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- [00:01]
Sarah Isger
You ready?
- [00:02]
David French
I was born ready.
- [00:19]
Sarah Isger
Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. We are going to start with the fifth Circuits decision on whether doctors can prescribe Mifepress stone, an abortion inducing drug without an in person doctor's visit. Can they do it through the mail? The Supreme Court with an administrative stay issued by Justice Alito has put that ruling on hold. So doctors can still follow the FDA's guidance on sending those prescriptions without an in person visit. We will then look at the two oral arguments from last week. One, one, removing temporary protected status for Haitians and Syrians by the Trump administration and two, geofencing your phone's location data while you rob a bank. What exactly is required in that warrant? And finally, we'll get to some questions from you guys on David's top five list of cases. And look, maybe our takedown of Justice Holmes has been wrong this whole time. Plus a rock that changed history. All this and more on Advisory Opinions. Ready to soundtrack your summer with Red Bull Summer All Day Play. You choose a playlist that fits your summer vibe the best. Are you a festival fanatic, a deep end dj, a road dog or a trail mixer? Just add a song to your chosen playlist and put your summer on track. Red Bull Summer All Day Play. Red Bull gives you wings. Visit red bull.com brightsummer ahead to learn more. See you this summer.
- [01:57]
David French
Fox News is now streaming live on Fox 1. When it matters most, turn to the voices you trust. We go beyond the headlines, bringing you the stories you won't hear anywhere else. Live coverage, sharp analysis, real perspective at home or on the go. Stay connected when it counts. Stream Fox News on Fox 1. Download today.
- [02:27]
Sarah Isger
David, Monday morning, the Supreme Court stayed the fifth Circuit's unanimous panel decision that would have stopped mifeprestone from being prescribed without an in person doctor's visit. Let's dive into this. But first, the Supreme Court stayed the fifth Circuit. This is an interim docket decision. I will admit I was shocked that it came about 12 hours after I had predicted in my own household that we would get this exact outcome. So after the fifth Circuit decided this case on Friday, the companies that manufacture mifepristone immediately after ask the Supreme Court to stay the ruling that just from a procedural standpoint so people understand each circuit is assigned a justice. The justice in charge of the fifth Circuit is Justice Sam Alito. So David, from there Justice Alito can decide to deal with this on his own, called an in chambers order or he can send it to the Full court here. We have two in chambers, orders from Justice Alito, but putting the fifth Circuit's decision on hold for both companies that manufacture mifepress stone. So let's just start with the Supreme Court part of this. David, any thoughts, feelings on, you know, is this correct or something?
- [03:49]
David French
I'm actually fascinated by this happening so quickly and I want to explore your confidence on it, Sarah, because we have seen a mifepressone case at the Supreme Court recently and this was a unanimous 2024 case holding that the plaintiffs lacked Article 3 standing to challenge the FDA's actions. And these were plaintiffs who were doctors who were whether they were going to be dispensing mifeprestone or dealing, really actually dealing with the effects of other people dispensing mifeprestone. And there was no standing. So this one here you're running essentially back, trying to run the same case on the merits back up through a different plaintiff. In this case you've got a Louisiana plaintiff that they're trying to run this back with. And so the fifth Circuit said, unlike the doctors, this is a distinguishable situation from the doctors. The state has standing and there just wasn't sufficient war work necessary that the proper hoops weren't jumped through to approve mifeprestone without in person doctor visits. It was actually a really surprisingly brief opinion, Sarah. It wasn't that comprehensive of an opinion and they state it and it went back up to Samuel Alito. And I guess the question I have is why did you have confidence, Sarah? Was it the standing piece of it or the merits piece of it that gave you confidence that Justice Alito would or that it would be stayed?
- [05:21]
Sarah Isger
This is one of those rare all of the above cases. We had quite a few things happening in this case that made me incredibly confident though. Again, I was 12 hours off. I thought by 9:30 last night, on Sunday night that we would have this from the supreme court. It was 9:28 and I was like woo, what's going on here? But you know, not to worry. By 11am we had it. So a few things. One, the district court found that the FDA had not cut square corners, if you will, in allowing for the non in person prescriptions from mifeprestone but nevertheless stopped, did not like have, you know, an injunction go into effect. So first of all you have a disagreement between the district court and the circuit court of what the effects of that temporary ruling should be. And that's generally like pretty ripe for the Supreme Court to like step in first. Second, the standing argument from Louisiana, I think, is bonkers town adjacent. We're not like full bonkers town, but we're like right there. So a, I don't think the standing argument is some slam dunk. Right. So again, Supreme Court unlikely to accept large changes to American society based on kind of a cockeyed standing argument. 3 the fact that the Fifth Circuit's decision is so short and doesn't really provide a whole lot of explanation for why this standing argument suddenly flies. 4 and 5 Of course, the effects of this would be wildly far reaching. So according to Amy Howat SCOTUS blog, this drug is used in about 60% of abortions nationwide. And so, you know, starting Monday morning, doctors would not be able to prescribe this without an in person visit and it would cause a lot of chaos through the country where doctors would not know potentially what was lawful, what wasn't lawful, et cetera. Because the fifth Circuit's decision wasn't cabined to dealing with patients in Louisiana, for instance. I think that might have been different. So for all those reasons, very confident that the Supreme Court was going to step in here. The fact that it's an in chambers opinion should also tell you something. This did not even need to be voted on by the full court. The fact that it's like, it's like the interim docket version of a sum rev. DAVID that sort of judicial backhand to the lower courts. Are you effing kidding me? You know, if it needs to go to the whole court, at least it was like a mildly interesting question question but this is how, you know, we talk about the birth of the shadow docket. Part of it is that we stopped using in chambers opinions because the rest of the justices thought these were hard questions that needed a vote of the full court. We had lots of stays from the Supreme Court, but they were in chambers opinions like this because they weren't particularly controversial and single justices were handling them. The fact that in 2026 on an abortion case, we're back to in chambers opinions kind of tells you how outside the norm that even Justice Alito thought this was. And remember, David, we've talked about this, you know, as pushback to this idea of like an out of control conservative court. It's not the liberal 9th Circuit that they're overturning in the most number of cases from last term. It's the conservative 5th Circuit that is the outlier court right now. And they're an outlier in the on the other side of the ideological spectrum, I guess. DAVID what I'm let's just for a second to do some media, you know, analysis. I got a lot of grief over the weekend about my, you know, well, the big cases are defined by the divisive cases. This mifepresso decision from the fifth Circuit understandably got a ton of attention over the weekend. Will the fact that Sam Alito by himself still stayed that get as much attention? Because it doesn't fit the narrative.
