Advisory Opinions - What the Abortion Pill Case Is Really About

Episode Date: March 28, 2024

Sarah and David discuss the legal arguments and media spin around the Mifepristone abortion pill case. The Agenda: —Mifepristone at the Supreme Court —SCOTUS and the 5th Circuit —Arresting a 72-year-old woman —The "Burning Man" festival of Alaska —Red brief, green brief, orange brief too —The stigma of the green bubbles and the DOJ's antitrust case against Apple Show Notes: —Oral argument transcript, FDA v. Alliance Hippocratic Medicine —Federal Judge Roy J. Altman speaks on his recent trip to Israel —Sarah v. Kara on Bill Maher Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger and I've got special guest David French joining me. We're so thrilled to have you, David. It's a pleasure sarah thank you for having me first off uh we did get an update from the fifth circuit on that immigration case involving sb4 after the hearing that the fifth circuit held on the injunction and the stay pending appeal that did not go well for the state of texas it won't be any surprise that the Fifth Circuit Merits Panel decided to keep that injunction in place. So SB4 is still not in effect

in Texas. That was exactly what everyone thought would happen after the hearing. And now we move on to the merits and just hang out. But David, we had two really interesting cases at the Supreme Court, one on Mifeprestone, the abortion-inducing drug, and one on retaliatory arrest. But I know everyone wants to start with Mifeprestone. Give the people what they want, as you say, David. We talked about this case several times since the court granted it. The district court had a huge, very expansive finding against the FDA going all the way back to its original approval of the drug way back in 2000, roughly. The Fifth Circuit narrowed that holding, but still held that the FDA's expansion of the drug's use and its mail was in violation of the APA and various FDA regulations.

And that is what the Supreme Court then agreed to take. Now, by definition, the Supreme Court taking that, we've said before, generally means statistically that they are likely to overturn the circuit court. And in particular, we've talked about how this Supreme Court in particular seems to be accepting more Fifth Circuit cases, for instance, a conservative appellate court, than Ninth Circuit cases, a traditionally liberal court, and what that means for everyone, you know, renting their clothes about a 6-3 hyper-politicized,

uber-conservative MAGA court. Why would a super MAGA court keep overturning the Fifth Circuit? David, I assume you heard everything that I heard in this week's argument, which is this could be a unanimous reversal of the Fifth Circuit. If not unanimous, it will certainly be close to it on the standing question yeah yeah and the standing question has been a frankly i think an increasingly snowball of a huge mess for the supreme court yeah and i think it has been caused by the bad facts make bad law problem meaning very sympathetic facts lead you to not think through how a certain ruling can be used in the future,

and very bad sympathetic the other way, meaning like unsympathetic facts can also lead to that kind of ruling. So, for instance, on this question, there was doctors who claimed that they could be put in a position to have to perform an abortion if they're in an emergency room and someone has complications from mifeprestone, and it

was pretty speculative. But there's been plenty of speculative standing granted in the past. And organizational standing from an organization that says that they are pro-life and advocate against this kind of thing, that they've had to divert resources to educating people on the dangers of mifeprestone and i thought we'd start with the organizational standing problem because this goes back to a case called havens realty in 1982 which i think is a great example of bad facts make bad law meaning very sympathetic facts expand standing so um a place called havens was discriminating against black

people in their housing so a person tried to rent an apartment from havens they were falsely told less than 180 days that no apartments were available and this organization housing opportunities made equal was also part of the lawsuit they were a non-profit corporation whose purpose was to make equal opportunity in housing a reality in the richmond metro area well back in 1982 the supreme court held uh that basically if an organization is impaired from their organizational mission and that there's an expenditure of resources by that organization against whatever this bad thing is that that gives the organization standing well that's pretty much any like you can start

any non-profit organization against any government policy. And you're spending money. Yeah. And it's an impairment of your mission. So for instance, if your mission is pro-life and someone is handing out abortion-inducing drugs, well, that's an impairment of your mission, right? You're having to spend resources from what would be your normal mission to just encourage people to carry their pregnancies to term to now have to fight specifically MIFA Pressstone. So in that sense, under Havens Realty, yeah, I think the organization would look to have standing, although, you know, you can pick apart Havens Realty in this 1982 case. But the real problem is probably they shouldn't have had

organizational standing in Havens. And the use of that organizational standing has been largely used by left-wing organizations, whether it's about abortion or environmental stuff. And so the left has been really great with sort of expanding standing over time. They've also expanded standing with those left-wing litigation impact cases for, what do you call it, psychological injuries. You know, I go to this park because I like the butterflies and your environmental policy is going to mean there's fewer butterflies and therefore that's my injury. And again, I think what we're seeing is now that the right is figuring out how to use that expansive standing to try to expand it more arguably or just use it as it already is,

we're seeing just a lot of mess of standing across the country. Justice Alito has pointed this out. Justice Gorsito has pointed this out. Justice Gorsuch has pointed this out of just straight contradictions in the lower courts and the Supreme Court's standing regulations and rules and factors. And David, not much question to me in how this is going to come out. There will not be standing for the doctors. There will not be standing for the organization. The question will be, how much does this affect standing doctrine as a whole? Do they find a way to make this different than a bunch of the standing cases that have come before it?

