Loading summary
Transcript43 lines
- [00:01]
Sarah Isger
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. Whoo. We listened to the Cook argument about the Federal Reserve and Governor Lisa Cook's removal by President Trump. So you don't have to. Also, we're going to break down the arguments in the Vampire rule case. We've got a decision on ex post facto law. And what does it mean to Martinize someone do David. And I think that's a good idea or a bad idea. As well as don't sleep on the face act in Minnesota as protesters entered a church during services. Can they be prosecuted under an abortion protest statute? And finally, the best letter we've ever gotten to advisory Opinions. It's not even close. And you will all agree with me all this and more on Advisory Opinions. This episode of Advisory Opinions is brought to you by our friends at Pacific Legal Foundation. Since they were founded in 1973, PLF has won 18 Supreme Court cases defending the rights of ordinary Americans from government overreach nationwide, including landmark environmental law cases like Sacate vepa. Now PLF is doubling down and launching a new environment and natural resources practice. They're on a mission to litigate cases that make more of America's land and resources available for productive use and to make sure freedom drives our environmental and natural resource policy, not fear. To learn more, visit pacificlegal.org flagship Reggie.
- [01:51]
David French
I just sold my car online. Let's go, Grandpa. Wait, you did? Yep, on Carvana. Just put in the license plate, answered a few questions, got an offer in minutes. Easier than setting up that new digital picture frame.
- [02:03]
Sarah Isger
You don't say.
- [02:04]
David French
Yeah, they're even picking it up tomorrow. Talk about fast. Wow. Way to go. So about that picture frame. Ah, forget about it. Until Carvana makes one, I'm not interested.
- [02:14]
Sarah Isger
Car selling made easy on Carvana. Pickup fees may apply. Okay, David, let's jump right in. We delayed our taping just to be able to listen to the arguments in the Cook case. This involves President Trump's decision to remove Governor Lisa Cook from the Federal Reserve. As we said in the run up to this argument, this case is not really about what the Federal Reserve is in our government. Is it an executive branch agency? Is it quasi judicial, quasi legislative? What the hell would that mean? Even if it were a thing, not really what this was about. This is about what for cause removal is. As in the administration says, sure, we're bound by this statute that says you can only remove governors for cause. But we had cause, and we removed her. And the lower Court not only disagreed with us, but then reinstated her. What power did they have to do that? Which is how we get both questions presented. What does forecause removal really mean? And sort of a Marbury versus Madison, okay, even if the President didn't do the thing he was supposed to do, what power do the courts have to make him undo that? David, initial thoughts and feelings on this very tight, exactly to the minute two hour argument.
- [03:36]
David French
Okay, Sarah, so I have a substantive and a stylistic comment. So let's start with the substantive. I just don't think this went well overall for the administration. I think you could very early and very clearly see a path to a resolution that goes something like this, or at least a temporary resolution that is this just wasn't done correctly. You don't fire somebody like this when they have a for cause removal provision. This is just not how it's done. There should be some sort of process. We're going to remand for that process. And I think that that was very quickly looked like a consensus kind of opinion here. And what was interesting about this is what underlies that. And what was a very clear theme throughout the argument is there just seems to be this absolute conviction that the Fed is different. This is not a CFPB argument. This is not an argument about another independent agency. This is something completely different. And what does that mean? And so substantively, very early, very quickly, I could see a path to a resolution, or at least a temporary resolution that sends it back. Now the question then is do I see the same path to whether she stays in office while this is all pending, versus is removed from office. But if you make me count and guess, I'd say that they're leaning towards she stays. The statutory scheme, which is designed to preserve the independence of the Fed and the independence of the Fed is part of a hovering presumption behind this case, means that if you're going to remove somebody even temporarily without that proper cause being established, you're doing violence to that statutory scheme. So that seemed to be the substantive way in which the court was moving and stylistically much less important. Sarah, Much less important. But I was really struck by the familiarity with which Paul Clement argued to the court as if we're amongst friends here. And it was very interesting. So, for example, he did things that I rarely see lawyers do, which is, you know, if you didn't like my first argument, my backups are awesome. And you know, just being very out there on that, on that front. And then also there was a moment I can't Remember if it was Alita who was questioning him at this point, or if it was, I can't remember which justice was questioning him, but he asked him a question. He said, are you really resting on that? And Clement goes, yep, to much laughter throughout the courtroom. And it was very interesting. And it reminded me, circling back again, this is so much less important than the substance. But I found it interesting to this conversation we have about the professionalization of the Court, where you have a small number of Supreme Court advocates who are consistent in front of the justices. And I think in the oral arguments, you're beginning to see the familiarity that results from that kind of system. I'm curious as to what you thought stylistically as well as substantively, but that kind of stood out to me a bit.
- [06:40]
Sarah Isger
There were nine justices today who did not want this case on their docket. They seemed exasperated by it. To read subtext into what, like, even Justice Alito was asking during this argument here. Here's what a friend texted me. His question is, basically, what the F is all this horseshit? In fairness, that that doesn't naturally cut for or against either one of them necessarily, but because it is the government bringing this, asking for the stay, I thought that it turned into a bit of, you know, Paul Clement getting to say, like, yeah, I totally agree with you. Ugh, that guy. Am I right? So I. I think this could be a unanimous opinion that this shouldn't have been on the interim docket. And thanks for coming up and having this oral argument, but we don't know the facts. We don't even know the law. This needs to percolate. All of these questions make this a mess. What is for cause? What is mandamus? What is the remedy? Is that jurisdictional? Or does that go to irreparable harm? Like, eh, we're not that interested. We are not sort of your first line of defense here. We don't do this kind of work. The district courts do this for us, and then the circuit courts review the district courts. Like you went straight to the general counsel of the company instead of going to your manager. You know, sir, this is a Wendy's.
