Advisory Opinions - Whatever Happened to Baby Blaine?

Episode Date: July 1, 2020

Espinoza is finally here, and David and Sarah are here for a proper deep dive into the Supreme Court's decision. Plus their reflections on the legal and political implications of the court's June Medical ruling. Show Notes: -Supreme Court's Espinoza ruling -Conservative groups see abortion ruling as catalyst for reelecting Trump -The Chief Justices Battle over the Removal Power Learn more about your ad choices. Visit megaphone.fm/adchoices

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Avion points on debit purchases, and so, so much more. Unlock more perks for less with RBC Vantage. Conditions apply. Offer ends June 30th, 2024. New eligible clients only. Complete criteria by August 30th, 2024. Visit rbc.com slash student 100. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French, beginning by dunking on co-host Sarah Isger.

For day after day, for week after week, Supreme Court expert, Supreme Court watcher, Supreme Court nerd, Sarah Isger, kept predicting a case called Espinoza. And for day after day, week after week, month after month, that case did not issue from this court. And the first day, the first day that I said it was going to happen, it happened. Now, you might think this is a little bit cruel that I'm going to begin the podcast by dunking on my co-host, but I actually received multiple emailed requests

for just that. Look, the investigation's still out. We don't know whether you were sending bribes to the court to push it. We don't know whether you were sending bribes to the court to push it. We don't know what baked goods may or may not have exchanged hands. Subpoenas will be issued forthwith. I expected more than fake news,

conspiracy theorizing from you, Sarah. But yes, we did. We did get an important religious liberty opinion in Kendra Espinoza at ALV versus Montana Department of Revenue dealing with Blaine amendments and religious education and public funding. you might not have liked the outcome, but you liked some of the reasoning. I'll be very curious on this opinion where I think you, David, liked the outcome, but I'm not sure how much you liked the reasoning in some of this. We'll see. Yeah. Yeah. We'll get into that. Don't jump ahead. I'm still in preview mode. So we're also going to talk about what are we what, where we, what are we thinking sort of a grab bag potpourri?

What are we thinking 24 hours after June medical, after we've had a time to, um, think about not just the legal implications of the ruling, but the political implications of the ruling and the footnotes and some of the things that, you know, people are saying about it. Um, so we're going to talk about that. And then we're going to follow up because Sarah challenged me. She challenged me yesterday. Is there a movie you don't like? And oh, yes, Sarah, there are movies, plural,

movies, plural, that many people liked that I did not. We'll see about that. Well, let's start with Espinosa. You've been diving in deeply. I have been diving in almost as deeply. I think you've got thoughts on the whole thing from start to finish. I've got thoughts on the whole thing from start to mostly finish. But why don't you kick us off and describe case, and your initial thoughts. Okay. So this was a case

that dealt with the Montana legislature passing a scholarship program to provide parental and student choice in education. So what it did was it provided scholarship money that could be used at a religious school. It could also be used at a non-religious school. It can be used anywhere you'd like. But the Montana Constitution included a no-aid provision. This banned the use of public funds to aid in the support of any school controlled in part or in whole or in part by any church, sect, or denomination, whatever. This is known as a baby Blaine Amendment, a state Blaine Amendment, whatever you want to call it, and we'll get into some of the history of that as the court did as well. But these were widely passed in about 30 states at the end of the 1800s to target Catholicism. So it goes to the Montana Supreme Court, and they're left with what they believe is a decision

between they can't just strike down the scholarship for religious schools because that would violate Supreme Court precedent, the First Amendment, Free Exercise Clause, et cetera. But they can't violate the Montana Constitution. So what the Montana Supreme Court does is they invalidate the entire scholarship program for everyone. So now it doesn't discriminate. So at the argument,

which the reason that I kept predicting was that this happened in January. It's been a really long time. At the argument, which the reason that I kept predicting was that this happened in January. It's been a really long time. At the argument, you had Justice Kagan, for instance, saying, I've always understood in these kinds of cases that the harm is the perceived or alleged or actual discrimination. But there is no discrimination at this point going on, is there? Because nobody got the scholarship anymore. And then you had Justice Breyer talking about the public school system and what's the difference between this case if you win and the same with the public schools. They have to give it to

parochial schools too. What's the difference? So a lot of hand-wringing from the liberal justices. So what happened today? 5-4, not a huge surprise there. And man, the Chief Justice just very, very busy this week. So we have another Chief Justice Roberts opinion in which he invalidated the Montana Supreme Court's invalidation and brought it back to the status quo, basically saying that the no aid provision of the Montana constitution was unconstitutional and that therefore the scholarship program, which could be given to religious schools and non-religious schools, to private schools in general, now exists again per the Montana legislature.

