right after the June opinions all come out. Now, does this term have the sort of, oh my God, we need to add justices to the court cases going for it? Eh, I mean, again, we've talked about the Obamacare case so much

and I don't think there's really anyone out there who thinks that Obamacare is going down in any way. But I guess we'll see. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting. We pride ourselves on items from different parts of the world. From hard-to-find specialties to tastes that'll remind you of childhood.

So welcome everyone. Come shop the world right here in our aisles. With more ways to save at the Super Welcome Store. Real Canadian Superstore. Okay, so we had another... I mean, is it really fair to call it the shadow docket anymore, David French? When on the one hand, yes, they're doing it on Friday night. But the whole point, you know, in our conversation with Will Bode, the creator of the term shadow docket,

the point was that it was in the shadows as in they weren't issuing opinions, but these shadow docket Friday night missives have all been very opinionated. And this week was no different. We had a 5-4 coming down from the court in the kind of predictable 5-4, actually, not anywhere close to our 3-3-3 court. It was the three liberals plus the chief justice in the minority, and then you had the predictable five in the majority. This was, once again, pandemic law, once again, California, and once again, can you go to church, except in this case, church in your home? David, the five said, absolutely, California is being stupid. Of course, you can have church in your home. These are dumb, dumb restrictions,

and we're not going to have them anymore. What were your first takes on that order opinion? So I had take one, and then I had take two, which was with the assistance of a law professor friend who just sent me an email earlier this morning that made me go, huh, okay. So take one is this wasn't,

no, not shadow docket. Can we use another term involving shadow? More like a shadow tantrum at the Ninth Circuit. The last paragraph of the order says, this is the fifth time the court has summarily rejected the Ninth Circuit's analysis of California's COVID restrictions

on religious exercise. It is unsurprising that such litigants are entitled to relief. California's blueprint system contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And so this is the court saying, again, really? really? And when you read it like this, I mean, it's like, it's almost like an elementary primer school kind of opinion analysis. First, second, third, fourth, fifth, we're doing this again. And I thought it was really interesting sort of how it was written. And then this is, really interesting sort of how it was written. And then, and then this is, and this is, uh, uh, with, cause I don't yet have, I don't have permission to disclose who this was yet, but I thought this was a really interesting, um, email. It says this line could be big. This could

be decision could be bigger than you think. He was saying particularly this line, quote, government regulations are not neutral and generally applicable and therefore trigger strict scrutiny under the free exercise clause whenever they treat any comparable secular activity more favorably than religious exercise. And you want to talk about a pull, he refers all the way back to not Justice Alito, but Judge Alito in the early days of modern religious liberty jurisprudence in a case called Fraternal Order of Police versus Newark, in which Justice Alito or Judge Alito struck down a prohibition on beards. struck down a prohibition on beards. And he had a reading of Smith that was very, very narrow.

Any sort of exceptions that privilege anything on a secular basis, in that circumstance, he was saying, it's not a neutral, generally applicable law if you have medical exceptions to the no beard rule, medical exceptions to the no beard rule. And so two things here. One, I think this outcome is incredibly predictable based on prior pandemic cases. And two, is this signaling that the court, again, this is my over-reading. I have a favorite sports podcast that I listen to that has a whole segment called Total Overreactions Based on One Game. So, total over-reading based on this case, does this signal that we're going to not see a reversal of Smith, just Smith narrowed down into this sort of Alito formulation of, yeah, neutral law, general applicability, but good luck finding that this is neutral. By the way, listeners, if you ever see a Supreme Court opinion that's a per curiam, meaning

we don't know who wrote it, but then in that opinion, it cites back to an opinion of one of the justices when they were a judge, which none of the other justices would have read. You can guess who might have remembered that previous opinion from decades ago. David Latt, why don't you give us your opinion? Yeah, so it's hard to say kind of what the fate of Smith will be. That's, you know, of course, this famous case employment division versus Smith about generally applicable laws and exceptions based on religious free exercise for them. But I was I do agree with you, David, that there was this sort of exasperation in this opinion. And it was written in this sort of borderline patronizing

way, first, second, third. But you know, what is interesting is the Ninth Circuit opinion below, interestingly enough, it's not, so the Ninth Circuit, of course, is a fairly left-leaning court that has this reputation for being frequently reversed by the more conservative Supreme Court. And people always say, oh, they're really out in left field and has nicknames like the Ninth Circus and things like that. I clerked for one of the conservative judges on that court, Judge O'Scanlan. And certainly back in the day when I clerked, it was often getting reversed left and right, often unanimously by the Supreme Court for various transgressions. And this kind of harkens back to that. The Ninth Circuit's kind of been on this little redemption path because it has all these