- [09:34]
David French
Well, it's, it's getting the top line news attention. So in other words, like your hard news, this is what happened. The Supreme Court did this. It's definitely getting that. Now the question will be what is the secondary attention, in other words, the commentary that pops off on top of the news. And that's where, that's where the controversies really because you're going to find, you know, Supreme Court cases get that initial pop, you know, that the headline, it's that secondary level and that's where and I was going to ask you about this later in the podcast, Sarah, because you had a quite unusual for you Festivus on Twitter. And so I just noticed this right away, like when I logged on over the weekend, it's like Sarah is unusually active. And so I was going to ask you about that, but we can get to it now. But you're right, I don't think there's going to be very much analysis because when the Supreme Court does something that a lot of the commentariat agrees with, it's well, of course, like, you know, of course we're not going to applaud them for being right. Like we're going to condemn them for being wrong. And so when you have an opinion that's right and that a lot of people across the political spectrum agree is right, there's just a less friction in the public square even in and it keeps going back to the same thing that we keep talking about. It's the clash between the right and the left on the court that gets the coverage. It's not the actual substance nearly as much because the substance is often far more consequential than in many of the more unanimous or ideologically scrambled cases. But it's that right left conflict that gets the people going and that's what generates a lot of the coverage. But Sarah, I'm very interested in the standing part of this decision because it does seem like to me that let's assume just for the sake of argument, just for a moment that this was a Alito standing intervention more so than an Alito merits intervention. It feels to me that the court is pulling Back on standing after what might have seemed like almost a high water mark in the Trump v. Hawaii case, this is where Hawaii was challenging the Trump travel ban. And I was always a little bit stumped as to how Hawaii had such clear standing there. Like, what is, what is Hawaii standing to challenge this executive action when the statute so clearly rested that, you know, executive action in the discretion of the President. Where is this standing coming from Hawaii? Where's the injury to Hawaii? And it always felt pretty attenuated to me that our injury is what we, we want to bring in some people from some of these targeted countries and these people would, you know, help our universities or et cetera, et cetera. It feels kind of attenuated, and it certainly doesn't feel any less strong than this standing argument. But we've had a number of recent standing cases out of the court that to me, Sarah, seem like they're, they're pulling back a tiny bit.
- [12:47]
Sarah Isger
We need to go back to Massachusetts versus Environmental Protection Agency in 2007. This was a 5, 4 case in which 12 states sued the Environmental Protection Agency arguing that they had to regulate the emissions of carbon dioxide and other greenhouse gases to prevent climate change. And they were arguing that air pollution and everything else was affecting their states. And this is where the Supreme Court kind of comes up with its, quote, special solicitude for state standing. This idea that, like, well, you know, if the oceans rise and Massachusetts loses some of its land mass to the ocean, then Massachusetts has been injured from, for instance, and that states as, you know, separate but included sovereigns within the United States. Maybe like, if it's a tie, the tie should go to the state to be able to sue the federal government. If the federal government, you know, didn't do their job properly since 2007 in that 5, 4 decision, that has not existed, right? Special solicitude has died a zombie esque death. Because everyone kind of saw the problem with this, right? The red states and the blue states, as hyper partisanship exploded, as negative polarization exploded, really started suing the heck out of administrations that were from the opposing party. And this idea of special solicitude all of a sudden would have become very unspecial solicitude because it's where the vast majority of the lawsuits were coming, including to challenge, for instance, the 2020 election, if you remember, like states were suing over that. It's now constantly states. So when we think about state standing, we usually are like, well, states, you know, do have, they get the benefit of the doubt when it comes to standing, but I don't know why we think that anymore. There's really no cases to point to about the special solicitude. Mass v. EPA is an outlier. It is not precedent anymore, I would argue. And you know who agrees with that? Sam Alito, who has complained about the court's standing decisions being all over the place and this idea of lower courts still applying, Mass v. Epa, et cetera. Okay, so let's get to Louisiana's arguments. They have two arguments for why Louisiana is injured in this case. One, they argue that these states like California, which allows California licensed doctors to send mifeprestone to people who live in Louisiana who have not had an in person doctor's visit allows people to violate Louisiana's laws is maybe the best way to phrase that because you know, Louisiana banned abortion and this is allowing people living in Louisiana to have abortions. Well, let's just take that for a second, David. I think that is the most bizarre argument. So let's be clear. Louisiana's law says no person may knowingly administer to, prescribe for or procure for or sell to any pregnant woman any medicine, drug or other substance with specific intent of causing or abetting the termination of the life of an unborn human being. You know, they've got exceptions for the life and health of the mother or major organ use, life sustaining organs of a pregnant woman. Interestingly, nothing about ectopic pregnancies or whatever. Fun fact by the way, misoprostol and mifeprestone are used for incomplete miscarriages as well like this. There's a lot, you know to be said here. We've done lots of other podcasts on this topic, David, back after Dobbs was decided. So if you want more full stuff on Sarah and David's feelings on ectopic pregnancies, miscarriages, et cetera, I would send you to those pre previous podcasts. So David, on this question of Louisiana being injured because it's allowing people to have abortions when Louisiana has banned abortions, I guess I would argue that, well, Louisiana can have a specific law, no person and let me just add in this language that is subject to the sovereignty of Louisiana may knowingly administer to prescribe. They don't have a sovereign interest in banning abortion. They have a sovereign interest in enforcing their law, which they are welcome to do. And whether the FDA has said that mifeprestone is safe for non in person prescriptions doesn't have anything to do with enforcing Louisiana's law in Louisiana. Louisiana doesn't have an interest in banning abortions. That's not their job. Their job is to pass specific laws and enforce those laws, which they have done here.
