Advisory Opinions - The Trouble with 'Text, History, and Tradition'

Episode Date: September 21, 2023

Hello, AO listeners! This episode is a little bit different. Your regular hosts, Sarah and David, are unavailable—Sarah on parental leave, David on the road—so I (David Lat) have conscripted my husband, lawyer and legal commentator Zachary Baron Shemtob, to serve as guest of a guest. Zach shares his (strong) opinions on two hot topics, the Trump gag order and AO listeners’ favorite subject, text/history/tradition. We also cover a noteworthy Sixth Circuit case about the retroactivity of the First Step Act and the big Google antitrust trial. We hope you enjoy this very special episode. Sarah and David will be back next week. Show notes: -Kevin and David French on Dispatch Live: Ask Me Anything -United States v. Carpenter (6th Cir. on retroactivity of First Step Act): -In Its First Monopoly Trial of Modern Internet Era, U.S. Sets Sights on Google: -The Google Trial Is Going to Rewrite Our Future: -David and Zach on Original Jurisdiction: -Cruel and Unusual: A Podcast on Punishment Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to Advisory Opinions. I'm David Latt. And I'm David's husband, Zachary Baron Shemtop. And right now, you're probably wondering, what happened to our wonderful hosts, Sarah Isger and David French? Have you unlawfully imprisoned them in a basement somewhere? And if so, is Sarah getting her necessary allotment of chicken sandwiches from Wendy's? Popeye's is far better, by the way. Well, in any event, if you're not loyal listeners, they are not in our basement. Sarah, as you know, is out on parental leave and David is traveling for speaking engagements,

but they will both be back very soon on September 27. And if you're missing David, he actually did last night's Dispatch Live podcast with Kevin Williamson and Ask Me Anything format. And if you become a Dispatch member, you can listen to them talking about gun laws and whether David has become more liberal, which I know some AO commenters have opinions on. Look for the link in the show notes. So as for today's AO episode, Sarah and David and I actually thought about skipping it just because of their unavailability, but we couldn't bear the thought of leaving AO listeners in a lurch.

So, I suggested that I conscript my husband, Zach, to serve as a guest to my guest host, which I recently did on my own original jurisdiction podcast to positive reviews, and Sarah and David kindly agreed. And here I am. So, who is this guy? It's a good question. Zach graduated from Wesleyan for college, then earned a PhD in criminal justice from City University of New York Graduate Center. After teaching criminology and criminal justice at Central Connecticut State University as an assistant professor, he went

on to Georgetown Law, where he served as editor-in-chief of the Georgetown Law Journal. Following a stint in big law and clerkships for the Second Circuit and Southern District of New York, he now works as a lawyer in New York City, where he focuses on white-collar criminal defense and commercial litigation. And he once had a podcast of his own, Cruel and Unusual, a podcast on punishment, which you can still find on iTunes. Zach and I have also written several articles together for both mainstream and academic journals and publications focused on the Supreme Court, the Eighth Amendment, and a host of other topics. This is a podcast for lawyers. So of course, I have to offer some lawyerly disclaimers and disclosures. Any opinions expressed on this

podcast are Zach's own, not those of any entity he was or is affiliated with, and they are all based on information in the public record. Zach, thanks for joining me. I'm happy to be here, and I just want to assure the listeners that there was absolutely no nepotism involved in the decision to have me as co-host. It was purely on the merits. I'd like to further assure the listeners that this is a one-time thing. So if you can't stand my voice or anything I have to say, which is entirely likely, you can find comfort in the fact that AO will likely never have me back, especially after David French and Sarah listen to this podcast.

Well, consistent with advisory opinions tradition, Zach and I will give you a quick roadmap to what we plan to discuss. First, we will touch on special counsel Jack Smith's request for a gag order against Trump in the 2020 election case currently pending for Judge Chutkin in the US District Court for the District of Columbia. David French and I discussed this on the last episode, but Zach does have some thoughts he would like to share. Second, we'll talk about an interesting Sixth Circuit case, which creates a circuit split over the retroactive application of the First Step Act, which reduces mandatory minimum prison terms for certain crimes. That may sound esoteric, but it's actually quite interesting and important. Third, we will discuss the Google

antitrust case, which is not an area of expertise for either of us. So as David and Sarah would say, a malpractice alert, but it is the most important trial going on in the country right now. And David French and I previously promised we would discuss it in a prior episode. We didn't get around to it. So Zach and I will give you a quick overview. And finally, we will have a mini debate on a topic that's near and dear to the hearts of many AO listeners, the text history tradition, aka THT test for constitutional rights. So let's start with the Trump gag order. Zach? Thanks. So obviously, you discussed this with the greater David on the last advisory opinions.