conservative appointees and it's not always the most reversed court nowadays. Sometimes the Sixth Circuit, I think, gives it competition in recent years or the Federal Circuit. But this kind of is like a throwback to those old days, like, come on, guys. But what is interesting is when you look back at the Ninth Circuit opinion, it was not from the sort of usual suspect, super liberal judges on the Ninth Circuit who get reversed all the time. It was actually by Judge Mylon Smith, who's a Republican appointee, and Judge Bridget Beatty, who is a Trump appointee. The dissenter was Judge Patrick Boumete, who was, I guess, vindicated

by this Supreme Court ruling. I named him Judge of the Week in original jurisdiction. But yeah, so it was kind of interesting. I mean, it was sort of like your stereotypical Ninth Circuit getting smacked down by the Supreme Court, but sort of not. I found myself reading The Exasperation and David to continue with your elementary school analogy. If you have laid something out for your students five different times and they don't understand what you're saying, maybe the problem isn't with your students. Maybe you're not doing a very good job explaining what the law actually is, which is why to David Latt's point, you have three Republican-appointed judges, two of which didn't know what you were trying to say, even though you've tried to say it five times. And David French, you and I have gone over these cases. We weren't totally sure what the

actual opinion and, well, what is the standard? Are they trying to say the standard is this? I think that there might need to be some introspection on why this isn't happening exactly the way they want it to. And I think the fault is with them, not the Ninth Circuit. I actually also thought, if you go and read the dissent, which, so the chief joined in wanting to deny the application. He did not join this opinion. So it's a three justice opinion, Kagan, Breyer, Sotomayor, Kagan writing, the chief did not join this part, but they're walking through the facts of this. And I'm thinking like, yeah, I don't think your previous opinions laid out some obvious standard. I mean, I thought this was a really galling thing to say when nobody

knows what standard you were trying to lay down was. This is the last sentence of the majority. The standard, quote, is not watered down. It, quote, really means what it says. Okay. Except you've never said what the standard is. We have no idea what you think the standard is. So maybe, you know, you should turn that on yourself and be like, okay, well then what does it say? If you could just spell that out a little more clearly, we're happy to follow it. So in this case, we're talking about a California regulation during the pandemic that says no more than three households can gather in a house at all.

And that includes, there's no exception for religious worship. At the same time, they've allowed things like hair salons to open and other commercial entities. In their briefing, this was not, of course, taken to oral argument. This was on a petition for injunctive relief, which is why it's part of the shadow docket and why we have these Friday night opinions instead of our lovely little Monday morning 10 AMers. The dissent is pointing out like, look, there are reasons that these are not comparable. You keep using the term comparable. Well, that word is doing a lot of work in all of these. I get it.

The Justice Alito and the Five don't think that a salon, sorry, do think that a salon is comparable. But the dissent has some good points on why it's not. A, California argues that folks who only are in there commercially are more likely to wear masks and take precautions and be a little more distant and follow social distancing rules. Two, in a commercial setting, you're less likely to linger and hang out. Three, commercial properties often are larger, have higher ceilings. They're less likely to linger and hang out. Three, commercial properties often are larger, have higher ceilings. They're less like you're in a living room together. Again, I am totally fine with the standard that the five have laid out, but by no means was it

clear that that's what comparable meant until this opinion. I think it is a huge expansion of what the term comparable means. That means everything is comparable now. I think that the dissent made some really good points. I wonder, David, whether this is some pandemic law night circuit frustration and whether the dissent may actually have the better day of it down the road when we have a less pandemic-y, less California situation where the justices, again, we've talked about this before, they're humans, they live in the United States, and they have the same news sources that we do. California's restrictions have led to a higher infection rate than Florida's not restrictions. So you also have to put in this very

practical distortion problem where they also know that these restrictions are stupid and aren't working, at least in their minds. So they're not needed. And if you go back to the Supreme Court's opinions of this variety, their sort of pandemic-y shadow docket opinions at the beginning of the pandemic, when we didn't know what was preventing infection and what wasn't, there's no way this opinion would have come out the way that it did. We're like, oh, we're going to second guess all the health experts. They feel comfortable second guessing the health experts because we're more than a year into this and we have real data. Now, that's not how the Smith test works, but I guess it is today.

Two things in response to that. One is, yeah, a year ago, pandemic law attaches, which is we're deferring, we're at the onset of a pandemic, we're deferring to public health officials, they're sort of operating at the apex of their authority. Now we're more than a year into it,

we know a lot more, we're not deferring anymore. And so now what we're applying is a year into it. We know a lot more. We're not deferring anymore. And so now what we're applying is conventional First Amendment jurisprudence. But here's what's interesting to me about this. I'm not sure this is conventional Smith jurisprudence, okay? It's not overruling Smith, obviously. It's applying Smith. But that's where my law professor email comes in. And this is where Kagan's dissent is really interesting. So she says, California limits religious gatherings in homes to three households. If the state also limits all secular gatherings in homes to three households, it has complied with the First Amendment. That's classic Smith reasoning there.