- [17:35]
David French
Yeah, yeah. I mean, the sovereign interest one just struck me as barely credible. Really, honestly, that, okay, yes, you can pass a law and there is nothing blocking Louisiana from enforcing its law. There is nothing blocking enforcement here in the FDA decision. Does the FDA decision make enforcement more difficult? Yeah, I would acknowledge that. Absolutely. It makes it more difficult. It's always going to be more difficult when you ban things that are legal in a lot of other places. Let's imagine Louisiana tried to reinstitute prohibition in Louisiana and you had, then all of a sudden you have the cluster of liquor stores all around the state lines. You have all kinds of people offering mail in liquor. Can you do something to inhibit the legal availability of, of liquor and the other 49 states that weren't banned to help enforce your sovereign ban? No, you couldn't do that. You couldn't do that. This is the less interesting part of the standing analysis to me because I'm with you. I feel like this is like I'm even going closer to the exurbs of Bonkerstown. I'm going to, I'm going to the suburbs. We're, we're really. Commuter rail reaches this. Okay, fair.
- [18:51]
Sarah Isger
So weirdly, this was their first standing argument, but let's go to their second one, which is the pocketbook argument. Generally speaking, I am very, very into pocketbook standing arguments. If you can show a, even a dollar of injury, you've got standing because you were injured in a concrete and tangible way. Louisiana argues that two women who were prescribed mifeprestone by out of state doctors who had not had in person doctor's visits ended up having complications from mifeprestone. They went to emergency rooms, they were on Medicaid and therefore Louisiana had to pay for their healthcare related to complications related to taking mifepress stone without an in person doctor's visit. As I said, David Pocketbook, I'm here for it. But here the causal connection is pretty attenuated. First of all, they'd have to prove that it was the, you know, if they had flown to California, had an in person doctor's visit, that they wouldn't have been prescribed mifeprestone or that somehow the complications wouldn't have, would have been avoided or that it's the inmail part because that's the actual regulation that they're challenging. And we get to like a redressability question and we'll get to maybe more of the standing, the intricacies of standing here in a second. But there's like a very attenuated causation chain there also. And David, this is a little bleak, so bear with me. But I think it's relevant. Let's say Louisiana had to pay $1,000 because these women were on Medicaid and they had complications related to mifeprestone. Without the mifepressone, these women on Medicaid would have carried a baby to term and been on Medicaid. And that cost to the state of Louisiana would have been, let's say, $10,000. So if we're just talking pocketbook injuries, LA actually saved money even though these women had complications from mifepress. Don't. Because the alternative, like we know the alternative. Right. And I don't think Louisiana has an interest, a pocketbook interest in saying, yeah, but we're happy to pay the money for a live baby and not a dead baby. Like, that's not how the pocketbook interests work. You have to show that it costs you money. And in this case, it didn't.
- [21:13]
David French
Yeah. You know, this one is also. This one is not Bunkerstown or Bunkerstown adjacent. I mean, pocketbook injuries have been a hallmark of standing forever. And you know, there's including state pocketbook entries. So, for example, the DACA case. How is it that Texas had standing to pursue the DACA case? Well, there was evidence that Texas was going to be spending up to $750 million in annual costs related to unlawful immigration, public regarding public education, health care, providing driver's licenses. All of these kinds of things were concretely traceable dollar amounts. And here the argument is, and I'll read From the opinion, Louisiana identifies $92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complication caused by out of state mifeprestone. The key question there is to me from a standing analysis is how much can you. Is it 92,000 identifiably paid because it was a no in person visit prescription of mifeprestone. In other words, was, was this related to the lack of in person visits? Because that is really the core issue here. It's about the no in person visit requirement for mifeprestone. And Sarah, I'm not sure how you identify that causally. That's a tough one.
- [22:47]
Sarah Isger
Yeah. So let me go back to that 2024 Mifepress Stone case that was brought by those doctors that also went up in very similar fashion. Right. The 5th Circuit was like, yeah, good enough for us. And the Supreme Court nine zero, with Justice Kavanaugh writing, tossed the case. Reading from Justice Kavanaugh's majority opinion. As Justice Scalia memorably said, Article 3 requires a plaintiff to first answer a basic question. What's it to you? For a plaintiff to get in federal courthouse door and obtain a judicial determination of what the governing law is? The plaintiff cannot be a mere bystander, but instead must have a personal stake in the dispute. The requirement that the plaintiff possesses a personal stake helps ensure that courts decide litigants legal rights in specific cases, as Article 3 requires and the courts do not opine on legal issues in response to citizens who might roam the country in search of governmental wrongdoing. Standing also tends to assure that the legal questions presented to the court will be resolved not in the rarefied atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. Moreover, the standing doctrine serves to protect the autonomy of those who are most directly affected so that they can decide whether and how to challenge the defendant's actions. The fundamentals of standing are well known and firmly rooted in American constitutional law. To establish standing, as this court has often stated, a plaintiff must demonstrate one, that she has suffered or likely will suffer an injury in fact. So in this question, David, that's the pocketbook injury or the state sovereign injury. Okay. Two, that the injury likely was caused or will be caused by the defendant. Eh. And three, that the injury likely would be redressed by the request to judicial relief. So I think there's problems on one and two. But David, that redressability thing, I think this whole thing falls apart in a really obvious way. So if the FDA tomorrow repeals its rule that mifeprestone can be prescribed without a doctor's visit, has Louisiana solved the problem? No, because these same women in Louisiana could just travel out of state, visit a doctor and bring the mifeprestone back into the state and take it. That would have the same issue. Right. So to your point, David, they've got to show the over the male part is the cause of the harm or. Or there's not redress ability. And yes, these factors can collapse onto each other, but I think the redress ability thing here is where to focus.