with the greater David on the last advisory opinions. So I don't want to go too deep into the gag order. But just to reiterate what one of the parts of it was, was restricting Trump from, and I'm going to quote, statements about any party, witness, or attorney, court personnel, or potential jurors that are disparaging and inflammatory or intimidating. Now, I agree with you, which is rare, but I agree with you and the other David that there are serious First Amendment concerns with that, especially when it comes to defining what is disparaging or inflammatory. But one thing I felt you didn't focus on quite enough, which which is struck out at me, is that the gag order also restricts Trump from making statements about any party. And that would include the DOJ. Now, I understand completely why the DOJ is seeking this, given that Trump is called, you know, Jack Smith, among other things, deranged and a Trump hater. among other things, deranged and a Trump hater. But it does strike me as troubling to only allow the government to tell their story, and a defendant then effectively must stay silent

for criticizing them, even if those criticisms are improvident. And this is especially true here, I think, where Jack Smith filed a speaking indictment and gave press conferences, which he has every right to do and will likely continue to do. And you may be really unsympathetic to Trump, as I am, and think his comments are unpalatable, as I do. But the principle here that only the DOJ may speak and defendants should then fear publicly criticizing prosecutors because of a rather nebulous standard, it's not one I think the court should endorse. Doesn't your argument kind of sweep too broadly, though? Because

isn't that an argument against all gag orders? All gag orders operate in this way in terms of limiting a defendant's ability to speak, don't they? Sure. I mean, all gag orders don't necessarily limit a defendant's ability to speak against the government based on the standard outlined here. So it ties back into the First Amendment concerns for sure. But it is particularly bizarre in this case, even though I think it's a concern with defendants across the board, where the government, you know, has been very public about what they've said. Again, as I said, was a speaking indictment. And Trump is effectively, you know, distance from responding, because the standard is so nebulous. Well, he's allowed to respond. But don't you think he's just

being restrained from responding in ways that could damage the integrity of the proceedings? It's one thing for him to say, I'm not guilty or what have you, which all the defendants say, but the stuff he's putting on Truth Social and whatnot, I mean, isn't this kind of like gasoline on the fire? I think it's certainly, as I said, unhealthy. And I think our justice system should be protected as much as possible. But I don't think this strikes the balance correctly, especially since the standard here that Trump has to watch out for is disparaging or inflammatory. I think that has a real chilling effect, Donald Trump aside, but just imagine that on other

defendants. Any predictions on what Judge Chutkan will do here? I'm genuinely not sure. As you and David discussed on the last show, one of the big issues is she, you know, prudes this gag order forward. Trump is inevitably, or I shouldn't say inevitably, but it's very likely to break it. And then at that point, it becomes difficult for the court because they need to decide, are they going to effectively jail Trump? And if that's the case, they need to be good on their word for the integrity of the justice system. So maybe the judge will have a more narrowly tailored gag order than the one the government is asking for.

Turning to the Sixth Circuit case, this was something that came down very, very recently. Tell us a little bit about this. This is a recent denial of rehearing on Bonk in the circuit on retroactivity and the first step back. And it may not sound that sexy, but it does affect a lot of people. And it concerns a very difficult issue that might be headed towards the Supreme Court. So that's right. Now, I'm sure regular AO listeners will know this, but retroactivity, put simply in the context here at least, is the change of status to a past decision. Specifically for purposes of what we're about to discuss, it's whether to apply a new statute with

more lenient penalties to someone who was sentenced under an older statute with harsher penalties. This is just an incredibly important and difficult area of law. I think in terms of criminal law and complications, it's up there with the Armed Career Criminal Act or ACCA. And I saw you stick out your tongue. That is a very convoluted, difficult statute. And retroactivity also deals with very difficult issues. And especially since it's a clash of values in our judicial system between certainty, the certainty of a sentence, administrability, you know, if something is rendered retroactive, then that means you may have to release in a shorter period of time, a great deal of individuals

and fairness, you know, is it fair that just based on timing, when something was decided, one person can get out of prison or sentence can dramatically change and another doesn't? And I think this case illustrates that clash of values fairly well. So look, timing is always going to benefit someone and hurt someone else. For example, whether or not you get the benefit of a new rule sometimes depends on whether your conviction was final or not as of a certain date. But anyway, turning to the First Step Act for folks who have repressed their memories from anything from the Trump era, what's the First Step Act? So brief refresher on the First Step Act. The First Step Act was formerly, was known as the formerly incarcerated reenter society transformed safely transitioning every

person act quite the time it actually reminds me of a law review article um published when i was at georgetown it discussed the desperation uh to try and create acronyms and statutory titles and the absurd lengths legislators and their staff would go to to do so, which is not only a waste of time, but actually it's kind of offensive when you're dealing with, you know, statutes of this importance. Anyway, I digress. The First Step Act was a bipartisan bill passed by Congress. It was signed by President Trump in 2018, December 2018, I believe. And it remains a real remarkable moment for criminal justice reform, and certainly, if not the most traditionally liberal things Trump did while in office. So it's interesting. I feel like now that he's back in the Republican primary race, he's trying to walk back some of the things he did that were more moderate or left. But anyway.

Yeah, he's gotten a lot of criticism on the right for this. And I think Trump has now said things about, you know, public executions or things of that nature. I think the bottom line is in a second Trump administration, there's no first step act. There's no second step act. That's probably right. Although, Lord, help us on the second Trump administration. But anyway, what did the act do specifically? So it did a lot of things. I'm not going to go through them all. But among other things, it effectively reduced certain mandatory minimum sentences, including for certain felons in possession of a firearm during a criminal act. It gave judges broader discretion to sentence below the mandatory minimum if certain conditions were met. It made another sentencing act, reducing sentencing disparities between crack and cocaine offenders retroactive, that bill was actually passed under Obama's presidency. And it made that retroactive. And it supported such things as reentry, which is a, you know, more recent goal in the criminal justice system, and I think a very important one, and had a number of other prison reforms.