We're going to, when we're looking, what are the apples we're going to compare to apples, we're going to kind of narrow down. What maybe Alito or whatever in the author of the per curiam decision is saying here is no, no, no, no, no. When you're looking at the comparator, we're looking really broad at the comparator.

And we're going to be taking in a lot of activities that you may not think of as exactly analogous to three households in a home. And that's what I'm talking about when I say, what does this mean? Because one of the things we know about doctrine, any given doctrine, it can be narrow, narrow, narrow. It can be broad, broad, broad. And it looks a lot like what they're doing is they're taking the Smith doctrine and just narrow, narrow, narrow, narrow, narrow, making it more and more narrow. And they make it more and more narrow by broadening the comparators. Does that make sense? the comparators. Does that make sense? So, Lat, if Kagan says that comparing the salon to the three household rule is apples and watermelons,

what fruit do you want to bring into this conversation? Well, you know, kind of going back to your earlier point about is this or isn't not a shadow docket case, I think one way this is sort of a shadow docket case is we didn't have a full record here. There was no, you know, we didn't have like a full trial in district court. We didn't have like a fully, you know, sort of traditional appeal here. So there's a lot of reliance on, well, they didn't challenge this in the lower court, or they didn't frame the challenge in that way, or it is undisputed that X. But we would have a better record if we actually had a fully developed

set of facts here. Because it is tough. Because there's no record, the justices are kind of going off their intuitions. Like, well, I walked past a lot of nail salons, and they're not that much bigger than many people's living rooms. So therefore, it's like that i don't know it's just we also only have five pages i mean compare that to anything dealing with the smith test in any opinion and we'd have 68 pages minimum and we've got a three-page pc which again we're assuming justice alito had a heavy hand in and a two-page descent from justice kagan have they ever been so brief? Quite impressive. Which is why this may not move the ball that much on the Smith stuff. I mean, I do see David's point about kind of subtly nudging things along, but, you know, even if

this is a precedent of the court, I don't know. When a law clerk is searching for a citation, they're not going to, maybe they won't get that excited by a six-page per curiam, especially in the age of COVID. If we're thinking 10 years, 20 years from now, when hopefully this is all behind us, it may not resonate in the same way. cases in COVID that are now all decided under Smith, yet all applied strict scrutiny to a variety of circumstances where we had this back and forth the whole time, the Kagan approach of the narrow comparator and the majority approach of the broad comparison. I don't know. We'll see. This'm just all, this is just my mind thinking we've got Fulton coming. Smith is challenged in Fulton, but there's a way in which Fulton comes out where Smith is upheld, but Smith is sort of rendered a zombie doctrine like other, you know,

Supreme Court doctrines. So this is, this is all, this is all just, I feel like this is like watching a lot of regular season or maybe even exhibition games and trying to figure out like how the Super Bowl is going to come out. All right, Lat, before we leave the Supreme Court, we talked, well, we didn't talk about Google v. Oracle. Then I felt bad because my cousin shamed me. So then we talked about Google v. Oracle. But now it's been on my mind. And so we got to talk about Google v. Oracle, but now it's been on my mind. And so we got to talk about Google v. Oracle one more time. And with you this time, which is way more fun. Have you ever heard the

two live crew song, Pretty Woman? No, I don't think so. Boy, are you missing out? Well, let's back up a little. Over the weekend, a listener sent me a church group that they redid the musical Hamilton, but about Jesus. And I was sort of mesmerized by it for a few reasons. One, it took me a while to figure out like what the church group was. It's a rivers crossing this church out of Cincinnati. These people were incredibly talented. This was not like some high school students, uh, you know, with like an homage to Hamilton. These are full on professional singers, incredibly good. They clearly spent some serious time writing this redo of Hamilton, but about Jesus, like Herod is the king. It's the three wise men feature prominently. I mean, they keep the meaning of Hamilton in a lot of

ways. And they even say that in the intro that like when they saw Hamilton, they thought, wow, this is a very similar treatment to what the story of Jesus and Christmas really is to us. Great. So I think this listener sent it to us as like a, hey, isn't this cool? You guys like Hamilton and David French likes Jesus. So hey, you might like this. But of course, I saw it and I was like, Google the Oracle. Fair use. This is a copyright problem. And I wasn't sure if that's why the listener sent it, but that's why we're going to talk about it today. Because the music is exactly the same. They borrow some of the lyrics in order for you to find it clever what they're doing, particularly in the King Herod song. It's amazing how few lyrics you need to change to make that kind of work. And so I'm looking up the