- [08:06]
David French
So does that mean Sarah, in your mind, that she stays while this pin is pending?
- [08:11]
Sarah Isger
It will be as if this never happened. Uh, so that's my substantive take on this stylistically. And now I'm going to include some substance in my style points here, starting with Solicitor General Sauer. And in particular, this felt to me quite a bit like his argument style in the Trump criminal immunity case before he was Solicitor General, by the way, in which, if you remember, David, I gave him very low style points. I thought he sounded defensive. And particularly today the Chief justice admonished him for talking over other Justices. And up to that point he had been talking over female Justices, which maybe just to my ears or maybe to everyone's ears, came off particularly rude. You know, at first it was Justice Jackson, then it was Justice Barrett, then it was Justice Sotomayor, and it was just like, gross, dude, stop. Like know your role. They would like start to ask a question. He would just literally, it wasn't like he didn't hear them. He would start talking more loudly to overcome their talking. I will say, after the Chief justice admonished him, that got much better. Although he actually did talk over Justice Gorsuch before he caught himself. And I only mentioned that because this was not actually a female thing. It just happened to be that the female Justices were the ones asking the questions when he was most worked up and before the admonishment. I don't think it's a particularly effective argument style. That being said, obviously in the immunity case, it either worked well or it didn't hurt enough.
- [09:42]
David French
So.
- [09:44]
Sarah Isger
Dance with the one the brung ya. And that's the argument style we saw today. Now I want to compare that to Paul Clement's style. Today showcased Paul Clement's skills. Why he is widely considered the goat. Maybe more than any argument I've heard from him since Kennedy v. Bremerton when I was just like blown back by how difficult I thought that case was for him walking in and how breezy and easy, like a cover girl he made it sound in the argument and how effective that was when you then read the decision similar today. This is a hard case. It is messy. There are many things that cut against Lisa Cook. Number one of which is that the district court's opinion as we covered in our, you know, preview for this, both ways the district court decided this. That you can't base for cause removal on pre office conduct and that you have a property interest in a public office are pretty bonkers and wrong to me. And that's what Paul Clement's having to come in here to defend. Instead, Paul Clement painted a world in which he wins on every question. And no matter where you turn, no matter where Sauer turns, here's another question that Paul Clementine has laid for you, that you must win and you have to win every step up the ladder before you can win the whole thing. Paul Clement only has to win one of them. Now someone said, yeah, but if you break out each argument that Clement was making, the justices didn't seem to buy into any given one of them. Isn't this like a thousand duck sized horses? And my answer is, yeah, but that's kind of the genius of it, because again, this is a hard case. He didn't have a horse option. So instead he has a thousand duck sized horses. Sauer has to kill every duck. If he misses one duck, he loses the case. And that is the genius of Paul Clement.
- [11:40]
David French
It was that combination of congenial and familiarity that was really interesting to me stylistically because it really created this impression of like, oh, justice. So. And so you have concerns about my argument behind door number one? Well, I am delighted to open door number two, because behind door number two, I have an even better argument. And guess what? Door number three is even better than doors number one and two. He had this sort of relentless like, I have an answer. And not only do I have an answer that I'm not defensive about, I have an answer that I just cannot wait to share with you because it is so clearly in my client's favor. It created this impression that there just wasn't an objection that he couldn't have an immediate response to and that he could always go back to. And he had the advantage of, after seeing sort of the Justices look at this due process issue and look at, oh, wait, do you really provide notice, proper notice, through a Truth Social post that seems to prejudge the outcome of the inquiry? Like, is it a notice there or is it a resolution there? What's going on here with a truth social post? And so he was really able to take a look at what had happened in that oral argument and react accordingly in a way that just seemed to say to the Justices, it's all so easy. It's all so easy to rule for me. And I felt like that was a very effective way of cutting through kind of the Gordian knot of a lot of the questions that you raised at the beginning. What are the implications of the, of the Lisa Cook argument? He's like, we don't have to get into all that. This just wasn't done right. You know, this is screwed up from the beginning.