And so how does this play into what you were discussing earlier about retroactivity? Okay, so the default rule for sentencing statutes is that offenders are subject to the version of the statute that was in effect when the crime was committed, unless a statute says otherwise. And here, Section 403B of the First Step Act, and I'm going to read this verbatim. So this is Section 403B of the First Step Act. It provides that it shall apply to any offense that was committed before the date of enactment of this act if a sentence for the offense has not been imposed as of such date of enactment. In other words, if a sentence for the offense has not been imposed as of such date of enactment. In other words, if a sentence for the offense has not been imposed as of such date of the first step act's enactment, the first step act applies retroactively.

Does that make sense? Yes, I think I get that. I follow that. I won't make you put it in your own words. I follow that. I won't make you put it in your own words. So the big question presented here, though, and what we're going to discuss is where whether one set where one sentence has been vacated at the time of the first steps acts enactment. Does that count as retroactive? And we'll delve further into that.

So how did this come up in the context of this Sixth Circuit case? So the defendant is Timothy Carpenter. It's a long, you know, I think he was originally sentenced in 2014. Like many criminal cases, this has been ongoing now for a whole lot of time. There's been multiple appeals and it's just been stretched out. To make a long story short, Mr. Carpenter was sentenced in 2014 to 116 years in prison for his role mostly as a lookout, and even the original opinion says this, mostly as a lookout in various armed robberies of radio shacks and T-Mobile stores in and around Detroit. The incredibly long sentence and 116 years for something like that is incredibly long, as horrible as armed robberies obviously are. It was principally a result of certain mandatory minimums based on his carrying a firearm during the Crimes Commission.

Wait, so basically this guy got a life sentence. And then some. Even though it doesn't seem like he killed anybody. Correct. Okay. And that's because of the mandatory minimums. That's because of the mandatory minimums. Okay. Now, mandatory minimums in the criminal justice system are just that, mandatory minimums.

So they can really add up. Okay. them, you know, are just that, mandatory minimums. So they can really add up. Okay. Then sometime after the First Step Act became effective, Carpenter argued that a recent Supreme Court case, Dean versus United States, if you want to look it up, it's a pretty interesting case, but that it afforded the district court greater discretion than he got from the judge in 2014, and he should be resentenced. The Sixth Circuit agreed with that. They vacated his sentence and then allowed the judge to sentence him anew. On appeal, Carpenter then contended that the First Step Act's amendment reducing his mandatory minimums should apply retroactively to him. to him. This is no small thing, by the way. If the FCFSA was applied, first step back was applied,

it would actually reduce his mandatory minimum sentence on his convictions by 80 years. So he'd go from 105 years to 25 years in prison. So also important here, it's not just about Mr. Carpenter or defendants just like him. The act uses pretty much identical language in another provision, which applies its benefits to offenders sentenced for certain drug offenses. Okay. Okay. Then what happened? So the court's decision here had an impact on a considerable number of defendants. What happened then, it gets a little trickier, if not tricky enough. On September 18th, 2023, the Sixth Circuit found that Carpenter was not entitled to retroactivity. They rejected his argument. Now, by the way, the DOJ- Was this the rejection of the rehearing? This was the, no, no. This was the rejection of retroactivity.

Okay. So, by the way, the DOJ is actually supporting Carpenter's position. Hmm. So, this is very interesting. The DOJ is originally, you know, the body in which, you know, he was prosecuted is now supporting him and then saying, actually, it should be applied retroactivity actively. So you don't see that a lot. So anyway, the Sixth Circuit found that Carpenter was not entitled to retroactivity, and it

created a circuit split with the Ninth, Fourth, and Seventh Circuits. Given the importance of this, an en banc hearing was sought, which was just denied on Monday. Yeah, that's what happened on the 18th. Yeah. So what are basically the arguments on both sides of this? So I'll do my best, but I want to let AOListers know I can't get to all the arguments here or in the specificity that they demand. I know it is a very impressive bunch in the comment section. And some are going to say, well, what about the article about, you know, the definitive article or the indefinite article? Isn't that a

huge, and that is, but I'm only going to focus on really two core ones, which are interrelated. So the concurred concurrence in the denial of the rehearing en banc was written by Judge Kethledge. Judge Kethledge also wrote the original opinion. His argument, which is based on Sixth Circuit precedent, a case called Jackson, is essentially that just because a sentence has been vacated doesn't change the historical fact that a sentence has been imposed. So according to that view, a vacated sentence may no longer have any legal effect because it's been vacated, but it would be wrong to say that it was never imposed in the first place. It happened as a matter of history. So it's kind of his view is claiming otherwise not only denies logic, but reality. And this is also backed up to him by the phrase has been imposed, which speaks to a definite or definitive date or event.

Final thing of note, stop filibustering. Kethledge repeatedly refers to then Judge Barrett's dissent in the Seventh Circuit in support of his position. So it seems, though, that Judge Ketledge, a fun fact, a former Supreme Court shortlister in the Trump administration, big-time Supreme Court feeder judge for folks who follow Supreme Court clerk hiring, it seems that Judge Ketledge is making a, I guess you could say, hyper-textualist and hyper-technical argument. Because as a practical matter, if the sentence has been vacated, it's been vacated. So what does the other side say here? So that's that's exactly right.

