UNBIASED - Week in Review: December 5-11, 2022

Episode Date: December 12, 2022

1. Brittney Griner Returns Home from Russia (1:28)2. Democratic Incumbent, Raphael Warnock, Wins Georgia Run-Off Election (10:58)3. Supreme Court Hears Oral Arguments in Moore v Harper - Re: Independent State Legislature Doctrine (14:05)4. Supreme Court Hears Oral Arguments in 303 Creative v Elenis - Re: Rights of Same-Sex Couples vs. Rights of Business Owners (22:48)All sources can be found at www.jordanismylawyer.com.Follow Jordan on TikTok and Instagram @jordanismylawyer. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Please gamble responsibly. Gambling problem? For free assistance, call the Connex Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. You are listening to the Jordan is My Law podcast. This is your host Jordan and I give

you the legal analysis you've been waiting for. Here's the deal. I don't care about your political views, but I do ask that you listen to the facts, have an open mind and think for yourselves. Deal? Oh, and one last thing. I'm not actually a lawyer. Welcome back to the Jordan is my lawyer podcast. I am currently in LA and still kind of battling a sickness. So I just want to apologize in advance for the audio. It may not sound as perfect as my audio usually sounds, but that's just because I have LA traffic to my left. I'm pretty congested and I'm also recording into my phone. So the setup is a little bit different. But because I didn't have an episode for you guys last Monday, I did what I had to do to get you one today. So today we have four stories.

We're going to talk about Bernie Greiner coming home. We're going to talk about the Democratic senator that won the Georgia runoff election. And we're going to talk about the Democratic senator that won the Georgia runoff election. And we're going to go over two Supreme Court cases that were heard in front of the court just this past week. So it's a good episode. We have a lot to talk about. Without Brittany Griner was brought back home to the United States after spending 10 months in a Russian prison. There are some people that are happy with the fact that she was brought home, others are not very happy, and here's why. I mean, I'm just going to go over really why the people that aren't happy aren't happy because the people that are happy are happy for obvious reasons. So the reason why

people kind of have an issue with this is because Brittany Griner was arrested 10 months ago for possessing marijuana, specifically oil, right? And her vape cartridge. Now there's another American who's also a U.S. veteran. His name is Paul Whelan. He was arrested four years ago on espionage charges, and he was sentenced to 16 years in Russian prison. And so he didn't obviously get the opportunity to come home. He was not included in the trade. And now people are kind of looking into Brittany Griner's past because Brittany Griner has been very kind of candid and open about her dislike towards America, how America handles certain matters of public importance like racism. She talks a lot about privilege and people that have privilege and the unfairness behind privilege, which I'll get into a little bit more towards the end of

this story. But, you know, and then on the other end of that, you have Paul Whelan, who was supposedly wrongly arrested, which, again, I'll get into in a minute. But he was not included in this trade. So people are asking, why was Brittany Griner included in the trade? You know, she knew she was breaking the law when she did so. She's been very open about her lack of support for America in some circumstances, but yet we're prioritizing her to come home over Paul Whelan, who's a veteran, and he's been there for four years. Now, we also need to talk about who she was traded for because this kind of also plays into why people aren't necessarily too happy with the trade.

So there's a man named Victor Bout. He has been given the nickname Merchant of Death, and he's a Russian citizen who's been detained in America since 2010. And basically his history goes like this. When he was 28, he spent time at the cargo hangars in the UAE, the United Arab Emirates. And he eventually launched his own cargo line, which was a small fleet of Russian planes that delivered guns to Africa and Afghanistan. And what he was doing was he was helping fuel civil wars over the years by basically supplying more sophisticated weapons and sometimes supplying these weapons to both sides of the war, which is why he was fueling the war, right? He wasn't just helping one side, he was helping both sides to kind of keep these wars going. And he was once quoted saying,

if I didn't do it, someone else would. At this point, you know, when he's doing this, when he's supplying these weapons, he was on the radar of the United States and Britain. And in 2000, he was given the nickname Merchant of Death by the former Minister of State for Africa in Britain's Foreign Office. And at the same time, the U.S. government actually unknowingly contracted with two of his companies to deliver supplies to U.S. troops in Iraq. So here's the U.S. setting sanctions against him, trying to prevent him from conducting business, yet because his business is so well run, some might say, America didn't even know that they were actually doing business with him. So then in 2007, the DEA devised a plan to catch him. And they basically offered him an arms deal