- [13:19]
Sarah Isger
Aren't you sick of this case? I sure am. As David Latt said during the live blog, Clement has backups on, on top of backups on top of backups. So Sauer needs to run the table. And while Clement's arguments might seem dinky or small ball, the justices love themselves some dinky arguments on the Interim docket. And David, to your point, and this is both substance and style, you're right that Clement had the benefit of getting to listen to the hour before him to see where the justices were. No question. But the difference between a good advocate and a great advocate are the ones that, that can respond to that in real time. And what I think you saw, and maybe this was his strategy all along, was Paul Clement so light on his feet? He wasn't trying to stay on any argument. He wasn't trying to convince them even of any argument, whatever they wanted to talk about wherever they wanted to move. Because in his mind, again, he had a thousand duck sized horses and he was happy to move from duck to duck to duck just as quickly and lightly as I've ever heard anyone do. Because oftentimes lawyers do think, you know, here is my best argument. I want to stay on this and make sure they understand my best argument. I never heard Clement try to stay with one of his ducks. And so I want to run through some of the ducks in no particular order, by the way. One, what does for cause removal mean? And breaking that apart a little bit, does for cause removal mean that you have to have done it in office for anything potentially, but if you did it before you came to office, it needs to be an infamous crime. Think the difference between malum and say versus malum prohibitum. You know, malum and say are the ones, if anyone watch Legally Blonde, you know, they're sort of inherently immoral. Murder, assault, you know, the bad stuff. Malum prohibitum are things that we have said, you know, as a society, we don't like speeding. You know, the speed limit is arbitrary. So that's a malum prohibitum. Checking the wrong box on your mortgage application as a mistake. Malum prohibitum. Okay, so that's like one of the ducks we kind of knew. It's maybe even a bigger duck. But let me tell you some other ducks that are hanging out with that duck. Does it matter if the President says that her checking the wrong box was gross negligence or was it just negligence? And can for cause removal ever be gross negligence? Even if it was gross negligence, as in, does it need to be something more than anything in the negligence family? Or who gets to decide that? I mean, think of all the ducks that live just in that question. We spent a lot of time on that. And then here's another duck hanging out in that family. Does for cause removal mean new acronym Coming everyone in M. You know, you were hearing them say things like, for 150 years we've had INM and it's been just fine. INM meaning inefficiency, neglect, malfeasance. And this then got into some interesting legislative history about that initial FTC act and whether the Fed Reserve act was actually drawing upon what for cause removal meant there and inm, and when you can remove someone and again, who gets to decide, okay, those are the docs hanging out there. Let's go over to some notice ducks. Do you have to tell her why she's being removed? Does she have any opportunity to sort of rebut the for cause removal? And as Justice Gorsuch asked, can you like, call her into the Roosevelt Room and say, here's why I'm removing you? Is a Truth Social Post notice? That was a Justice Jackson question. What does due process look like here? And who decides the due process? And what role does social media play? Because Paul Clement's answer to that was like, yeah, Truth Social might provide notice because I live in the modern world and like, everyone's going to see that. But he had prejudged the case. He didn't say, you know, we're opening an investigation to this. He said, resign now, and then kind of provided his reasons later. Which shows you this was pretextual. A whole nother set of ducks over in the pretextual side of the farm. You get the point, David. Like, I'm only scratching the surface of how many ducks were out there for Paul Clement to win on. So, yeah, I think we'll get a pretty quick decision on this. I think it's likely to be unanimous. I think it's possible we might get slowed down by a bunch of concurrences. I think it's possible we won't because they just sounded like they were not amused that they were having to sit through this today. We already know they don't like the interim dockets. They don't like the attention on it. They don't like having to do it. I don't think they like the administration running to them every five seconds. I don't think they like the district courts deciding in ways that make the administration run to them every five seconds. We've seen them take it out on the district court judges, too. But here we are in January, a year after the interim docket really exploded under the Trump administration. And I just, I didn't hear anyone very happy to be there except Paul Clement.
- [18:31]
David French
So if you have Paul Clement, you don't just have somebody who is fluent in the language of the conservative legal movement. You have a Linguist, in the language of the conservative legal movement, like, this is a guy who for well, more than a decade has been sort of the gold standard of conservative oral advocates. So this is somebody walking into a conservative court who is the conservative's conservative, making a conservative legal argument against the Trump administration. And this sort of goes to a point that I've been making for a very long time, which is one way to understand this court is they are conservative. Yes, they are, by and large, pre Trump classical liberal conservatives. Originalist classical liberal conservatives. And so where you see the Trump administration winning is when the Trump administration is making points and arguments that overlap with that, such as a lot of the unitary executive arguments that you've seen in the run up to, you know, this case and others. But where MAGA departs from that conservative legal vision, it tends to lose. And that's why you often see this dichotomy between some of these procedural rulings about the President's power of the executive branch and the more substantive rulings over the President. What is the President's power in general? And so now this is a bit of a hybrid because the Fed is, guess what? Different. And so that's where you're seeing some of the. This is the intersection between sort of those two different strands. The other thing going back to the due process, you know, when you talk about due process, there's always two components, notice and opportunity to be heard. And so the question is, when you get a truth social post that looks like I'm done, I'm doomed, and you're actually going to walk in to court and say that the notice was the truth social post and the opportunity to be heard was the several days before the actual termination, with no defined process, with no specified charges, with under no definition of due process, is that due process, under no definition of an opportunity to be heard, is that an opportunity to be heard?
- [20:48]
Sarah Isger
By the way, this gave rise to my next favorite new term that we have coming out of this argument in M. I will now use in everyday life. Like to my, you know, child, you're being, you know, you've got a lot of I and M right now. And so go to your room. Like, I think that's a good, everyday usage of inm. But the one related to due process was when Paul Clement was explaining the history, right, of what sort of notice President Taft thought was due. And the answer, by the way, I guess, is that Taft thought a whole lot of everything was due. And so Paul Clement started referring it as going full Taft, and he made this reference several times and he was like, well, if you don't want to go full Taft, you can do this. Or, you know, if you haven't full, you know, gone full Taft, then blah blah blah. I could not get out of my head. Tropic Thunder David, Never go full Taft. Clement's point, by the way, was that fine, she got Notice the Truth Social post. I'll accept that as notice in the year of our Lord 2026. But she didn't have an opportunity to be heard if he'd already made up his mind, which he made clear in the Truth Social post. So there has to be something now. Again, this just buys him some time. It's not actually a great, like winning argument. If they were up here on the merits, I don't think you'd hear it. But again, he just needs one duck. Only one duck has to survive. All right, when we get back, we're going to talk about another argument and decision from the Supreme Court. The Vampire Rule takes the stage and and ex post facto laws. We don't talk about a lot on this pod, but it's really fun to say when you see someone close to you experience a major loss, it can really put things into a different perspective. It's not just the emotional side of it, it's how quickly that moment can turn into unexpected financial pressure. Watching that happen can really make you think seriously about planning ahead for the people who matter most. Life insurance isn't about assuming the worst. It's about making sure your family has support no matter what comes next. And that's where Ethos makes the decision easier. Ethos makes getting life insurance fast and simple, and it's 100% online. You can get same day coverage with some policies starting at $30 a month. There's no medical exam, just a few quick health questions. Business Insider recognized Ethos as the number one no medical exam. Instant life insurance provider and Trustpilot rates it 4.8 out of 5 based on 3,000 reviews. Protect your family with life insurance from Ethos now by going to ethos.comao in as little as 10 minutes, you can get your free quote and up to $3 million in coverage@ethos.com ao that's e t h o s.com ao ethos.com ao application times and rates may vary. Eczema as unpredictable, but you can flare less with Epglis, a once monthly treatment for moderate to severe eczema after an initial four month or longer dosing phase. About 4 in 10 people taking EBGLIS achieved itch relief in clear or almost clear skin at 16 weeks, and most of those people maintain skin that's still more clear at one year with monthly dosing.