- [25:33]
David French
Yeah, I think that's exactly right. Is it the over the mail part, which was the challenged element that causes harm? And you can't even necessarily say that. If you go back and you look at these two cases, the 92,000 and find out that they were given it over the mail. It's still not, that still doesn't establish that the over the mail part caused the harm. That's the key. And so the fact that this was Alito, the fact that it's on the heels of a 9.0k and we remember we've had other standing, recent standing cases. I mean, we had the, the, you know, the challenge to the Biden administration's jawboning of social media companies knocked out on standing. Recently, we've had the previous mifepress tone case knocked out on standing. This looks like it's going to get knocked out on standing. I feel like the court right now is in this position of trying to remind everyone of its role in the federal government that it is not the court of last resort. For all beefs you have about public policy, it is the court of last resort. When you have a justiciable injury, that is when you are the, it is the court of last resort. And so I suspect this case is going to end up in a very similar spot, that it's going to be ultimately decided on standing grounds. And then, you know, one thing that was as discussed in the opinion, the Trump administration is still working through this, running the traps on this. It's still working through this process. And so at some point in this term, or maybe not, they may just run out the clock, but at some point in this term, we may well get an actual definitive rule from the Trump administration about mifeprestone. And by the way, Sarah, again, this goes back to the Congress point, because is it really going to be the case that every president, we're going to have a different regulatory process around mifepress? Stone, is that what's in store for us, that every presidency begins with announcing a new rule or a study for a new rule, or could we have like actual legislation here? But this is once again one of those cases where it seems to me that the lack of a functioning other, other governmental process is leading people to run into court to try to settle the, try to settle the question once and for all.
- [27:53]
Sarah Isger
So what happens from here? This is an administrative stay from Justice Alito preventing the Fifth Circuit's prevention of mifepresstone from being prescribed through the mail from going into effect. It will last until Monday at 5pm by that point, we expect the full court to have spoken to this question. Administrative stays, remember, are just like, hey, haven't had time to give this a full look. We're just putting things on hold until we can actually look at This a little bit more on the merits, a little bit more in the, the, you know, actual Bonkers town and Bonkerstown adjacent questions. So more to come on this, David, for sure. And I will just repeat something that you've said in the past when we were talking about Dobbs. Boy, is there a big difference between banning abortion and ending abortion. And so for the pro life community, there are more abortions now under Donald Trump than there were under Joe Biden. Why? We can point to all sorts of reasons. Yes, one of them is the availability of mifepress Stone and terminating those pregnancies, you know, very, very early on. But the real reason is that the pro life community has lost the cultural argument at this point. And so overturning Roe v. Wade as this effort to ban abortion did not accomplish what at least the pro life community says they want to accomplish, which is ending abortions. To do that, you've got to actually convince people that they want to carry these pregnancies to term. And so, like, these legal fights are never going to win the day, in my view.
- [29:33]
David French
You know, it is amazing, Sarah, how resistant like the professional pro life community is to. When you discuss the fact, the fact that abortion went up in Trump's first term, the first time you had an increase in abortion rate ratio and total number since the Carter administration. And it went up under Trump. And when you talk about it, people accuse you of lying. I recently said this on a podcast. It went up under Trump in his first term. And there was a whole other, like, podcast that went out said, David French is lying because the Biden administration did X, Y and Z. And I'm like, guys, it was up before Biden was president, okay? And look, I cannot trace a specific policy that Trump enacted that would increase the abortion rate. But I was told for years that, you know, the Obama administration would, you know, if you're voting for the Obama administration, it was going to, quote, kill babies. And you ended up the end of the second Obama term with 330,000 fewer abortions that you had at the first, which tells you. And look, and I don't say that to defend Obama's abortion policies. I oppose them all, okay? I opposed them all. I still oppose them. But it's a lot more complicated, a lot more complicated than simply does this statute or am I advocating for a prohibition or not advocating for a prohibition? It gets very, very complicated when you're down to the individual human choice. And one of my theories, I think it's very complicated as to why it went up. But I Also think that when you had a Republican Party, which one of the things from the very beginning of the pro life movement, everybody talked about a culture of life. A culture of life. Like all across the sort of the Republican world, there was this consensus that trying to defend abortion meant creating a culture of life. That was the key phrase, not a legal code of life, although I support a legal code of life, but also a culture of life. And I would ask you, if you look at a Donald John Trump, is he an ambassador for a culture of life? Now the guy's an ambassador for something else. Do whatever you want. That is the core ethos of Donald Trump. Do what you want. And that is a libertine ethos. That is actually an anathema to a culture of life. And then when you pair do what you want to the most pro choice Republican platform in 40 plus years and you pair do what you want with hiring the most pro choice nih, you know, I mean, you know, HHS secretary, Cabinet secretary that we've had from a Republican administration in I can't remember how long. And you're surprised that abortion rates have ticked up and have stayed up. I mean, we're talking about a long term unraveling of the Republican Party as a pro life force in the United States at the same time that professional pro lifers are trying to bully people into continuing to support Donald Trump, the very man who's unraveling the pro life culture in the Republican Party. Finally, some people are starting to realize it. There was an interview, there was some stuff in the Wall Street Journal like, this is a Trump issue. It's time for us to wake up. Oh, you think, you think. But, you know, here we are with a world in which abortion is more prevalent than it was before Trump became president. The Republican Party is less pro life than it was before Trump became president. And look, I'm extremely grateful Roe is overturned. But I'll tell you, the bottom line is there's more abortions than when Roe was overturned. That, to me, is the, a bottom line. Grievous, grievous reality.
