Advisory Opinions - Winning Without Winning

Episode Date: July 4, 2024

On today’s super-mega-extravagant episode, Sarah and David celebrate America’s birthday by gifting everyone a magnificently long podcast. First on the docket: more analysis of the SCOTUS immunity decision. The Agenda: —Facial challenges in Moody v. NetChoice —Welcome, Father of the Pod —Should prosecutors be totally immune? —No more bad science! —Ongoing debate over Section 230 —Romney: Corporations are people too! —Donald Trump’s Florida and Georgia cases —Is the pod over yet? Nope! —Dred Scott vibes Show Notes: —Husband of the Pod’s Wall Street Journal op-ed Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Music Music Music Music Music Welcome to Advisory Opinions. And boy is it going to be an advisory opinions

today. David, we're going to have to just do it all today. As long as it takes. Okay, man? Yeah, let's buckle up. All right. We've got to do some more on Trump immunity, including footnote three, net choice, corner post, the orders list, and bankruptcy with a special guest. All in today's advisory opinions. So let's dive right in. I want to get to some of our continuing discussions on immunity that you and I have been having. Also, just some interesting emails, texts that I've been getting from smart lawyers as they're thinking through this. But I thought maybe the place we could start was Footnote 3.

Yes. Which as soon as we stopped recording, you and I were both like, how are you thinking about footnote three? What does this mean? So I'm just going to read footnote three and let's do a little breakdown. Okay? All right. So here's the sentence of footnote three is footnoting.

Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie presidential immunity seek to protect not the president himself, but the institution of the presidency. This is an evidentiary point. And we're going to definitely be dividing up evidentiary immunity from the sort of indictment immunity in a sec. So footnote three, Justice Barrett disagrees, arguing that in a bribery prosecution, for instance, excluding any mention of the official act associated with the bribe would hamstring the prosecution. But of course, the prosecutor may point to the public record to show the fact that the president performed the official

act and the prosecutor may admit evidence of what the president allegedly demanded, received, accepted or agreed to receive or accept in return for being influenced in the performance of the act. What the prosecutor may not do, however, is admit testimony or private records of the president or his advisors probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the president's motivation of his official actions and to second-guess their propriety. As we have explained, such inspection would be highly intrusive and would seriously cripple the president's exercise of his official duties.

And such second guessing would threaten the independence or effectiveness of the executive. Okay, so David, let's really focus in on the pardon for money example. Yes. When we talked about this, we were talking about the immunity from indictment. So this is the idea that because the pardon is a core executive function mentioned in

the Constitution, Congress can make no laws restricting it. For instance, they can't say, you know, you can't pardon these types of crimes. For instance, the Supreme Court held that a long time ago. What the chief appeared to be saying here was they also can't restrict it in the sense of passing a criminal law about it either. Now, you and I also talked about how it doesn't make a ton of sense because you could have just subsumed that into the sort of balancing test, test of simply saying there's a presumption of immunity, but it can be overcome if the government can show

that prosecuting such a case would not intrude on the powers of the executive. Okay, so we have that whole conversation. It's pretty confusing because the dissent specifically mentions the fact that a president who takes a pardon for money would be immune. And the chief doesn't seem to push back on that aside from saying that it's a far-fetched hypothetical,

extreme hypothetical, things like that. But he doesn't say that the underlying theory is false. Right. Okay, but now you have footnote three saying you could have a bribery prosecution and then talking about the different types of evidence that you could have in that bribery prosecution would be limited. But David, first of all, it's not clear whether he's talking about the bribe or the bribor,

perhaps limiting it that way, but why not make that clear? It's also not clear that he's talking about a bribe for a core function. He never mentions the word pardon in the footnote. Right. And even on the evidence point, it's a little confusing. So the prosecutor may admit evidence of what the president allegedly demanded, received, accepted or agreed to in return for being influenced in the performance of the act? But the only how are you going to do that? Because it's going that evidence itself is going to mention the act, the pardon, which you just said you can't have mention of.

And David, here's my top line. The chief is an incredibly talented writer. He's I mean, in my opinion, probably the most brilliant legal mind on the planet right now. We know he knows how to write clear opinions. We know he knows how to think clearly. Right. A lot of this seems very, very unclear. Yes, it does seem very unclear. And because if you read footnote three, let's just suppose you listened to our podcast,

and then the only thing you did is you went and you read footnote three. You would think, what's wrong with David and Sarah? This clearly contemplates a bribery prosecution, clearly contemplates it. But if you read the whole rest of it, it's very unclear to me whether this contemplates a bribery prosecution in a core function, or if this is how we do bribery prosecutions when we're outside of the core function, or if this is really how we do bribery prosecutions when we're outside of the core function, or if this is really how we do bribery prosecutions

for the bribe or not the bribee. How can we still prosecute the person who writes the check to the president, as opposed to prosecuting the president for receiving the check? And so my best reading of it all is that the core function element is still absolutely immune, even in the bribery context, but outside the bribery context, where you could still prosecute,

I mean, outside the core function context, where you could still prosecute bribery, here are some guidelines for how you could do it and how our other elements of the opinion that limit evidence would come into play. But that's not all spelled out A to B to C, Sarah. That's the thing that's kind of surprising to me about this is again, given the chief's mind, talent, pen, precedent Given the chief's mind, talent, pen, precedent,

and how he writes, it feels as if it's almost, is this intentionally somewhat vague? Are we dealing with intentionally vague? That's what I think. It's sort of like when you have sophisticated counsel in a case, we kind of hold ambiguities against you. You must have meant to have ambiguities because sophisticated counsel doesn't make mistakes, quote unquote.

This is what we're doing with the chief. So can I give you my test, David? Yes. Okay. Here's the steps. One, is it an official act? If no, prosecute. Two, if it is an official act, does prosecuting the act

intrude on the functioning of future presidents? If no, prosecute. That could have been a very easy test. I don't mean that you would have agreed with it or everyone would have liked it, but we could have done that. And that still would have had problems. So problem at step one,

how are we supposed to think about mixed motive events? So something is both official and political. The chief basically says you're going to look at the context and all of that stuff, which let me give an example, a real life example. Trump was found liable in the E. Jean Carroll case for defamation. They introduced tweets from when he was president. I would argue it's very easy to say that those tweets were not official. But in talking with another very smart lawyer who listens to the podcast, he was like, no,

because someone was trying to undermine him as president and hurt him, you know, sort of his ability to do his job as president. So that's why he sent the tweets. Therefore, they're official. Therefore, you can't use them as evidence. And therefore, you know, you have to throw out the verdict in the E. Jean Carroll case. And look, I think that's incorrect, because I think the chief does clearly say there's going to be some communications that aren't official. And if you use that test of like, well, they were trying to undermine my presidency then everything political is official and the chief specifically says

there's going to be political speeches, campaign speeches, and official speeches. But frankly, this is a step one problem that I don't even see how you can solve because there are sentences that word for word are both official and political. I don't see how anyone is supposed to pull those apart. Okay, so then let me give you my step two problem. What's the level of generality? And let's use the SEAL Team Six example. And Bill Barr said, for instance,

of course you could still charge a president with assassinating a political rival because assassinating a political rival is not a core executive function. Uh, wait. I agree. But that's like just a defining problem, right? Okay. Assassinating a political It's a motive problem, which you can't

Well, it's also that. Yes, which you can't dive into if it's a core function. Right. Right. So assassinating a political rival, not a core function, not an official act of a president. Giving a military order, a core function, an official act of a president, nothing in the opinion about how you're supposed to define the level of generality,

although I read it as you are supposed to define it at that high level of generality, looking for the core functions, basically. That's the presumption of immunity, in which case Bill Barr is wrong. And again, when Bill Barr is misreading your opinion, and if it were the case that you could still prosecute a president

for using SEAL Team Six to assassinate a political rival as it says in the dissent, why isn't there anything pushing back on that saying, of course you can and here's how? That's where I am, Sarah, because the dissent makes some very bold, and we read them out loud, immune, immune, immune, immune,

is what Justice Sotomayor wrote. And basically the way I read the footnoted rebuttal was, oh, come on, it's not gonna get like that. Was sort of the way I read the footnoted rebuttal was, oh, come on, it's not gonna get like that. Was sort of the way I read it, not the way you were explaining, no, Justice Sotomayor, the dissent, respectfully, is misinterpreting our majority opinion in the following ways, one, two, three, four.

And- And here's how you would prosecute it. Because it seems to me what they're setting up is, okay, is it official act or private act? If it's private, go. prosecute it. Cause it seems to me what they're setting up is okay. Is it official act or private act? If it's private, go. It's official, go to step two. Step two, is it core function or is it on the periphery?

If it's a core function, stop, can't do anything. If it's a peripheral function, continue on and ask, does this impair, you know, will the prosecution hamper future ask, does this impair, you know, will the prosecution hamper future presidents, blah, blah, blah? Then you can prosecute. Which again, I don't think it's necessary because by definition, if you're prosecuting a court function,

it would impair the functioning of the executive branch, but they make that distinction. There's also not a great explanation for why that couldn't have fit into, like what are we missing about step two that that couldn't have been taken care of in step two okay so David I have some thoughts from some other lawyers can I read some to you and get your reaction yes please yes okay so first I'm gonna read my thoughts I'm gonna read thoughts from smart lawyers, beginning with me. Yeah, yeah. Nothing is not humble.

Okay, so the fact that the chief doesn't address the level of generality issue, the mixed motive issue, suggests to me that he thinks that Trump is a one-off problem. Trump can only live for so long. He hates the SOB. He hates that he's forced the court into this. And so he's just not interested or willing to make sort of this specific ruling just because of Donald Trump. And that he doesn't expect this to be litigated really post Trump, doesn't want it to be litigated

post Trump. And so all he's trying to do is have as few cases with this stuff as possible. So the fewer the better, don't indict presidents. I think it's bad. And we don't want to deal with this. So we're going to make it confusing and hard or hard and confusing. It doesn't really matter which because we don't want you indicting presidents. Frankly, they're one human. Impeach them, prevent them from holding office again, don't vote for them. But this is almost a political question problem that was forced onto the Supreme Court because

there was a pending indictment. That's my take. So that is, Sarah, very, very similar to my take as well. And I think the thing that helps underline that take is both this case and the 14th Amendment case. I think they're consistent with each other in that what the justice is, well, at least five of the justices in the 14th Amendment case and the six justices in this case, they're looking at, we talked yesterday about the two parades of horribles. Parade of horribles, number one is you cannot prosecute a president who commits clear crimes in office. That's terrible.