that he couldn't say no to. And they did this with an undercover agent who contacted an associate of Victor Bout about, you know, this big business deal. And for the first time, the DEA met with one of Victor Bout's associates on the island of Caraco under the cover of the Revolutionary Armed Forces of Colombia. So obviously, Victor Bout's associate did not know that they were meeting with the DEA, but rather they thought they were meeting with the Revolutionary Armed Forces of Colombia. From there, Victor Bout's associate took the deal back to Victor in Moscow. Bout agreed to the deal, and he flew to Thailand weeks later thinking that he was meeting with this Revolutionary Armed Forces of Colombia to discuss shipping this arsenal of military-grade

weapons to attack American helicopters in Colombia. So he flies to Thailand. He meets with the undercover DEA informants in a hotel conference room in Bangkok. This is in March 2008. And he told the informants that he could airdrop the arms in Colombia and that they could be used to kill Americans, basically. And that's when the Thai police and the DEA agents busted into the conference room and arrested him because obviously they were, you know, surveilling this whole thing. They were listening in and he was caught. So he was eventually extradited to the U.S. in 2010 after roughly two years of legal proceedings. He was convicted on terrorism charges in America a year later and he was

sentenced to 25 years in prison and he was due to be released as early as August 2029. He's now currently 55 years old, and that is who we traded for Brittany Griner. Now, in 2010, Michael Braun, the former chief of operations for the DEA, told 60 Minutes in an interview that in his eyes, Victor Bout was actually one of the most dangerous men on the face of the earth. So that's a little bit about Victor Bout was actually one of the most dangerous men on the face of the earth. So that's a little bit about Victor Bout, who he is, how he came to be the merchant of death. And because of everything I just mentioned about Brittany Griner and Paul Whelan and Victor Bout, people are saying this actually was not a fair trade at all. Why couldn't we get both Americans back in exchange for Victor Bout? Allegedly, the answer to that question is because Russia and presumably Putin was not budging at all in the negotiation. So according to various reports, President Biden thought, well,

it's either we bring Brittney Griner home now or we don't bring anyone home. So that's kind of how that went. And even Justice Department officials have expressed frustration with the swap because an earlier deal had actually been discussed that involved Paul Whelan. And now all of a sudden that was just off the table because Putin said so, basically. So prior to the deal being accepted, allegedly the Biden administration conducted what they call a security assessment, where the assessment's ultimate conclusion was that Bout was not a security threat to the U.S. How did they determine that? It's not really clear. One U.S. official told CNN that the assessment took into account the fact that Bout had been in prison for over a decade and had not

been actively engaged in any recent criminal activity, but the official wouldn't elaborate on how the U.S. came to its conclusion, and they just basically said the assessment was quote-unquote thorough. So take that for what it's worth, who really knows? As far as Paul Whelan goes, you know, he's got a family here in America who's begging and pleading for him to come home. He's still sitting in the Russian prison, and he's expressed frustration and also surprised that he wasn't included in the prisoner swap. They did let him know ahead of time, so it's not like he found out at the same time as the public. But he's basically saying that the Biden administration hasn't done enough to secure his release. And he said, quote, I am greatly disappointed that more has not been done to secure my release, especially as the four-year anniversary of my arrest is coming up.

I was arrested for a crime that never occurred. I don't understand why I'm still sitting here, end quote. And then on Thursday, President Biden said in regards to Paul Whelan, quote, sadly and for totally illegitimate reasons, Russia is treating Paul's case differently than Britney's, end quote. Now, Paul Whelan says that the reason his case is being treated differently than Britney's is because Russia accused him of being a spy. So that put his case and his conviction at a higher level than Britney's, which was just, you know, marijuana possession. President Biden has stressed that the efforts to secure Paul Whelan's release are ongoing and that his administration is in close touch with the Whelan family. So with this, I would love to know what your thoughts are. I have my website for a

reason. I mean, I have my website for multiple reasons, but one of the reasons is so that you guys can comment your thoughts and opinions and share, you know, how you feel about these issues and kind of encourage substantive debate and discussion. So I want to know, are you content with this trade? Do you think President Biden should have played hardball a bit more? Do you think Britney's status kind of made her a priority? You know, she had all these celebrities advocating for her. Do you think, do you agree that that played into it? I will say, and this is kind of why I said we'll touch on the privilege a little bit later, is that there's irony in the fact that she's talked a lot about privilege in the past and it seems that her own privilege is what got her home so quickly.