- [33:16]
Sarah Isger
When we get back, we're going to talk about those two oral arguments last week. One, temporary protected status for Haitians and Syrians that the Trump administration tried to repeal. And two, chartry geofencing. That's a hard one to guess on. We'll be right back. You know that satisfying feeling when you finally get everything organized after it's been piling up? That's what using gusto feels like for your business. Bringing payroll, HR and benefits into one place and clearing out the day to day admin clutter so you can focus more on business growth. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly and incredibly easy to use so you can pay, hire onboard and support your team from anywhere. Get direct access to certified HR experts who can support you through any tough situation and enjoy a quick seamless switch to Gusto by simply transferring your existing data. Plus, you won't pay a cent until you run your first payroll. 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Take 10 minutes to get covered today with Life insurance through Ethos. Get your free quote@ethos.com ao that's e t h o s.com ao Application times may vary. Rates may vary. All right, David. Last week, the Supreme Court heard oral arguments in Mullen vs Doe. By the way, we got a fun question of whether Noem vs Doe would change once she was fired. And I was like, yeah, they will change it right away. And here we are, it's now Mullen versus Doe. Once he was confirmed. This was a case about the Temporary Protected Status Program enacted by Congress in 1990. TPS authorizes the Department of Homeland Security to designate a country's citizens as eligible to remain in the US and work if they cannot return safely to their own country because of a natural disaster, armed conflict, or other extraordinary and temporary conditions there. Janet Napolitano designated Haiti under TPS in 2010 shortly after the earthquake, and also designated Syria, citing, quote, deteriorating conditions after a brutal crackdown by Syrian dictator Bashar al Assad. The those Designations lasted for 18 months and then have been repeatedly extended until 2025, when Secretary Kristi Noem announced that the Trump administration planned to end both designations. Now, Congress has not only said how you designate a country for TPS status, but it's also said how you can end TPS status. And one of the things it says is that you have to consult with other executive branch agencies. So the question in this case is whether the administration did the things that Congress requires it to do. They sent an email to the State Department consulting, but it was pretty pro forma. And the State Department's answer was, basically, we have no foreign policy concerns with the D designation of Haiti. And then they literally sent the same form email for Syria and for every other country that the Trump administration has tried to de designate from tps. But the law also says that the determination to de designate a country is not judicially reviewable. So the question is, one, did the Trump administration meaningfully consult? And two, do the courts get to determine whether they meaningfully consulted or. Or is the ban on judicial review apply to the process or just the outcome itself? The merits question, David, this was, you know, hour and 45 minutes. Fell along our normal lines for oral argument. There were decent arguments on both sides, but I felt like I knew the outcome of this one. What do you think?
- [39:21]
David French
I feel like I know the outcome as well. Although I will say I maybe feel a tiny bit shakier about it than I did before the oral argument. I felt like going into it that the Trump administration was winning this, that the Statute just is too deferential to the executive. I mean, this is unreviewable on the substance. So therefore is it in that circumstance, if you've got something that's unreviewable by statute and you're asking the court to review it, you're kind of behind the eight ball. And yes, they said, you know, the statutes essentially like do A, B and C and then it's unreviewable. So if you go back and say, well they didn't do A, B and C and they say, well we did it, and then you go, well you didn't do it in good faith, you begin to see how tough this is to win that you then have to get the court to say, okay, A, B and C were not done. They were done, but only pro forma. And so what we really want is a very serious A, B and C and that's a loser. Like if you're just as a general matter just saying that's a loser, comma. But here's the comma. But are we in the world of Justice Roberts and the census decision, which was essentially I'm over this administration and one of the ways I'm signaling it is things like rational basis review are now on steroids, essentially diving in and saying, oh, that was pro forma, that wasn't real and using that as a, as a justification and a basis for making the ruling. I'm still with you, Sarah, that it's almost certainly going to come out for the administration. But after Barrett has some tough questions, after Roberts had some tough questions, I just have a hovering question mark in the back of my brain. I do want to highlight one thing from the argument that is that Amy Howe brought up very well in her summary. So this is the question of, well, wait a minute, do we even really like, what if this was all just racially motivated? What happens if it's all just racially motivated? Does that mean that we can step in if it's racially motivated? Because there might be some 14th Amendment interests that are going to be over and above the language of the statute. And so here's the part Sotomayor pointed to derogatory remarks that Trump made about non white immigrants and Haitian immigrants in particular, noting that Trump had called Haiti a filthy, dirty and disgusting blank whole country and complained that the United States takes people from such countries instead of from Norway, Sweden or Denmark. Here's Sotomayor. I don't see how that one statement is not a prime example of how a discriminatory purpose may have played a part in this decision. I like the way that Sauer characterized the statement as Trump's statement is unilluminating. Now, if you're workshopping words and you're trying to say, okay, I do not want them to consider my boss's words, my ultimate boss's words, who's one of his, if not his main criteria for serving in his administration is loyalty and sycopancy. How am I going to minimize the President of the United States words? Unilluminating is a pretty good way to do it. And then he said his statements were less relevant than gnomes. No, no, that's, that's not going to fly. It's going to, they're going to have to sit with Trump's words, gnomes words. The boss's words are going to be the most relevant words, not the subordinate. And so I do have some questions on that front. But again, the bottom line, statutory language is, let me put it this way. When you have statutory language that clear, this is what I mean, I'm going to botch the pool term, but you've got to have a triple bank shot, eight ball miracle to get around language that clear. And I'm just not sure that I'm seeing it.
- [43:27]
Sarah Isger
So I think they're going to lose, but I don't think that they will adopt the government's expansion expansive reading. I think they may just skip this question of whether the courts can review the process because I don't think they need to get to that question here. Instead, I think they can say that in this case, the administration did abide by each of the parts of the process and that they are simply not going to litigate disputes over how much they abided by the process. You know, the answer from the TPS side of this was that when State replied, we have no foreign policy concerns with ending the TPS designation, that they weren't allowed to use the term foreign policy because it only could be about the conditions in the countries themselves, not about America's interest in ending tps and therefore State used the wrong language in the consultation. No, that's not going to work. So I think what you're going to have is potentially a 6:3 decision saying the administration followed the rules here we're not even going to discuss whether there's judicial review for whether they need to consult, because here they did consult. I will just say on the race thing, this is where Haiti was probably pretty annoyed when they also took Syria, because you had the inevitable question from Justice Alito saying, what are you considering white and non white. And the guy was like, well, you know, Haitians are non white. And he was like, okay, how about Syrians? And he's like, well, I don't know, some people might consider them white, but we're considering them non white. And basically, Justice Alito pulling out from him that the only countries he was considering white countries were, you know, Norway, Sweden and Denmark, but every other country in the world basically was a non white country. So that therefore, anytime you're doing something that would have a negative impact on someone from the vast majorities of countries of the world, you could argue that it was racial discrimination and like a violation of the 14th amendment, like, that's not going to work either. And of all the countries, David, that I think of, like, Syria is the best example of a country that has enormous amounts of turmoil, but whose population we, I guess, would consider, quote, unquote, white. Although I tend to think that these definitions break down pretty quickly when we look at the world as a whole. And when it comes to tps, I will just tell you, like, you know, Congress created this program so that someone already in the country was wouldn't be forced to get on a plane and like, the plane lands with like bombs and fires and like some sort of post apocalyptic world. That makes perfect sense to me. But it is supposed to be temporary. And to your point, David, we end up in a situation where every four years we change who has work permits here because the Trump administration de designates everyone from TPS and the next Democratic administration redesignates. And the, the question you have for TPS is you can simply redesignate the people who were here when the earthquake hit back in 2010 from Haiti. But that's not what's been going on. Instead, it has been anyone who has come from Haiti today, when we redesignate, the program also is included. And so the administration has argued that that has been a pull from for illegal immigration because as long as you're here during the designation, sorry, redesignation period, you can get grandfathered in, even though you might have stayed in the country for 15 years after the earthquake had initially hit our immigration system, David, it needs Congress. It cannot be done through these piecemeal measures. Nobody thinks this is the right way to run things. But now it's like we're fighting these massive fights over side arguments. Right. Instead of the main event.