But they're both making textual arguments. So Judge Griffin parries in his dissental that in a common law sentence that was vacated was, as you said, never happened. Griffin, you know, also argues, and this is the part where it gets, you know, even more interesting, argues that the statute uses the present perfect tense, has, rather than the past perfect tense, had, in that it denotes an act, state or condition that is now completed or continues up to the present. So I just want to repeat the key passage because I'm sure everyone's head is spinning right now. Retroactivity shall apply to any offense that was committed before the date of enactment of this act if a sentence for the

offense has not been imposed as of such date of enactment. In other words, Section 403B refers not to a district court's past action, but by using the word has rather than had, speaks to a sentence's ongoing condition. If that condition is one of vacator, the sentence cannot then be considered to have been imposed. So let me read actually a direct passage from the opinion, which kind of clarifies and confuses, I think, at the same time. If a sentence remains imposed until we vacate it, then has Carpenter's sentence been imposed as of December 21st, 2018? No, it was imposed as of that date. It had been imposed as of that date, but it has not been imposed as of that date. In my view, if there was an

ordinary meaning to this language, it supports the X application here. So I know there's some, you know, there seems to be some absurdity here, but what is is a really important, you know, case. And as convoluted as it gets, you know, language wise, I actually think both, you know, sides are using the text to try and bolster their view. even if this seems hyper technical, fun fact, Judge Blumekatz, who was Biden's recent appointment to the Sixth Circuit, she wrote her first opinion dissenting from the denial here. And she points out that this may seem very esoteric, but it has real life consequences. It affects years and years of sentences for who knows how many defendants. So this is an important issue. And given the split,

I could see this going up to the Supreme Court. It's an interesting issue. It's an important issue. And given the split, I could see this going up to the Supreme Court. It's an interesting issue. It's an important issue. There's a circuit split. So how do you think it would go if it went up to SCOTUS? So I think this is a very tough call. I think that the three so-called liberals, liberals, Sotomayor, Kagan, and Jackson would likely join the dissent in this case and find that there is indeed retroactivity and Mr. Carpenter's sentence should be reduced. I think that Barrett has already made her position clear that there is no retroactivity, and I don't see her changing that. I think she would be aligned with Thomas and Alito, who have never been friends of criminal defendants, Alito especially. And of course,

that leaves Gorsuch, Kavanaugh, and Roberts. Now, Roberts and Kavanaugh have never been particularly pro-criminal defendant. Kavanaugh, occasionally, depending on certain circumstances, but I don't know if I see it here. And then Gorsuch, of course, is the hypertextualist. And I'm not sure which way he would go here. And I'm not I'm not sure which way he would go here. I I think that, you know, there's a real possibility he could he could go with Catholic. But I could also see him, you know, getting, you know, fixated on the has and and going there. But to cut a long story short, I think it will be a five, four, six, three decision denying retroactivity. Ah, interesting.

Even, so you, I guess one question is how ideological a case is this? Because in the Sixth Circuit, it seems the conservative members of that court, I think maybe Judge Thapar, maybe Chief Judge Sutton, I think they aligned with Judge Cavalage, right? And then the more the Democratic appointees kind of aligned on the other side. But if you look at the circuit split, isn't the split in favor of the position of the dissenters in the Sixth Circuit? It is. But this case does, at least in the Sixth Circuit, break down very ideologically, which is a real shame. I think it would be much more of a service

if, you know, I think textualism can go either way, liberal and conservative when done properly. And here, it seems to have gone a very particular way based on many of the judge's ideological preferences. So you mentioned the Biden administration's position supporting the defendant here. Do you know whether or not, was this, did this come up under the Trump administration? Is there a switch of a position? I'm not sure. And that's a great question. Okay. Interesting. Well, no, it'll be, it's just interesting because if there has been a switch, then if the solicitor general, if this goes up, then, you know, the court, you know, administrations are entitled to change their positions and they do it, but, you know, the court doesn't always like it. And sometimes Chief Justice Roberts or the other justices might, you know, tut tut them or something. But another thing is this stuff gets really, you know, trippy when you think about it, because this whole idea of vacatur nullifying a law like it never happened, you know, that's obviously a legal fiction. But legal fictions are important.

So, you know, it also goes into these larger issues of what legitimates a decision in the first place? What is law? What is not law? Are we creating law? Are we finding law? I mean, it's a conversation for another day on legal realism, but that's why I find retroactivity and even habeas, which I know you have a distaste for, incredibly fascinating. Not only is it obviously so important, but it's really fascinating because when you dig down, it gets into all those types of deeper questions about the law and what it means. Yeah. And, you know, it makes me think, again, just to kind of draw a connection to another doctrine in the law, it makes me think of, I guess, two things. One, the whole issue of vacator under the Administrative Procedure Act when a court basically strikes down or vacates some administrative agency action on a nationwide basis, which is, of course, a hot issue. And it also makes me think of the famous Jonathan Mitchell Law Review article, The Fallacy of a Racial or the Writ of a Racial, where he basically says,