No rule of law. Parade of horribles, number two is you get a vindictive man in the presidency who decides he's going to prosecute his predecessors. That's again, both of those people are running for office right now. Yeah. They are the same candidates. Frankly, both of them. So Joe Biden is prosecuting his political opponent. I know people want to say DOJ is independent or special counsel, but like executive branch, there is a current president prosecuting his political opponent. And Donald Trump has promised to prosecute Joe Biden and a whole current president prosecuting his political opponent, and Donald Trump has promised to prosecute Joe Biden and a whole bunch of other of his political opponents

if he gets into office. So we have sort of two votes for one of the Parade of Horribles, and then one vote for the other Parade of Horribles, which is Donald Trump's very existence. Yeah. This is where I feel like, and to circle back to our conversation yesterday, I think there is a legitimate argument, Sarah, there is a legitimate argument. It is not cut and dry that it is worse to stop a prosecution of a former president, or it is worse to have a prosecution of a former president than it is to stop it because the downline risk of the prosecution, especially in the face

of an avowed promise by Trump to do it, and he happens to be the front runner, there's a legitimate, I don't think it's a lay down hand on either side if you're just starting from this blank slate, right? That says, what's the better practice? Don't prosecute past presidents or prosecute past presidents in limited circumstances.

And I think that if you put the Chief Justice under truth serum, he might say, hey, I squared the circle here. I created a world in which I've created a firewall against political prosecutions and I have permitted prosecution in the most egregious instances. You're welcome. Thank you very much. I'm out. See you in October. And that's, I think there's a world in which, you know, the chief would say, I really accomplished something difficult here that's gonna have, that squared their circle

as much as possible. Again, that's a legitimate policy argument. It's just that what I keep going back to, Sarah, is it's just so hard to square with the text of the constitution. And we talked a little bit about the impeachment judgment, the impeachment judgment clause. to square with the text of the Constitution. We talked a little bit about the impeachment judgment clause. This is Article 1, Section 3, Clause 7.

It says, judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, punishment. Now, here's the interesting question about this is, when you're talking about this world of impeachment, it's clear that they contemplated, it's clear that the founders contemplated the existence of criminal prosecutions. And I just find that difficult to square in particular with the absolute immunity prong

of this. And that's where I keep tripping up is, wait a minute, this wasn't a blank slate policy argument. This was an argument in the context of a written constitution that had stuff to say. And I feel like the dissent actually centered around what the constitution had to say. And the majority comprised of a lot of people who've been in the executive branch were much more focused on the pragmatism of this policy argument. That's, I guess, where I am on it, Sarah, which is very similar to where you are on it.

All right, I want to read two other takes. One from Professor Ned Foley at Ohio State University. I've debated him at various points. He's wonderful. He's on the left, right? And so in this email exchange, he is debating other law professors and law experts on the left. And I've gotten his permission to read his response only. If the impeachment removal disqualification process doesn't work for a president who orders the military to seize voting machines solely for the malevolent purpose of manipulating his way to a second term that he did not actually win, based on a true count of valid votes, then I for one am reluctant to rely on criminal prosecution of the same conduct. By definition, when a president's co-partisans in Congress refuse

to exercise the impeachment removal disqualification process, a criminal prosecution of that same president by a future president of the opposite party, once the malevolent president is no longer in office, is the leader of one party trying to put the leader of the other party in jail when the other party refuses to acknowledge that its leader did anything wrong. That's a situation, as we are living through now, that is fraught with extreme peril.

Ultimately, as with Watergate, a president's co-partisans in Congress must be willing to accept that their own leader engaged in a high crime or misdemeanor in order for criminal prosecution of that president to be functional in a two party democracy as a practical matter. If you can't procure that acceptance, as unfortunately has been the case with respect to Trump, criminal prosecution of the president will inevitably be perceived as a partisan attempt to deny the opposite party of its chosen leader and likely backfire with terrible consequences. David, as odd as this sounds, I actually think this is a pretty strong structural argument about the Constitution. It's not just a consequentialist argument, that this is about how you're supposed to think of separation of powers. And it's almost a Congress do your job. It's not almost. It is a Congress do your job argument and a voters do your job argument that frankly the criminal justice system and process wasn't meant to do your job for you.

And in so many other ways where we see attempts to do Congress's job for them in a highly partisan moment. And at other parts of his email, he talks about, in fact, I'll just read this part real quick. Whether the criminal prosecution of Trump for his attempt to subvert the 2020 election should move fast or slow should be determined in my view entirely by the considerations relevant to fair criminal procedure and not at all with respect to electoral politics. This is also a structural point, right? Like, on the one hand, if this is a political problem for the country, which it is, you need to rely on the impeachment disqualification removal. To the extent it's a criminal problem,

it has to be treated in the criminal process like anything else, and that's going to move slowly. We're going to have to answer a lot of new questions because of this structural issue of are we dealing with a crime, frankly, or are we dealing with a political question of the abuse of one branch of government? And there's a person who holds that branch of government. And that's what I mean by this almost being a structural point and not a consequentialist point about what you do when one branch of government. And that's what I mean by this almost being a structural point and not a consequentialist point about what you do when one branch of government abuses its power. That's the official act problem. That's the core function problem. And it's hard to

sort of imagine that because it's hard to see Congress as a whole branch abusing its core function. But that's the problem with the presidency being in one person. And when you think of it as the branch, the official act of a president is therefore the branch abusing its power. This whole thing, it does, it gets really messy and maybe the criminal process isn't the right way to do it. Yeah.

You know, I think that's, again, I want to say it again, that these concerns about future presidents, prosecuting past presidents, these concerns, structural concerns, you can't just hand wave it away with but SEAL Team Six, but bribery. These are very real concerns that I think that require a serious response. But there's a couple of things about the professor's email that kind of pinged in my brain

that said much more consequentialist than structural. So one of the things that he centered around was what about this very specific situation of past president of one party, next president of another party. But I could easily imagine a situation in which, let's suppose you had Mitt Romney succeeding at Donald Trump. It's easy for me to see a situation where you could say a president of one party could prosecute a predecessor from the same party. This is something that is not out of the question at all.

The other thing is the sort of idea that you need votes from the other party to essentially ratify the prosecution. Well, how many? Let's suppose you had, like it was in the opening of the Obama administration, there were 60 Democratic senators and 40 Republicans. So seven Republicans could cross the aisle and have an impeachment. And for plenty of times in our country's history,

we've had very lopsided senators. Very lopsided. So if you have 60 Democrats and seven Republicans cross over and 33 Republicans crossover and 33 Republicans vote against impeachment. But I guess then I would argue that that's that's still an electoral mandate. They got the mandate to hold that many seats in Congress in the first place. That is still reflecting the the representative political branch.

So maybe saying that it's partisan. I take your point. That's actually sort of missing the structural argument a little bit. I like the way you just said it, which is, look, if there's a mandate in Congress and that many people remove the president, done. But if there's not, and that's the situation we're in now for whatever reason, whether it's a partisan reason or there's just not a mandate reason, that's where we are now. Let me read you this other one from James Burnham. James Burnham, a Republican, great legal thinker. He is now the founder of King Street Legal,

which is sort of litigation finance on the right, if you will. He worked in the Trump administration. Okay. I think there are two unstated, clearly correct predicates for the chief's opinion. First, politics should never ever drive criminal prosecution decisions or timetables. Here, politics have driven everything. As Biden confirmed on Monday night, he's talking about the speech that he gave about the Supreme Court opinion,

which I also thought was wildly inappropriate. The court has an institutional obligation to stop that abuse of the system. Second, Jack Smith brought a legally flimsy case in DC that DOJ would never have brought against anyone else, then made absurd demands of the system. Second, Jack Smith brought a legally flimsy case in DC that DOJ would never have brought against anyone else, then made absurd demands of the Supreme Court to abet his political timetable. He has had bad judgment for a long time, as the chief reminded us with a pointed citation to McDonald, a case I litigated, as you know, Sarah. The

McDonald case, that's the governor of Virginia, who was convicted of bribery and Supreme Court threw that out as a bad prosecution. And Jack Smith, obviously, being involved in that. I had missed the McDonald citation and thought that James, of course, he saw it, but was smart to point that out. That does raise this idea that they think, like with the Ted Stevens prosecution, the McDonald prosecution, that you've seen DOJ get way over its skis on some of these political, quote unquote, corruption prosecutions. And that perhaps they think this falls in that same bucket of Ted Stevens and Bob McDonald

prosecutions. Again, I don't think it explains why the chief's opinion is confusing as I'll get out, but maybe it does. Yeah. I don't think there's any question that when you look at Ted Stevens, when you look at Bob McDonald, look, if you look at the Fisher case from this term, that the Supreme Court has been very concerned for a very long time on over broad, for on about over broad federal criminal statutes, over broad application of federal criminal statutes, Justice Gorsuch is kind of reviving the rule of lenity that

sort of this tie goes to the runner. So I don't think there's any doubt that a that there are federal criminal statutes that are extremely broad. And B, there is a precedent for DOJ stretching those extremely broad statutes beyond the breaking point. And C, if the- And Jack Smith in particular stretches them, unfortunately. Correct. And if you add A and B, that equals C, a real concern going forward in a hyper-polarized nation that future presidents will routinely use

over broad statutes to pursue political opponents. I don't think that is, I don't think if you state this, especially after we've been through, you know, what we've been through in the last several years that you can say, oh, stop worrying about future presidents abusing the power to prosecute. When one of the number one reasons why a lot of people are worried about Donald Trump coming

back is he's promised to use the power to prosecute. So this idea that there's no downside at all to holding presidents liable criminally for official acts within in the presidency decided that there's no downside at all. It's the clearest thing in the world. I just think that's not correct. I just keep going back to how does the text put its thumb on the scales? In what way does the text put its thumb on the scales? And the fact that basically nobody from Bill Barr to us to a lot of the other lawyers who I've seen pine on very basic questions.