But it was kind of messy, David. It was a little bit of a messy opinion. I thought the dissent scored more points than they normally do on something like this. And then we had some concurrences. I mean, there was a reason this took so long. So you have 5-4 on the Roberts opinion. Fine. Then you have Thomas filing a concurrence with Gorsuch. That's in which he wants the First amendment basically not to be incorporated against the states on the establishment clause part right and thinks that the states should be able to uh establish religion quote unquote because that was the

intention of the founders during the bill of rights he has actually some good points there then you have a spicy alito concurrence which we'll just have to dive into in its more fullness uh it's extra spicy to me because it's based on ramos that non-unanimous jury verdict opinion from earlier this term and alito's like i lost that argument and now i'm gonna hold it in your face yes that's pretty fun. And then you have a Ginsburg dissent with Kagan, a Breyer dissent with Kagan joining part one, and a Sotomayor dissent as well. Lots of fun to be had splashing around in this pool. David, what were your initial reactions? So my initial reaction was i thought that the chief justice's opinion

was very uh straightforward it was uh and and i thought quite effective at dealing with the argument that the fact that the montana montana supreme court struck down the entire program rendered um removed the non-discrimination, the discrimination problem, because what Justice Roberts was saying was that the discriminatory constitutional provision is not ameliorated by a non-discriminatory remedy. That the provision itself, which is so closely targeting religion, is going to have to be evaluated irrespective of the remedy from the Supreme Court. And so I thought that that was all quite straightforward and quite in keeping with the emerging line of post-Smith free exercise

jurisprudence that is basically saying, if you're going to single out religious status for different and inferior treatment, you're going to have a very difficult time prevailing at the Supreme Court. If you're a state that has singled out religious status for different treatment, it's going to be a bad day for you. Now, on second reading, well, not second reading, second thought as I'm reading, I began to notice something that was very conspicuous by its absence, Sarah. And my friend Casey Maddox beat me to tweeting this out. Darn you, Casey, and your B-minus Twitter feed that occasionally has some good content. My friend Casey Maddox tweeted out the words that did not appear in the opinion, and I did find and replace Employment Division v. Smith. You had an entire Supreme Court opinion grounded in a debate and consideration of the free exercise clause without reference to the

most important free exercise jurisprudence of the last 30 years, which was Scalia's opinion in Employment Division v. Smith, which in many ways gutted the free exercise clause, really radically transformed free exercise jurisprudence, and it was not mentioned at all. Now, that kind of ignoring of Smith cannot sustain itself because next term, Supreme Court's going to hear a case called Fulton v. City of Philadelphia, where the status of Smith is being put front and center. But what I had this interesting question in my mind as I'm reading the opinion, is Smith being limioned? And by that, I mean, there's this establishment clause case

that established what's called the limon test that is still technically law, but hasn't really been applied in the Establishment Clause context for a really long time. And people really wonder if it's even viable. Thomas refers to it as, in this opinion, as this court's infamous test in Lemon. Yes, exactly. So I'm starting to wonder if,

is this a sign, on the narrow basis basis there is nothing surprising about this outcome. I thought it was going to be 5-4 on exactly these grounds. But the waving away of Smith as if it's not even worth discussing, it wasn't even worth discussing to them, makes me wonder if this is forecasting a more robust treatment of the free exercise clause or a continuing direction, a continuing move in the direction of a more robust reading of the free exercise clause. So those are my initial thoughts. I don't think there's any question on that point, not just because Smith was missing, but because I felt like,

it's interesting that you thought he handled why the Montana Supreme Court's, uh, invalidation did not make it neutral because I thought he kind of gave that short shrift. And I thought, uh, Ginsburg's dissent pointed out some really problematic parts of stepping in and telling a state Supreme Court what they can and can't do once they've remedied it in their own way. But, you know, there were some other things in the Roberts opinion worth pointing out, one of which is that he says many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. a choice protected by the constitution c pierce v society of sisters a 1925 case uh that really created substantive due process in a lot of ways and was cited in row on the one hand uh the

constitutional right uh you know to not attend public school interesting probably something that you'd be in favor of, but that case in particular, interesting that he would cite it. Yeah, it is interesting. It is interesting, especially considering there are other, you know, this goes back to,

this actually goes back to one of our early podcasts a little bit. Remember we had a fun discussion about homeschooling yes yes and uh peers via society sisters figures prominently in the debate over homeschooling for example yes that was interesting but overall so there's lock versus trinity lutheran at issue here and that discussion those are two supreme court cases trinity l Trinity Lutheran being quite recent. And that's the one that the Roberts opinion is like, yes, look to Locke. I mean,

look to Trinity Lutheran. And then Locke becomes pretty cabin to its facts. Locke is a case about a student who was looking to use scholarship money to get a theological degree. And the scholarship specifically said, you can use it to go to a religious school, but you can't use it to get a degree in theology because we've just decided that taxpayer funding isn't going to go to that type of specific religious training and instruction. And the court upheld that. And what Robert said in this opinion was, that is religious use of public funds. It was not that it was disfavoring religious status. And he really tries to make that distinction. The Trinity Lutheran, a school that wanted to use publicly available funds to repave a playground, I assume with that like squishy bouncy stuff, which is so nice. And how many scrapes and scars on my legs would I not have if we had had squishy pavement. But then you wouldn't be as tough as you are now. So true. So true. And that, they said, was clearly disfavoring Trinity Lutheran because of their

status as a religious school. And of course, paving their playground had nothing to do with religious instruction. This case falls somewhere in between. On the one hand, it's not that you're getting a theology degree by sending your children to an elementary school that happens to be religious but there will be religious instruction at that school so it's not exactly a playground equipment either and roberts you know almost with an eye roll is like well it's clearly much more like a playground than it is like a theology degree, which, you know, the dissent points out like, wait, I'm not sure it's quite as easy as you think it is. And I think people reading it would be like, well, huh. Um, so the religious status versus religious use was very

interesting to me. And, uh, some of the concurrences point out Gorsuch in particular, that he does not think that that's a distinction we want to be making. And he would just include it all and probably just overturn Locke is what that looked like to me. I read this as, I like the phrase you use, cabined to its facts. I think the current court in the current composition does not decide Locke in the same way. And so I think that Roberts, for whatever reason, was unwilling to overrule Locke. And now Locke just stands for... He had just said yesterday that he was deciding a whole opinion on stare decisis. Yes.