factors for fair use, and I come across this wonderful Supreme Court opinion that, you know, is before our time a little bit, but it's called Campbell v. Ackofrose Music. And boy, I mean, it's pretty similar to Google V Oracle, except it has nothing to do with computer programming. But basically two live crew is like, Hey, uh, we want to do a parody of pretty woman. We want to use the music. We just want to change the lyrics. And they go to, uh, Roy Orbison's group and says like, uh, can we get a license for it? And Roy Orbison says, no. So they do it anyway. Sounds familiar so far. And the Supreme Court looks at the four factors in the Copyright Act.

I will go through them quickly. The purpose and character of the use, including whether it's commercial. Now, for two live crew, it was definitely commercial for this church group with Hamilton, not commercial. So that's good for the church group. They have something on, uh, better than two live crew to the nature of the copyrighted work three, the amount and substantiality of the portion used in relation to the copyrighted work as a whole for the effect of the use upon the potential market for, or relation to the copyrighted work as a whole for the effect of the use upon the potential market for or value of the copyrighted work. And this is where Two Live Crew wins the case, by the way, and where I think it's most stunning that Google won the case.

Because in this case, nobody who's like, oh man, I was going to buy Roy Orbison's version of Pretty Woman that we all know, but instead I think I'll buy the two live crew version, which includes such lyrics as, uh, you need to shave that stuff. You know, I bet it's tough. All that hair.

It ain't legit. And they've changed the lyrics to big, hairy woman. So I don't think it's causing Roy Orbison to lose a lot of money. Unlike, of course, in the Google v. Oracle case, where we hear that Oracle has just lost an enormous amount of their money. So I think this is good news for our church group in terms of copyright. I'm sure they have very good lawyers if they're anywhere near as good as the singers that they got to perform their new musical.

And because it was not commercial, I don't think anyone is saying, well, I was going to see Hamilton about one of our founding fathers with Lin-Manuel Miranda's staging and all of that. But instead, now that I've seen Jesus of Nazareth, the 15-minute version of the musical, I think I'm good. No need to go see Hamilton. I think that the church group actually is fair use. I think it's a much easier fair use case than Google v. Oracle. And fun little side note on this Campbell v. Ack of Rose case, it was decided in 1994, just a couple weeks before Justice Breyer joined the court. So he would have been very, very aware of this case, and he was the author of Google the Oracle. So fun times.

Latt, you think I've got that one about right? Yeah, I agree with you. I think the church group is on safe ground. The Campbell-Viagafros case is talking a lot about, well, fair use can include parody of the original work, commentary on the original work. Some court cases talk about so-called transformative use, where the new work is really, really different from the old one. And here, I think you could argue that, yes, this is commentary from a religious First Amendment-protected perspective on this very popular music, but imbuing it with a theological message. I agree with you that it sounds like it's not commercial, that they're not trying to like sell this or, you know, charge a lot of money and make money from the performances. And it sounds like they certainly transformed it quite a bit. I mean, granted, maybe there wasn't that much transformation needed for certain parts. But I think that I think that they're on safe

ground. The Second Circuit, the federal appeals court out of New York, had an interesting position a few weeks ago in this case involving these photographs of prints that were then turned into these lithographs or prints. And the printmate actually was Andy Warhol, who was the one who turned them into prints. And it was actually of the artist prints. So they were like prints of prints. But anyway, the Warhol Foundation lost because when you look at the prints and the photographs, they kind of look exactly the same except one's a print and one's a photograph. Here, if you were to look at the lyrics or the book for this religious groups musical

and the Hamilton musical, they'd be very, very different. Just as you were saying, the lyrics of the Two Life Crew song and the Roy Robertson song would also be very, very different. It seems like they had to change a bunch of things in these lyrics, not just, you know, find, replace Hamilton Jesus. They had to like, you know, change Herod, they had to integrate the Bible story, the three wise men. It sounds like they're safe. And of course, that's what makes parody both important and clever. And the Supreme Court has recognized that in order to be a parody, you have to allow your audience to recognize what you're parodying. There has to be a shared knowledge between the audience and the artist, which is why fair use both exists but also gets kind of tricky, is because, okay, well, if you have to use the underlying piece of artwork

in order to do the parody and make the commentary, where's that line? I think it's a fun question, and congrats to that church group for a talented performance and a legally acceptable performance. And legally interesting. But I just want to know, has anyone else besides this guy written a essay, newsletter, op-ed featuring two live crew in the last 12 months? No, David.