Are we about to see a wholesale, you know what, we've messed this up, we're now shrinking standing, something that people like Judge Newsom, for instance, has said and Professor Tyler. No, don't shrink standing. Standing is good. Lawsuits are fine. It's OK that you're going to start an organization to be able to sue the government. That's what courts are for. You were injured in some way, and it's fine if we have these cases.

if we have these cases. I go back and forth, but I think my overall take is it makes the courts more political when lawsuits are brought for the purpose of doing through the law what you couldn't get done at the ballot box, basically. If you win an election, you get to run the FDA, or you can start an organization and just sue the FDA and prevent them from doing the thing that you don't like. I think that puts courts in this unwinnable position, and this is a good example of it. Yeah, you know, I agree with you completely on the likely outcome of this case. There's a quote here in the very opening of the oral argument, and this is from Elizabeth Prelogger, who is arguing for the government here. And she says, take these respondent doctors. They don't prescribe mifeprestone. They don't take mifeprestone, obviously. The FDA is not requiring them to do or refrain from doing anything. They aren't required

to treat women who take mifeprestone. The FDA is not directing the women who take the drug to go seek out care from these doctors. So they stand at a far distance from the upstream regulatory action that they're challenging. I thought that paragraph was the best sort of succinct explanation of the case against standing. And to go to Havens Realty, Sarah, back last year, Josh Blackman, a friend of the pod, person we've mentioned a number of times, wrote this really interesting short post called, Will Haven's Realty Be, quote, Abandoned Like the Lemon Test? you haven't seen as many citations of Haven's Realty, and this is what he says. In many regards, Haven's Realty reminds me of the Lemon Test.

In all the big Establishment Clause cases, the court did not rely on Lemon. From Marsh v. Chambers, McCreary County, Van Orden, Town of Greece, American Legion, and so on. How could Lemon possibly survive all those cases? Thus, the court deemed Lemon as, quote, abandoned. Likewise, the court did not even cite Haven's Realty and Spokeo, Clapper, or TransUnion. Has Havens Realty been abandoned? And he ends by saying, we'll find out by June 2024, which is rapidly approaching, Sarah. And so,

is rapidly approaching, Sarah. And so I think that the bottom line answer here is going to be, I think it's pretty clear from the oral argument that the court is not going to take, that the court is going to dismiss this on standing grounds. The real mystery and the real curiosity for me is how expansive will that ruling be? How much will it relate to Haven's Realty? And the last thing on this, the last thing I'm also interested in how this case, and maybe we can touch on this in a bit, how it's been covered,

because in many ways, this isn't an abortion case. The way the court's likely to rule, this isn't an abortion case at way the court's likely to rule this isn't an abortion case at all it's a standing case and that's not the way it's being covered sarah it's being covered as an abortion case not as a standing case when it's primarily a standing case at least that's how it'll be decided obviously i think and we've talked about the sort of abortion distortion in the past some of that abortion distortion has specifically been on standing. And in the past, it's been, again, like cases from left wing causes and plaintiffs trying to expand standing to bring challenges to abortion restrictions pre Dobbs. um and again boy neither side's acknowledging that irony um at all and of course the media has made this an abortion case because a lot more people are going to pay attention if they say the

word abortion in the headline versus standing but it falls under a very similar category in terms of my media criticism as the bump stock case the headlines are all going to say gun control case, but it's actually a congressional statute versus executive authority to switch their mind case. It has nothing to do with gun control. Exactly. It could be about anything. Yes. You know, one other thing that came up at oral argument

that I love when, again, these cases aren't about the subject matter. They're about the law. And if you remember just a couple weeks ago, we talked about the oral arguments in a case called Corner Post, about when that statute of limitations starts to challenge a executive branch agency regulation. So in this case, it was on those credit card transaction fees that I said would have probably the biggest case of the year in terms of impact on the economy. And these people had started their, you know, gas station or whatever, way after the statute of limitations for the regulation itself had already passed. So how

could they challenge something that they didn't even know they were going to be affected by and didn't know existed? And I'm very sympathetic to that argument. But I know how Justice Jackson's going to vote because an oral argument in this MIFA Pressstone case, she was like, so since we just heard this case about how we think about these, you know, statute of limitations on regulations, what if a doctor didn't go to medical school until some number of years after the FDA's MIFA Pressstone rule?

According, you know, if we decide the other way in Corner Post, wouldn't they then be able to challenge that regulation? Because there basically won't ever be a statute of limitations as long as doctors keep going to medical school, for instance. And that would be this huge explosion of regulations back now some number of years ago nobody's going to be able to challenge them anymore if all of the you know statute of limitations have run but how do you distinguish between sort of good faith challenges? I just started a business and there was no way for me to know versus impact litigation challenges that are just fighting away around the statute of limitations. Anyway, Justice Jackson, I'm guessing not voting to expand that in corner post. Not a huge surprise there, though. Well, and, you know, if you go back and look at

the transcript in the standing discussion, I want to pull back to something you said earlier there have been circumstances in which when the court has felt uh sympathetic to a point of view it gives super standing so for example there is the uh as gorsuch points out in the oral argument there was the super standing that exists in establishment clause cases where for years there was this kind of offended observer standing. So normally I don't have standing just because my feelings are hurt by something I saw or something because somebody said something I don't like. But in the establishment clause case situation, there has been standing granted, in many cases, for people whose their entire interaction with, say, the alleged establishment clause violation, say it's a

monument or something like that, is maybe seeing it from a distance or just seeing it. And that sort of gives that offended observer a standing. Andorsuch is rightly right to point out that wow in certain areas the courts really kind of granted this super standing and as you've noticed noted sarah in the abortion context that's been a consistent complaint of the pro-life movement is that there has been very generous standing granted to pro-choice organizations um and then now here you turn around and you would have, if the Supreme Court were to grant standing here, which I don't think it will, it would be super generous standing, super standing granted to pro-life plaintiffs who are challenging