courts don't strike down laws, they just block certain people from basically acting on them or enforcing them. So it's not like, it's like the law, even if it's unconstitutional, it kind of still sort of exists in the ether. So this vacated sentence, it like kind of still doesn't, doesn't exist or did it never exist? But then you have all sorts of claims that a, you know, unjust law is no law at all. So it never had any existence. I mean, that's a classical legal formulation. So how does that play into? So if I'm more of a purposivist, I'm probably with the dissenters here, right? Because basically the argument is, look, if the sentence was vacated and the first step act was supposed to establish some kind of, I guess you could call it mercy or clemency or whatever for

defendants. I mean, from a purposivist perspective, Carpenter, this guy, he should benefit from it, right? Yes, I think that's right. But I think they can also stick to the text, which I think they do a very good job of doing. Okay, so you're on the record. That's a wager. I'm wondering whether I should, we have various bets in our household, for example,

about how tall our kids are going to end up being and whatnot. And I'm wondering whether I should add this to our iPhone note of running bets. I'm almost inclined to like go opposite you, but I feel like I need a handicap or you need to spot me some points. What were our other bets? Isn't there one about the crime rate rising to like 1990s level? Which is I'm totally winning. That's totally not happening. I hope you win. And what about do we have a bet on whether or not Trump is going to win reelection? I know we had a bet on the first time around. We may have had that. Yeah, it's a

fun potpourri of topics. Yeah. So anyway, we shall see. I guess I'm going to say I am more open to the possibility of of it of it going the other way and being a pro defended decision. But we'll see. 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. So this brings us to our next exciting topic, shifting away from the criminal realm. This is the Google antitrust case. And as I mentioned at the top of the pod, malpractice alert,

as David and Sarah would say, Zach and I are not antitrust lawyers. Zach has some familiarity with criminal antitrust, but this is a civil antitrust case. It is United States versus Google. It's the first major monopoly trial of the modern internet era. the DDC, the District Court for the District of Columbia, for Judge Ahmet Mehta, which I believe David French might have messed up slightly in an earlier pod, but a DC lawyer emailed to correct us on that. Did he say Meta? Yes, I think he said Meta like Facebook parent company Meta. And I think it's Meta. But anyway, but that's what this this DC lawyer told me. But anyway, it's pending in the District of Columbia, we are one week into the trial is expected to run about 10 weeks. So that's fun for jurors. There are a lot of different kinds of antitrust cases. I mentioned earlier, there are criminal antitrust cases, there are cases or trials that seek to block mergers as anti competitive.petitive. This is different.

It's focused on Google's business practices. And the central question here is whether Google achieved its dominance in online search by breaking the antitrust laws. The plaintiffs are the federal government represented by DOJ antitrust. So this is not an FTC case. And about three dozen states. And the basic claim is that Google spent billions of dollars paying off Samsung and Apple to prevent anyone else from getting a foothold in the market for online search by paying Samsung and Apple to make Google the default search engine on their phones. That quote I read is actually from a New York Times essay by Columbia law professor Tim Wu, who is an antitrust guru and hailed as the architect of the Biden administration's competition and antitrust policy. And the title of that Tim Wu piece, which we can put in the

show notes is the Google trial is going to rewrite our future. First of all, I just want to say that civil antitrust law is probably my least favorite area of law, along with administrative law. Both I find interesting in the abstract, but I found unbearable to practice on the ground. I would never want to clerk for the DC Circuit. No offense. Not like me. Oh, the prestige. Right. You would for the prestige. For me, that's just not worth it. I'll take the second circuit every time. Criminal antitrust is a different matter, mostly in that I don't think it should exist.

Yes, we've argued about that endlessly. The other thing I will say that is of less substance is I get that authors don't get to choose their headlines, but this one really drives me nuts. The Google trial is going to rewrite our future. What does is going to rewrite our future. What does it mean to rewrite? I think what Tim is arguing is that even though this is a retro spective case, and that it's looking back at past business practices, it has major implications for how the internet is going to unfold, just as the Microsoft trial in 1998, which this has been sometimes compared, had had, you know, had major implications for the unfolding of the internet. But how do you rewrite this? So, the future was going to go a certain way and now it's been rewritten and it's like... Yeah, it's like back to the future. It's like the

movie. Like, it was going to be like this and she was going to end up marrying Biff or whatever it was in the movie and then it changed or something. I can't remember now. But anyway, it's not for me. But onto the merits. Oh, is this, by the way, one thing I do remember from antitrust, besides, of course, the rule of reason, etc. Is what's going on here bundling? Is this bundling, reverse bundling? Is there such a thing as reverse bundling? So folks who are old enough to remember the 1998 Microsoft trial, this was the one where David Boies represented the government against tech giant Microsoft. And there was that embarrassing deposition, embarrassing for Gates of Bill Gates, who was then the head of Microsoft. That was the last big sort of, you know, whatever,

trial of the century, antitrust trial before this one. And that one did involve bundling. And again, I'm not an antitrust lawyer. But basically, I think bundling is the practice of taking these multiple products and packaging them and selling them together. And usually, you're dominant in one. And so, you're kind of foisting the weaker product on people using your dominance of the other product. And in Microsoft, the issue was whether Microsoft could bundle its Internet Explorer web browser, which was weaker at the time or was facing a lot of competition with its dominant Windows operating system. And basically, I think the answer to that was it got a little complicated and then the