- [23:59]
David French
Empclus Lebricizumab LBKZ, a 250mg 2ml injection, is a prescription medicine used to treat adults and children 12 years of age and older who weigh at least 88 pounds or 40 kilograms with moderate to severe eczema, also called atopic dermatitis, that is not well controlled with prescription therapies used on the skin or topicals, or who cannot use topical therapies. EBGLIS can be used with or without topical corticosteroids. Don't use if you're allergic to ebglis. Allergic reactions can occur that can be severe Eye problems can occur. Tell your doctor if you have new or worsening eye problems. You should not receive a live vaccine when treated with ebglis. Before starting ebglis, tell your doctor if you have a parasitic infection.
- [24:33]
Sarah Isger
Ask your doctor about ebgliss and visit ebgliss.lilly.com or call 1-800-LilyRx are 1-800-545-5979 looking.
- [24:41]
David French
To create the bath you've always dreamed of without all the hassle? The Home Depot makes it easier Shop fully styled rooms and curated collections to bring your vision to life. Use digital tools to preview flooring and finishes in your space and get everything you need from tubs to tile delivered fast and priced right. The Home Depot Dream Baths built here.
- [25:12]
Sarah Isger
All right, David, I don't know that we need to spend a ton of time on either of these, but we did have the argument in the Vampire rule case. This was about Hawaii's change in law after Bruin. So pre Bruin you could not get a permit to conceal carry a gun. Post Bruin, they acknowledge that they have to give permits. Then they flipped the presumption for private property that is open to the public. Where you know in most states if a private property business owner doesn't post a sign of any kind, you are allowed to conceal carry in their business. But they may post a sign that says no guns allowed in this business. Hawaii has changed that so that if there's no sign posted, you are presumptively not allowed to carry your gun into that business and in fact it would be a crime to do so. So the shop owner must post a sign saying you are allowed to carry a gun for you to be allowed to carry the gun. David in many ways this is sort of a reverse oral argument from what we were just talking about. We had a first time advocate arguing in favor of Hawaii's ban. Well, like renowned in Second Amendment circles, but his first time at the court, I believe he's a solo practitioner out of San Diego. It was kind of a weird argument in a lot of ways because I felt like both sides were talking past each other. Was this an argument about property rights or was this an argument about pretextual laws to undermine constitutional rights? Because if it's about property rights, I mean, there's some arguments, I guess, for why you can't flip the common law presumption, but not great ones. This is just a stake and you decide what the status quo will be for private property owners. It's not like I have a right to bring my gun into your house, David. Or are we saying that this has nothing to do with property rights? Hawaii doesn't think it has anything to do with property rights. They have all sorts of exceptions, even to the gun part of this. And they, for instance, don't have any change in presumption when it comes to leafleting for First Amendment rights, anything like that. This is all about getting around Bruen. And are we as the court going to allow a state to circumvent our decisions and make the Second Amendment a second tier, you know, amendment? So what did you think of that? And we will have to talk about the black codes, which, like, talk about everyone switching teams on that.
- [27:36]
David French
If I'm Hawaii and I'm trying to count to five, I'm stopping at about 3.1. I've got Jackson, Sotomayor and Kagan pretty solidly in my corner. And then I have like the tiniest hope that Justice Barrett might ameliorate my loss to some degree. That is the way I looked at it. So I don't think Hawaii is winning. I think it's much more interesting to sort of think this through conceptually and the way I'm thinking through this. And there's a lot of discussion about the Second Amendment should not be a second class right and we wouldn't treat the First Amendment the same way. Okay, I think we should dive into that a little bit. And when you think about it, I think a First Amendment analogy is both helpful and unhelpful. So here's how it's helpful. Imagine if the state of Hawaii passed a law that says you may only talk politics on private property with the owner's express written permission. That would be grotesquely unconstitutional. So then you might Say, well then of course, if the second Amendment isn't a second class right, that you would have this same reasoning. However, and this is something that I wish that second Amendment and gun rights advocates, of which I consider myself one would acknowledge is that there is also a difference between a gun and a speech. Okay, So a person who walks in and is delivering an unwanted speech is very different and less dangerous from somebody walking in with an unwanted deadly firearm. Those are different things. And so I do wish second Amendment advocates, while saying this is not a second class right, would acknowledge it's not the same right as the right of free speech. They're not second class rights, but they're different rights and there are different consequences. You know, so for example, words are not violence. However, guns are instrumental in violence. Guns are instrumental in the deadliest possible violence. And so this is a very different right. Now I don't think that that means that the Hawaii law is constitutional, but I think on a more meta point, that's why you see entirely consistent with the idea that the second Amendment is still a first class right, that there are greater, still greater regulations that are permitted because of what a gun is and what a gun does. Okay, so just put that on one side. The second thing here I think that is interesting to talk about is, and let's get into it, the black coats, these are laws enacted in the post Civil War south that were designed to create two tiers of citizenship that you had white Southerners who still enjoyed all of the liberties and all of the benefits of their power and their privilege. And then you had the black citizens of the south, the newly freed slaves who were subjected to the full weight of whatever law these reconstruct or post Reconstruction governments could imagine to suppress their rights, to suppress their liberties. And so you had gun regulations that were enacted like exactly when the law would be most relevant to a text, history and tradition category. Yet the law in that circumstance is obviously and blatantly designed to suppress the liberty of black Americans. This shows the fact that fundamental flaw of text, history and tradition. Because why are we looking at these legislatures to interpret the 14th Amendment accurately? That was never their core fundamental function in the same way that it is the core fundamental function of a court. And so a legislative enactment cannot, should not be anything ever close to achieving the weight of anything that looks like precedent. And in part because this is what legislatures do. They do not uphold constantly, consistently, and it's why we need a judicial branch, for crying out loud, is they don't interpret the law accurately and effectively. And so this is why the text, history and tradition, unless text is an all caps 36 point font, and history and tradition is like all lowercase 8 point font, I don't think it works.