a pro-choice regulation. And so we're crying out for clarity in this arena. I think the Blackman Post is very interesting. We're crying out for clarity and consistency in this arena. And I'm betting, I'm betting, Sarah, that clarity and consistency at least start to emerge in this opinion. But we'll see. I really think that you have Gorsuch and alito hot to trot on this issue we've seen now multiple concurrences or dissents etc from them begging for the supreme court to have a theory of standing that can be applied consistently across the board um it's hard you know i think anyone who thinks that having a consistent theory of

standing would be easy probably hasn't paid enough attention because the easy stuff doesn't make it to the supreme court um and you know in the havens realty case right i think if you were there in the moment i think if i had been there in the moment i would have been like yeah that organization's clearly harmed they're having to now expend additional resources because the people who they're sending to these housing places are getting lied to. And so now they're having to figure out which places they can even send people to and fight against additional discrimination that they wouldn't have to fight against, but for the illegal discrimination, for instance. But then 40 years later, here we are.

but then 40 years later here we are 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 pre-loaded 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. dot com. Use code advisory at checkout to save. Terms and conditions apply. Also, Sarah, let me note, you know how we've talked about the Gorsuch-Jackson alliance that exists sometimes? There was some hint in that direction again here before, or again in this

case. So Gorsuch is talking about the original injunction in this case, this nationwide injunction that was issued. And I thought this was interesting. We have before us, says Gorsuch, a handful of individuals who have asserted a conscience objection. Normally, we would allow equitable relief to address them. Recently, I think what Justice Jackson's alluding to, we've had what one might call a rash of universal injunctions or vacatures, and this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or other federal government action. I want to snap like the kids do these days. Snap, snap, snap, snap, snap, snap, snap. Yeah, I'm with you. I'm with you.

And I would like to see a Gorsuch and Jackson concurrence on this point. Could be very, very interesting. I doubt we're going to see anything in the majority opinion dealing with the nationwide injunctions, but we just need to move closer and closer and closer to the Supreme Court issuing some definitive words on this point. Because by the way, our whole conversation about forum shopping and the judicial conference's recommendations on that wouldn't actually matter very much except for the nationwide injunction problem. A district judge finding on the merits for one party or another because you think they're biased or whatever else, that happens all the time. The district courts get things wrong. It doesn't really matter why. That's why we have a whole appellate process and it goes up to the circuit court and it goes to the Supreme Court and eventually we hope that someone gets it right. Great. The problem is when you can forum shop because the other 300 judges you might have gotten would say no nationwide injunction, but this one judge might say yes. And then now you're off to the races

because you just enjoined nationally some law that only had two plaintiffs or whatever going on. And then it's a mess. Then the courts are dragged in. Then you go up on this preliminary posture. And that's where we are. So you almost don't need that forum rule that I think some courts are fine with,

some are pushing back against. I don't think I feel particularly strongly about it. It's fine. It's good to not have forum shopping. But the forum shopping wouldn't matter very much if we fix the nationwide injunction problem to begin with. Yeah, that's exactly right. And I think the Supreme Court would have an immense incentive to try to fix that problem. different buckets and i think the supreme court will have challenges dealing with some of those buckets more than others for instance there's administrative procedure act based nationwide injunctions that's the majority of them it's this one for instance but then there's sort of state ish ones or sort of non-federal government agency action nationwide injunctions there's literally different law under which you'd be doing a nationwide injunction.

There may not even be such a thing as a nationwide injunction for those non-APA claims, for instance. So it's not a one-size-fits-all solution, but frankly, just dealing with the APA nationwide injunctions and having a solution to that would fix 90% of the Supreme Court's problems. Well, and it's just as a general matter, let's pull it out of the APA, which we've talked about before, is a little bit of a different beast from a nationwide injunction, non-APA related. And there's ways, I think,

to deal with the APA, funnel everything, for example, through the DC circuit is one way to do it. See, the reason I don't like that one is because then you're just going to raise the stakes on the confirmation battles for D.C. district judges or circuit judges,

because then all of these really important cases are ready. A lot of them go through the D.C. circuit anyway. Those confirmation battles are already more intense than other places, but it will raise the stakes on that. I like the random panel assignment, that if you're seeking a nationwide injunction, you get a random three-judge

panel, which is not that dissimilar from how we do voting cases, actually. Under the Voting Rights Act, for instance, we have three-judge panels that are statutorily required for those. So it's not unheard of that if you want a specific remedy under a specific law, the APA, we're going to have this other thing that you do. But you know who could do that really easily, David? Congress. Oh, of course. Yes, of course. But just if you think about, let's put the APA to the side. I know APA matters here in this case, but let's just put it to the side for a minute. How much lower are the stakes of a case when it just applies in Amarillo or just applies in San Francisco? You know, I mean, it's just lower stakes. You still get the legal resolution eventually. You still get that legal resolution. You have the right of appeal to the