government eventually settled. But the answer to that was basically no. And I think that had major implications for the development of the Internet. I think it rewrote the future there in the sense that now we're all in all different browsers, Safari and Chrome and IE and all these other browsers. Here, I think there is a bundling issue in the sense that commentators argue that Google has rigged the market by basically bundling Google search engine with its Android software for smartphones. If the device manufacturers want full access to the Android App Store, which you know, many of them need really. And then I

think technically, it may not be bundling because it involves different manufacturers or providers. But there is this issue of Google paying billions and billions of dollars to Apple and Samsung to make Google the default search engine on iPhones and on Samsung phones. So it's not quite technically bundling because, you know, Apple and Google and Samsung are, you know, all different companies, but it's kind of like bundling. I mean, so is it the issue here that, you know, don't search engines, and I think this is what Google might advocate, don't search engines, and I think this is what Google might advocate, don't search engine defaults have to be set anyway?

Well, the question, we all know from law school, the importance of default rules, because a lot of users are just like, I don't know. So whatever you set as the default is for, you know, I don't know, 99, I don't know what the data is. For the vast majority of users, that's going to be what they use right correct but why wasn't it okay for google to use its own does that mean that google should have just you know flipped a coin had it random whatever turns on give up say that you know oh you know it would be unfair of us to do this so we're going to give it to someone else i why should they have the default but this is kind of i guess this is kind of going to your question about bundling.

Like, in other words, if you are so strong in one area, you know, you kind of are forcing your inferior product on other people using your, you know, monopoly or near monopoly power in some other area. And also, what about paying all this money to Samsung and Apple to make Google the default search browser there. I think the DOJ wants those kinds of deals to stop so that, you know, people can work, device manufacturers can more freely choose, you know, which browser is going to, which browser, which, I'm sorry, that's Microsoft, which search engine is going to be the default search engine.

So is it that Google should like not have, they can have Chrome, or but they just can't make it the default? Or is it that they should not have their own web browser such as Chrome at all? Well, I think there's the DOJ hasn't been totally clear on this, because it's kind of putting the cart before the horse. And I think Judge Mehta has said he doesn't want to talk about this until later. But that does go to the issue of remedy. Like if Google is found liable for violating the antitrust laws, like, should we separate Google search engine company from Google Android software, where maker company and, you know, should we separate, you know, Google has other things to go that's involved in ad tech, the technology for serving ads across

the internet? Like, should we break up Google just like break up Google? What was Tim talking about in the article? The breakup of- Right. The baby bell. I mean, AT&T into the baby bells. This is a little bit of a trickier breakup because that was a geographical breakup, right? This is a little bit messier potentially. Which is why he makes that analogy, but I don't think that analogy works. I mean, even he, I think, recognizes how different and unpredictable a verdict against Google would be. It's not a reason not to render such a verdict if that's where the law should lead. But I do think it's an area where

we ought to tread cautiously. Look, and just to be fair to Google, I think one of their arguments is, look, antitrust law is very focused on consumer welfare and what's best for consumers. And I think they're basically saying, look, the reason that we are so dominant is not because of these deals we've caught or anything evil we've done. You know, Google's old motto is don't be evil. I think they're saying, look, it's because we make a superior product because Google is a great search engine. Right.

I mean, I'm not sure I agree with that one. That could be, you know, path dependency. And as Google is so dominant, I don't even know if we know. I mean, when was the last time you were on Bing to compare the quality of the Bing and Google search results? No, I mean, it's certainly true that I use Google as most folks, I suppose, do. But the other thing is, if you really want to change the default, it's not so hard to do so, right? But people don't really think to do that. I mean, when was the last time have you changed your defaults on your iPhone? Then it turns into a psychological argument, which I guess is one of the abstract fascinating

things about antitrust law is it does play into mass human psychology. But again, when you go on the ground, and you're looking at all these documents over and over and trying to, you know, find what matters and what doesn't, it's a real, these cases are a real, real headache. Well, they're also a real lot of money. Williams and Connolly and Willison and Sini are representing Google. I'm sure Google has spent tons of money on them. A 10-week trial is going to be a field day for the lawyers. This case has been investigated for years, going back to the Trump administration, so it kind of is, you could say, bipartisan. One other Google argument I will float out

there, and I have to give props to whoever thought of this, whatever lawyers on Google's side thought of this. They're basically saying you shouldn't just think of search as just going to google.com or bing.com and typing in queries. But whenever people go on TikTok to look for things, or whenever people go to the Apple App Store to look for things, or a streaming service, we're looking for things all the time online. So you shouldn't just narrowly conceive of the market as going to a search engine website. If you just think of us generally looking for knowledge on online in digital format, we are, you know, Google as the search engine has a small percentage of that market. It's all I mean, a lot of antitrust comes down to how do you define the market? Yeah, absolutely. Which, again, in itself does make that a very fascinating area of law.