Can you prosecute a president who takes a bribe for a pardon? Right. There's no agreement on that. No. Means this isn't going to get resolved any time soon. So David, if we have some time, maybe we'll return to this discussion at the end of the podcast.

But for now, we've got so much more to do. All right, David, so next up, I think we have to do NetChoice. This was the social media laws in Texas and Florida punchline. They remain enjoined from going into effect. This was a unanimous decision, but it was also a 6-3 decision, non ideologically, with Gorsuch, Alito, and Thomas in dissent-ish on some of the questions that we're going to talk about. You've cared about this case more than I have. And again, for disclosure, my husband litigated this case on the Texas side.

So I want to let you give all of your thoughts on it. But my like bumper sticker is this was a huge win except for the winning part. Yeah. Yeah, that is the exact way to look at this. This is this was a case that the court decided essentially the bottom line was wait a minute, this is a facial challenge you didn't do. Both the 11th Circuit and the 5th Circuit did not do the facial challenge correctly. In other words, they didn't analyze this under the correct rubric.

But then what the court did, rather than sort of say, okay, go back and do it again, it didn't leave the 11th Circuit and the 5th Circuit's ruling in place, it left the district courts ruling in place, which the district courts had blocked the law. And so both the Florida social media law and the Texas social media law, and the laws were different, but they both intruded into the content moderation process. So the real issue here was for these large social media

companies, for these large internet companies, is their algorithm, is their moderation, are those elements of their operation, are they in essence the speech of these companies? And if they are the speech of these companies, if the way they run the algorithm, the way they moderate the content, expresses sort of the company's values and the space that it wants to create, then a state law saying, no,

you have to allow certain voices on, or you cannot moderate using viewpoint discrimination, et cetera, is intruding on their free speech. And so that was sort of the core issue here. And why you said, Sarah, a big win without the winning part is it's not just that the court in some little short per curiam decision said facial challenge applied incorrectly, go try do it again. You had a Justice Kagan majority opinion that editorializes a lot on how the court below should do the analysis

and editorializes in such a way that it seems to me, I can't see how these laws ultimately survive, at least in particular in their application to social media companies. So the court essentially says, do it again, and here are some helpful tips for how a majority of the court is thinking through this issue and Those helpful tips were the winning part For you know, First Amendment advocates the helpful tips were

yeah, this social media moderation is actually protected expression and Go back and do it again with that in mind. But here's what's weird, David. We've had plenty of facial challenge cases through the decades that certainly could have been sent back down under this facial challenge definition, but they weren't. And in sort of a Rehnquist Kennedy-Brier world, they would have said that the substantial application of these laws was to newsfeeds, it was unconstitutional, thank you for playing. The fact that that's not what the court did here is one of two things. One, they're really going to beef up this facial challenge doctrine and facial challenges aren't just going to be

disfavored, which is the quote from previous cases, they're going to basically be dead. That's one way to read this possible. But the other way to read this is actually in a long line of tech cases, because David, we keep saying this is the tech term. And then every time they get one, they punt. And so this is interesting because it's also still a punt, but then a punt getting to say all the things they wanted to say while still punting. So which one is this? Are we swimming into new facial challenge water

or is this a tech distortion, we're scared of the internet? Or is this a, let's pull the lens out bigger even, Sarah. And is this a court we want to do less opinion? In other words, consistent with Murphy, no standing. So that was kind of a punt, right? Definitely. Mifoprestone, no standing. This one, you just didn't do the facial challenge right. 14th Amendment,

leave us out of this political process. Immunity, kind of a let's not keep doing this sort of decision. And there's a lot of similarities to the Idaho case, actually, where they say, you guys didn't even figure out what the facts are. There was a lot of discussion of we don't know what companies these laws apply to. Does this apply to Uber and lot of discussion of, we don't know what companies these laws apply to. Does this apply to Uber and Etsy and Reddit? We don't know, you guys didn't know, go figure it out. So yeah, I take your point.

So part of me was thinking in that larger context that is one of the signals that the court is sending is you're just asking us to do too much. Now the- 60 cases a year is just too hard. Too hard. But of course, cutting against that is getting rid of Chevron, which is Barry Bonds bulking up the judiciary.

But again- And Jarkisy. And Jarkisy, again, bulking up the judicial branch. But there's a strong strand within the court of, don't send us all your problems. It's like when two siblings fight. It's like, yeah, look, if you stabbed your brother, we're getting involved. But if you just hit him a few times, y'all need to work that out. We're just not doing this all day long anymore.

Yeah, yeah, exactly. And you do see this sort of strain where it feels like, in some ways, they're trying to settle the culture wars in one sense or punt the culture wars out of the courts in another sense. It really, you can tell there is a strain here. There is definitely a strain of, you're just pulling us into too much stuff.

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I'll admit, I was pretty surprised by this because the, look, Justice Thomas has this, again, it's a concurrence, but it's kind of a dissent concurrence, where he's like, facial challenges aren't a thing. Where did this come from? There's nothing about cases or controversies, what Article 3 allows the judicial branch to hear, that mentions facial challenges for nonparties.

That's not a case or controversy. So facial challenges shouldn't exist. They're a relatively recent invention coming out of vagueness doctrine and overbreath doctrine, which also shouldn't exist. This is all made-up doctrine on top of made-up doctrine trying to fix the previous made-up doctrine that we made up. I found it very compelling and it feeds into the nationwide injunction conversation that you're dealing with non-parties basically who aren't even there to advocate for themselves. Let me give an example of why the facial challenge problem is now going to be even

weirder as this case goes back to be litigated. So remember, this whole time, Texas has been arguing in Florida, have been arguing, oh, oh guys, these laws are really narrow. They're just trying to get to this like newsfeed problem. We're just trying to do this like little bit of viewpoint discrimination fix. And the social media companies have said, no, these are huge laws affecting everything we do and we can't possibly do this.

Well now under the doctrine of facial challenges, I'll just read from Justice Kagan's majority. The question is whether a substantial number of the law's applications are unconstitutional judged in relation to the statute's plainly legitimate sweep. So you're doing like numerator and denominator stuff. So now both parties are going to switch teams. Texas and Florida are going to argue that their law is incredibly broad because they need to expand the denominator. And then the social media

companies are going to have to argue like, no, no, no. It was actually always very narrow and a lot of it's unconstitutional. There's something very weird about that because there's all sorts of parties that might be affected, could have been affected, aren't affected that aren't party to this litigation. And that's the true for the nationwide injunction problem, universal injunction problem. And it's true for the nationwide injunction problem, universal injunction problem, and it's true for facial challenges. I'm very sympathetic to Justice Thomas's point here, and that somehow this beefing up facial challenges, on the one hand, makes the problem worse and on the other hand, means that from now on, I think people are far

less likely to bring facial challenges. Yeah, it was disfavored before, but the court still kept deciding it. And now it's like, it's disfavored, and we're going to punch your case back. And good luck figuring all this out and your litigation costs are going to skyrocket. All because, for those wondering why you'd bring a facial challenge versus an as applied challenge, there's a lot of reasons. One, you can bring facial challenges as a trade group, right? So instead of having Facebook, Google, Twitter, every single company have to file their own lawsuit, because the law would apply slightly differently to all of those

companies because they all have slightly different things that they content moderate. You can apply Sue as a trade group. And two, if you're saying the law is always unconstitutional and basically the substantial majority of its applications, we don't need to do discovery because the facts aren't relevant because it's just any application of the law. So yeah, these companies don't want to do discovery and have to turn over their algorithms, et cetera. And so that was the incentive to bring facial challenges. I don't know what you think, David. I think after this, the incentive balance certainly has shifted, and maybe that's part

of the motivation here. There's been a lot of trade organization lawsuits of late and trade organizations popping up. Maybe this is kind of a pushback on that as well. Yeah, it's really interesting. I'm also perhaps Justice Kagan is looking at a situation this is kind of strategic. In other words, wait a minute, if I'm very much in the ideological minority here,

do I want this court dealing with a broad, with broad facial challenge sort of doctrine and authority. Possibly, I don't know. But it's really interesting because, Sarah, I filed so many facial challenges and so many. And it was always never, it was never hard in the First Amendment context. It was not hard. This wasn't rocket science. It was- In your face! facial challenge. Yeah, it was so easy to do. And maybe the court is saying, oh, now we recognize this is really, really,

really easy to do, and we're gonna do something about it. And they kept saying, like, no, this is not a good idea. We don't like facial challenges. It's highly disfavored. But we're definitely deciding the case, and you definitely win. Yeah, exactly. And there is a logic to it because,

let's go back to this idea of the chilling effect, okay? Like you've got college students, this is where I was filing facial challenges time and time again was to speech codes. So you have 18 year old college students and the college passes a rule, passes a rule that says, and this is I'm quoting one of them that I sued years ago,

acts of intolerance will not be tolerated. That's the policy right there, Sarah. With no irony. Acts of intolerance will not be tolerated, no irony. What does that mean? Like if you're an 18 year old and you're like, I'm trying to comply, what essentially that means for an 18 year old and you're like, I'm trying to comply, what essentially that means for an 18 year old is whatever you say is intolerant, I can't do.

Whatever you say. And so it has this, without even enforcing anything, this pall, the sins, this is their stuff I can't do because we don't ask an 18 year old to be a constitutional law scholar and to say, ha ha, that's unconstitutional. I'd like to see you try to enforce that on me. We don't ask people to do that. And so that's one of the reasons why the facial challenge has been common and successful is that we've had a lot of situations like that. And it seemed very clear that Kagan was saying, well, if the universe here, as you were saying, that denominator is YouTube and Facebook, well, they're going to win.

But if it's Etsy, I don't know. And because I don't know about Etsy, then that's- Yeah. But this also gets to like this weird, again, sort of multi-step question that I'm looking at here. One, what companies does this apply to? Okay. So they're going to have to draw out that universe. I'm looking at here, one, what companies does this apply to? Okay, so they're gonna have to draw out that universe. But separately from that, two,

do those companies do content moderation that is affected by this law? So there was a discussion in the opinion about this idea of like, well, if it touches Uber, then that goes in the denominator. Well, no, because what content moderation is Uber doing? You leave stars. I'm very confused.