Ninth Circuit. You can possibly get Supreme Court review if it merits it. So you're going to get that resolution, but by limiting the application to the parties and the jurisdiction, then you're going to lower the stakes here. And the worst case scenario is that you just need to go, you have to file a bunch of lawsuits. You know, you've got to file one in Amarillo, then you need to file one in San Francisco, and you need to file one in Boston. Like, yep, that's going to be a lot of lawsuits. But the fact that one judge has already heard your evidence, for instance, one way or the other, like, may speed up those other lawsuits, etc. So yes, it could create more work in the short term. But also in the long term, you wonder how many of those would really still be brought the way that they're

being currently brought. Right. It would change law practice in this respect rather significantly. It would change the behavior of both sides in their litigation strategies to begin with. Yep. And it will also kind of narrow the path for these AGs who are building their national reputation just by being volume litigators and trying to get that nationwide injunction here and there in the most favorable jurisdiction in their state. It's getting out of control. Press release litigation. Press release. Yes, correct. Press release? Yes, correct. All right, David, I'm excited to move on to the next case, which is this retaliatory arrest case, because I got to be honest, I just think it's another bad facts could make bad law case that when I tell you the facts, you're going to think you know exactly how the case should come

out. And then when I tell you how the argument went, I think you're going to feel a little more tension. So we talked about this case before, and the facts are really pretty egregious. A city council member, Sylvia Gonzalez, and thank you, by the way, to SCOTUSblog for putting the facts all together. I'm mostly going to read from their summary. City council member Sylvia Gonzalez was the first Hispanic woman elected to the city council in Castle Hills, Texas. In 2019, after a long meeting, Gonzalez placed a petition that she had initiated criticizing the city's manager in her binder at the end of a long meeting. Gonzalez claimed that she picked up the petition accidentally, but two months later, she was

charged with violating a state law that prohibits tampering with government records. Gonzalez, then 72 years old, was arrested and spent a day in jail, although prosecutors declined to pursue the charges against her. Gonzalez then filed a federal civil rights claim against the mayor, police chief, and lawyer who had investigated her, alleging that she had been arrested in retaliation for her criticism of the city's manager. In her complaint, she contended that she was the only person charged under the state law in the past 10 years for temporarily misplacing a document, right? David, this seems really obvious,

really retaliatory. Arresting two months later, a 72-year-old woman for putting a petition that was her petition in her own folder. Like that's crazy. but we've got some precedent to contend with and it's actually a case that we talked about on this podcast where we felt really strongly the other direction based on these facts so this goes back to a 2019 case called Nevis. This is the Arctic man snow-themed race occurring annually in interior Alaska.

It's got a sort of Burning Man vibe, according to Wikipedia. Our Mr. Bartlett seems like he was quite drunk. A state trooper approached him and asked him some questions, and he just ignored the guy because he could, right? He doesn't have to talk to the trooper. He and like asked him some questions and he just ignored the guy because he could right he doesn't have to talk to the trooper he wasn't doing anything illegal so later on uh he basically gets into a fight with the state trooper there's shoving there's pushing

there's uh bad stuff that happens and nevis uh arrests Bartlett. So Bartlett files a lawsuit against the officer claiming that when the officer arrests him, the officer said, bet you wish you would have talked to me now. And so he claims that like, yeah, I did all those things, you know, hitting a police officer, but it was a retaliatory arrest. He wouldn't have

arrested me for hitting a police officer, but for the fact that I didn't speak to him before. And interestingly, it was not a unanimous decision. Chief Justice Roberts with Breyer, Alito, Kagan, Kavanaugh, and mostly Thomas, so 6- six three but not the way you think um we're like no dude clearly yeah we're not going to just allow everyone who gets arrested to come up with some theory of retaliation to collaterally attack their arrest so the rule that they come up with in nevis is a plaintiff can normally only bring a federal civil rights claim alleging that he or she was arrested in retaliation for exercising constitutional rights if that person can show that there was no probable cause to arrest the person in the first place. So right in our Bartlett example,

clearly there was probable cause, he punched a police officer. But they had a small exception. The exception was if you can show that others who were engaged in the same constitutional conduct, whether it's speech or not talking to the police officer or whatever else, so someone who engaged in the same protected conduct, was not arrested. So in the Nevis case with our friend Bartlett who punched the police officer, that's really easy. There was probable cause to arrest you because he saw you punch a police officer. And second, most people who punch police officers get arrested. So there we go. Now, this gets super interesting in our case about our 72-year-old woman, because nobody's

been arrested for this. So she literally can't point to someone who also took a government document who then didn't engage in the first amendment conduct she claimed who was then not arrested because literally no one's been arrested for it and the fifth circuit held right you don't have a comparator and there were two questions presented that the Supreme Court took. One, whether the probable cause exception in Nevis can be satisfied by objective evidence other than examples of arrest, right, that comparator problem. And two, whether the Nevis case is limited to split-second arrest, as in not having a warrant. Does the warrant make this all better?

And I've talked about this in the past, David, that a lot of these cases concern me where there's a warrant because it's one thing to like sort of second guess a police officer in the moment, but when that police officer then was able to get an arrest warrant signed off on by a neutral magistrate, you're doing a lot of curing, I think, in that process. The Supreme Court seemed really uninterested in the warrant curing part of this question. I'm not sure they'll even reach it. Instead, the argument really turned on the comparator problem and what evidence you have to bring. Lisa Blatt, who argued for the government in this case, which was a fun argument. Always when Lisa Blatt's involved, it's fun.

government in this case which was fun argument always when lisa blatt's involved it's fun she i thought pointed out a real problem with this it all depends on the level of generality right lots of people are arrested for theft and that's what this is or tampering that's what this you know statute is um it's not like jaywalking where the comparators are really easy. Lots of people jaywalk and they don't get arrested. Easy comparator to find. But what do you do in a case? What's the level of generality? Is it that no one's been arrested for this statute?