So anyway, we will keep an eye on this. Like I said, we're not antitrust experts. And so I'm not going to hazard a prediction on this one. I'm guessing you probably aren't either. I am not. So let's move on to the final throwdown, which flared up in the comments to the latest, to the last episode that David and I had of advisory opinions, which is THT, text history and tradition. The THT test is basically supplanting the old-fashioned tiers of scrutiny that those of us who are old remember from law school, rational basis, intermediate scrutiny, strict scrutiny. So, Zach, I know you said you wanted to talk about this because you have some views. As listeners will recall from the last pod, I'm more pro-THT. David French is more critical of it. Where do you fall?

more critical of it. Where do you fall? I fall closer to David French, but I think David French also has a certain respect for originalism that I don't share. So, focusing on THT, let's put aside that no one can really figure out the difference between history and tradition. Yes, which has been a subject of a past pod, but yes. Correct. Would you at least concede that? It's very confusing. Okay. So you'll at least concede that it's very confusing. Yes.

But going beyond that, and to be fair, this ties into my larger distaste for originalism, is that it forces judges to be historians. Lawyers and judges are, of course, at the end of the day, lawyers are trained and experienced with interpreting texts. They are not historians. Indeed, even historians fervently disagree with one another

on so many of these issues. Asking judges to do the lifting here is absurd. I think you're letting your academic, witty, twitty PhD background. Not at all. You want the historians to do this. But basically, understanding original public meaning or public meaning at the time of a constitutional provisions enactment or a statutory enactment,

that's what lawyers do. It's a textual thing. It's not a history thing. Yeah. And this is what is glossed over by Justice Thomas in Bruin, where he talks about, you know, we do these analogical practice all the time. That's what lawyers do. No, that's with precedence and case law. These are historical practices and traditions, and they often contradict each other. And historians disagree on that. But I don't think it's about the history. People draw analogies all the time. It's not even necessarily precedent. People might say, well, you know, is this weapon like that weapon? Or is this technology like that technology? Like analogical reasoning. And again, I mentioned it in a recent pod with David French about say thermal imaging and whether that was a search. It didn't exist at the time of

the founding. We can kind of compare it to things. So, you know, isn't this just conventional legal analysis? No, it's not. Because again, you have to dive into these historical practices and standards in a way that judges were not previously asked to do, with some exception. And judges, lawyers are trained to interpret texts. I mean, we can, of course, get as witnesses all the historians in the world. And maybe in some of those cases, those historians will reach a general consensus. And then, you know, you can weigh that and you can weigh credibility and go with who's who. I mean,

that's a mess, but that is possible. But in so many of these things, you don't even have that. And instead, it's the judge who's not trained to do so many of these things, you don't even have that. And instead, it's the judge who's not trained to do so going through these things and rendering a decision. I don't see how extra considerations are really going to come into play then. And I think you have sort of another beef with this also aside, because you were going to say setting aside your distaste for originalism, because I think most of what you've been talking about now is just your opposition to originalism. I've always heard it pronounced both ways. I like purposivism, don't care if it's wrong. Anyway, purposivism is the supposed rival of originalism. Purposivism is the idea that when you look at a law, you don't merely seek to understand its text,

its plain reading, or how it would have been originally understood. But in fact, you see, if there's a deeper purpose to it, so say future generations would have understood it in a different way, then you can apply that. So THT, I think is purposivism very often in disguise. And this is especially the case in the type of analogical reasoning we were talking about. So I'll give you one example. So take the issue you discussed with David earlier this week and has been on the AO podcast many times, whether persons who commit domestic violence should be barred from owning a firearm. whether persons who commit domestic violence should be barred from owning a firearm.

My position, they should not be, but let's not even go into that at the moment. I don't see how a good originalist wouldn't have to bite the bullet here and recognize there were not domestic violence laws like today. And therefore, according to the originalist, such persons should not be barred from owning firearms. THT, or at least some advocates of THT, get around this. They get around this by saying, well, certain historical practices, you know, banned certain violent felons from owning firearms. So the public would have, if educated properly and it really thought about it, applied the same for domestic violence. That's not originalism. That's purposivism. Well, I think it's not, I wouldn't call it purposivism. It seems really that you're just trying to tease out what is sort of inherent

to the language and what just happened to be historical circumstance or accident, not inherent to the language. So I think this is why I think a lot of originalists, and you know, again, to go back to prior pods, for example, Sarah and David have talked to people involved in the corpus linguistics movement, which may be more relevant than historians, it seems that it's a question about language rather than history. And so I think you could argue that, look, the hostility to domestic violence laws or the non-existence of them, that happens to be a historical circumstance, but it actually doesn't go to the text or the language or the meaning of the words.

It just happened to be something that was in effect at the time. Even though everyone or the vast majority of people at the time, had you asked them, is domestic violence covered here? They would have said, of course not. This is actually, this goes back to our larger disagreement about originalism. I find it very hard to just make sense of these very broad, general statements like the right to keep and bear arms, you know, shall not be infringed. You know, it's, it's, you keep saying, oh, this is all very easy. Whereas I say, no, it's not easy, which is why we have to look at the text and its original public meaning, because to understand what those, those very bare bones words mean, you know, it gives

judges a huge amount of power. And it's not really what judges are supposed to be doing. We need to actually just see they're reinforcing things that were democratically done, whether it was passing a statute or passing a constitutional amendment. That's their job. Their job is not to just kind of be these platonic guardians coming up with their own rules for everything. So now it seems to me you're trying to escape the hypothetical by saying, oh, you know, actually there are all these, you know, difficulties in other interpretive methods. And so this is the best case, you know, it's the famous Scalia quote about, you you know with the bear um you just if a