Just because Uber might be included in the definition of companies covered, if it's not included in because Uber doesn't do content moderation, then Uber's not included, if that makes sense. I feel like there was also just some confusion over how to think about the denominator. It's not just the companies. It shouldn't just be the companies at least. Because the law, just because it encompasses a company, if the company doesn't do content moderation, then there's no effect on the company.

They wouldn't have standing, for instance, to sue just because they are a social media company. Can I move to the next part, which is Justice Kagan just bench slapping the Fifth Circuit off the known universe? Yes, please. Okay. So reading here from Justice Kagan. If we said nothing about the holdings of the Fifth Circuit, the Fifth Circuit would presumably repeat them when it next considers Netchoice's challenge. It would thus find that significant application of the Texas law and so significant inputs

into the appropriate facial analysis raise no First Amendment difficulties. The Fifth Circuit was wrong in concluding that Texas's restrictions on the platform, selection, ordering, and labeling of third-party posts do not interfere with expression, and the court was wrong to treat as valid Texas's interest in changing the content of the platform's feeds. First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating other's speech, is directed to accommodate messages it would prefer to exclude. Second, none of that changes just because a compiler includes most items and excludes just a few. Okay, that's pretty clear and obvious.

Does anyone think that the Fifth Circuit is going to find that this law is unconstitutional the next time up? No. But this gets into some weird litigation strategy, David. I'm curious what you think as a litigator. If you go back down to the Fifth Circuit, you get the same panel. But if you try to amend your complaint to make it an as applied challenge, for instance, instead of a facial challenge, accepting all the downsides that I mentioned may be about needing to, you know, sue as individual companies or the discovery problems. You also though lose your injunction

against the law because that injunction was a facial challenge injunction. Yeah. Now, you'll get another injunction pretty quickly. But the nice thing about that is that you probably get a new panel at the Fifth Circuit, but not necessarily because the Fifth Circuit panel could say, well, we've developed this expertise so this is going to stay with the same panel. So you're sort of running this risk that you do it all for not.

This case is going to get weird as it keeps going, and it's almost certainly going to end up back at the Supreme Court. Yeah. So, no, all of that's exactly right. I'm very interested in the Fifth Circuit panel. I almost want to have the same panel just to see how they react to this because they were pretty stubborn to get back here again because the Supreme Court, remember, had blocked their prior injunction, sends it back and they're like, no, we meant that. And they set it back. And let us tell the rules. Oh, wait, I forgot the

third prong. Sorry. So the first one was it offers protection when you're excluding messages, even if you're a compiler. Second, it doesn't matter if you're including most things, but only excluding a few. And third, the government cannot get its way just by asserting an interest in improving or better balancing the marketplace of ideas.

And here's what I thought was fascinating, David. Justice Kagan basically walks through all the cases that we've talked about. But her summary of these cases is really interesting to me, because it would not necessarily, I think, have been the known summary of these cases. So Miami Herald Publishing versus Torneo, 1974, Kagan. There, a Florida law required a newspaper to give a political candidate a right to reply when it published criticism and attacks on his record. The court held the law to violate the First Amendment

because it interfered with the newspaper's exercise of editorial control and judgment. Okay, I think we all agree on Torneo. That was like the strongest case, but you have to think that they're like a newspaper editorial page. Pacific Gas and Electric versus Public Utilities Commission of California, 1986. A private utility in California regularly put a newsletter there like a newspaper editorial page. Pacific Gas and Electric versus Public Utilities Commission

of California, 1986. A private utility in California regularly put a newsletter in its billing envelopes, expressing its views of energy policy. The state directed it to include as well material from a consumer advocacy group, giving a different perspective. The court held again that the interest

in offering the public a greater variety of views could not justify the regulation. Okay. PG&E, pretty good there. Let's move on to Turner. Turner Broadcasting versus FCC 1994. At issue were federal must-carry rules requiring cable operators to allocate some of their channels to local broadcast stations.

They were, the court explained, exercising editorial discretion over which stations or programs to include in their repertoire. The rules interfered with that discretion by forcing the operators to carry stations they would not otherwise have chosen. Notice anything missing from that explanation, David? Turner actually lost in the end. They were forced to carry. If anyone's like, wait, but we did have must carry laws. Yes, we did. What Turner one held was that, yes, it implicates the First Amendment rights of Turner broadcasting, but Turner two held, but the government can overcome those First Amendment rights.

Turner two not included in this list of cases. Okay. Hurley. We've talked about Hurley a lot, David. This is Hurley versus Irish American, gay, lesbian, and bisexual group, 1995, when the court considered, of all things, a parade. The question was whether Massachusetts could require the organizers of a St. Patrick's Day parade to admit as a participant a gay and lesbian group seeking to convey a message of pride. The court held unanimously that the First Amendment precluded that compulsion. The selection of contingents

to make a parade, it explained, is entitled to First Amendment protection no less than a newspaper's presentation of an edited compilation of other person's speech. Love me some Hurley, that's good. Okay, now though we're gonna get to the two, what about these cases? First, Pruneyard, 1980.

The court rejected a shopping mall's First Amendment challenge to a California law requiring it to allow members of the public to distribute handbills on its property. The mall owner did not claim that he or the mall was engaged in any expressive activity. Indeed, as the PG&E court later noted, he did not even allege that he objected to the content of the pamphlets passed out at the mall.

So David, we've talked about this case a lot, and now this is going to be the majority holding, if you will, of what that case stood for. The mall owner did not claim that he or the mall was engaged in any expressive activity. I mean, I guess if you wanna say it that way, that's factually accurate, but there's a reason he was suing.

And that feels more like a magic words test that he didn't say that it was expressive. Okay. He said his first amendment rights were being violated. All right. So Rumsfeld, the forum for academic and institutional rights. This is another one that lawyers have all been like, yeah, fair is a hot mess. What are we supposed to do about fair? 2006 case. Here's Kagan. The statute at issue required law schools to allow the military to participate in on-campus recruiting. The court held that the schools had no First Amendment right to exclude the military based on its hiring policies. Because a law school's recruiting services lack the expressive

quality of a parade, a newsletter, or the editorial page of a newspaper that required accommodation of a military recruiter did not interfere with any message of the school." Again, that's super helpful that we're saying that's what that case stands for now, but we weren't really saying that before. And so now it's all going to be this talismanic, it's not just this is implicating my First Amendment rights of association or to exclude, but it's my, I have an expression I'm trying to say. And what's weird here is, David,

what's the expressiveness of Twitter or Facebook, et cetera? I mean, she's saying that it first cases apply and these cases don't. And I get there is some expressive message. We want to exclude people who don't believe the Holocaust happened. But boy, it doesn't feel exactly like it was litigated exactly that way. Now we know, like the roadmap has been spelled out, but like, huh, oh, now we know what Prunyard and Fair were.

Cool, cool. Yeah, no, it is very interesting. But I just keep going back to your winning without winning. The way that Kagan drafted the roadmap and a majority of the court signed on to, so this is the majority opinion, it's really hard for me to see a situation where a Facebook or a YouTube or a Twitter or threads or Instagram or whatever is going to actually end up being bound by these laws.

Yeah, I can imagine a situation where if you applied it to say, and I should say applied to newsfeeds, I can imagine a situation maybe in which you could have a sit, have direct messaging, perhaps direct messaging would be a different kind of analysis than this. Totally. And I think that that... But do you know of social media companies doing content moderation on direct messages?

Have you ever heard of someone who like said, I love Nazis or the Holocaust never happened and their message disappeared? Never heard of that. Although they definitely do some sweeping for pornography or things like that. If you're talking about child sexual abuse material or things like that, I don't believe. But that would have already, that's actually excluded, I believe,

from both the Texas and Florida laws. They're still allowed to do that, obviously. Right, but other than that kind of sweeping for actually illegal content. And I don't even know for sure that that's being done. That's the only possibility that I can think of because I'm not aware of content moderation, indirect messaging, anything like what you see on the news feeds.

Because then if it's email, if it's direct messages, then I think you do get more into this common carrier analogy. Because, yeah, but anyway, okay. So let me read a minute from the Amy Coney Barrett concurrence Absolutely. Yeah. An analogy. Yeah, but anyway, okay. Let me read a minute from the Amy Coney Barrett concurrence because this is some weird stuff. Remember, like I said, this is basically a 6-3 decision. It's unanimous to send it back down because of the facial challenge stuff, numerator, denominator, but it's 6-3 on whether, as applied, the Texas law would have failed.

Here's Amy Coney Barrett with an interesting take. Technology may attenuate the connection between content moderation actions, e.g. removing posts and human beings constitutionally protected right to decide for themselves the ideas and beliefs deserving of expression, consideration and adherence. Huh. So, her point is on basically AI, but for me, like, that doesn't really matter because you're telling the AI what to look for. You're creating the algorithm. So, it's always going to be human driven.

It doesn't matter whether the, you know, the human being isn't the one seeing it. So, I thought that was odd. I did like this little quote though. It's, you remember the Mitt Romney corporations are people too, David. Yeah. You have Amy Coney Barrett cleaning that up and her concurrence. Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves.

Oh, that's what Mitt Romney meant to say. Yes, that's what he meant. That's what he meant. Corporations are people too, my friend. And then there's a little line for all of you TikTok lawyers out there, or lobbyists. A social media company's foreign ownership and control over its content moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny. What if the platform's corporate leadership abroad make the policy decisions about the

viewpoint and content the platform will disseminate? Would it matter that the corporation employs Americans to develop and implement content moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms. Subtle. Very subtle. So then there's the dissent.

And again, it's a unanimous opinion, but I'm talking about the dissent on the sort of as applied part of this. Justice Alito is not amused, David. Yeah. Here's the beginning. The holding in these cases is narrow. Net choice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional.

Everything else in the opinion of the court is non-binding dicta. Rare. Yeah. everything else in the opinion of the court is non-binding dicta. Rare! Yeah. See how non-binding it is. If the court's below, just go ahead and ignore it. Also, look, this is always like an insult that you hurl at someone, like, well, that's just dicta. Okay. But under this reading of what dicta is, literally only one sentence of any opinion is a holding. And then everything else explaining that decision is dicta, which of course isn't really true either.