- [31:52]
Sarah Isger
So this was brought up specifically and effectively, I thought, by Justice Jackson to cast shade, I think, on the underlying methodology of Bruen. Right. How does text, history and tradition work? If when we look back at history and we say like, well, here are these black codes and it looks identical to Hawaii's law, you say, yeah, but that doesn't count. Like, oh, so not all the history counts anymore. And she's like, doesn't that seem like a problem? If we're picking and choosing, you know, sitting here today which ones we think were constitutional, then that being said, I think the answer to that given by Principal Deputy Solicitor General Sarah Harris, who really shined, by the way, in this argument, was, yeah, but that has been found to be unconstitutional. So basically, once we find it to be unconstitutional, it means it was unconstitutional the whole time. And so we do excise it from the history. I take that point pretty seriously. But it doesn't solve the problem you're talking about, David. And let me give a different example. The alien and sedition Acts, that was never struck down as unconstitutional. Is that supposed to go into our understanding of the First Amendment? Because under text, history and tradition, it would. Now, I'm not the first person to point out this alien and sedition problem with text, history and tradition. Justice Barrett's answer to that is that it's post ratification, so it don't count. And Justice Kavanaugh's answer to that is, yeah, it counts. And let's not worry about that part so much. I do think it's pretty easy to get around in this case, because either you can adopt David's position that these were states. Of course, we don't let States liquefy the 14th Amendment, certainly not states in the south that had just been defeated.
- [33:38]
David French
And certainly not state legislatures. Not even talking about courts here.
- [33:42]
Sarah Isger
But it has lots of collateral consequences for text, history and tradition, as you point out, David. And then the second one is, yeah, a court has found those to be unconstitutional, so we just take them out of the history at this point. This could be a pretty interesting decision if it says more about text, history and tradition. Again, this is our first major gun case since Rahimi, though we have more to go. Certainly the drug use gun case, we Talked about that 5th Circuit machine gun gun case. So there's plenty more road to travel on the path. Oh, the second Amendment, this is going to be an important stop on it.
- [34:21]
David French
You know, and if this is another text, history and tradition decision, which I expect it will be, I fully expect that it will further reaffirm my view that text, history and tradition is just intermediate scrutiny by another name. Because if what you end up doing is having justices saying, yes, it's text, history and tradition, but not that history and tradition, this history and tradition, then it's judge decides, right? Isn't that, you know, that's what we've always said about intermediate scrutiny is it's judge decides versus, you know, strict scrutiny or rational basis review. And it just. It just feels like the more you look at this incredibly big, incredibly complex federal republic with so many different lawmaking entities working at any given time, that that text, history and tradition analysis is going to yield an almost infinite variety of historical examples to follow. And then who decides which one? The judge.
- [35:17]
Sarah Isger
All right. There was an interesting decision to come out about the Mandatory Victims Restitution act of 1996, which requires defendants convicted of certain federal crimes to pay monetary restitution to their victims. The law became law on April 24, 1996, but petitioner Ellenberg was sentenced later in 1996 in order to pay restitution in the amount of $7,000. He still hasn't paid that amount. Remember, 1996. I'm pretty confused about a lot of this case, to be honest. But anyway, he argues, Ellen Burke argues, that this violates the ex post facto clause of the Constitution because he committed his crime before the enactment of the mvra, and therefore he can't be subjected to criminal punishment after, you know, he did the thing. You can't make it a crime after he did the thing. So the question is, is the mvra? Is mandatory restitution criminal or civil? If it's criminal, it violates ex post facto. If it's civil, then you're fine, and you can do that to people. Think about how we can put tax burdens on people, you know, for tax, for money they've already earned. That might be a terrible example I just gave, but it's true. So we have a unanimous decision from the court written by Justice Kavanaugh, saying, duh, this is criminal. Yes, it's meant as compensatory for victims, but it's also meant as punishment. It's meant as a penalty. These are all words that show criminal aspects to it. So he does not owe the $7,000. But that's not why I think the case is interesting, David. The case is interesting because of a concurrence by Justice Thomas with Justice Gorsuch joining in which Justice Thomas I know it will shock you. David wants to go back to the original understanding of the ex post facto clause in which he basically is like, hey, the modern way that we decide whether something is criminal or Civil is a 12 factor test of balancing framework and blahdy blahdy blah. The stuff that just drives Justice Thomas crazy and allows legislatures, he argues, to evade ex post facto protections through clever labeling. So he proposes that crime should mean any public wrong, any injury to the sovereign, regardless of what label you may put on it. Punishment simply means any coercive penalty, deprivation of life, liberty or property imposed to redress that wrong. So if you commit a wrong against the sovereign and there's any sort of anything that the sovereign then imposes through coercive means, it would be subject to ex post facto. David, gotta tell you, that's pretty attractive to me.