- [47:43]
David French
Well, and think about how much Congress has delegated to the executive here, because we're once again in an extremely contentious fight that's layered with allegations of racism. The Trump v. Hawaii was racism slash Islamophobia, where, you know, you had establishment clause issues in the Trump v. Hawaii, you have, you know, 14th Amendment issues in this. And in both of those instances, what the underlying statute, Congress just basically said here to the presidency, any alien or class of aliens, you can exclude. Here you go, Cold War era law. Here you go to here, we're going to give you the ability to revoke TPS unreviewable. I mean, this is on Congress here that we're having this fight, that this is tearing us apart, you know, in, you know, one of the innumerable ways that we get torn apart to the point where literally if the court says that the Haitians have to go back, you know, the public, you know, the people who are angry about Haitians going back will blame the Supreme Court. When Congress wrote the law saying it was unreviewable indiscretion in the executive. And they will say that the Supreme Court is horrible, terrible, awful, unless it blocks the application of a law enacted by Congress here that gives the President all of this discretion. So the pro. If you are really angry at the revocation of TPS status and that Trump is doing it, I got your target. Your target are the elected officials in the United States Congress. The anger that the Trump, that the Supreme Court doesn't recognize a triple bank shot effort to try to. And at the very least, it would be super temporary because then what would the Trump administration do? It would run the traps again. It would go back and just go through the process all again and in X number of months would come back and say revoked. And you know, at that point you're just hoping that what, a Democratic president wins and we're right in this position that we've been talking about the whole time, that all massive policy, massive policy swings happen just on the nature of the executive branch. Who runs the executive branch. And that was never the intent of our government.
- [50:01]
Sarah Isger
All right, David, let's go rob a Bank. In 2019, a man armed with a gun entered a federal credit union in Richmond, Virginia. The robber gave the teller a note demanding money and made off with nearly $200,000. Not bad for a day's work. When the investigation into the robbery stalled, law enforcement officials served a geofence warrant on Google, which directed the tech company to provide location data for cell phone users who were near the bank at the time of the robbery. Google provided information to law enforcement officials in three steps. First, gave them a list of the 19 accounts, but but not the names of the account owners linked to devices that were within 150 meters of the bank during the 30 minutes before and after the robbery. Then the government asked Google for more information about nine of those accounts that were in the area during a two hour period. Then the detective asked for and received the names and information for three accounts, one of which was was our dear Mr. Chartre. So David, the question is. Oh, sorry. And then based on the location data, law enforcement officials obtained another Warrant to search two residents linked to Chart Tree where they found almost $100,000 of the stolen cash, a gun and demand notes. He argues that the initial warrant served on Google violated the fourth Amendment. A couple potential reasons why it might. One, was this a general warrant? It wasn't specific enough, right. The Constitution specifically says no general warrants. And two, David, he contested this warrant that it violated the fourth Amendment. Like yes, they got a warrant, but it was unconstitutional because the police did not have probable cause to to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime. And it gave police unlimited discretion to decide who to search while casting Google into the role of magistrate. Now David, if I thought TPS was relatively easy to guess the outcome, this one I think is going to be a five, four or unanimous, I don't know.
- [52:26]
David French
To me the thing that is most compelling for the government is that I think we should just. Guys, if you're listening right now and I'm holding up the phone, even though this is audio, not video, but I'm holding up the phone, this thing that I'm holding up, look at it like a radio transponder. If you are flying in an airplane, you have a transponder that broadcasting your location, your course, your speed, all of this stuff is being sent out and it, you know, if you've ever looked, if you've ever been in a cockpit of a plane and you'll see locations of all the other planes, the tail numbers, their speed, their course. And so this is just broadcasting data and I don't think anybody necessarily would say that there's some sort of expectation and privacy in the radio transponder from an airplane. Now I know that this is not exactly the same. Let me put it this way Sarah. It's, it's broadcasting far more information about you than a radio transponder on an airplane. Because the radio transponder in airplane is not also describing what your cert. What website you're going to while you're on your, in your plane. Right. This thing is like, just imagine it's Just broadcasting all of everything about you 24. 7. And do you have an expectation of privacy in that circumstance that that's the most compelling argument for the government?
- [53:45]
Sarah Isger
I think so. I think it also depends how you think of location data, because it's not what cell phone towers your cell phone is pinging off of in order to make phone calls, which I think is far more like, that's the use of the cell phone. The cell phone doesn't work unless you allow it to do that. Location data is more like, first of all, you have to turn it on. It will prompt you to turn it on, mind you. But it's more like when you go to Google Maps and you start typing in an address and it knows like how to fill in the rest because you went to that address yesterday. Or like when you start closing in on something and it points out the restaurant you went to. That's what location data is for. It is for convenience of phone use. And at the time at least it was stored. You know, they use the example of the lockbox that like it was in the cloud, in your little container based on your user information. And in that sense it was sort of indistinct, distinguishable from email, Google Docs, other things that were also in your lockbox that you chose to store in the cloud. And that I think hurts the government's case that there is this expectation of privacy that. Yeah, but this was for like I was creating these records basically. So they are my records. They're simply being stored in the cloud by Google. Because I've, you know, there's not really another way to do this. But of course, there's another problem with this case, as Justice Alito pointed out repeatedly, that might cause this case to be digged, dismissed as improvidently granted, this isn't the way Google stores your data anymore. It's not the way the government issues warrants anymore. This whole thing is like sort of overcome by events. David, I don't even know if this is going to be a thing.