Maybe that's because, as Lisa Blatt pointed out, maybe it's a crime that just doesn't happen very often. But when it happens, sure, they would arrest someone for it. Like cannibalism. The fact that you can't find a comparator for your cannibalism doesn't make it retaliatory. It means that not a lot of people eat other people. And actually, I thought that was a great example because all of a sudden then, if it's a rare crime, you get to bring this collateral complaint to it. and look i'll tell you it was falling along really weird lines the chief justice not feeling this at all even though it's very sympathetic

facts and then you had gorsuch the defend the champion of every um defendant basically being like are you kidding me there are so many laws out there you'd always be able to find you know show me the man i'll show you the crime. So how do you allow people like Silvia Gonzalez to collaterally attack their arrests without basically opening the floodgates for everyone who's ever arrested for anything like Mr. Bartlett to then collaterally attack their arrests? It's a bit of a tricky problem. Interestingly, the Solicitor General's office also came in in this case, and they took the side of Gonzalez, basically saying,

look, guys, this isn't that hard. We kind of know it when we see it. As long as you're using objective evidence, who cares whether it's a comparator? It can be a comparator the other way. The fact that no one's been arrested is objective evidence. It's not enough.

You'll still need maybe some statistical evidence as well. But guys, like common sense here. Well, and that kind of guys common sense here actually helps illustrate perhaps why no one's been arrested. Because the bottom line is, if you create your own petition and you accidentally put it in a notebook, is if you create your own petition and you accidentally put it in a notebook, the way that normal human beings resolve that is not by getting a warrant for an arrest, it's by saying, hey, did you happen to put that petition in the notebook? No big deal, Sylvia, but if you could just please return it to us, that would be great. great thank you and that's how this stuff happens you know the idea that there hadn't been an arrest because everybody complies with this law and this is an extremely unusual violation it kind of does it past the smell test.

Now, the cannibalism example. Okay, Lisa, I'm with you. Okay, there's just not a lot of cannibalism, so there's not a lot of criminal prosecutions. I'm not with you if you're going to say, people just don't misplace official documents. Like, that's... That is... But you see why you have the rule about probable cause.

And she acknowledges there was probable cause to arrest her for doing the thing. She did the thing. And if you say that, like, if you have probable cause, you still could get sued for a retaliatory arrest, you've got to come up with some rule for the lower courts to use, or else you're just going to have a billion zillion people coming in and

yeah fine it's not going to be on the major stuff um that where there's just so many arrests and examples like yeah i punched the officer but um but i think you are going to have a lot and in the bartlett case for instance it was interesting because remember, these are sort of coming up on the summary judgment where you take everything that the, you know, Gonzalez or Bartlett is claiming at face value. But I guess in the Bartlett case,

and again, I'm getting this from Wikipedia. So I don't know, take it for what it's worth. There was actually body cam and the body cam did not show the police officer ever saying that quote about, I bet you wish you'd talk to me now. Right. Without that, this is the wish you'd talk to me now. Right.

But without that, this is the dumbest retaliatory arrest lawsuit ever. But again, you have to take it in the light most favorable to our Bartlett dude. So he had some piece of evidence that it was retaliatory. But also, even if the officer had said that, you punched another police officer, you're getting arrested for that. Yeah, this is, again, you go back to that common sense point. This is a situation where you cannot, and this is kind of a hard rule to craft. When you say probable cause can, if there's probable cause, it cleanses the arrest unless you can show that other people do the same thing and they have not been arrested. In this circumstance, it seems like we're in a weird world where it's so routine or nominal what she actually did that there won't be any sort of previous record of it. Because in the normal course of business, you just correct the mistake, you move on, you don't document it,

you just hand back the petition, move on, et cetera, and that's it. And so it's really hard to sort of think of when you're coming out of this case, what is the rule going forward in a case like this, whereas it's very easy to articulate in this case, in this instance, why this seems remarkably petty, and it seems remarkably intentionally retaliatory. But that also

brings me to another issue, Sarah. Sometimes we're resolving these, it feels as if we're resolving some of these things prematurely. We get a lot of these cases on motions for summary judgment, for example, or you get cases like this on motions to dismiss before there has been a full-on trial-level evidentiary hearing. And so, some questions may not be fully answered. But, you know, in this circumstance, you've got this, you know it when you see it element that just doesn't translate well into a rule. And that's why the outcome of the case is far more in doubt than you might think than

if you just ask somebody to say to the court, what's fair here? That's right. What's fair in this case? You still have to articulate a rule, and that's what what's fair in this case you still have to articulate a rule and that's what makes this difficult and i think that's why i'm actually pretty stumped as to how this is going to ultimately come out uh i think that's right i don't know how this will come out i think that it's an important case on the remember the supreme court decides questions not cases they're not deciding what happens to miss gonzalez in case. And I think Ms. Gonzalez has a great case to make.

It's how do you make a rule that fits both the Bartletts and the Gonzalez's, where both can claim retaliatory arrest, but one doesn't really pass the smell test, or we don't care, frankly, because you punched an officer and like, whether maybe he would have let you slide for that one, but he was annoyed with you about something else, like, eh, I'm just not going to lose

a lot of sleep. Versus the Gonzalez case where, you know, they, let's say, this isn't alleged, you know, she's criticizing the city manager. They don't like that.

So they follow her around for six months and wait for her to commit some crime. And there's thousands of crimes in the state of Texas. Gorsuch mentions there's 3,000 federal crimes, something like that. And they just wait because at some point,

it's the Soviet era, Stalin era thing. Show me the man, I'll show you the crime. And so as long as they just wait, but yes, it's because she criticized the city manager, they wouldn't have followed her, they wouldn't have arrested her. They wouldn't have arrested someone else for this, jaywalking or otherwise. And in this case, it's so pretextual that they're so worried about the government records that she gave back, I guess, right away.