- [38:04]
David French
I think that's extremely attractive. If the sovereign is imposing a punishment on you, it's expos facto. I think this is the right outcome. Loved that concurrence by Thomas. You know, Thomas is known for not liking these various judicially created tests and there's a lot to that. As we've talked about in other contexts, I think there's a role for judicially created tests when those judicially created tests can affirm the meaning of the text. But then when a lot of times what we get to is judicially created tests that are seem to design to accommodate a lot of complexity and achieve particular policy aims apart from the text. For example, are white plaintiffs going to have to carry an extra burden when they are filing an employment lawsuit? And the answer the Supreme Court came down to was absolutely not. Well, why did we think they had to to begin with? It certainly wasn't in the text of the statute. Judicially created test that was gave white plaintiffs an extra burden. So I have a pre existing bias against elaborate judicially created tests. And I thought this was a very interesting and affecting effective concurrence.
- [39:17]
Sarah Isger
All right, one more decision from the Supreme Court. This is an opinion related to an order. The motion of petitioner for leave to proceed in forma pauperis is denied and the petition for writ of certiorari is dismissed. As the petitioner has repeatedly abused this court's process, the clerk is directed not to accept any further petitions in non criminal matters from petitioner unless the docketing fee required is paid and the petition is submitted in compliance with Rule 33. A lot of words there that probably don't make a lot of sense. The filing fee to pay at the Supreme Court is $300. But the printing fee to comply with the rules of filing at the Supreme Court can run to the high, like, thousands. 10,000, $11,000. So for instance, in the Vampire Rule gun case that we just talked about, that solo practitioner actually put out a Facebook post, I think it was, where he said, hey, guys, like, we have to raise $11,000 for the filing fee in this case just to ask the Supreme Court to hear the case. And he actually crowdsourced raising the money for the filing fee, because if you do not have the 10 $11,000 plus the $300 filing fee, you need to ask the court to proceed informa pauperis, meaning to waive the fee. When we talk about how low the cert grant is at the Supreme Court, we're basically only talking about those who can pay the filing fee. If you file informa pauperis, you've got nearly no chance of getting your case granted. These tend to come from prisoners who are filing cases at the court, and often they tend to file more than one case. So what they're saying here is this person kept filing cases. So not only are we not letting you file this, we are banning you from filing any more cases. This could be a habeas petition, a civil lawsuit against your prison guards, anything that's not criminal. If you have a criminal case against your guards, you could file that. But again, you don't get to bring criminal charges because you're in prison. Slash, you're not a prosecutor. But other than criminal stuff, you are banned from filing anything else at the Supreme Court. Okay, now this sounds like kind of crazy, right? That someone has to have $11,000, but in truth, it's that you either have to have $11,000 or you have to persuade some lawyer that you have a meritorious case. Because lots of lawyers, lots of law firms would love to argue a case at the Supreme Court. Their law firm is happy to pay the cost if they think you've got any chance of getting your case granted. So by filing Informa Papyrus, not only are you saying you don't have the money, you're also saying you couldn't find a single licensed attorney who was willing to, like, you know, stake your chips at the game thinking you had a chance. Now there's a dissent from Justice Jackson that I thought was pretty persuasive. David. Her point is to bar someone from ever filing a civil anything at the court while they are currently imprisoned. First of all, does not match, by the way, this is called Martinizing someone based on the precedent. To Martinize someone is to prevent them from filing any further things at the Supreme Court. But in Martin, for instance, she walks through these cases. McDonald was the first one. He filed 73 petitions over 18 years. Syndrome. Filed 43 petitions in three years. And Martin, where we get Martinizing someone filed 54 petitions over the course of 10 years. And her point is, none of those people were incarcerated, and all of those people filed an insane number of petitions. Our dude here in this case, Danny howell, he filed six. Now, is that a lot? Okay, but is it 53? 73? Like, no. And he's currently incarcerated. So you've now sent this message to everyone who's dealing with him in prison that, like, there's nothing he can really do about anything that you do to him, and that they have the staff to be able to just simply look at something and see whether it's meritorious. So why are we suddenly Martinizing all of these prisoners who are trying to file stuff at the court? David, you read this dissent. Were you persuaded? Let me just read her last line here. I believe that when balancing prisoners access to judicial review on the one hand, and reducing our administrative burden on the other hand, we should err on the side of keeping our courthouse doors open.
- [43:53]
David French
I have a lot of sympathy for that. One of the things though that is sad is the reality of pro se prisoner petitions is very far from the ideal of what you might think. Like, if you're thinking, man, heroic prisoner doesn't have an attorney that will take their case. And you know, they're in the law library and they're studying. They've discovered this incredible, like, legal hook that shows that the prosecution fumbled the ball or allowed them to finally the DNA testing that they've always wanted. You know that that sort of movie story of prisoner petitions is very different from the reality. Now, I'm not saying there's never a meritorious prisoner petition, but it's a much. The actual reality is much more like what I experienced when I was an intern at the U.S. attorney's office. And one of my fun jobs was responding to prisoner petitions. And I got to read a lot of them. And it's much more like I'm suing the United States government and Lucifer himself for prosecuting me for a crime that Lucifer made me commit or know Satan made me commit. Like, that's an on one extreme. But you've got a just a giant avalanche of frivolous prisoner litigation. And it's a problem. It's a problem. It really does create a lot of problems in the system. And so yeah, okay, what is the number at which someone is Martinized? Do you have to go to 53? I'd say no, absolutely not. You don't have to go to 53.