- [55:36]
David French
Yeah, that's a great question, Sarah. And it might be a very easy way for the court, if it is not quite sure what it wants to do, to just wait for another day. And I want to highlight something that Justice Gorsuch. So I've already, I've highlighted sort of the government's best case that this is like just walking around, like with a radio transponder, which by the way, you can turn off at any time that you can leave at home. You don't need to carry this with you, this is not something that's strapped. It's not implanted in your body. So you chose to walk around with a radio transponder. But he raised a really good point that would a ruling in favor of the government also allow the government to search other digital media stored with Google. And again, I'm taking this from Amy's excellent write up of this. So this is the quote. So if we were to rule that there was a voluntary exposure here to Google that allows the government unfettered access to the location history, would that pertain equally to any email? Interesting. So if you just store it on the cloud, then are you exposing your information to the government without a warrant? I think the answer to that has to be kind of an obvious no. Right? I mean, but at the same time, doesn't that cut directly against everything I just said about the transponder?
- [56:48]
Sarah Isger
I know. Can I read the part about Justice Alito talking about dismissing this? 14 of the 15 judges on the en banc 4th Circuit voted to affirm 9 relied on the good faith exception. Unless you think that we're going to say something that convinces that no reasonable officer could believe that this was a valid warrant, or we're going to say something that will convince the judges on the 4th Circuit to reach that conclusion, what you're asking for is an advisory opinion. That's number one. This involves a Google feature that doesn't exist any longer. That's number two. It involves a warrant that is structured in a particular way. That's number three. I mean, we are all free to write law review articles on this fascinating subject. But. But it seems to be what you're asking for. Asking for basically a law review article on a subject that is largely unexplored by our precedent, I would kick it, David. I'm going to dig this case if it's, if it's an AO Supreme Court.
- [57:42]
David French
I think I'm with Alito on this. I think I'm with Alito. Yep. With no hidden motivation that I'm stumped.
- [57:52]
Sarah Isger
All right, Dave, when we get back, I've got lots of questions from listeners on. Well, everything that we've talked about recently. We'll be right back. Eczema is 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 four in 10 people taking Eblis achieved itch relief and clear or almost clear skin at 16 weeks. And most of those people taking maintain skin that's still more clear at one year with monthly dosing.
- [58:23]
David French
Empclus Lebricizumab LBKZ a 250mg per 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.
- [58:56]
Sarah Isger
Ask your doctor about ebglis and visit eglis.lilly.com or call 1-800-lillyrx or 1-800-545-5979.
- [59:05]
David French
Some follow the noise Bloomberg follows the money because behind every headline is a bottom line. Whether it's the funds fueling AI or crypto's trillion dollar swings. There's a money side to every story. And when you see the money side, you understand what others miss. Get the money side of the story. Subscribe now@bloomberg.com
- [59:33]
Sarah Isger
all right, David, Question I am curious what your thoughts are on Trump's judicial nominees refusing to acknowledge that Joe Biden won the 2020 presidential election. All of them, dozens at this point, have said the same rehearsed line that he was certified president. This is the same thing that Trump's political nominees have said. I find this troubling, for judges are ideally quite independent. I do not want to import ill intent on the nominees, and I recognize that they have to get through the confirmation process. It doesn't necessarily mean they will not be independent after they have life tenure. That being said, it doesn't bode well for this term's judicial nominees that obviously someone is pressuring them to do this. David, this to me proves the failures of the end of the filibuster. When you don't need votes from the other side. You can give an answer like that without consequence. And to be clear, the answers are ridiculous. When asked who won the 2020 presidential election, they will say Joe Biden was certified and served four years as president. When asked who won the popular vote, they will say Joe Biden was certified and served four years as president. When they're asked any other question related to that, they will say, Congress certified Joe Biden as president and he served four years as president. Yes, it does remind me of when Republicans were asking Biden's nominees, please define what a woman is. And those were also quite dumb answers. But if the filibuster were in place, if you needed votes from the other side, we wouldn't be getting answers that are only acceptable to one side of the aisle.
- [61:03]
David French
I, I completely agree with you on this, Sarah. I think it's a great analogy. I mean, you know, I almost feel like you could reach the. If you had somebody right with the question of what is a woman immediately responds with who won 2020? You're going to have like the partisan obstinate singularity. Like just. It's absurd. I hate these answers. I hate these answers. From the bottom of my heart, I hate these answers. And I, I think it would be absolutely fascinating for a, a nominee to get up there and say, Joe Biden. What would happen, guys? Let's just see what would happen. Would it actually be the case that senators would not vote, Republican senators would not vote to confirm someone who said Joe Biden. Would it actually be the case that the President United States would yank the nomination if you said Joe Biden? I mean, does somebody have the guts to try? Love to see it. I would love to see it.
- [62:04]
Sarah Isger
All right, next question. David, at the very end of your last podcast, David mentioned coming up with a list of five underappreciated Supreme Court cases that he would have folks study for his lifelong learning class. I would love to know what those cases are or even how to join that class if it's something done virtually.