Yes, exactly. On a Tuesday to say, and by the way, Locke's gone, that would have been a little bit rich. That would have been a little bit. Yeah. So basically, I think now all Locke stands for is the proposition that you do not have an entitlement to state funds to get a little bit. Yeah. So I basically, I think now the all lock stands for is the proposition that you do not have an entitlement to state funds to get a theology degree. Yeah. That's, that's lock. Um, and what, you know, the bottom line here now, and I, I agree with you. I think the status versus use distinction is one thing that I, I had highlighted in my, in my mind is,

is one thing that I highlighted in my mind is, huh, I can see that causing some confusion as time goes by. But I actually agree with the dissent that it's much more, this is more Locke than Trinity Lutheran. Right. I have been the chairman of the school board of a religious school. And I can tell you that it's a lot more theology instruction than it is playground resurfacing. And any religious school worth its weight is doing a heck of a lot more theology instruction than it is doing playground resurfacing. And not that there aren't sports programs and playgrounds and you know biology class and blah blah blah but there are there is an intentional a good religious school is suffused

from the ground up with religious instruction and so this is more lock and i look at lock as not overturned but as you said cabined to its facts and And that's a way, y'all who are not familiar with this kind of Supreme Court method, it's a way to render something irrelevant without overturning it. It's like putting it in the top shelf of your linen closet where you can't reach.

And you did get out the ladder to put it up there. You're not throwing it away. But basically, by getting out the ladder and putting it up there, you are admitting to yourself you're never coming back for it. Yeah, exactly. And you know something is cabined to its facts when either the citations to the case start to disappear entirely, or it's always, this is not that.

So I think a good example of a case that has been cabined to its facts, and it's so cabined to its facts that nobody even really remembers it much, is this case called CLS v. Martinez. I do not remember it. Yeah, see? Sarah, it's been cabined. This is Christian Legal Services? Christian Legal Society, yes.

Yeah, yeah, okay. Okay, vaguely. And it basically now stands for the completely unique circumstance where a law school requires every student group to be open to all comers without regard to any kind of discriminatory factor at all, then they can do that, which is exactly one policy at one law school in the country. Which makes you wonder why they took that case, if that was going to be the result. But again, cabin to its facts, starting to feel like Locke is cabin to its facts, and I'm starting to feel like Smith is getting limined.

And those are sort of my two big takeaways. So to look at some of the other opinions, uh, because I thought the Roberts opinion and Roberts does this very well, right? His opinion is tied up in a little bow. There's not a lot of, as, as someone who has a newborn, everything, all of my analogies will relate to him for the time being, I guess, but like, uh, Robert's opinions feel like a nice swaddle. They're comfortable.

There's not a lot of room to wiggle around in them. And you leave the opinion going like, oh yeah, okay, yeah, fine. And then you get into these concurrences and dissents that are much messier, unswaddled babies slapping themselves in the face. But I do want to mention one line from the Robert's opinion

that I thought was such a side-eye to Breyer that it was worth mentioning because there's not a lot of snark or side-eye in Robert's opinions, but it says, Justice Breyer, building on his solo opinion in Trinity Lutheran, would adopt a, quote,

flexible, context-specific approach that, quote, may well vary, end quote, from case to case. I mean, building on his solo opinion. Ouch. Yeah. I know solo opinion. Ouch. Yeah.

I know. Building. Yeah, I noticed that as well. Yeah, that was fascinating. I laughed out loud. So, okay, we'll go in order. The Thomas concurrence. Let me just read a part of it,

and then I want to get your reaction to this pretty radical, would be radical now idea of unincorporating the Establishment Clause against the states. Thus, the modern view, which presumes that states must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit states from favoring religion. They can legislate as they wish, subject only to the limitations in the state and federal constitutions so as a matter of original public meaning of the establishment clause that's an he really walks through the history there pretty well i mean this is a situation where various states had state-established religions. Until surprisingly recently in American history, there were actual public funds in the state of Massachusetts, or I'm sorry, the Commonwealth of Massachusetts that were appropriated for clergy.

historical fact, Thomas is quite right about the intent of the Establishment Clause. It was to block anything like the creation of the kind of establishment that existed in Great Britain at the time of the founding of the United States of America. I mean...