Yes, yes. That brings me back to my epic newsletter of August 12th, 2020 called A Tale of Two Rap Songs and featuring a really interesting story about two live crew at my Christian college

circa late 1980s. Now two live crew was not at my Christian college, but somebody did break into a friend's dorm room, put a speaker in the window and blasted over the quad the two live crew classic Me So Horny,

which was an unwelcome development for the officials at the school and led to what would be in essence a no-knock raid to enter the dorm room to end the playing of the song. So yeah, we need to put that newsletter in the show notes. I'm proud of it. I'm proud of it. All right. Last topic, French. You've got a police stop you want to talk about. Yes. Yes. So folks who were maybe online over the weekend or followed the news over the weekend might have seen a traffic stop in Virginia of a Lieutenant Karen Nazario. He was, he's an army medic. And it was one of these,

you know, things that you're, you see on body camera footage that escalates in a really uncomfortable way where the, he's a, um, the, the medic is a young black man and he has ordered out of the car. He he's, it's obvious he doesn't know why he's been ordered out of the car. He's a, um, the, the medic is a young black man and he has ordered out of the car. He he's, it's obvious he doesn't know why he's been ordered out of the car. He's pepper sprayed. He's put on the ground. Apparently he was pulled over for allegedly not having proper tags and it escalated in a way that just seemed weird and brutal and inappropriate.

And, um, one of the things that was, uh, that's come up as a result of this is a legal question about when do the police give you a lawful order? What is a lawful order? Because if they give you a lawful order and you don't comply with a lawful order, well, then they can escalate. They can arrest you. That's an independent criminal offense. But how's a private citizen supposed to know what a lawful order is? When do they know when the police are going too far when they're ordering them to do something versus when are the police fully within their rights? And I just wanted to highlight, and we'll put this in the show notes, this really good Twitter thread by Oren Kerr, who's a law professor at Berkeley. And he makes a couple of really good points.

And one is that essentially the citizen doesn't really always know when an order is lawful. In other words, there can be circumstances when, from the citizen's perspective, it appears completely inappropriate. But from the law enforcement officer's perspective, it is absolutely appropriate. And he uses the example of imagine that you're walking down the street and you are arrested for a crime that you didn't commit, which seems to you to be completely unlawful, but let's, you don't know that the police officer maybe has, um, a, uh, and a series of informants or people have sworn out and have sworn out criminal complaints against you. And so therefore he has the ability to arrest you, even though from your perspective, it seems completely lawless.

And there's also another interesting aspect of this. And he says, and I'm going to read this, officers are trained about the Supreme Court's decision in Pennsylvania v. Mims, 434 U.S. 106. It's a 1977 case. And I did not know this. I'd forgotten, even if I knew it, I'd forgotten it. Mims lets officers order the driver out of the car during a traffic stop, and they don't need specific cause to do it. And MIMS says they don't need to say why they're doing it. And so if you've been through a lot of traffic stops, as unfortunately I have, there was a time in my life, Sarah, when I had a bit of a lead foot. An unfortunate condition.

in my life, Sarah, when I had a bit of a lead foot. An unfortunate condition. Yes, I've either calmed down or grown more shrewd in its use. I will not say which. If I was ordered out of the car, that would be completely mysterious to me. Why is this happening? I'm used to just sitting there handing over driver's license registration. And so from the police officer's perspective, they know I have an absolute right to get you out of that car. From a citizen's perspective, you're sitting there going, why am I getting out of this car? This is not normal. There's something is wrong. And so you begin to see how these things unfold. And unfortunately, the law is really not on the citizen's side when it comes to discerning what is a lawful order and not a lawful order. And so you're put in a position,

even though you have an array of constitutional rights, to where in the moment with the police officer, by and large, it's going to be a very, very, very uphill battle to say, I did not have to do what they said, even if what they said seems unreasonable. It's really a fascinating thread. And it was something that I did not know and had forgotten was, yeah, if I'm pulled over and they order me out, I got to get out. And French. They don't even have to tell me why.

Correct me, but the reason this became sort of a weekend sensation on Twitter and elsewhere is because the army officer has sued for excessive force. And so the body cam footage was released. And what I'm hearing you say is he going to lose. What I'm hearing you say is he going to lose. Well, not necessarily, because even if the police are engaged in if even if he is sort of resisting a lawful order, that doesn't give the police carte blanche to do whatever kind of force that they want to use. So he's sprayed in the face with mace. in the face with Mace. There's this exchange where the officer says, I want to get out of the car.