But again, I would love your thoughts on those questions and those ideas and if there's anything else that you've thought about, please feel free to share because I really do love hearing what you guys have to say and hearing your thoughts on these stories. So that will be on the episode description webpage on jordanismylawyer.com. Just find this episode, it's the most recent one, and scroll all the way down to the bottom and that's where you will find the comments. So that takes us to story number two, which is that the Democratic Senator Raphael Warnock wins the Georgia runoff election. So you heard me talk a couple episodes ago about the runoff election in Georgia. And the reason

that it went to a runoff is basically because Georgia law requires that one of the candidates get at least 50% of the votes. And in this case, it was very close. It was like 49.6 to 48.5 or something like that. So Democratic Senator Raphael Warnock won the Georgia runoff election, bringing the final U.S. Senate total to 51.49, giving the Democratic Party the official majority. The election results were 51.4% to 48.6%. And prior to this win, the Senate was evenly divided at 50-50. Now when I say evenly divided, it's not actually evenly divided just because, you know, the numbers are Democrat-Republican or Republican-Democrat. But in actuality, there are two independent candidates that vote Democrat. So even though it's technically a 50-50 split,

you do have to account for the two independents that vote Democrat. Now it's said that this win could have far-reaching consequences both legislatively and politically for Democrats, and in support of this, Senate Democratic leader Chuck Schumer said that this isn't just a one percent difference, it's a world of difference. So this win now gives Democrats firm control of the Senate. It gives them a so-called cushion in trying to pass bills, assured committee control, it eliminates procedural hurdles to carry on the business of the Senate. So it does help the Democratic Party. And I want to give you a couple of real-life examples of how this win kind of changes some things for Democrats, as opposed to the even

split that it was before. So for one, there won't be any power sharing negotiations in 2020. And you may not know this, but in 2020, Chuck Schumer and Mitch McConnell had to negotiate a power sharing arrangement because of the even split. But obviously now, because Democrats have control, that won't need to take place. And then also Democrats now have the wiggle room to lose one vote in their caucus if that ever happens and still move bills through the chamber. And that also means that Kamala Harris won't have to be called in for as many tie-breaking votes. So between the, I just thought this was a fun fact, between the general election and the runoff election, the Georgia race was the most expensive race of the 2022 election cycle, which does make sense because they kind of did

have a second race, whereas every other state really just had one. But in total, between the campaigns and outside support groups, $425 million were spent on the 2022 election cycle in Georgia, which is a lot of money. So with that, let's get into the two cases that were arguments in the north carolina case that made headlines shortly after roe versus wade was overturned you may remember this it is a case called moore versus harper and it has to do with the the independent state legislature doctrine so essentially here's what happened the The North Carolina legislature, which was a Republican legislature, drew up a new congressional election districting map, which is their job under the Constitution. But after the map was drawn, it was challenged because the map played in favor of the Republican Party. And that's what we call partisan gerrymandering. It's unconstitutional. You can't

do it. So the court in North Carolina blocked enforcement of this map and sent it back to the legislature. And they said, go back to the drawing board, redraw the map. So the legislature revised the map. It went back to the court for approval. The court, again, did not approve it. But this time, the court appointed a team to draw a map for the legislature. And the court's rationale in doing this was, look, if we don't check on the legislature and things that they're doing, the legislature can essentially manipulate the very process that gives them their authority. And while redistricting is primarily delegated to the legislature, it has to be done in conformity with the state

constitution, and the state constitution guarantees free and fair elections. How are the elections going to be free and fair if the legislature is allowed to manipulate the maps and get the Republican Party elected each and every time? The Republican lawmakers, on the other hand, said no, no, no, no, no. Under the independent state legislature doctrine, the elections clause of the constitution actually says that the legislature has sole authority in regulating federal elections without any interference from state courts. So the question now presented to the Supreme Court is basically, can a state's courts interfere with the legislature's duty in regulating federal elections? And when this first made headlines that the Supreme Court was going to take up the case, it happened right after Roe versus Wade, and everyone was very, very worried because of the