And just generally the Protestant versus Catholic wars that have been raging for 500 years. Yeah, exactly. Exactly. It was sort of to each his own at the state level. protestant versus catholic wars that have been raging for 500 years yeah exactly exactly it was sort of to each his own at the state level sort of not not so much at the individual level it was at the state level and then his argument i think about incorporation is that um the establishment clause if it's going to be incorporated should incorporate at at the meaning that it existed at when the constitution is ratified as incorporating against a state establishment of a religion as opposed to

this sort of lemon test, et cetera, et cetera, that exists now. And I think he's got some, he makes some really good points, particularly about the way establishment clause jurisprudence evolved in the 50s, 60s, 70s, and into the 80s, where there is this weird concept of offended observer standing, which was actually a religious, a hostile to religion special standing rule that the Supreme Court developed, where unlike almost any other area of law, the mere fact that I'm offended by a government action or a government policy, or I observe a government action or a government policy and it offends me, does not give me the ability to walk into court. But when it came to the Establishment Clause, if I saw a cross monument or a cross memorial to fallen soldiers, and I'm offended that it's in the shape of a cross, I could sue. Sometimes even if I'm not

anywhere near it, if I just drove by it once and was offended and live a hundred miles away, I can sue, which was actually a quite anti-religious, obscure anti-religious doctrine that I think Thomas was exactly right to call out. And his whole point is that the free exercise clause has been suffering to its establishment clause big brother. The free exercise clause, although enshrined explicitly in the Constitution, rests on the lowest rung of the court's ladder of rights, and precariously so at that. Returning the Establishment Clause to its proper scope will not completely rectify the court's disparate treatment of constitutional rights, but it will go

a long way toward allowing free exercise of religion to flourish as the framers intended. I look forward to the day when the court takes up this task in earnest. But here's my question, David. Could Montana have simply established, if you will, their religion as atheism? Well, not under the traditional reading of the Establishment Clause if you are going to incorporate it. But if you are not going to incorporate it... No, if you follow thomas's concept here of unincorporation so that states can establish religion and fund religious instruction where they see fit um why couldn't montana then have their no aid provision i think i think honestly it potentially could uh i i see that know, if you're going to say

you're not going to incorporate the establishment, it seems to me that his reasoning is you're not going to incorporate the establishment clause, or he would raise that as an open question, but you are going to incorporate the free exercise clause. That gets complicated. Yeah. That gets complicated.

And then these Blaine amendments, you know, have their history becomes both more and less relevant. Right. Exactly. So I would not have signed on to the Thomas concurrence.

I think he raises some very interesting points about the original intent of the Establishment Clause. And, Sarah, trivia point, I have successfully filed an Establishment Clause lawsuit from the right. Okay. Yeah, I had a case against Georgia Tech back in 2006. They had a diversity program where they mandated teaching students, in essence, ranking various denominations and endorsing some and condemning others.

That's odd. Yeah, it was very odd. I mean, I remember seeing this and going, you know, look, I have a pretty original public meaning view of the Establishment Clause, but this violates that. This violates that. I mean, the short answer is Georgia Institute of Technology would have much rather you be Buddhist than Baptist. It was very, very clear.

That is odd. And I got an injunction in federal court. I would think so. That is odd. And I got an injunction in federal court. I would think so. Yeah, yeah. So, no, I dissent from Thomas's dissent. So then you have the Alito concurrence, which I said was extra spicy because Alito just like,

man, wrong side of the bed this term, over and over. So, okay, back to Ramos, which was decided, what now? I've lost all track of time, two months ago. This was the non-unanimous jury verdicts violated the Sixth Amendment. So, it incorporated that part of the Sixth Amendment against the states, Louisiana and Oregon. And we talked about it and I thought it was pretty interesting. I said it would have some implications down the road. Here we are, we're down the road and we have a nice little stop sign. We can pull off into the convenience store and oh, look, there's Justice Alito. And he says,

the no aid provision in the Montana constitution, the origin, which we've talked about being sort of this anti-Catholic baby blame amendment, he says, is relevant under the decision we issued earlier this term in Ramos. The question in Ramos was this non-unanimous jury verdict. The court held that the states originally adopting those laws did so for racially discriminatory reasons. I argued in dissent that this original motivation, though deplorable, had no bearing on the law's constitutionality, because laws can be adopted for non-discriminatory reasons and discriminatory reasons,

et cetera. In the Ramos case, it had been readopted, same as this baby Blaine amendment. He says, but I lost, and Ramos is now precedent. If the original motivation

for the laws mattered there, it certainly matters here. And he goes on. Under Ramos, it emphatically does not matter whether Montana readopted the no aid provision for benign reasons. The provisions, quote, uncomfortable past must still be examined. And here it is not so clear that the animus was scrubbed. So he basically just has an I told you so concurrence for quite some time. And it's fun. It's a fun read to see someone basically sing out their own Toby Keith, how do you like me now concurrence. That's pulling that song, which is

what a country song, how do you like me now it's a great song um no i so i i improperly said i dissent from thomas's dissent i dissent from thomas's concurrence i sign on to the alito concurrence mainly not so much for his uh you know how do you like me now aspect of it but for the history lesson around the blame amendments um which was quite compelling. And that's, you know, it really is fascinating given sort of the current state of American political alignment. You know, if you're going to talk to, say, somebody who's 30 years old about America's political and religious alignments. And you would tell them that 100 years ago, Protestants and Catholics were like oil and water, cats and dogs. And in particular, Protestants were in such a dominant position that they could essentially, that public schools were