She realized she took it home. That two months later, after they had failed, by the way, to secure any number of other, I guess, arrest warrants against her. And again, it's been a while since I read all the facts, so forgive me if I'm getting this slightly wrong, that they then arrest her, have her spend a day in jail over this, and then the prosecutors decline to prosecute. So what is your recourse then? You have no recourse except spending the day in jail because these guys don't like you. Not great. Yeah. No, it's terrible. And actually, when you talk about that, Sarah, as a hypo that town officials following you around, look, guys, I've been around some crazy small town government

stuff, leaving aside big city governments, which we know can do some crazy stuff, the personal vendettas that you can see in small town government can blow your mind, including things like having cops follow you around in the instant you speed or the instant you change lanes without signaling or you name it. There is a reality that does exist in this country

of public official vendettas. It happens. It's brutal when it happens. And often the law isn't quite up to fixing it and primarily in the arena of qualified immunity. But yeah, this is one of those situations. And I think you know the gorsuch are you kidding me i feel like gorsuch is going to end up with are you kidding me i'm just very interested in what the rule the are you how the are you kidding me rule manifests itself in the gorsuch opinion so david there was something i wanted to just go over briefly because it keeps coming up in oral arguments and as we keep telling people to listen to oral arguments, there could be some confusion when people refer to the red brief or the green brief or whatever else. Like, what are they talking about? And why

do they keep referring to it that way? And I'll put this link in the show notes for those who want to look. But to file a brief at the Supreme Court or petition or anything else, you have to use specific printers and those printers have to know all the rules for the Supreme Court. And one of those rules is the color, like literally the color of the outside of the brief. And so you've got all these different colors and anyone who practices at the Supreme Court will know exactly what color to pull from the stack depending on which brief you're looking for, which makes it very convenient in cases that have a lot of briefs. So, for instance, petition for writ of certiorari, that's white.

Brief in opposition to the petition, that's orange. Amicus brief at the cert stage, that's cream. We've got a lot of tan briefs. We don't need to go over those brief on the merits for petitioner light blue brief on the merits for respondent light red brief for an amicus in support of the plaintiff light green brief for an amicus in support of the respondent dark green reply to plaintiff's exceptions to report of special master. Right? There's like colors literally for everything. That one's orange for what it's worth.

Reply brief on the merits is yellow and petition for rehearing is tan. So when you're hearing people refer to colors of brief and you're not able to follow it, you can Google Supreme Court brief colors and you'll find this list with literally they have the colors for you. Like the colors are in the Supreme Court website and we'll put it in the show notes. But I just thought that would be important and fun for people who are trying to follow along at home. And I'll note just for the record with a dash of grievance that the orange looks a lot more

like University of Texas orange than it looks like the University of Tennessee orange. Although it's hard to blame the Supreme Court since University of Tennessee orange is objectively offensive. All right, next up, David, we had some things we promised we'd talk about last time, including Ronna McDaniel, the former chair of the Republican National Committee, after leaving her post there, was offered a job as a contributor for NBC News. There was then a lot of backlash against that. NBC has now let her go. And I thought we'd talk about some of the legal aspects of that, because she said she was going to, quote, look at her legal options,

which I'll just tell you right now, Ronna, you don't need to. You don't need legal options. You have a signed contract. Yeah. And as some of you may remember, I've been through it. When I left the Department of Justice, I signed a contract with CNN.

We'll talk more about the politics and the media of that on the Dispatch podcast, which David, you're joining for this week. I am. I'm very excited. I am. I'm looking forward to it. But I thought it'd be fun on this podcast to talk about some of the legal aspect of my experience and what happens now with Ronna McDaniel. So first off, she has a signed contract. Those contracts are normally for two, sometimes three years even. And in her case, I'm guessing it's a pretty big contract, financially speaking. And yeah, that's it. Now the contract comes with another side of it, meaning she is exclusively with NBC as long as they are paying her. So if you want the money, you can't go on some other

television station. You can't go get another TV contract. You can't compete with NBC News, even if they're not going to use you anymore. But if they actually want to breach their contract, which would be weird for them to want to do, because again, they could keep her off every other station, then all they have to do is either keep paying her to be able to enforce the contract or breach the contract in which they're just going to owe her all the money and she gets to go do whatever she wants, including signing a different contract or just appearing on different television stations. Pretty easy stuff. So let me ask you this, Sarah. I've never had a TV contract. I mean, shocking with this face made for television. I think people are just

waiting for the big screen, really. No, but they never had the TV contract. And so these are not contracts I've reviewed. But my question for you is, what are the termination provisions typically? Is it, if you sign a two-year contract, is it a real two-year contract or is it terminable at will with 30 days notice so obviously i haven't seen her contract um in my case let's speak about my experience sure so i signed this contract with cnn and then there's a huge backlash how dare cnn hire someone from the trump administration um of course, CNN, when they hired me, knew that I'd worked in the Trump administration. And plenty of other news organizations

had also hired people who had worked in administrations. Jim Sciutto, for instance, had been a political appointee in the Obama administration. George Stephanopoulos is the obvious example. Lots of other reporters had worked either on the Hill or campaigns. Pete Williams, NBC's chief legal reporter for decades, had been the Pentagon spokesperson during the Bush administration. So lots of precedent for this. And CNN couldn't find anything that I'd said or done that I hadn't disclosed before the contract.

My contract did not have an at-will exception. It had a for-cause exception. And it had a morality clause exception. Uh-huh. So I will tell you this, David. I've not told this story publicly. CNN tried to exercise their out with the morality clause. With the morality clause.

Okay. That's correct. Because they said that they weren't changing their minds because I'd worked in the Trump administration because otherwise they were just caving to pressure, right? Right. They obviously knew that. caving to pressure, right? Like, they obviously knew that. Instead, they claimed that they had just found out that I had been married by Justice Kavanaugh and that that was a violation of the morality clause. The morality clause, okay. To which I laughed out loud and said, I can't wait to litigate that. In federal court, by the way.