conservative majority on the court. They thought that the court was going to rule that, you know, yes, the independent state legislature doctrine rules and the states cannot interfere at all with the legislature's ability to regulate federal elections. Whatever the legislature decides is what's going to go, and the court has no say. And that would obviously have far-reaching consequences. Now, that outcome is an extremist take. So I noted two potential outcomes of the case. There's that one, which is extreme. I don't think that's what's going to happen. And then there's another one that I think is more likely. And again, this isn't the only two options that could happen. It can obviously go a lot of ways. They

can rule however they want, but these are the two that I just came up with that I think are worth talking about. So the one that I think is more likely is the Supreme Court says, yeah, look, there is such thing as the independent state legislature doctrine, but we also have checks and balances. And in this case, it was wrong for the North Carolina Supreme Court to appoint a team to draw a new map because that's overstepping. That's not in their wheelhouse. They don't get to do that. But it is within the court's power to order new maps be redrawn as many times as it takes, right? So a court can check on the legislature, but they can't necessarily make up their own team to do the legislature's job. Now this takes into account both the

legitimacy of the constitution as it pertains to the elections clause and checks and balances, right? So that's why I think that this is more likely. If the extremist take did happen and the court said, yeah, yeah, no, the state court cannot interfere at all with the legislature's ability to regulate whatever the legislature says goes. This would obviously do things like eliminate state judicial power over not just elections, but also governors' vetoes. It could possibly allow the state legislatures to certify presidential electors who are not approved by the voters.

So there are things that can happen if the court, you know, went to the extreme, but I do not see that happening, especially because since Roe versus Wade, the court has been a bit hesitant to rule extremely. So, you know, I mean, I can't predict the future, but again, that's what I think is the more likely outcome. Now, according to an NPR article, the arguments, the oral arguments lasted three hours, and there were three camps of justices, basically, that seemed to emerge. So Justice Thomas, Justice Alito, and Justice Gorsuch showed some support for a version of the independent state legislature theory. Justice Sotomayor, Justice Kagan, and Justice Brown did not. And Justice Roberts, Justice

Kavanaugh, and Justice Barrett were somewhere in between those two views. The lawyer representing the legislature, the Republican North Carolina legislature, the ones that say, you know, the court has no say in this issue, argued that the state courts have no authority under the United States Constitution to rule on a state redistricting map. And Justice Jackson asked in response to that, basically she said, is it your argument that the state constitution has no role to play, period, to which the lawyer said that is our position. And then he qualified that by saying that the state courts can review procedural issues, but not substantive issues. And many of the justices weren't really buying that. Justice Barrett chimed in and said,

quote, you have a problem explaining why these procedural limitations are okay, but substantive limitations are not. And then Justice Roberts pointed to nearly 100-year-old United States Supreme Court precedent, which unanimously upheld laws giving governors power to veto election laws passed by the legislature. And essentially, you know, to sum it up in a nutshell, the justices weren't really completely on board with the legislature's arguments, even the most conservative. So I don't see this, again, going the extreme route. But then on the other side of the arguments, the lawyer representing the North Carolina voters argued that the founding fathers did not envision all powerful

state legislatures, unconstrained by courts and governors. And the lawyer said, frankly, I'm not sure I've ever come across a theory in this court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today. And later added, the blast radius from the legislature's theory would sow election chaos, forcing a confusing two-track system with one set of rules for federal elections and another for state ones, end quote. And then in response to that argument, Justice Roberts pointed to the provision in North Carolina's state constitution discussing free and fair elections and asked the lawyer whether he thinks that phrase provides standards and guidelines for them to rule, to which the lawyer obviously responded yes. So it does seem like the justices are kind of leaning in favor of saying yes, the independent state legislature doctrine exists,

it is a thing, we have to uphold it, but we can do so while still maintaining checks and balances. So we'll likely get a ruling on that probably sometime in June. So we'll see what happens with that. But, you know, I think at the end of the day, one good message from that case is ruled upon in a certain way. And that all stemmed from the fear that followed in some people following Roe versus Wade being overturned. And now, you know, we look at it and we say, okay, it doesn't look so bad. It looks like the court may actually, you know, rule on this this way instead of this way. And so I think I've said this in the beginning, you know, don't let things scare you. Don't let the headlines scare you. You got to read past the headlines. You got to do your own research. And that's how the media works these days. They work off of fear. That's how they thrive. That's how they get you to keep watching. That's how they get their views. So just keep that