Dicta is supposed to be applied to questions or hypotheticals not before the court. They're just opining on if this other thing were to happen. For instance, Amy Coney's Barrett take on what would happen if there's foreign ownership. That's dicta. Justice Kagan opining on the unconstitutionality of the Texas law as applied to Facebook's newsfeed is squarely before the court here. So not dicta, under my definition at least.

Okay, so continuing with Justice Alito. After all, we do not know how these platforms moderate their users' content, much less whether they do so in an inherently expressive way under the First Amendment. Nevertheless, the majority is undeterred. It inexplicably singles out a few provisions and a couple of platforms for special treatment.

And it unreflectively assumes the truth of NetChoice's unsupported assertions that social media platforms which use secret algorithms to review and moderate an almost unimaginable quantity of data today are just as expressive as the newspaper editors who marked up typescripts in Blue Pencil 50 years ago. What do you think, David?

He sounds kind of undecided to me. Oh, you know, and I think that there were a lot of that, that they were had that this faction of the court was heading in this direction, I think was broadcast some time ago. I mean, Thomas has openly opined about different ways in which the government can potentially regulate social media. So I do think there is a split on the court here without question as evidenced by this, by this dissent. But again, I just keep going back to your point of winning without winning. Try, hey, the Fifth Circuit may say, hey, Alito, the three, we're going with the three and not the six. It's entirely possible the Fifth Circuit might do that. It's just not going to turn out well because as you were saying, Sarah, the comment that all of this is just dicta, sort

of ignore it, ignore it. That's just not the way this works. It's not the way it works. If you have a majority opinion with language that is so clearly on point to the underlying dispute, good luck. Good luck. Good luck with maybe every appellate panel in America except that specific Fifth Circuit panel. Good luck saying, well, judges is just dicta, you know. You're free to ignore it. That's just not the way this works.

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Alright, I'm sure we'll talk about this case again when we do our roundup over at Paul Weiss next week with Ken and Shan McGann. Let's move to Cornerpost. So this was a 6-3 decision along ideological lines. It was about statutes of limitations, David. I know something everyone is so excited about. But actually, when you're talking about cases that will have the biggest effect on people, this case was about your credit card fees. You know, the interchange fees when you give your credit card at the gas station for a Diet Coke, they're charged a percentage of that transaction or a direct amount of that transaction from the banks for accepting that credit card and that's set by regulation.

That's what this case is about. This will actually affect literally every American in the country. We're talking big cases. This is the biggest case of all. Okay. Reading here from the majority. The default statute of limitations for suits against the United States requires the complaints to be filed within six years after the right of action first accrues. A claim accrues when the plaintiff has the right to assert it in court. And in the case of the Administrative Procedures Act, that is when the plaintiff is injured by final agency action. In other words, David, no more statute of limitations on APA claims.

Fun. Yeah. Yeah. It's, it's, it's quite a ruling. So it's when that specific plaintiff is injured. Right. So in this case, they didn't start their business, corner post, until quite recently.

And the regulation is way more than six years old. And so under kind of the old rule, so to speak, they would not have been able to bring it because the rule was more than six years old. But now what they're saying is, as long as you're newly injured or within six years of being injured by the rule, you get to challenge the rule. Now, this isn't getting rid of all statute supplementations

in the world. It is administrative procedure act problems. Reading just a little more here, the board contends, the other side, contends that an APA claim accrues when agency action is final for purposes of injury. It's sorry for purposes of 704. Injury, it says, is necessary for the suit but irrelevant to the statute of limitations. We disagree. A right of action accrues when the plaintiff has a complete and present cause of action, when she has the right to file suit and obtain relief. An APA plaintiff does not have a complete and present cause of action until she suffers an injury from final agency action so the statute of limitations does not begin to run

until she is injured. Under the board's finality rule, only those fortunate enough to suffer an injury within six years of a rule's promulgation may bring an APA suit. Everyone else, no matter how serious the injury or how illegal the final rule has no recourse. Perhaps the dissent believes that the code of federal regulations is full of substantively illegal regulations vulnerable to meritorious challenges, or perhaps it believes that meritless challenges will flood federal courts that are too incompetent to reject them. We have more confidence in both the executive branch and the judiciary, but we do agree with the dissent on one point.

The ball is in Congress's court. If Congress wants to change the statute of limitations on APA claims, they can, is what the majority is saying. But if you're asking us to just read the law, the law says, to read it again, the complaint has to be filed within six years after the right of action first accrues. I think this is a pretty easy reading. The right, what right?

The right of the person suing. What could the right mean otherwise? Right, yeah, here's my question, Sarah. I saw some conversation on Twitter that said, wait a minute, if you read this in connection with Loper-Brite, that essentially what happened was, although Loper-Brite said,

prior Chevron precedent is undisturbed, this holding is going to allow you to go back and revisit prior Chevron precedent, because essentially, if you have this new company, etc., you can challenge a lot of these regulations, even if there has been prior precedent, perhaps settling their constitutionality or settling their legality under Chevron, is this going to functionally allow a reopening of Chevron precedent? And I don't think that's right. The way I read the chief's Loper-Bright decision is if

I'm filing a new case that is asking to reverse a prior Chevron precedent, that the prior Chevron precedent is not going to be reversed. But if I have a new case with no Chevron prior precedent applicable, then it will be treated as if there was never Chevron decided. That's how I read it. Yep. That you're with me? I'm with you. Okay. So interestingly, there was also a substantial about a 20-page concurrence from Brett Kavanaugh that in some ways had nothing to do with this case whatsoever, but it had a lot to do with a lot of other stuff.

So his point is that the only way that the party here, Cornerpost, could get relief is because of the Administrative Procedure Act's vacator line that the courts can set aside an unlawful agency action. There's been lots of discussions about universal injunctions and nationwide injunctions. And as has been pointed out by husband of the pod, for instance, in an op-ed in the Wall Street Journal, the language in the APA seems specifically to contemplate universal injunctions.

That's the set aside an unlawful agency action. A lot of people arguing that you have to get rid of the nationwide injunctions, etc. You've seen Justice Kavanaugh struggle with this. So his 20-page concurrence is basically discussing how, yeah, that set aside language means exactly what it says. Otherwise, corner post couldn't sue because they wouldn't be able to get relief.

The agency regulated the banks for what fees they can charge. So if the only thing that you can ever do is a regulated party can sue, then corner posts, the injured by the bank fees couldn't sue because they're not the regulated party. That's why the APA says you can set aside the unlawful regulation, not just the regulated party or as it applied to the regulated party. Anyway, it's a very, very interesting 20 pages that has nothing to do with corner post or statute of limitations and all about, frankly, the emergency docket at the Supreme Court. And Justice Kavanaugh saying, we don't have a choice. This is what it says. Otherwise,

you guys would be so pissed because all of these environmental lawsuits that you're bringing, like bunch of left-wing stuff that you like, a bunch of right-wing stuff that you like, couldn't happen without this set-aside language. And if you agree about the set-aside language sort of on the merits of decisions, then you have to acknowledge that it exists in the injunctive phase as well. So suck it all y'all. Yeah, you know, it is interesting to see

the way in which the court, it seems less common for a justice say to go to the press and have a member of the media say, why are there so many shadow docket cases? And then explain this. And more common, perhaps, for them to just issue what are in effect like press statements, but with much greater depth and complexity through some of these concurrences. And it's an interesting kind of strategy as far as for influencing the public.

And I get the reasoning because at least in your concurrence, you get to really explain yourself in full in a way that even in a good sit down interview, you really have trouble doing that. But the problem is, what percentage of America reads these concurrences? 0.00001%. Does it count if you listen to a really long podcast about it? It counts. It counts. So when you add that together, then it's 10%... It's just 30 million plus people.

All right, David, it's bankruptcy time. And now David, we've reached the special part of our podcast where we have a special guest on bankruptcy law. The much anticipated father of the pod is joining for the first time in AO history to explain Purdue Pharma to us. And dad, I don't know if you ever watched the office. I don't think you did, but there's this scene where Michael Scott declares bankruptcy And he goes into the office and says I declare Bankruptcy, so I want you to explain the Purdue Pharma case like we're Michael Scott in terms of our knowledge of bankruptcy law and

You know my biggest question is is this really more of a bad man stays in jail in the bankruptcy context where the Sackler facts were just not great and perhaps the outcome drove the reasoning a bit? Explain what happened. So actually, I don't think the outcome drove the reasoning. And I don't think this is a bad man stays in jail situation. Look, bankruptcy is really set up in many ways if you're in a Chapter 11 environment, so that the majority, which is typically viewed as 51% of people who are expressing a view,

but two-thirds of the amount of the claims of which they're expressing a view, can bind the minority. And it deals with a relationship between the entity that filed bankruptcy and all of its creditors. So even if you don't want to take a deal, if two-thirds of the amount of the creditors and half the amount of the creditors want to take it, you're forced to take the deal. You have to put your assets out there to make them available, but they don't all have to be spent on the deal. You have to put your assets out there to make them available, but they don't all have to be spent on the deal, but they at least have to be available and

on the table for what deal might get negotiated. This case was about whether bankruptcy could extend those same rights and that same majoritarian view to an envy that is not in bankruptcy, i.e. the Sacklers. Could the Sacklers force a really tiny minority of people, by the way, to accept their settlement even if they were not the entity in bankruptcy? And the court said no. And I think that this has been long-brewing in the bankruptcy context. It isn't just Purdue. And so it's an issue that we needed an answer to, and we now have an answer to that question. There are lots of questions we don't have answers to. But that one is there, which we can't give a third-party non-consensual release.

So, Judge, at first, thanks so much for being here. Two questions real fast. One, what is it like when your own daughter thinks you're unconstitutional? At first, thanks so much for being here. Two questions real fast. One, what is it like when your own daughter thinks you're unconstitutional? And then two, on the bankruptcy point, there's been a lot of pragmatic arguments that I've read against it. In essence, what is this going to mean for very wealthy sort of third parties who might voluntarily contribute X or Y amount of dollars

just to settle the matter. Does this as a practical matter, as a practical matter, put claimants in a worse position than they would have been? So first of all, Sarah and I don't agree on a whole lot of things. And so that part's just fine. I get the hover anyway. Let me say what this case is not about. Let's say there's a really rich person that did wrong

to the company that filed bankruptcy. And they want to get a release from the company for that wrong. That's a release given by the company in bankruptcy to the bad guy. And that release is still allowed under the bankruptcy code. It can occur either through a motion practice or it can occur through a plan.