- [45:20]
Sarah Isger
But can we agree it should probably be 2015. This guy's been sentenced to 70 years. So maybe also the amount of time you're gonna be there, like you know, one per year and once you hit the 10 year and 10 mark, I don't know. But like, eh, I don't love this. Now on the other hand, one of the arguments she made that I thought was quite weak is the argument you made, David. Like a new law comes around and the prisoners finds that in the library and now they're barred from even bringing this even though they would have a success, successful petition. Yeah, but then you don't need to file informa pauperis. Now an attorney can take your case because it is potentially meritorious.
- [45:58]
David French
Well, and the other thing is, especially if it's related to the underlying conviction, these guys still have at the very least court appointed attorneys. And so I'm very sympathetic to the dissent, but I feel like what is the reality of the world of pro se prisoner petitions? I'm for Martinizing, maybe at a lower threshold than you, Sarah. This might be the first time I've been more tough on crime than you are.
- [46:23]
Sarah Isger
I find this really, really hard because it is a solvable problem. With a little bit more bureaucracy, you know, you might have to hire another staff attorney. We had tons of these at the fifth Circuit. We called them pinkies and like, yeah, they went to the staff attorney. But every now and then we have a meritorious informa pauperis petition. And it's really hard for me to say which prisoners are going to be the ones to file the meritorious ones. Is it going to be the ones that have never filed a petition at all, or is it going to be the ones that file 10 and their 11th one happens to strike gold? I actually think it's probably more likely to be the latter in a lot of ways. Although I think you could argue it, you know, both directions. I don't have a strong opinion on this because I am so ambivalent. I really, really think both sides have good points and I'm glad I'm not the one making the decision. I would have a hard time Martinizing someone.
- [47:17]
David French
Well, and I do think that you raise a really good point. My analysis of the situation is sort of Based on status quo levels of funding, staffing, judicial capacity, et cetera, there is a possibility of increasing funding, staffing and judicial capacity to raise the Martinizing threshold to your preferred 20, say. And that is an option. And you know, we do absolutely under resource our criminal justice system. I think that's just self evidently correct.
- [47:47]
Sarah Isger
We do. And by the way, most of these are handwritten. They're really hard to read as someone who has had to read them from time to time. So there's a, there's a lot of cost there. When we get back, David, we're going to talk about the FACE act and this church in Minnesota where anti ICE protesters storm a religious service. Who's in the right? And a letter from my favorite listener of all time. That's right. All the rest of you lose. We now have a new number one in the favorite AO listener category. And not a single one of you is going to disagree with me.
- [48:21]
David French
Shopping is hard, right? But I found a better way. Stitch Fix online Personal styling makes it easy. I just give my stylist my size, style and budget preferences. I order boxes when I want and how I want, no subscription required. And he sends just for me pieces plus outfit recommendations and styling tips. I keep what works and send back the rest. It's so easy make style easy. Get started today@stitchfix.com Spotify. That's stitchfix.com Spotify.
- [48:52]
Sarah Isger
All right, David, I want to talk about the application of the Face act to protesters in Minnesota. Anti ice cream protesters entered a church believing that a person in the church worked for ice. They disrupted the service. Don Lemon, former CNN host, was with these protesters had a video interview with the pastor which was pretty confusing as sort of both people seemed to not really be talking about the same thing. The pastor sort of saying, we're here to worship, please let us continue our service. And Don Lemon talking about how he is also a Christian and you know, sort of what does Christianity have to say about ice? But all of the questions are about whether you can prosecute the protesters under this statute that has been used to prosecute anti abortion pro life protesters.
- [49:43]
David French
David, the FACE act is a really interesting law. It's 18 USC Section 248 portion part 1A1 says whoever by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to to injure, intimidate or interfere with any person because that person is or has been or in order to intimidate such person or any other person or any class of persons from obtaining or providing reproductive health services. That's part one. So this is you can't block access to an abortion clinic, for example, but then you get to section two by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship can be subject to two criminal penalties. And so you have these two key provisions. One is abortion clinics, the other is places of religious worship where you're criminalizing intimidation, obstruction, interference with people who are lawfully exercising their rights in those circumstances. And the FACE act has been used quite liberally in the past against anti abortion protesters, against pro life protesters. And so the question is, what happened at that church in Minneapolis? If it happened in front of an abortion clinic, would it have led to prosecution? And if it happens in a church service, if it would have led to prosecution in front of an abortion clinic, shouldn't it lead to prosecution and a church service? And Sarah, there's a lot of conflict about this, but I think it's pretty clearly that, to me, at least, that the answer is yes, that if a group of protesters broke into an abortion clinic and they were engaging in the very similar activity within the abortion clinic that you saw the protesters engage in in the church, that they would be subject to criminal penalty. And so if you're looking with language that says interfere with, that's pretty broad. That's pretty broad. Maybe you can argue about intimidation, that they're just chanting, they're disrupting, but interfering with is pretty broad language. So it's absolutely the case that what they were doing was trespass, that what they were doing was violating the rights of the, of the congregants. This is not, you know, that there, there are legal remedies short of the Face Act. But I would say that if section 1A1 of the Face act is constitutional, section A2 of the Face act is constitutional. And that kind of conduct is quite equivalent to some of the, you know, some actions that have been prosecuted in the past. And so I thought the entire thing was pathetic and ridiculous. I think that this idea of walking, breaking into a church service because you claim that a member of the staff is also part of ice, I'm not going to say it's, it's as bad as going to a US citizen and then invading their home and walking them out in sub freezing weather in their underwear in full view. Of cameras only to later release them with no apology. That's a terrifying, horrible thing to do to a human being. And I don't want to get into this. Well, they invaded a church, so that's okay. No, they're both terribly, terribly wrong. And it's ridiculous and pathetic that protesters would break into a church or enter a church during worship, engage in that kind of activity, obviously scaring kids around them at a very, very tense time in American life. No, no, it's inexcusable. The question is, is it's criminal? And, you know, if I'm the protesters and I'm looking at the text to the FACE act and I'm looking at the history of prosecutions under the FACE Act, I do think they're in some jeopardy here, Sarah.