in mind. And, you know, don't let the fear kick in until it really has to, because now we see that it may not, this case may not go the way that some people thought it would. So that takes us to our second Supreme Court case we're going to talk about, which is 303 Creative versus Ellenis. That's what it's called. And this one was heard on Monday. It deals with the rights of business owners to express themselves how they want and the rights of same-sex couples to enjoy equal access to businesses. So Lori Smith, a Colorado web designer, she builds custom websites for clients. She's the plaintiff in this case. And because of Colorado's public accommodations law,

she says that she can't design websites for couples getting married because if she does, then she can't pick and choose which couples she wants to design websites for. In other words, she wants to only design websites for heterosexual couples because that's consistent with her faith, but she doesn't want to design websites for homosexual couples because that would contradict her view of marriage. So she says, as of right now, because of Colorado's public accommodation laws, she can't do that because Colorado is censoring and compelling her speech by forcing her to create custom websites that would contradict her view of marriage. She says that she's created websites for gay and

lesbian clients selling other products and services, but because she believes marriage is between a man and a woman, she cannot be forced by the state of Colorado to create websites for engaged gay and lesbian couples. It's important to note that she hasn't even launched a wedding website business yet, so her lawsuit is basically a preemptive challenge as a violation of her First Amendment rights to free speech and expression. So what she's saying is that she would like to open this business, but she can't because, you know, she's got to follow the law. And this law requires her to, if she opens for business, create websites for both heterosexual and homosexual couples. On the other side of the lawsuit is Colorado's attorney general.

And he says that the state law isn't trying to dictate what she says in her web designs. She's free to create whatever she wants, but if she opens her doors and she serves the public, she has to serve everyone, regardless of sexual orientation, religion, race, or gender. He says he doesn't care about the message, but it's more of a question of conduct. So in other words, what he's saying is she doesn't have to open a wedding website business. She can do other websites, but if she chooses to do a wedding website business, she can do other websites. But if she chooses to do a wedding website, she has to serve everyone just like she's doing, you know, with her other website designs. So now basically the Supreme Court has to decide where state, local, and federal governments can draw the line when it comes to same-sex couples and laws requiring businesses that are open to the public to serve everyone on an equal basis. According to an LA

Times article, the more conservative justices were leaning in favor of upholding the First Amendment rights of the business owner, but the majority of justices expressed interest in finding a more narrow ruling that could bolster the First Amendment rights of business owners without also opening the door to discrimination on the basis of sexual orientation, race, gender, disability, or other legally protected characteristics. Justice Gorsuch and Justice Kavanaugh were some of the justices that suggested the court ruled narrowly, but also uphold the principle that people in business can't be forced to promote messages that they oppose. Kavanaugh said that only a small number of businesses would qualify for such an exemption. Hairstylists, tailors, jewelers, caterers, and restaurants probably would not qualify. And he said that this case basically comes down to

the fairly narrow question of how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors who aren't subject to First Amendment protections? Or are they more like the publishing house or other free speech analogs? So it will be interesting to see how this ruling comes down, because basically what they're going to have to do is carve out a map for how you can uphold the First Amendment rights of one person while also not denying freedoms to another. Or you have to deny freedoms to certain groups of people. I don't know. It's going to be interesting to see how this case rules. But what do you guys think? Do you think that a business owner should be able to make their

own rules? If they open a business, they should be able to do what they want. Or is it up to the state to make the rules? And if you live in that state, you have to abide by the rules. And if you don't like it, go to another state and open your business there. So let me know your thoughts on that. Again, leave them in the comment section. Sometimes I've gotten people submit their opinions and thoughts in the contact form on the website, but that's actually not the best way to do it. So again, just to reiterate, it is in that comment section on the episode description webpage. So that ruling, again, just like the other one, is likely to come sometime in June. That's typically when the more controversial high profile rulings happen, just at the, you know, the end of the term. So with that,

that's the end of the episode, and I would like to just give you guys a quick reminder, as I usually do. if you haven't already please leave my podcast a review wherever you listen Spotify Google podcast Apple podcast wherever it literally takes two seconds if you want to write a message with it that would be amazing that obviously takes a little more than two seconds but no pressure at all and per usual all of these sources are on my website also so if you want to read up on these things a little bit more, like I did link the LA Times article that talks about that Supreme Court case

we just talked about, and they kind of go, the article goes into detail about what some of the questions that were being asked were by the justices and stuff like that. So you can always find those articles there. And I hope you guys have a great rest of your week. I hope you're getting ready for the holidays and I will talk to you on Monday