So what we're dealing with isn't whether the entity in bankruptcy can deal with that party. It's whether whatever they do with that party is going to bind someone that has a separate claim against them. So let me give you an example. Let's assume that somebody received money from the estate, that's $10 million that they shouldn't have received. And everybody got hurt by that because they couldn't get their share of the $10 million if they were, you know, other creditors. That case can be settled without people's consent because everything is derivative of the loss to the estate.

On the other hand, if what that person did was create a liability to the estate because they committed some sort of, let's say, medical malpractice or sold an illegal drug, that person was directly hurt by that, not derivatively through the estate. So it's only in that limited circumstance that this case applies. It does not stop bankrupt companies from dealing with directly with someone that did them a wrong, nor does it preclude the application of derivative claim principles. So if you only have a claim against that third party because they wronged the debtor only, that can still be settled after Purdue. Okay. Will you tell us a few of the questions left unanswered and how, to what extent this

will actually affect your job moving forward? How often has this really been coming up? So there's been a circuit split. And the circuit split from a number of circuits has been that you can't do a non-consensual third-party release. That's the case in the Fifth Circuit with my job. So everything that I've ever decided was decided based really on the outcome in Purdue, which I couldn't do a non-consensual third-party release. We do consensual third-party releases, and then there are questions of, well, and they've left open questions of, what does that mean if you have a consensual third-party release? So I'll tell you what we typically do is we typically send a notice to everyone that might have been injured.

And we say, check this box if you don't want to be bound. And you can send it back electronically, you can send it back by mail, and then you're not bound by it. But if you don't check the box, then you are gonna be bound by the majoritarian view of your similarly situated people. They left open how you show that something is consensual or non-consensual.

There also may be a slight opening, although I don't think it's a very big one, the way the opinion is written, as to whether we can do a third-party release even if it's consensual. I doubt that's going to turn into a big issue, but it could. So there are issues on how to administer all of this. Okay. Last question, because for those listening to this special guest segment, they may not have understood a lot of this and think bankruptcy law sounds pretty dense, but you've made this really compelling case that I've heard to young lawyers that bankruptcy is actually

sort of where the fun stuff is and where the intellectual heft is because you're combining, as you've said, sort of the fun of trial work and litigation and all these depositions with also, you know, accounting and business mind and math. So make your pitch for why the blue ocean is in bankruptcy law if you're a young lawyer deciding what to do. Oh, bankruptcy law is just great. I mean, you're right. It allows you to deal with all sorts of different kinds of issues. Pretty much the only thing that's excluded from the bankruptcy court's authority to rule in terms of debtor relationships with somebody would be liquidating

a personal injury claim, for example, or a wrongful death claim. We can't liquidate it. We can say how it's going to be treated. So once it gets liquidated, you're going to get paid 10 cents on the dollar, for example. But most of bankruptcy deals with balance sheets and income statements and what's the future going to look like and how do we get this business set up right? And we do lots and lots and lots of evidentiary hearings. So I do about 800 hours a year worth of evidentiary hearings. And if there's a young lawyer that wants to make the presentation, come on, make it. You're welcome.

I always ask hard questions to the young lawyers if I think they're in their first hearing so that they can get their feet a little wet. And so it's great. And I love bankruptcy law. The other side of it that we're not talking about is consumer law. And so on the consumer law side, you're dealing with sort of a consensus that, look, we want to try and have this person keep their home, or we want to try and have this person keep their car.

The home lenders want you to keep your home. The car lenders want you to keep their car. They just want to be sure they're going to, in the long run, get paid. And so you have this really nice environment where people are struggling for a solution for a family that's in trouble. And that also gives a lot of openings to lawyers to practice law in a way that you can really

love trying to do it. Is it fair to say that bankruptcy law is less adversarial in a lot of respects and more problem solving oriented than like normal civil litigation? I think normal civil litigation is always adversarial. And I would say that maybe we're adversarial in the sense you're describing maybe in 20% of what I do. Probably 80% of what I do is trying to help parties forge an arrangement that works. And sometimes that means you have

to make some interim rulings. But everyone's goal is, if you're in a big Chapter 11 case, very few people want that company to literally shut down. They want that company to reorganize because that's going to then in the long run give them a greater return. And you have to make some interim rulings. Okay, you have the right to this. Okay, you have the right to that. And once you make those sort of interim rulings, that lets people frame something. It's not the bankruptcy judge's job. It's not my job to frame what the solution is. It's my job to rule on what gets presented.

Thank you, Father of the Pod. Thank you, Daughter. Yes. Thank you, Judge. Really appreciate it. Thanks, David. Bye-bye. Picture this. Picture the DQ freezer, home to all the Blizzard flavors of the past. Picture it opening to bring back the salted caramel truffle blizzard for a limited time. Picture that salted caramel truffle blizzard in your hands. It's all yours. No, really, it's all yours. This treat is too good to share. Everyone will have to get one for themselves. Hurry in to get this flavor before the DQ freezer closes.

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Yodeling with them. Eey-oh-leey-oh-leey-odel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel-yodel Well, that was fun. My dad is here building a tree fort for the brisket and I guess eventually the popcorn as well. But yeah, so thanks dad. Okay, I want to go through the orders list. It was 50 plus pages for the last orders list of the year. And there was some kind of important stuff in there, David. So let's start with the assault weapons ban. They are not taking the case on the Illinois

assault weapons ban. It's in a preliminary injunction posture. So Clarence Thomas and Alito wrote, we noted that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, recognizing the historical tradition of prohibiting the carrying of dangerous and unusual weapons. But this minimal guidance is far from a comprehensive framework for evaluating restrictions on types of weapons, and it leaves open essential questions such as what makes a weapon bearable, dangerous, or unusual, saying, yeah, this is in sort of early injunctive stages, but we need to take a case like this at some point.

David, thoughts? I found this interesting. It's the most interesting part of the orders list to me because the very first thing, remember when we were talking about the Rahimi case, we talked about it and said, I don't know what this says about assault weapons and large capacity magazines. I got a good feeling what this says about, say, for example, potential review of red flag laws. If it's a well drafted red flag law, I think this is a green light for a red flag law.

But when you're talking about other popular forms of gun control, obviously much more of a green light for felon in possession laws. But what about the assault weapons ban? How does this modification of Texas history and tradition play into the assault weapons ban? And I was genuinely stumped by it. And we're going to remain stumped for a while because we do have cert denied on these, on these injunctions, not on the final ruling on the merits. And so they're just sending it back and saying, uh, hope we didn't stump you too much courts of appeal because we've got a new decision now. It's very interesting to me that it was sent back, but it's interesting, but quite predictable. But I'm just honestly at a loss as to how

the modified text history and tradition will play in an assault weapons ban or large capacity magazine analysis. Also hard to imagine a less helpful sentence then. It leaves open essential questions such as what makes a weapon bearable, dangerous or unusual. Yeah, it does. Thanks for highlighting that.

Yeah, thank you. All right. Next up, had a dissent from denial from Sonia Sotomayor on absolute immunity for prosecutors, in this case who direct a witness to destroy letters. So here's her little thoughts on that. Prosecutorial immunity can promote the vigorous and fearless performance of the prosecutor's duty. This immunity has limits, however. For example, absolute immunity does not apply

when a prosecutor gives advice to police during a criminal investigation, when the prosecutor makes statements to the press, or when a prosecutor acts as a complaining witness in support of a warrant application. It is difficult to see how the conduct alleged here, including destruction of evidence to thwart a court order, requires legal knowledge and the exercise of related discretion, or is intimately associated with the judicial phase of the criminal process.

I only mention this one, David, because it implicates absolute immunity. Now, this is in the civil context, but it's also a denial, right? As in this person had absolute immunity, even though he directed a witness to destroy evidence that left a guy in jail. That's what absolute immunity looks like. Right, there are downsides to absolute immunity. Yes, there are.

Okay, although, you know, I did this deep dive. Right. There are downsides to absolute immunity. Yes there are. Okay. Although, you know, I did this deep dive. I was going back and forth with another friend of the pod about judicial immunity, which is also judges have absolute immunity. And boy, you go back to some of these cases, for instance, in the Alcee Hastings case, he appealed, arguing that he couldn't be charged with accepting a bribe. An undercover agent offered him a bribe and he was like, yeah, sure. So here's the 1982 DC Circuit opinion on that. I just thought you'd enjoy, David.

Appellant's second argument relies on the principle of separation of powers. He contends that the courts would be subject to intolerable pressure from the executive if executive officers were allowed to prosecute active federal judges for acts involving the exercise of their judicial power. Appellant is of course correct that the independence of the judiciary from external pressures is a highly valued element of our constitutional system. That independence is already protected by specific provisions in the Constitution. Additionally, judges enjoy the same protections as do all citizens from vindictive prosecution by officers of the executive branch. We are not persuaded that the proposed rule of absolute judicial immunity from federal criminal prosecution is a necessary complement to the Constitution's explicit protections. Indeed, the minuscule

increment in judicial independence that might be derived from the proposed rule would be outweighed by the tremendous harm that the rule would cause to another treasured value of our constitutional system. No man in this country is so high that he is above the law. It is the only supreme power in our system of government, and every man who by accepting office participates in its function is only the more strongly bound to submit to that supremacy. A judge no less than any other man is subject to the process of the criminal law. 1982, one could imagine a different opinion of late.