I'm afraid to get out. And an officer says, you should be afraid. And at another point, he says, you're about to ride the lightning, whatever that means. So even if you have a responsibility to obey the police, the police do not have carte blanche. What I'm saying is it's going to be a more complicated case than we might think unless the department just goes ahead and settles.

within the current law and within qualified immunity as it is, find a way to deal with sort of the public perception that these stops and these shootings are just unjust? Absolutely. I agree with what you guys were discussing on a prior episode about Judge Willett out of the Fifth Circuit, who's really been trying to sort of cut back on what he sees as just the excesses of qualified immunity. I agree with Oren's thread here that there is this potential due process issue of you just not knowing what is or is not lawful to do. And I think it kind of shows the disjunct between what you might think of as sort of like black letter law or law school law and what you actually do when actually pulled over.

So like, for example, whatever in bar breed class or bar review class would be like, oh, well, you know, if you're pulled over by a police officer and they want to search your trunk and they don't have probable cause, well, you can tell the officer, well, officer, do you have probable cause? But as a practical matter, if a police officer is kind of looking at your trunk and you don't have anything in the trunk, you're like, knock yourself out. Like, I'm going to hop out of the car. You don't need to ask me. Here's my license and registration. And I'll pop the trunk and, you know, root around to your heart's content. Like, it's just there. There's like a big difference between the law on the books and as it gets sort of executed in day-to-day life.

Boy, that's a great point for our law students out there. Whatever you feel as a 1L when you're going to get pulled over by the police, do not follow that instinct. Do whatever you would have done two years previous or try to imagine what you do five years from now. Do not be a 1L in a car when the police, when any interaction with the police, frankly. It's a bad, it's a bad thing. It's a bad place to be in. All right, David. Or a 1L libertarian with the phone already filming. And they just cannot wait to inquire on camera about probable cause.

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Let's take a moment and talk about an outfit called TheDispatch.com. David, do you ever finish taping this podcast and really want to keep talking about it with someone? Because not everyone like me is married to the former Solicitor General of Texas and can just walk upstairs and keep complaining about whatever the spicy Alito dissent was. But you can keep talking about it by going over to the website and getting in the comments section where so many of our listeners are hanging out and chit-chatting. You can join the conversation

by becoming a member of the dispatch, typing in advisoryopinionspodcast.com to your internet browser. It's easy to remember, advisoryopinionspodcast.com. And I have to say, Sarah, it is rapidly becoming known as the best comment section in the internet. Now, that's a low bar. I'm going to admit it's a low bar, but it has surpassed it. I think we have one of the best

comment sections on the internet. And now is the great time to give a dispatch membership because we're offering a 30-day free trial on a dispatch membership. You can get more from me, David French, in my newsletter called The French Press. And more from me, Sarah,

in my weekly campaign-focused newsletter, The Sweep. So go to advisoryopinionspodcast.com and try the 30-day free membership. Join the conversation. And, you know, David and I hop in there from time to time because this is the flagship podcast. David, you mentioned underneath their robes, and I want you to talk more about it.

It seemed like a real labor of love. It was anonymous because, A, you were working at a law firm at the time, but B, some of the joy was that it was anonymous for us readers. We could speculate about who it might be, but you were naming prom queen at FedSoc. I mean, you never knew where Article 3 Groupie was going to pop up and who they were going to have opinions on. What was it like when you were outed? What did that feel like? what was it like when you were outed? What did that feel like? So it was a lot of fun doing the blog. I was actually working as a federal prosecutor at the time. So I was working for Chris Christie in the District of New Jersey as an AUSA. So for obvious reasons, I was not going to put my actual name on that. In terms of the outing,

what actually happened was I sort of voluntarily outed myself in the sense that I had struck up this sort of off-blog friendship with Jeffrey Toobin, and he actually knew my real identity. He was one of the few people who did. But what had happened was I didn't know anything about technology. I didn't know about IP addresses and metadata, the sort of email. If you open up an email and you look at the headers and you see the sort of four-digit, unique four-digit number associated with the sort of computing session, I didn't realize that when I was emailing for my supposedly anonymous blog account and for my David Ladd account, I was actually giving away my identity to the world. And so there are a lot of mutual friends of our style who I think kind of had figured out early on that I was Article III groupie, but they were enjoying the blog too much.

They didn't say anything to me. So a year to have into this anonymous foray where I started to get emails from readers who clearly had figured out who I was, then I thought, oh, you know what, I should go back to Jeff and take him up on that offer of him writing an article on me. Because he said, you know, a lot of people are reading this blog, it's even being read by Supreme Court justices, would you like to be sort of like featured in this article? And I said, it's time to heck no, because, you know, Chris Christie can have a temper. Like I wasn't sure how this was going to go over at the day job. But at that point I said, well, screw it.