- [53:33]
Sarah Isger
I don't even know the argument for why they're not, to be honest. And I'm not sure why they thought they could go into a church because they wanted to protest an individual who was in the church. Nope. The fact that they didn't already know that was criminal would be really stupid. And again, this gets to civil disobedience, right? If you want to do civil disobedience, then you get arrested, Right? If you think it's an unjust law, if you think the FACE act is unjust, all of it, both parts of it, then by all means go get arrested to protest the FACE Act. If you think that what ICE is doing is unjust and you want to show that by getting arrested. I'm not sure that this is an effective way to do it because again, I think it's weird to break into a church and disrupt services because one person. But fine, but then you still get arrested. The point is like, I guess I don't understand these people who say I have a right to break the law, but because I think I'm righteous in what I'm doing, I shouldn't actually have any consequences for that. I'm a big nah dog on that one. And this is a great example. And I would feel the same way if someone just busted into an abortion clinic and started screaming at the people in there. That's why we have the Face Act. And look, it has been really liberally applied to pro life protesters. You can look up any number of articles of people complaining during the Biden administration of the applications of the FACE Act. So I don't even see a particular argument for why they didn't violate the Face act. And I think they will be prosecuted.
- [55:07]
David French
This goes back to some of the discussions we had when the encampments broke out all over college campuses, these students were breaking the rules, physically intimidating people, frequently, in some cases, engaging in actual violent takeovers of buildings, and then believing, because they believe they're so right, that there should be no consequences for this. That is not civil disobedience. It is lawlessness. Okay, Civil disobedience and the philosophy of non violence as articulated by Dr. King is demanding. It is hard. It says, you break the law and you absorb the consequence, and that's what gives it its moral power. Civil disobedience derives its moral power not from the breaking of the law, but the absorbing of the consequence.
- [55:54]
Sarah Isger
It's not letter from a Birmingham Starbucks man.
- [55:57]
David French
Well, you just shut down the podcast, Sarah. That's the best description. We'll just leave it right there. That's fantastic.
- [56:04]
Sarah Isger
All right, David, are you ready for the best letter that has ever been sent to Advisory Opinions? Not even close. Number one at the top. Dear Mrs. Isger, hi, I'm Claire. I'm nine years old and I live in Westerville, Ohio. My dream job is to be a lawyer. I heard you went to one of the best law schools in the country. Clearly not going to Yale this one. So I wanted to ask you a few questions. One, what is it like to be a lawyer? Two, what makes a good lawyer? Three, is being a lawyer hard? Four, is being a lawyer a good or even great job? Five, did you want to be a lawyer when you were a kid? 6, what are some things I should do now as a nine year old that could help me become a lawyer when I am older? Thank you so much for reading this letter. Sincerely, Claire Cudney. And just in case y' all are wondering how Claire, you know, emailed me this. She didn't. She wrote this out and mailed it. And in fact, she has a little drawing of the scales of justice and a gavel that is significantly better than anything I could do right now as an adult. Her handwriting is better than mine as well. So, Claire, right off the bat, we're so excited that you listened to this podcast, hopefully with your parents. And I'm just. I'm beyond beyond about getting this letter. It is an incredible, incredible thing that you took the time to do. So first of all, thank you. Second, David, I thought maybe we could, like, start answering some of Claire's questions over a few episodes. But I wanted to start with what are some things that a nine year old should be doing now that could help her become a lawyer when she gets older?
- [57:48]
David French
You know, I'm going to go with read history. I as a nine year old, I was already in love with history. My grandmother was a history teacher. My vacations in the summers consisted often of going to Civil War battlefields across the South. I still have the little toy cannon collection where I got a cannon from every battlefield that I visited. And I was very proud of that even at a very young age. And so I think that learning about history and learning about American history, one of the consequences is you actually do kind of sort of fall in love with the law because if you go back and the deeper you get into American history and the more you study it, the more you realize that this has been a country that has been formed and refined in large part through lots and lots of legal arguments.
- [58:37]
Sarah Isger
I think reading and history are two really important things that you could be doing now to become a good lawyer. But I'm going to pick a more unusual one. I think David's is just the correct answer, but I'm going to pick one that will be more controversial. Learn to love math because the logic of math, Math is logic and law is logic. Law is about process. Math is about process. And so you're nine. You are not yet to the proofs of geometry or differential equations in calculus, but frankly, you can't get to any of those things until you learn the math you're doing right now. Multiplication, division, the order of operations is actually not dissimilar from what we talk about all the time in law about, for instance, whether someone has standing. That's the same as whether you multiply first or add first. And I would just say that when you do get the chance, some junior high schools offer it. If not, when you get to high school, remember me saying this, take statistics. Statistics, I think, is one of the most important classes that you can take if you want to be a lawyer someday. Not that it's required to become a lawyer someday, but I think your best lawyers have either a background in statistics or just a fundamental understanding of probability, statistics, order of operations, logic, math. So yeah, that's going to be my more controversial take. All right, Claire, you asked six questions. That's the answer to number six. We will take on the rest as well at the end of future episodes unless the tariff decision comes out, in which case your your letter is getting put away until we talk about that. But it's never coming out. As best I can tell. I Waiting for Godot, waiting for tariffs. Here I stand. I can do no other all right, advisory opinions, listeners. On the next episode, we've got Judge Lee's dissent in that California redistricting case. And David, Judge Novak disagreed with us about Lindsey Halligan's title. Let's just say okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders, and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at Advisory opinions the dispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.