And do you know who that goes to eventually? The Supreme Court. How do you think this violates the morality clause? You have people at CNN who were married by Justice Ginsburg. So how are you going to claim the difference? And were like well he's the swing vote what that's it's so dumb then of course they got to what they actually meant which is sarah you know why it violates the morality clause to which they were referring of course to his confirmation hearing and i was like well again really look forward to litigating that by all means please let's continue this conversation and let me start recording they backed off that claim and instead paid out my contract yeah I would expect because listeners if you don't know what a morality clause is a morality clause is sort of the it's the savings

clause that is put in when let's say you've been a good employee you've shown up at time for work you've done all the right things at work but all of a sudden an instagram live video of you surfaces and you're completely drunk you're shooting guns off in the air you've like you're making a complete and total fool of yourself in public while you're sexually harassing somebody, whatever. Even though that's not workplace conduct, that your actual conduct is so beyond the pale that it actually harms the company. That's what morality clauses are for. They're not because the company doesn't like

who officiated your wedding, which is comedy. But they were right. It happened after I signed the contract, in the two weeks between when I signed the contract and when this whole thing blew up. In fact, I had gotten married and a reporter was going to report that I had been married by Justice Kavanaugh. So they were like, aha, we've got our out. Oh, it's it's great. I mean, the idea that they would use that is utterly absurd. And obviously, like a morality clause wouldn't apply to Romney McDaniel.

The four cause provisions, again, nothing that we have seen would indicate. So a four cause would be, for example, workplace misconduct, where you harass somebody at the workplace, where they found that you've engaged in resume fraud or something like that. You don't show up, right? Yeah, I mean, again, anything that they did know or could have through any amount of due diligence found out before signing the contract, for instance, everything she said that's Google-able about January 6th and the aftermath of January 6th cannot be used as for cause

because that was apparent to them and available to them before they signed the contract. So yeah, I don't, she doesn't need legal advice. She's fine. All of this stuff about, oh my goodness, she helped Trump try to overturn the election. Okay. I share the, oh my goodness, she helped Trump overturn the election. I'm appalled by it as well, but you knew it. That's the thing. You knew it. Now, it would be totally different if, say, she had been somebody who, let's say, November 30th, just left and said, I can't do this. This is horrible. This is terrible. And they thought they were hiring somebody who had left and condemned

the effort and then found out later that perhaps that she had actually been behind the scenes, still completely committed. That might be a thing where there was a level of deception. But everything that she did was out in the open here. It was all out in the open. And so you hired her knowing all of this. And then your employees say, she did all this stuff that you know she did. And they get, the employees get mad, which you should have anticipated. I mean, it's really amazing, Sarah. We can, of course, talk about this more tomorrow. But this idea that, oh my gosh, I can't believe we hired Ronna Romney McDaniel.

That's the way they sort of treat this thing. Everyone knew everything important about her and you hired her and then everything important about her is talked about and you go, oh my gosh. It's really remarkable. We'll talk about this on the Dispatch Pod with Steve Hayes, who's at NBC News. I'll talk more about some of the media, you know, pushback to my hiring and all the politics around that as well.

But I just thought the legal questions were pretty funny. And yeah. She'll be fine financially. That's right. Yeah. Yeah. She'll be fine financially.

Yeah. So David, next be fine financially. Yeah. So David, next topic that we put off for this podcast is the Apple antitrust lawsuit. And while we don't talk about sort of complaints, basically, that get filed, especially complicated ones like this, it came up during the show that I did on Bill Maher, because Kara Swisher was on. And we do this thing called overtime, where it's like after the HBO part we just do this like little little tidbit later and we were talking about this antitrust suit and I like offhandedly said antitrust law doesn't exist to which Kara Swisher took real exception I think if she understood my larger point

she might actually agree with me because whether you want stronger antitrust law or weaker antitrust law, you're sort of in the worst of all worlds right now, which is very vague antitrust law that allows cases to fail very easily because no one quite knows what the antitrust law actually is supposed to do except help promote competition. But by nature, businesses are anti-competitive. You want to win the competition against your, you don't want to help your competitors. So literally everything you do is anti-competitive and the Sherman Antitrust Act, you know, is approaching its hundred year anniversary and the clarity is getting worse,

not better as it ages. So for instance, if you have an iPhone, this is like the most used example, right? If you have an iPhone and I message you, we talk in blue. But my husband, we have a mixed marriage. He's an Android user. So when I text him- Whoa, whoa, whoa. I did- Is that a true thing or are you just saying that?

No, we have a mixed marriage. How long are you going to tolerate this? I mean... He's got to get the... Frankly, you have no idea how hard this is in our marriage. And I mean that in like kind of a literal sense. So on the iMessage thing, for instance, we obviously talk in green. And part of this antitrust lawsuit is green dot discrimination, which is hilarious to me.

It's so because i don't know why apple is supposed to help their competitors by making it more compatible with theirs and the fact that it would be easy for them to make it compatible i still don't care right like why should you have to help your competitors um but david yeah no for real i don't know how to use his phone and he doesn't know how to use mine and so like it't know how to use mine. And so like, you know, you'll be in situations as a parent where it's like, hey, can you take a picture of this? Or hey, can you send this text message for me?