Yes. Anyway, onto the next one. Bad science that was used in criminal trials. Another thought from Justice Sotomayor. This I just found interesting for the sort of believe science crowd that turned in sort of a mob, sort of like defund the police,

believe all science or whatever. Here's Justice Sotomayor. Beware of experts and accepted science. Bite mark analysis, microscopic hair analysis, fingerprint analysis, shoe print comparisons, tool mark and firearms examinations and handwriting comparisons have all at various points been debunked in how they were being used in criminal

trials. And so this case was about your ability to basically appeal your conviction if any of those types of sciences were used. In this case, it was a bite mark guy who this guy's still in jail for killing his wife. And they use bite mark analysis to say that he was the killer. I don't know, David, like all things in moderation, this idea that like the second someone with scientists next to their name says something, they're all like, oh, believe the science is all done. You can't question it. Like, there are so many examples from

every part of our world, the social science, pee hacking problem, the COVID origins problem of people being sort of cowed into not expressing possible dissent. And here, in criminal law, people's freedom being taken away under the believe the science, oh, the scientist said it, we can't question it. We sure have been giving science a lot of infallibility recently, and that's not what science is. Science is about hypothesis. And I don't, I just, this to me is actually

a really important just societal point. Science is much more of a process than a destination. And so the defenders of science would look at all of those things and say, the process of science eventually weeded out the bad science. But the problem you have is criminal cases are decided in specific points in time and points of time, there are often arguments that science is settled

when it is not. And to me, the paradigmatic, grotesque example of this, just the most, if you ever want a proof that the year of our Lord 2024 is not in fact when we're most gullible, go to the satanic panic of the 1980s, which was buttressed by this recovered memory kind of quote unquote science that where trained investigators were able to pull from very young children recovered memories of the most grotesquely horrible and by the way, totally unrealistic, fantastical criminal acts you can imagine. And there were people who spent decades, decades in prison. Families ripped apart.

Oh my gosh. Children irrevocably traumatized by being told that this thing had happened to them, that actually had not. Never happened. I will tell you. They were the ones who put their family member in jail, like that it was their fault. Also after the fact, I mean, it just ripple after ripple. Again, under this guise of like, oops, science, we can't touch it.

You can't argue with it or else you're the moron. You're the bad person who's questioning the science. Yeah, and the thing about it, it was actually very important, this satanic panic. So in 1991 is when I arrived in law school, and this is where a lot of the critiques of these prosecutions were beginning to reach mainstream media. And I remember a person came into my evidence class in law school, and I had always been a quite law and order oriented conservative.

I mean, you grow up a Southern conservative, you grow up like inclined towards that. It's like the water you swim in. So I was always this quite law and order oriented conservative. And then I heard a number of people speak about this recovered memory stuff. And it was actually quite jolting to me, just quite jolting and actually was quite beneficial to me just quite jolting and actually was quite beneficial to me to have my mind opened by how spectacularly the criminal justice system failed in that instance. All right, let's also now do intelligible principle. This was a case denied by the Supreme Court,

basically challenging OSHA's very existence, the Occupational Safety and Hazard Administration from Clarence Thomas and Neil Gorsuch. Under our precedence, a delegation of authority is constitutional so long as the relevant statute sets out an intelligible principle to guide the agency's exercise of authority. Congress gave the Occupational Safety and Health Administration the power to enact and enforce any workplace safety standards that it deems, quote, reasonably necessary or appropriate. It would be no less objectionable if Congress gave the Internal

Revenue Service authority to impose any tax on a particular person that it deems appropriate. At least five justices have already expressed an interest in reconsidering this court's approach to Congress's delegation of legislative power, citing a Kavanaugh on denial of cert, a Alito concurring in a judgment, a Gorsuch joined by Roberts and Thomas dissenting in a case. So they denied this one, David, but this one's coming down the bowling alley, so to speak. And here you have the difference between major questions doctrine, which we've talked about, right? That's did Congress give the

executive branch the power? Here, what they're talking about is unconstitutional legislative delegation. Can Congress give the executive branch the power? So denied this time. I think it'll come up later. Last one, David, I thought you would be super into. This one says section 230, descend from denial from Clarence Thomas and Neil Gorsuch. Just a reminder for those who have heard Last one, David, I thought you would be super into. This one says Section 230, Descend from Denial, from Clarence Thomas and Neil Gorsuch. Just a reminder for those who have heard Section 230 thrown around a lot, but have forgotten what it says.

Section 230, no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. In this case, it's a horrible fact case. David, a teacher was using Snapchat to groom a student and the student sued Snapchat eventually. Snapchat was found not liable because of Section 230. Here's Thomas and Gorsuch.

Because platforms organize users' content into news feeds or other compilations, the argument goes, platforms engage in constitutionally protected speech. Citing that choice. When it comes time for platforms to be held accountable for their websites, however, they argue the opposite. Platforms claim that since they are not speakers under Section 230, they cannot be subject to any suit implicating users' content, even if the suit revolves around the platform's alleged misconduct. The court has had so many Section 230 opportunities of pitches coming right down the plate, David.

Again, is this tech avoidance? Is this overall hard case avoidance? Because I think they've set up the juxtaposition really well. They want all the freedoms of being the editorial page, but they definitely don't want the liability. Now, newspapers don't have the li... Like newspapers have this exact thing, right? They have all the editorial freedom

and they don't have the liability, but you obviously see some movement on the court to say tech companies are different. Yeah, you do see that movement. You see the movement from the same three people in the 333 alignment. I just don't see that movement with the other six. So I do think, though, however, the future ideological development of the court is going to be very interesting.

So I do think future MAGA justices would probably take a more Thomas Alito Gorsuch view. And interestingly, future progressive judges would as well, I think, take a more view that grants more power to the state. So I don't know how long the independence of the big social media companies is going to last because you both have on the right. This is a horseshoe about the right and the left. There is a definitely horseshoe element here, whereas center right, center left, sort of the Barrett to Kagan world is very much with this traditional First Amendment doctrine.

But the more far left you go and the more far right, they're uniting around, hey, we got to regulate social media companies. But for different reasons, the far left wants to regulate to get rid of more speech, the far right wants to regulate to get rid of more in moderation. Just I mean, sort of as a blunt description of it all. But that's where we are. Okay, since this podcast is a million years long anyway, I actually do want to circle back to the Trump thing real quick about the future of the other Trump cases. Now that we've seen Judge Marchand in New York put off the sentencing to review sort of how this case affects the conviction that already happened. Trump had raised immunity

issues in that. He'd raised immunity issues in the E. Jean Carroll case as well on the civil side. Again, I think it's really important to separate out. There were two parts of this opinion. One, when you can bring criminal charges and two, what evidence you can use when you bring those criminal charges, that's even above executive privilege. In the Judge Marchand case, this is the New York 34 criminal indictments related to the hush money. Trump is president when he takes each of these actions, but they're clearly not official acts.

You're definitely not in the core problem and you're definitely not, I think at least almost certainly not in the official act. Does it impinge on the power of the presidency? No. Okay, so you can bring the charges, but there's the evidence problem, David. They used evidence from when he was president, tweets, for instance,

communication with White House officials. My take is that you're going to use that same part two test. Well, the two part test. One, was it an official communication? I think no. When you're dealing with, hey, make sure that payment goes to Michael Cohen, that has nothing to do with exercising the powers of the presidency. You're still working on your business basically. And the tweets, for instance, again, if the chief is willing to make that distinction between political and official,

then I think this is not even political. I think it's just personal stuff. But there's plenty of people who disagree. Judge Marchand is obviously gonna entertain it. David, did you have thoughts? Yeah, again, this goes back to some of the mess that is the majority opinion in the case, because I think it is entirely fair to raise the question of whether some of the conversations

that were part of the proof in the Trump case were encompassed by this decision. And I think that maybe the way the court's going to actually deal with this would be to say, okay, even if you assume, let's give the court the broadest possible reading to the trial, to the Supreme Court's decision, the conversations here were not material part of the proof of the case. Because remember, there is such a thing as harmless error. There is the not every error is reversible error. So I could imagine a situation where the court essentially says, well, if you look at the

universe, we don't even have to go into and just let's just assume this is covered by the opinion, then the fundamental underlying proof still stands. The conviction still stands. That's how I could perhaps see it unfolding because things like Trump tweets, etc., were not, as I understood the proof as it was coming, not important elements of the proof at all. So I think that's right. But there's one other problem. The opinion also says that this is interlocutory appealable and Judge Marchand specifically

did not allow Trump to do that. That was error. Right. Now, maybe if you sort of can keep following it down, he should have gotten his appeal on the front end. But even if he had gotten to appeal it, they would have found he would have lost the appeal. And that's what makes it harmless. I don't know, at some point, you're building problem on top of problem on top of problem. Okay, so let's look at the Florida case. Again, he's not president for the actual charges that are brought. So you're

fine for that. But it's an evidence question. I actually don't think that they'll be able to introduce evidence of how the classified documents got there. It was clearly an official act when a president is packing up his official papers. Yeah, no, I agree with you about that. I think that there's no that element of the case, which again, is going to demonstrate that what we said in the first podcast, the obstruction, but the obstruction parts of this, which are the strongest parts are not influenced by this. All of that occurred post presidency, all of his conversations post presidency are not encompassed by this. So, but. But if they had an email, for instance, on January 20th from Donald Trump to his guy

packing up the boxes that said, hey, make sure to include this classified information because I definitely know that it's supposed to go to the National Archives and I don't want that to happen because F those losers, they probably can't introduce that. Yeah, wild, wild, Sarah. Okay, then we have the Georgia case. Georgia case is more interesting because you're going to have to do the two step dance about

whether which charges they can bring against the president to begin with. And then you're going to need to do the evidentiary dance separately and perhaps above that as well. Like I think that case kind of has to go back to the drawing board at least to re-review all of this. And remember the interlocutory appeal part, he's now going to get to appeal all of that on the front end. That case was already not happening

because of the interesting choices made by the prosecutor in that case. But now this part's not her fault, so to speak. So here's what I am doing in response to all questions about the Georgia case. What Georgia case? Yeah. I mean, Fonny Willis already messed it up so badly.

And it's on appeal about whether she's disqualified. Like we honestly don't know if the Georgia case is going to exist. And so to me, that's just in, it's like in suspended animation. It's in this, you know, if you're talking about a Star Trek analogy, it's between when you vaporize the person on the planet and reconstitute them on the transporter dock. What are the in-between? I don't know. I don't know.

Ha ha. Okay. So, yeah, look, I think my overall takeaway on the Trump case, I think I've tried to be less like, do I like it, do I not like it, and more trying to explain what I think it holds and what the questions are left and sort of the chaos in the wake of it. But I'll admit, David, I'm still really torn on what the overall holding, right?

This idea that presidents enjoy some amount of immunity from criminal prosecution. I go back and forth, I'm still thinking about it. So, you know, maybe when we do our Supreme Court roundup, our Supreme Court roundup, I want us to talk, not really cases, I mean, we'll bring up cases, but more themes, justices, all the things that we don't necessarily get to do deep dives in when we're like going case by case.