bear is chasing after someone essentially you know you just you know you you don't need to beat the bear you just need to be faster than the other fellow yeah the slowest guy in the group yeah slowest guy in the group something of that nature i'm i'm or churchill's comment about how you know democracy is terrible except it's better than all the alternatives or something like that. But then you propose that. But then on the other hand, I just want to go back to the earlier point. So would you concede that a proper originalist interpretation would recognize that since there were no domestic or understanding of domestic violence laws, for the most part, felons should have domestic violence, those can be domestic violence should

be allowed to own firearms. Well, again, you know what I maybe this is a cop out, I kind of agree with a point made by one of the AO commenters, this case may be less about the domestic, the issue of domestic violence at the time of the Second Amendment and more about the standard of proof. And David and I talked about this in the last episode because these are civil orders who did not have a criminal conviction that met that higher standard. And so, the question is, can you have somebody's constitutional right taken away because of some kind of civil order? Maybe it was obtained ex parte. Correct.

Maybe it was obtained, you know. So, I think that might be the issue rather than, you know, look, optically, I think, you know, the idea of, oh, my gosh, you know, domestic abusers can be given firearms. I mean, optically and policy wise, that sounds terrible. But, you know, this may be more of a due process and standard of proof issue than a, you know, my God, we should be giving guns to domestic violence. Right. It was a civil protective order. But that still doesn't answer this other issue, which is being raised, I believe, and likely, and if not, it's likely to be raised.

In Rahimi, right? Right, exactly. And one that I have not heard a good answer from originalists. If they want to bite the bullet and say, so be it, you know, then I would, you know, I would disagree with it strongly, but then I would get it. But instead, it's a lot of weaving around. Well, before we conclude, though, isn't it your position that the defendant, the criminal defendant should prevail in Rahimi? Didn't you just say that? No. Earlier? Oh, you think the government, you think the government can be allowed to strip Rahimi and

people like him of their Second Amendment rights? I'm very, in the Rahimi case, I need to study it more. I'm very bad. I know there's a lot of different arguments. I'm back and forth on it. So I don't have a fixed view, which what I would want to put forward now, I'd want to hear the arguments. I'm more interested in kind of teasing out how text history and tradition slash originalism would work here. Okay, okay, fair enough. Well, I am sure this is not the last word on text history and tradition. I'm sure that Sarah and David, when they return to reclaim their rightful control of this podcast, will be debating that for quite a bit. I'm sure that the readers and commenters online on the Dispatch website will have comments on this. So

any final words before we part? Yeah, I want to ask you, have there been any comments, dissents, remarks in the comment section that have gotten to you, given that you're someone who dutifully reads each one and responds where he can? I do try to respond. No, the commenters have been fairly nice to me. What I appreciate about the AO commentariat is that even when people disagree with you on the merits, I mean, I've been going at it with this one commenter about the Meadows removal issue. They're always very polite, and they don't make it ad hominem. It really is a model for how online discourse should work. So, I feel that they've been very

nice to me. I mean, certainly compared to, say, the commenters we used to have at Above the Law, I mean, who were kind of a vicious lot. This is actually a very pleasant community. And I think, you know, people have been very nice to me. I can't really complain that much. Well, the Above the Law commenters were a pack of trolls. Yes, that is to put it nicely. So no one has criticized you for saying interesting too much? Interesting.

No, but that is kind of a verbal tick of mine. It's true on the original Jurisdiction podcast. I mean, it's true conversationally. Don't I say that a lot? Conversationally interesting? As do I. And it's such an easy word to go to. My flaw is I say, you know, I'm sure this podcast has been full of you knows, you know, you know.

And so I'm trying to cut down on that. But but one of your go to's is certainly interesting. Yes. And someone once told me something like when you say interesting, it means you don't think it's interesting. But I disagree with that person when I say interesting. I usually do mean it's interesting. But another thing I say a lot is, wow, I think for me, when I say interesting, I'd say half the time I it's interesting. But another thing I say a lot is wow, I think. For me, when I say interesting, I'd say half the time I find it interesting and the other half I don't. And it's how I, the way I say it is the tell. Okay, well, we better depart the stage before people start throwing fresh produce at us. But again, Zach, thank you so much for joining me. And Adam, thank you for

the excellent production of this episode. And Sarah and David, thank you for entrusting us with your baby, not your actual babies. In Sarah's case, we're still quite young. And in David's case, they're grown. But you know, this podcast, which you have lovingly nurtured over the years, thank you for allowing us to do this one episode. but fear not David and I will be back on. Well, we'll record on Monday and it'll air on Tuesday. And then the return of the queen, Sarah and David will return live.

I believe at your alma mater, Zach, I think it'll be a live taping on the 27th, maybe. So I think we'll all look forward to that. And you can tell them how grateful you are at that point to have them back. Yes, it has been fun. But I also just like sitting back and listening to Sarah and David, and I look forward to returning to the audience. So again, thank you, everyone. Thanks, Zach.

Thanks, listeners. Thanks, Adam. And yeah, David and I will be back next week.