Like if I'm going to be outed, I might as well go out in a blaze of glory in the pages of the New Yorker than in some random other person's blog who's going to post screenshots of emails. So that's, that's kind of why I did it. I was, it was voluntary, but maybe under duress. So what was your boss's reaction? So Chris was actually surprisingly good-natured about it. He said, look, like, so after the whole thing broke, I put the blog under a password. I didn't

give anyone the password. I effectively took it down. I just didn't want to actually delete all the archives. And in the end, he said, look, like you put the blog behind this password, you know, you're doing good work as an AUSA, let's go back to the way things were, so I was pleasantly surprised that he didn't, you know, fire me, or I was actually tendering my resignation, because it was a really embarrassing episode for the office, because, you know, the blog had written all kinds of, like, snarky and irreverent things, and had done some things I would never do today, like a contest for, like, super hotties of the federal judiciary, like, all this stuff I would never do today, but anyway, it was this whole big,

like scandal controversy. So I was prepared to go quietly, but Chris said, no, it's, it's fine. So we went back to that for a little while, but then I found I just missed the writing. I just missed it too much. And so, I mean, you guys can relate as lawyers turned writers. Eventually that's when I just left the U S attorney's office and went full-time into writing, which is where I'm at now. I've, I've my new sub stack, my new publication newsletter, original jurisdiction. I'm I'm doing it full-time now. So I'm kind of back to where I came from full circle. And you know what, as much as I miss underneath their robes and article three groupie original jurisdiction is like, it's like article three groupie grew up a little,

it has all of the insight and all of the fun and joyfulness, but with some maturity. And I think it actually, I think we've all ended up in the right place. Yeah, no, no, exactly. The only thing I miss is you can't be, once people know your real name, you can't be quite as irreverent. So it's probably not as, I think it's more mature than underneath their robes, original jurisdiction, but it's probably not as fun. All right. And lastly, you know, David French and I were talking about this when we invited you on, but for those first few weeks in lockdown, when the pandemic really hit, you know, everyone was

kind of like, is this real? Who is it affecting? You know, for a lot of people, the reason the country shut down is because Tom Hanks got COVID. You were one of those people. And you were my first friend to really get COVID in a very, very serious way. You were in the hospital for a long time. You were in ICU for some of that time. Can you talk to us a little bit about what that was like? Because I'm assuming you were the first of your friend group as well. You were the lesson to a lot of us. Yeah. And it's weird. I kind of became the sort of poster boy or the cautionary tale because I decided to share my COVID experience.

I was basically tweeting about it in real time, partly because initially when I first got sick, and this was in early March before the lockdown had started, before we were all wearing masks and staying at home, I got COVID. I don't know where, but I wanted to notify the people I had interacted with, friends, colleagues, that I had this so that if they got symptoms, they could get tested. So I went on Facebook, I went on Twitter, and I said, hey, everyone, I have COVID. Just FYI, I'm sorry if I inadvertently infected you. I didn't know I had COVID. And we weren't staying at home time. We didn't know how dangerous and contagious it was. And I got such an outpouring of love and support from so many people. I mean, you sent me a very kind note, Sarah. I just decided, you know what? I'll just keep doing this, partly because I really appreciate all the support and the prayers and the thoughts, and partly because I've always,

throughout my career, tried to sort of shed light on things that are opaque and ill-understood, whether it's the federal judiciary or the world of large law firms. So I thought, okay, COVID. So I wrote about my experience being in the hospital. I wrote about the medications they gave me. I wrote about the treatments. Then I went on a ventilator. So I wasn't really writing so much because I was unconscious for a week on this breathing machine. But then when I came off the ventilator, I wrote about that. And I wrote about, you know, getting off the supplemental oxygen. In addition to tweeting about it, I wrote a couple of pieces for the Washington Post, the LA Times. I wrote a piece for Slate about my $320,000 medical bill, which thank God for health insurance, I didn't really have to pay. So it really just sort of flowed from there. It was a scary experience, but I kind of wanted to do my part to convey how serious it is. And look, I really want to emphasize that we have to balance this, of course, against all the other values. So, you know, in these First Amendment religious free exercise cases, I don't necessarily have a knee-jerk reaction of, well, COVID restrictions

always win because I, you know, COVID almost killed me. I think we have to balance against other issues and values. But at the same time, I'm not one of these people who says, oh, it's a hoax or, oh, like, don't believe it. Like, yeah, you know, I mean, I still have some residual health effects from it. You know, we were saying beforehand that I know for me, we all came to this moment, we all sort of came to the realization that this is really serious at different times. I think some people sadly still have not come

to that realization, but we all came to it at different times. And I remember for me, because what was happening in China was so opaque, it was so hard to know. It's still hard to know what they really went through. I mean, we, how can you have any confidence in any of the accounts, but then you began to see this hitting Italy really hard. And then right about the time that the reports are beginning to come out of Italy, you get sick, you're younger than me. You've run what, marathons or half marathons?