We'll sort of go about the term a different way, but I don't see how we're not gonna talk about this some more. Oh, I know. I mean, you know, I wrote a very short blog post right after it was decided. And one of the first things that I said is scholars will be debating this for years, for years, because it is not crystal clear. It is absolutely not crystal clear. And my own views on about immunity are I think of immunity should not be presumptive.

It should be presentable as an affirmative defense. In other words, I'm not presumptively immune, but if you bring a prosecution that does actually mean that I can't execute core functions of the presidency, you should be able to raise that as an affirmative defense to the prosecution, is my own view on immunity. So I do not like this opinion, but at the same time, I also don't know its full extent. Like I don't know how much to not like it, Sarah.

I don't know with what intensity. Yeah. Can I give you like my, it's feeling sort of unfair in my head, but I can't help continuing to come back to it because I've been reading a lot of Dred Scott stuff lately. So here's my takeaway. On the one hand, you have a court that is clearly worried about the massive expansion of presidential powers into the legislative and judicial functions

of the other branches this term, right? Jarkisy, Loper bright, corner post, all of these. But when it comes to the Trump immunity case, it feels more like it's about this political moment that we're in. And this election between one president criminally prosecuting his predecessor and the former president promising to prosecute him back. And to me, this has a certain Dred Scott vibe where the court tries to fix an overwhelming political problem facing the nation because they feel like there's no one else who can solve it and that they have this heavy burden. And as much as I think Justice Tawny has rightfully

gone down as the villain in American history for authoring the Dred Scott decision, I think the reason that he's the villain has been misunderstood. I don't think he's the villain because of what the Dred Scott decision held. That's a horrible holding. Don't get me wrong. But why he did it was because he thought he could fix the slavery question, right? That Congress hadn't done it right with the Missouri compromise. The compromise simply left the question to keep getting litigated and relitigated as we see as these Western states are joining. Only I can fix this. And so if the court just sides with one side or the other, it'll take the question out of the political arena and we'll be done with it. Dred Scott is in some ways like Roe on

massive anabolic steroids, as you've said before. This has a certain Dred Scott vibe to it because as you've said, it doesn has a certain Dred Scott vibe to it. Because as you've said, it doesn't fit with all the other executive branch decisions. It doesn't fit with the chief's general jurisprudence and writing style, frankly, of giving guidance to lower courts. And so as I'm searching and searching, I'm like, I think they saw that we're on this precipice as a republic of something really dangerous and they're trying to fix it for us. And I just keep coming back to the idea that that's not worked out well for the Supreme

Court in the past. No, no, I think that's a very powerful and accurate statement, Sarah. And it's why I keep going back to the same point. We've talked about the policy argument in one direction, the policy argument in the other direction. Where is the text of the Constitution putting its thumb on the scales? And this is again, you know, on that Dred Scott decision. I mean, here's the justice taking it upon himself, going beyond the text of the Constitution in the most dramatic of ways to try to fix it. And he did it in the most evil way possible to try to fix it.

And here I don't ascribe the same kind of malign view that, you know, that many of the justices had towards black Americans and Dred Scott to sort of the, it's a very different issue, but the impulse to, we're gonna fix it, we see the problem, we see, here's our best way forward through this moment. Seems extremely short-sighted, extremely short-sighted.

And with that, David, I look forward to seeing you in person for our Supreme Court roundup and all of those summer associates. It was a great time the last few years we've done it, and I'm sure it'll be a good time. This year, are you bringing the flask? Am I bringing it? What's our plan? Flasks plural.

Okay, yeah, okay. Yeah. Good, good. All right, see you in a few days. Happy 4th of July. Hey, look, America made it another year to our birthday. Yay. It did? It was a little more in question this year than other

years. But hey, not the worst it's ever been. We are still, it's not the worst Fourth of July that America's ever had. So definitely go out and celebrate. I read a book by this guy AJ Jacobs about living constitutionally for a year and he talked about election cakes that people used to bake cakes on Election Day. I love these traditions of celebrating our country and what we stand for and the promise of the United States. And I think this podcast in many ways, David, is dedicated to that goal. So we love celebrating what we do in the United States of America here and questioning our leaders and our courts

and everything else. So go celebrate, make a cake. It should have strawberries and blueberries on it. You know, those little 4th of July cakes, however you do it, but do something, teach your kids, still an awesome country. Amen. So David, we finished our marathon podcast

and then we're texting and we're like, no, it wasn't enough. It wasn't good enough. So you texted me're texting and we're like, no, it wasn't enough. It wasn't good enough. So you texted me a point and I was like, we got to record that. Go. Yeah. So I was working on my column for this weekend, which was about the originalism of this decision and the Trump v Anderson, the Colorado decision. And I was looking back at the impeachment judgment clause, and just to remind folks what the impeachment judgment clause is, it's Article 1, Section 3, Clause 7, judgment in

cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. And I wanted to go back and look at how exactly did the opinion of the court deal with the impeachment judgment clause

because Sonia Sotomayor used it in her dissent quite, I thought, effectively. And it is interesting because it talks about, on the one hand, the court is rejecting the Trump position, which was that you cannot be prosecuted at all unless you have been impeached, tried, and convicted. But then what the court said is, by its own terms, the clause does not address whether and on what conduct a president may be prosecuted if he was never impeached and convicted.

And the way I read the opinion, Sarah, is that it functionally changes the meaning of impeachment judgment clause to say in essence, but the party convicted may nevertheless be liable and subject to indictment, trial, judgment, and punishment if they're a president, and it wasn't core functions of the presidency, and you can bear the burden of overcoming the presumption of immunity. That seems like a change to me,

and I wanted to bounce it off you live on the air in the podcast. I think it's a great point because when we had sort of batted this around and talked about it before, obviously it contemplates the conviction of someone who has been impeached. Yes. The question that Trump's team was trying to raise is, is the impeachment necessary to then bring the conviction?

And we had talked about this with the oral argument and the briefings. And we were like, that doesn't make a ton of sense. And indeed, the chief justice absolutely rejects that. But it's like there's a floor and a ceiling, right? So it also makes clear that they contemplated people who were impeached then being criminally charged. And I think what the chief was trying to say is,

yeah, it says that you can be convicted, criminally charged for bribery, but it doesn't say bribery for a pardon. It just doesn't say what the bribery would have to be for. And so we still have to work out those contours. But that shower David sure seems to me to not leave a lot of wiggle room for, well, they just meant you couldn't, you know, you could be charged for some bribery things,

but everything. It seems that anything you could be impeached for, you could, if there is an applicable criminal law, be indicted, charged and convicted for yeah That seems to be then that seems to be the natural meaning of the text so under that reading David If you know that the chief's test could still stand for instance that like if there's not an impeachment You follow the chief's test one is it an official act to? You know, is it a if it is an official act does it impede on the president's,. One, is it an official act? Two, if it is an official act,

does it impede on the president's core functions, et cetera? Or if the president has been impeached, convicted, and removed from office, then none of that test matters, and you simply can, if there is an applicable criminal statute, indict and charge. That's how I would read that at a minimum. At a minimum, I agree with you.

That would be a quite textual interpretation in the sense of granting the full power of the word shall. The word shall is a word with a pretty known meaning. But what's interesting is in both this case and the Trump v. Anderson case, they changed a shall to a may in in essence. So in Trump v. Anderson, this is section three that says no person shall be a senator. Very mandatory language. But we now know that it's no person, maybe, if Congress has

passed legislation sort of empowering enforcement of Section 3. And that was my beef with the Trump B. Anderson ruling, not the holding that state officials can't disqualify a federal office holder. I think there was a lot of good structural reason for that. But it was the further bigger holding that essentially you cannot get rid, get someone off the ballot, even if they fall within section three, unless Congress has acted.

That changes the shall to a may. And it seems like we have here functionally changing another shall to a may. And that's where I get, that's where my textual beef starts to really be stoked. Can you stoke a beef? That's a mixed-up thing. For sure. You can stoke a, my textual fire gets stoked. There we go. There we go. Yeah. Just to read from the opinion from the chief. The clause both limits the consequences

of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the clause does not address whether and on what conduct a president may be prosecuted if he was never impeached and convicted. That's true. But I guess maybe David, the answer to this is that wasn't before the court. And so they actually didn't decide this question. The only thing they decided is if the president hasn't been impeached. So it actually is sort of my version. If the president hasn't been impeached, go to this test, step one, step two. If the president has been impeached and removed, come back to the Supreme Court

because they didn't decide this question here and maybe they would decide that piece differently. I think that's a pretty generous reading. It is. It's a very generous. Because I don't know why you wouldn't footnote that and say, we do not decide today whether these core, for instance, powers could still be prosecuted if a president has been

impeached and removed from office. Right. And what's so interesting, by its own terms, the clause does not address whether and on what conduct a president may be prosecuted. That's again, you itself has the word, shall nevertheless be liable and subject to. Now that doesn't mean shall be tried. In other words, it doesn't make it- There still has to be an applicable law. There's still, yeah, all of those things.

Cause you can impeach someone for literally, I don't like them. Yeah, yeah. That press conference was, you could impeach Biden now for his debate performance. You could absolutely do that. That's right. Yeah. You know, it says in other high crimes and misdemeanors,

but that's a political question to be decided by the impeachers, the House, that would bring the charges in the Senate. But yeah, that's very different than a criminal prosecution. But yeah, David, I just, I think your your readings right. But I will stick to my generous interpretation that that wasn't answered here in this case. And that if a president were impeached and removed, you could actually bring charges and not follow the justice's test here. I think that is a highly charitable yet plausible reading.

Love it. Yeah. Well, I wonder- Charitable yet plausible. That's a good motto for this podcast. Yeah, exactly. I'm sad we didn't push the podcast into the three hour mark, but I think we're gonna have to leave it there. Yeah. A light pod,

just barely skimming the surface on so many of these issues. Oh my goodness. Yeah. What would be a light, what's a very light and sketchy news, like the MTV News of podcasts. Very, very light and surface. That's so upsetting because they now gotten rid of MTV News, like RIP MTV News. I know. So sad. How will journalism recover? So bankruptcy laws, how I ended up briefly managing a strip club.