Protestant schools, and they were comprehensively and very busily writing into state constitutions anti-Catholic amendments, people would, it would seem like, what are you talking about? I mean, what? Really? But yeah, that's the history. Alito includes like a cartoon, if you want to go look at the cartoon he includes, which is pretty bigoted. It's a fun little walk through some bad history of the United States. And he does have this ending to his opinion,

which is great. And I bring it up because when we talk about the dissent, we need to quote this. So this is still Alito. The program helped parents of modest means is great and i bring it up because when we talk about the dissent we need to quote this so this is still lito the program helped parents of modest means do what more affluent parents can do send their children to a school of their choice the argument that the decision below treats everyone the same is reminiscent of anatola france's sardonic remark that quote the law and its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Well, well said, Justice Alito. But then, to skip to the end of Justice Ginsburg's dissent, which is the sort of big dissent, if you will. Yeah. of big dissent, if you will. Yeah. Nearing the end of its opinion, the court writes, a state need not subsidize private education,

but once a state decides to do so, it cannot disqualify some private schools solely because they are religious, which was in the Roberts' opinion, and I thought, she's right here. That is way too much of a simplification

of what was going on here. She continues, because Montana Supreme Court did not make such a decision, its judgment put all private school parents in the same boat. This court had no occasion to address the matter. On that sole ground and reaching no other issue, I dissent from the court's judgment. Footnote, the Montana Supreme Court's decision leaves parents where they would be had the state never enacted a scholarship program, which is true. In that event, no one would argue that Montana was obliged to provide such a program

solely for the parents who send their children to religious schools. Also true. But CF, Alito concurring, parentheses, inapt reference to Anatoly France's remark. Oh my goodness. We're going to have to have a pod, by the way, on the CFs. I know we were joking, but we're going to do it because there's some good CFs that we're going to talk about today.

CFs, EGs, yes. In-act reference. I would be interested to know when, say, Alito reads that from Ginsburg, does he chuckle? Or does he... I would tend to think he might chuckle. I would think that Justice Thomas would certainly chuckle. I'm not sure that Justice Alito

this month is in a chuckling state of mind. Yeah. Yeah. I think the theme of June is spicy Alito. That is absolutely the case. Well, shall we move on to our reflections 24 hours later on June Medical? Absolutely. So what are your reflections 24 hours later on June Medical? On June medical. So we got some emails about this and there was a footnote in justice Thomas's dissent, all about the second amendment. Why is abortion being treated to this heightened level of scrutiny that the second amendment doesn't get and asking us to please make sense of this.

And I can't, And Justice Thomas can't. And so I thought I would read his footnote. For example, the court has held that attorneys cannot bring suit to vindicate the Sixth Amendment rights of their potential clients due to the lack of a current close relationship. But the court permits defendants to seek relief based on the 14th Amendment equal protection rights of potential jurors whom they have never met. And today, the plurality reaffirms our precedent allowing beer vendors to assert the Fourth Amendment rights of their potential customers, citing a 1976 opinion Craig Reborin. But it is fair to wonder whether gun vendors could expect to receive the same

privilege if they seek to vindicate the Second Amendment rights of their customers. Given this court's ad hoc approach to third party standing and its tendency to treat the Second Amendment as a second class right, their time would be better spent waiting for Godot. First of all, waiting for Godot, theckett play loved it in high school just like read it over and over again was very pretentious about uh citing it constantly in high school so love the reference very in favor of it but and you notice this echoes then what he said today about the free free exercise clause being second class to the establishment clause. So I think what you're seeing here is Justice Thomas pointing out some problems,

some hierarchical problems and consistency and maybe hypocrisy in the court's jurisprudence. I wish he would do it more consistently across the spectrum because I think similar to how liberals always say the conservatives just aren't funny and that's why all the comedians are liberal. I don't think that's accurate. I don't think that all of the inconsistencies and hypocrisies are on the right as Justice Thomas seems to find them. Well, you know, I think that I wrote this a couple of months ago or a month, whatever time is, is really meaningless, meaningless at this point. Um, I wrote this some time ago that if there's anything, if you're talking about sort

of constitutional conservatism on the right, it has really emphasized the first and second amendments and not so much four through eight. And if you've talked about constitutional, uh, sort of the emphasis of civil libertarians on the left, they've really emphasized four through eight and not so much one and two. And, you know, so it would be interesting to look at, take a close look at Thomas's jurisprudence on four through eight, where I'm not always in his camp. I'm much more in the Gorsuch camp on four through eight. I think of the justices, I think, and again, Gorsuch is early in his career, I think he's among the most consistent on one, two, four, five, six, seven, and eight, which is one reason why he sometimes get this sort of strange new respect from progressive writers on the criminal procedure cases. Oh, wait, Gorsuch, Gorsuch is with us. And this is the Scalia model. Right, exactly. It's the Scalia model. So I want to highlight a Politico story. Okay. And it's the headline is this conservative groups

see abortion ruling as catalyst for reelecting Trump. A bit of a head-scratcher of a headline, I have to say, when I saw it. I was head-scratching as well. And here's the first two paragraphs. Religious and anti-abortion groups that helped sweep Donald Trump into office in 2016 say the narrow Supreme Court ruling striking down a Louisiana abortion law only adds fuel to ongoing efforts to re-elect the president. This November, the conservative groups conceded that in the short term, Monday's 5-4 decision, which invalidated a law that critics said would have

forced all but one of the state's abortion providers to close, was a major loss for them in the administration. But they contended it would give them a potent rallying cry to turn out the vote for Trump. Before I uncork on that... Boy, I'm young enough to remember last week when the Title VII and DACA cases meant that we were just abandoning legal conservatism altogether.