Because I'm driving. And we both just sort of stare blankly at the other person because the answer is no. I have no idea how to use that, that, that tool. In the Apple Android conflict, Android has to yield. That is the, that's the rule. I conflict android has to yield that is the that's the rule i'm not gonna say that they're welcome to live on their little island it's like you know not all pepsi drinkers need to drink coke even though the product is superior um on the coke side but nevertheless like pepsi is allowed to exist yeah i mean if you are going to insist on having an

android you also need to get an iphone to text your friends who have iphones that that's just the social convention no but the the funny thing about this complaint you said that they reference it they reference it in detail in the complaint they discuss the social sanction imposed on android users just like we're imposing a social sanction on sc Scott right now. But that's crazy. There's no way that's cognizable in antitrust law. Because again, if all it says really is

anti-competitive behavior, we've got a big problem because that's not very specific. And I know, look, on the one hand, when we've talked about this in the past, oddly, all the antitrust lawyers emailed in and professors and were like, you're right. So for all of you who are about to email and send your angry comments about how I'm wrong, I just want you to know, at least some experts have already told me that I'm on, you know, like I'm not crazy.

on this precedent and then there's statistics and all of this weird law stuff that doesn't apply in any other context except i will point out maybe international law which also doesn't exist but for very different reasons and that international law basically exists to the extent we all abide by it but that's why nation states go to war is because they don't agree on what international law says about their borders or any number of other things. So that's why I don't think international law exists, but antitrust law is kind of like in your heart also. Well, and that's not to say that there isn't precedent. There's lots of it. Lots of precedent, lots of precedent. And the existence of lots of complicated precedent is

one of the reasons why when we talk about antitrust, we talk about it, I wouldn't say at the 30,000 foot, Sarah. I think it's more like the 50 to 60,000 foot level because there are many elements of this antitrust lawsuit. It is not all about green bubbles for text. It is- No, but this gets to the horizontal mergers

versus vertical mergers. And again, you're talking about the trust busting a hundred plus years ago, again, you're talking about the trust busting 100 plus years ago, and now you're talking about green dot discrimination and the social sanction of Android users. And I don't know, man, it just doesn't look a lot like US Steel to me. Everything a company does, as I said, is anti-competitive because that's what companies are supposed to do. That's how capitalism works. And so to say that you are engaged in activities that restrict competition in the marketplace, any contract, conspiracy, or combination of business interests that's a

restraint of interstate trade, that seems to me much closer. Like if you're, for instance, buying up companies, that's much closer to the trust busting that we saw. And by the way, when I said it was closing in on 100 years, it's 1890. So it's actually well over 100 years old. My bad. Math. But we're so far past the easy calls of how monopolies were built 100 years ago. I think it's a bit of a mess. The other interesting twist about it is that tech moves very quickly. Antitrust cases do not.

And so years and years and years ago, Microsoft filed a major case against Apple related to Apple, essentially, or Apple filed a major case against Apple related to Apple essentially, or Apple filed a major case against Microsoft, essentially saying that what Microsoft did, Windows was just nothing but a rip off of the Apple iOS or the Apple operating system that existed on the Macintosh. And so, and Apple at that time was the underdog. A lot of people don't remember this, especially younger Americans. There was a time when Apple was absolutely on the ropes. I mean, just on the, Steve Jobs had been sort of unceremoniously, was unceremoniously gone. Apple products had failed. Some of his exciting, innovative stuff had flopped. And so Apple was not what it was today.

And Apple blamed Microsoft for some of its woes, filed litigation. And just over the course of market competition, the reality and the power dynamic between Apple and Microsoft began to change and began to change dramatically to the point where Apple eventually passed Microsoft. Similarly, when we're talking about, if you go back to social media arguments from even four to five years ago, the social media landscape is substantially different.

TikTok, for example, is much larger than it was five years ago. Twitter is losing its, ever since Elon Musk purchased it, it is losing its market share or it's losing eyeballs. There's a whole new social media platform called Threads. The market moves on, especially in the tech world, at a rate of speed that is often higher than the rate of litigation.

And some of these cases get kind of antiquated quickly. Well, David, that's our podcast for today. And an excellent podcast it was, Sarah. Covering multiple exciting topics. It just, it doesn't get better. We've still got some things left in the tank for next time. Our next episode will have that interview with several federal judges who returned from Israel last week. I'm really, really looking forward to this conversation. I've already listened to speeches, for instance,

that Judge Roy Altman down in Florida has given on this topic, and it's incredible. So I'll put actually that speech, the specific speech that I'm thinking of in the show notes in case you want to have a little appetizer before you listen to this whole podcast. If you watch the video, you'll note he's doing it without notes. He's just got all of this history, all of these years, all of these names memorized as he walks through basically the entire history of Israel and Jews in that land, it's incredible. I mean, whoa.

Send me the link, Sarah. I want to see it. And we'll be joined by Judge Lee Rudofsky and Judge Amultha Park for that podcast. So a little district judge, a little circuit judging, a little Jews, a little no Jews, all of it. Can't wait. So yeah, this will Jews, a little no Jews, all of it. Can't wait. So yeah, this will be, I think this will be our first threesome judicial podcast. Is that, is that maybe not the way to say it?

Trio. Let's say trio. There we go. Trio. Yes. Triumvirate. Yes. A triumvirate of judges.

Yes. Yes. That's much better. Much better. And make sure that they didn't listen to the last 45 seconds of this podcast. Got that Novant case to talk about still. And that was on discrimination against a white employee. That's really quite fascinating in terms of how we think of DEI initiatives as really just being another form of discrimination. So more to come on that next week on Advisory Appendix. confident driving starts at midas with top quality tires and expert services from our techs. Stop by Midas on Queenston Road today to buy three tires and get the fourth free.

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