Long time ago, but yes, I did do the New York marathon twice. Long time ago and very slowly, but yes. I mean, so when you're talking about like, who can this impact? And we all know it disproportionately impacts people who are much older, but to see what you were going through

was one of those moments of, oh my gosh, you know, this, it's this combination of like the data. And then, you know, we, we were following in internally at the dispatch, we were following your progress. You know, we were, we were following your progress very closely because folks knew you, cared about you and wanted you to get better. And then also there's this like, if David Latt can get sick, I can get sick. And I think that was one of the things that by being open about it, you touched a lot of people and you impacted their thinking. And so I'm grateful you wrote about it, even though I'm sure it added an additional burden to... Because you want to just, I'm sure, just totally concentrate on getting better.

But I appreciate you writing about it. It was, I think, for some folks, it was an important moment not just to pray for you to get better, but to understand what we were dealing with. Can I also give a shout out to your husband? Because as I was reading all of this, with. Can I also give a shout out to your husband? Because as I was reading all of this, okay, Dave is in the hospital. Oh my God, is he going to be okay? My first thoughts, of course, were about you. And then I was like, wait a second, David has a young son and a husband. And just as a new parent, I am so confused on how he kept it all together between worrying about you, needing to care for you and advocate for you, but also be a parent to a child

who does not understand really what's going on and you don't want to scare your kid, obviously. Wow, he's a rock star and we should give him more credit than you for you getting better also, I think. No, I really, oh, I mean, obviously a huge debt of gratitude to Zach. I mean, in some ways the experience was worse for him and my parents than it was for me

because I was just zonked out for the three weeks I was in the hospital. I had so many meds. I was sleeping a lot. But he had to deal with all of this stress and all this anxiety. They weren't allowed to visit in the early days, of course, of the pandemic. So all they could do was just wait. The period of time when I was on the ventilator was just agonizing. It was basically a coin flip as to whether I was going to live or die. And, you know, so Zach, in the end,

he was looking after our son, our three-year-old, now three-year-old, then two-year-old son. It was just a very difficult and stressful time. And so obviously I'm so grateful to him, but, you know, the, in terms of keeping, you know, writing about the experience, I mean, the burden was definitely outweighed by all of the benefits, all the prayers and thoughts and good vibes I received. You know, everyone from Cher to Ted Cruz, like tweeted good, well, get well messages to me. I got two private notes from Supreme Court justices, like it was, you know, so I can't say it was all bad. I mean, not that I necessarily want COVID again. But, you know, you know, if I had to have that experience, I would, I, you know, it was great to have the support and the good wishes of so many people.

Okay. So when you got home and you were better, what did you do to thank your husband? Did you take him to his favorite restaurant? What has been the big thank you to Zach? I want to know, like what, what level is it like, hey, thanks for, you know, pretty much saving my life? I let him apply for a gun permit. I'm really not a gun person. I respect the Second Amendment, but if I had my druthers, we would repeal the thing. But when he wanted to get this gun, I said, you know what? I'm not going to stand in your way. We haven't gotten the gun yet.

He has the permit. He's taken the firearm safety course. I'm not reminding him of that. Maybe we can kind of slow walk that. If you want me to send him recommendations. Actually, you know what? He would probably appreciate that, frighteningly enough.

All right. Well, David Latt, thank you so much for joining us today. Again, an amazing newsletter for those of you who want the written, you know, similar take on law. You can read it as a non-lawyer, I think, and it's fabulous and it'll get you really up to speed with a whole side of the law that David and I don't talk about, which is the law firm stuff and what's happening on the commercial side. But it still will include all of the fun stuff,

like whether Justice Breyer is going to retire in the tea leaves. It's called Original Jurisdiction. And David, it is still not behind a paywall right now for the next few weeks. You can try it for free. And then you'll learn more and fall in love with my friend David Latt just as the rest of us have. So David, thanks for joining us.

We hope you'll come back again soon. Sarah, David, thank you so much. It was so much fun. Oh, thanks so much. And listeners, thank you for listening as always. And please go to Apple Podcasts, rate us, subscribe, check out thedispatch.com, subscribe to Sarah's outstanding newsletter, The Sweep, and also to my newsletter, French Press. And we will talk to you on Thursday. Order up for Damien.

Hey, how did your doctor's appointment go, by the way? Did you ask about Rebelsis? Actually, I'm seeing my doctor later today. Did you say Rebelsis? My dad's been talking about Rebelsis. Rebelsis? Really? Yeah, he says it's a pill that... Well, I'll definitely be asking my doctor if Rebelsis is right for me.

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