Yes, the conservative legal movement had failed. Now it's only one justice away from success. And Lucy, if you could just kick that football one more time, I promise I won't move it. Promise. Well, this is going to be a little bit of a foretaste for my Sunday newsletter where I'm going to kind of take a look. The current plan, barring unexpected developments, is to take a more holistic look at the pro-life movement after June medical. But look, y'all, nine of the last 14 justices of the Supreme Court have been nominated and confirmed under Republican presidents. Nine of the last 14. That's going back from O'Connor forward.

You should have had your five votes by now. Yes. Now, there is a short wrong answer as to why we have not had the five votes. And there's a longer correct answer. What's the short wrong answer? The short wrong answer as to why there's not been the five votes is that Republican presidents just pick poorly. And what they should do is do what the Democrats do and bring a nominee in and say, will you vote to overturn Roe? And if the answer is, I don't know, or maybe, or no, then thank you next. Bring in the next person who says, will you vote to overturn Roe? And if the answer is yes, okay, you're in the

running. And the reason why, and there's been a lot of, I've saw a lot of, you know, sort of Twitter commentary, it's time we impose the litmus test. Now, here's my longer answer as to why that would not have worked. Sarah, since 1980, will you overturn Roe? And I said, yes, sir. Can you name me a time when that justice would have been confirmed? The closest you're going to get is the Gorsuch and Kavanaugh spots. And the problem that you have there is that you have at least two pro-life Republican senators who may and probably would have defected. And then the question is, could you have held on to everyone else without someone defecting because it was just unseemly to have such a litmus test. A little hard to say, but I think you're probably right. I think until the end of the judicial filibuster, the answer is 100% no. Oh, that's, I mean, that's not even in

question. The only time that you even get close is in 2017 and then 2018. Right. And I think the consensus, my view watching those hearings unfold was that if Gorsuch or Kavanaugh had said flat out yes to that, immediately their nomination is in question. I mean, their confirmation is in question.

Well, I mean, you definitely lose Collins and Murkowski. I don't know whether you lose anyone else at that point, but if, you know, in some of these purplish states for the senators who are up for reelection, et cetera, et cetera, I'm thinking Missouri here. I don't know. Well, if you lose Collins and Murkowski, remind me of the alignment in 2017.

You're sunk, right? It wasn't 51? Okay, well, now you're quizzing me too much. Okay. You might be right on Gorsuch. On Kavanaugh, I think you had two more that you could lose. Yeah, I think Kavanaugh, there was a little bit more room for error.

So then that would say of the nine justices confirmed, so seven of the nine that were nominated and confirmed would not be on the court if they had said, yes, I will overturn Roe. Two of them, maybe one of those two, probably not. And the other one. But they both voted the right way on June Medical. They did. So it doesn't matter yeah and so that that's why i say look if you look at this from the there's this sort of simplistic lens that says um well look look at how the republicans failed they're just terrible

at selecting justices the next republican is going to be better at selecting justices. The next Republican is going to be better at selecting justices. They had to get confirmed. They had to get confirmed. And one of the issues that you have here is one of the issues that has led to a lot of the stagnation in abortion law more broadly. There's only been two pro-life laws passed in the past 20 years, and they were passed under George W. Bush, Born Alive Infant Protection Act, and the partial birth abortion ban. The American public has not been in a position to where they're rising up as one to nominate and confirm or to elect senators who are going to confirm someone who vows to overturn Roe. That's just not been the state of the American public. That's not been the state of the Senate. And so at the end of the day, sort of sitting there going back and saying, Reagan, HW, and W, you losers. It's just completely misreading the state of American politics over the past 40 years. That's my thought anyway. Well, real quick, I have some potpourri on CFPB,

but it's not really on CFPB. Shout out to Josh Blackman, who wrote this great piece at Reason.com. And I think we need to have Josh on the podcast when this term is over. I'd love that. Yeah. He pointed out some of the great writing in the CFPB opinion coming from Kagan in her dissent. He ends with, I encourage people to emulate Robert's style, but don't try to fake Kagan's style. This type of wit cannot be forced. It must come naturally and from within. And it was so great. So this is a quoting from her dissent. What does the constitution say

about the separation of powers and particularly about the president's removal authority? Parentheses, spoiler alert, about the latter, nothing at all. And in another section, this analysis is as simple as it can be. The CFPB director exercises the same powers and receives the same removal protections as that of other constitutionally permissible independent agencies. How could it be that this opinion is a dissent?

Blackmun is taken to calling them the two chief justices, John Roberts and Elena Kagan, the de facto chief justice. And the Wall Street Journal has actually agreed with him about that after Bostock and said that, you know, Kagan is doing this great job winning over Roberts and Gorsuch, as they put it.

Congratulations to Chief Justice Kagan. So just some notes on writing. I think he's right that when you look at the chief's writing style, and this is how he was as an advocate, it's just so precise. There isn't a word to spare, a syllable wasted. And when you look at Kagan's, you want to hang out with her and be friends with her, which is someone who knows her and has gotten some meals with her. Yeah, it's pretty fun.

Yeah. Yeah. Well, you know, we've already said this before about Kagan, but she was much beloved by conservative students at the law school. Yeah. Me, one of them. Yeah. Yeah. You, one of them.

Much beloved. Yeah. I mean, we talked about this before when people went searching for recent Harvard Law grads to oppose her confirmation. They were thin on the ground, especially if people had any recollection of the contrast between the Dean Clark regime and the Kagan regime.

And as I've said, the free tampons, you know? Like, how can you resist? This is where David goes quiet and I continue to carry the pod. So some things that we need to get to, David, not on this pod, but I just want to highlight some of the emails that we've gotten that I'm like, yes, we will. One is some of the behind the scenes at the court and what's happening right now in terms of opinions flying between chambers. It used to all be paper. Are they using email more? How does this sort of work between clerks and justices and these little snide remarks in the dissents? And so one listener had a very good suggestion that we have on a recent clerk.

And I think we will have several term wrap-up pods. I'd like Josh Blackman for one of them. And I do have a very specific recent clerk in mind as well. So yes, we hear you. You are right. And we will do that after the opinions are done. Yes. Because then we can talk about the opinions with these people, which I think is more fun too. Because then we can talk about the opinions with these people, which I think is more fun too. Oh, absolutely.

Absolutely. Well, shall we move on to the challenge? Sarah issued a challenge to me yesterday. Is there a movie you don't like, David? Which, you know, as I said, by and large, I like the movies I choose to go see. I'm a fan. I'm an enthusiast. It's fun to go and have the popcorn

and the big screen. I just want to be clear. He did have difficulty with this assignment, y'all. I did. I did. I had difficulty. So before I go,

why don't you kick us off? Oh, I have so many. So starting off the list, now, we need to also define our terms here. I am not talking about the jilis or whatever movies that were just actually bad movies. I'm talking about movies that other people liked

that we did not like. That's how I'm defining a bad movie. And I realize that's not very textualist, but here we are. Cloud Atlas, number one, no question. What in the hell was that? It had such a good cast. I have no idea what happened during that movie.

As best I can tell, the only people who really liked that movie liked the books. And maybe if you'd read the books, then the movie had meaning or some plot that was discernible, but the movie had none of those things for me. And Tom Hanks, just WTF, man.

Anything by Wes Anderson. They're all terrible. Wow. You're going to cause a riot. Shape of water? That one best picture. What the... Okay.

Okay, here's... Here's the one that the most people like that i am in the most minority for disliking it's inception I'm sorry. What? I'm sorry. I love so many Nolan movies. I do. But I didn't like Inception. Thou hast blasphemed against Nolan. Caleb, our producer, has thrown his hands up.

He has left. He is not producing this episode anymore. There's one thing you should know about me. I specialize in a very specific type of security. Subconscious security. You're talking about dreams. Ah, sorry. And then there were just movies that I thought didn't live up to it.

La La Land, Once Upon a Time in Hollywood, Marriage Story, Uncut Gems. Sorry. It's not that they were bad. They just were overhyped. So you just listed a whole bunch of movies that I was astute enough not to see. That's fair. Because I have a pre-clearance process.

Like voting pre-clearance? Yeah, it's like a pre-clearance process. So here's the first question. Is this a movie or is this a film? Okay. If this is a film, it better be darn good. What's The Graduate? The Graduate is a film and a great movie. The Graduate? The Dustin Hoffman? Yeah. film and a great movie? The Graduate, the Dustin Hoffman? Yeah. Yeah. That's another one I hated. Okay. The Graduate is one of the movies that made me realize the film movie distinction is valid and should be adhered to. What are the chances that I picked that? Okay. Wow. Yeah. So first, is it a film or is it a movie? If it's a film,

then you got to really coax me because I'm not going to... That's a film and a movie? Never saw it. Double Indemnity. Any of the Hitchcocks, really? Never.

Wow. I have not. Okay. Good to know. He hasn't seen Hitchcock. If it's a film, is it a film or is it a movie?

Okay. If it's a movie, does it have warp drive, hyperspeed, any kind of intergalactic combat? Then yes. Okay. I'm going to like it. I'm going to see it. So you just go through this preclearance. If it's a comedy, is it a comedy that's supposed to make me think?

Or is it a comedy that's supposed to make me laugh? Or is it a comedy that's supposed to make me laugh? If it's the former... And we know which one you're going to see. Yeah. Okay. So that's why I have such joy in the movie experience. When I mess that up is when I pay. Interesting.

See, I like at times seeing movies that I don't like. I think that is actually the fundamental difference. Sometimes I watch a movie knowing that I might not like it because that's, it's like the hedonic treadmill, David. Like you're just like ramping up so that everything's just better and better. But I need to somehow, sometimes have spinach in order to appreciate chocolate cake. Well, for me, it's, is it chocolate cake or is it better chocolate cake? Like that's the, the distinction. But if you just keep having better and it chocolate cake or is it better chocolate cake? Like that's the distinction. But if you just keep having

better and better chocolate cake, then pretty good chocolate cake no longer tastes as good as it does to me. Hmm. I can test that notion. But so here's where, so there's a number of movies that there's a genre of movie

that I generally like, even though it doesn't fit into that sort of like entertainment versus supposed to teach me something. Is this military history? Yeah, war movies. War movies, yeah. War movies, yeah. Hacksaw Ridge, for instance.

When I think of movies that don't fit into that for you, that you really love, I think Hacksaw Ridge. Yeah, I loved Hacksaw Ridge, for instance. I just like when I think of movies that don't fit into that for you that you really love, I think Hacksaw Ridge. Yeah, I loved Hacksaw Ridge. Platoon, going to see Platoon was a, I mean, that was a very memorable moment in my young life, going and seeing that in the theaters. Back in 1925, yeah.

Yes, 1925. It's about the Vietnam War, Sarah. I love Platoon. Yeah, and so, I mean, like that movie, you're not going to that and thinking, boy, I'm going to be entertained. It was a gut punch of a movie. Like it was a gut punch of a movie. But it was a really, I mean, it was a really good, I'm going to use the word film. It was really, really good. Actually, how old were you when you saw Platoon? Because that's, I mean, did your parents take you to see that at an age

appropriate? When did Platoon come out? I had a get out of jail free card on R-rated movies for violence. Actually, wait, it was 86. Okay, you're fine. So I was 17. Yeah, yeah, that's fine. Yeah. I just was thinking like 13-year-old

David's watching Platoon and it's, you know, that's a lot Yeah. I was thinking like 13-year-old David's watching Platoon and it's, you know, that's a lot for... That'd be a lot. That'd be a lot. So after Platoon, I saw this movie that is almost universally loved by critics. And I walked out of the movie theater actually angry that I had watched it.

And that was Full Metal Jacket. I just thought i watched and and listeners will maybe cause their own riot in the comment section i just thought i watched two plus hours of nihilism i think you did it was cooper yeah i mean i know and did you like a clockwork orange i have not seen a clockwork orange what oh my gosh. A Clockwork Orange is a film and it's a film you need to see to appreciate so many other films.

But yeah, it's pretty nihilist. If you're ever going to begin... Caleb, our producer, he's on mute and yelling. So if you're ever going to begin an argument for me to see a movie that has the word need in there, like you need to see it for... Uh-huh.

It's just, why? Why do I want to inflict pain upon myself? To appreciate the chocolate cake later. What was it for the line from Princess Bride? Life is pain, Highness. I don't want to pay for the additional,

like, the additional optional pain. And that's what I felt like with, with Full Metal Jacket. It's not that,

I mean, there's a lot of pain in movies like Black Hawk Down. There's a lot of pain in movies like Saving Private Ryan and, and Platoon that is true to the pain of pain in movies like Black Hawk Down. There's a lot of pain in movies like Saving Private Ryan and

Platoon that is true to the pain of war and conflict. I just walked out of Full Metal Jacket thinking it was just nihilism. I hated it.

So when the AFI's Top 100 movies came out in, what was that, 98, 99, something like that, did you watch them? Did you go through and have interest in that? I did go through to see which ones I would want to watch. I mean, I went through like it was a homework assignment. Oh, did you really?

Yeah. I don't think I've seen every single one, but I basically dedicated a good chunk of high school and college to trying to get through them all. So do you have the list in front of you? I do. Platoon is number 83. Oh, okay. What are the top 10?

Okay. You ready? Yep. Citizen kane have you seen it yes and he provides no commentary okay casablanca the best nope should have been what you haven't seen it i have not seen oh oh my okay the godfather yesfather. Yes. Gone with the Wind. Yes. Lawrence of Arabia, which I will admit I found it actually pretty difficult to get through because it was so freaking long.

Glorious movie. Eh. Wizard of Oz. Yes. Number seven, The Graduate. Ugh. Number eight, On the Waterfront. Nope.

Number nine, Schindler's List. No. Number 10, Singing in the Rain. No. Still. Okay, number 13, The Bridge on the River Kwai. Yes. Okay, so the war movies maybe we can like get through here.

Uh, 2001, A Space Odyssey. Yes, great. Okay. They didn't quite have warp drive, but still. It was close. Yeah. Dr. Strangelove, sort of a war movie, but kind of not. Didn't see Dr. Strangelove.

No. Guys, okay, so this is interesting because this whole time I thought that David is just this huge culture buff, but in fact is just this huge culture buff. But in fact, he's not a culture buff. He's a very specific non-film culture buff. I think Steve Hayes has seen more of these movies than you have, David. That could well be true. But you know, it's also hard to see all of that stuff while you're playing a lot of Dungeons & Dragons and gaming a lot.

I mean, there's only so many hours of the day. Watching Casablanca with other dudes might be weird. True. I do. That is a hole in the repertoire. I do need to see it. But I think people are screaming at their

iPhones right now about my cultural ignorance. Also, just because I have to mention it, number 31, Annie Hall. Oh, I have seen that. I know he hates Woody Allen. Oh my gosh. Oh my gosh.

This is where I have to tell the story on myself. When I was dating Nancy, my wife, we dated for six weeks before we got engaged. And there were two great deceptions I unspooled in those six weeks. Deception number one was that I liked films, specifically Woody Allen films that she loved. So I spent many hours in our dating relationship

watching Woody Allen movies and talking about them at length afterwards. And then deception number two was that I was only a moderate sports fan. I could kind of take it or leave it. And then that one blew up when the very weekend after we got back from our honeymoon, I said to Nancy, I've got to head out. She said, where are you going? I said, to my fantasy baseball draft. See you in about 10 hours. So that's how I burst through that deception. Still married.

Still married. It's coming up on 25 years. I don't recommend a six-week dating relationship laden with deception about your pop culture interests, but hey, it worked out. You know, there may be more to it than you think. All right, Sarah, anything else

before we sign off? The court has not said when they're releasing the next set of opinions, but when they do, we will be potting and we will certainly pot on Thursday. Yes, so we will definitely

see you Thursday and we'll see you the next time the Supreme Court releases opinions. Until then, thanks for listening. And again, please go rate us

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