- [62:21]
David French
So great question. The, the answer is that I'm still working on the list because I don't want it to be a list of cases that is every whatever. I don't want it to be Marbury, Dred Scott, you know, like, I don't want it to be the greatest hits. I want it to be underappreciated. So I know for sure I'm going to do INS FE Chada and the legislative veto. That is a case with major, major repercussions. I think I'm also going to do the partisan gerrymandering case. It's not exactly a greatest hits, but it has large scale ramifications in our lives right now. In particular, ramifications that could be really. I mean, we are, we are moving towards a gerrymandering arms race right now that I think could be actually destabilizing to the country, depending on how it all works out. But. So those are two that I'm leaning towards. I have others that I'm playing with in the back of my mind. But when I define the five, I'll only tell you one or two. You gotta be part of the class. And then I'm going to. Because I like. One of my fun things I like to do is I did one of five constitutional amendments to save America. And I like to unveil each one as a surprise at the beginning of each class. So I might only tease it with one or two. I've teased for sure, one of them insv Chada. But when it. And I should have been doing this all along because there's a zoom in element to this class. You can attend in person in Nashville or you can zoom in. And I should have been sharing this from the get go with AO listeners. But I will share you all of the registration info. It's a small fee. It's really not very much to join the class. And it's aimed, you know, the fee is aimed for like the in person folks, but everybody pays it. None of it goes to me, just so you know. So it would go to the college, Lipscomb University. Um, but I will, I will tell everybody when it's happening and how you can register.
- [64:17]
Sarah Isger
You know what, David? I think my version of that course would only be reading the cases, like interesting cases that were overturned later. But the idea would be like these weren't crazy, like they had real reasons for deciding this way. So I would read gobitis, I would read Apodaca. Yeah, so like smart people coming out the wrong way.
- [64:40]
David French
Interesting. So this is going to be currently in force. Cases that have changed your life in some important and possibly positive, possibly negative ways.
- [64:50]
Sarah Isger
So, David, I got this email from a listener and I will just say there was a big surprise at the end. Sarah and David, I have a bit of a good hearted beef with y'. All. The beef is about your treatment of Justice Holmes. I fear y' all have treated him unfairly and inconsistently with how you treat other figures in American history. He is no Woodrow Wilson. In fact, Justice Holmes embodied some of what is best about advisory opinions. Let me explain. First, we do not have the robust First Amendment we have today without Justice Holmes. Of course, he wrote the infamous Schencked opinion and even a few other opinions in that period which showed little regard for the First Amendment. But shortly thereafter, he began dissenting in First Amendment cases, asserting that The First Amendment stood for far more than the Court had ever said before. And after his death, Brandeis and eventually the Court adopted his dissenting robust First Amendment view as the view we have Holmes courageous, unpopular steadfastness to thank for radically transforming First Amendment doctrine, which I know is near to AO's heart. Second, and relatedly, Holmes changed his mind. He embodied the AO ethos of humility, courage and open mindedness. He changed his mind as a result of ongoing correspondence with people like Judge Learned Hand who convinced him that the First Amendment ought to robustly protect our freedom of expression. And he did this while in his 70s and 80s. If there is ever a time for convictions, opinions and jurisprudence to be locked in and impervious to persuasion, it is when you are geriatric and have written consequential opinions to the contrary. Contrary to being maligned as akin to Woodrow Wilson. This makes Justice Holmes in this particular way a judicial avatar of the AO spirit. Third, I know what you're thinking, but Buck versus Bell, I make no attempt to justify, qualify or explain it away. It's a morally abominable opinion as it pertains to Justice Holmes historic legacy. I fear that you treat him differently than you treat other figures in American history whom I think we rightly admire. I think we likely would have little patience for someone who categorically maligns the legacies of Jefferson or Washington because they were slaveholders. Rather, we would make distinctions, understand them within their context, and judge them within that frame. But AO has not done this with Justice Holmes. You and others rightly criticize him for enthusiastically blessing the early 20th century Eugenics movement in Buck v. Bell, even though eugenics was all the rage at the time. But that is not the totality of Justice Holmes legacy. Slavery at the founding was widely morally accepted and if not expressly blessed by the Constitution, was ambivalently enabled. Yet we do not categorically demonize the Jeffersons, Washingtons, Chief Justice, Marshals, et cetera, all of whom were slaveholders. Yet we recognize they were more than just the evils they committed. I mean for all of this to be taken in good fun. I genuinely appreciate the work y' all do and wish y' all nothing but the best. So David, you already know because you're giggling about what the shocking part of this email was and why I read it in full. This the shock came to me at the end when I read the person's name. It's your son in law.
- [68:04]
David French
It is very well crafted email, Jarrett. Like really well done, very persuasive I gotta say, Sarah, it's a well argued email, but I'm biased. I'm biased in his favor, you know, he's family. I'm totally biased.
- [68:22]
Sarah Isger
I'm more concerned that your son in law felt the need to write an 800 word email to disagree with his father in law. What kind of relationship is this that he's sending in an email, by the way? He did not email me or you. He sent this to the AO inbox.
- [68:41]
David French
I think he wanted the email to be received on its own merits, you know, in the AO inbox. But I will say I have heard the oral presentation of this email before and I have responded with an open mind as best I recall.
- [68:55]
Sarah Isger
Clearly not enough of one if he's sending it to the AO inbox.
- [68:59]
David French
As I recall our conversation about it, I really circled my wagons around Buck v. Bell very strongly. And so I think that's why we had a final like concluding case about Buck v. Bell. And he does raise a good point. And let me ask you this Sarah, and is the fact that Buck v. Bell was less than 100 years ago, so it's a 1927 case, does it mean that we have less grace for it than we would ordinarily and are we unfair because we have seem to have more grace for the World War II era court that decided Barnett. It also decided Korematsu more recently than Buck v. Bell. So how does he have a point that we've over emphasized Buck v. Bell or at least that we're inconsistent, that maybe we should be less solicitous to the World War II era court or less solicitous to say James Madison, to whom I, after Nancy I dedicated my book. Did he catch us? Are we caught?
- [70:07]
Sarah Isger
Maybe. So I will tell you, I think the slaveholding analogy is far more persuasive to me than the Korematsu analogy that you're using. Because I have trouble putting myself in a post Pearl harbor feeling of like a state of emergency. You don't know where the next thing is coming. I mean it feels very post 911 to me and I do not excuse the idea that like oh, in an emergency we can chuck our most basic and fundamental laws. I think I've talked about that a lot on the pod, right. The, the more extraordinary the situation, the more you need to cling to your principles. Not that emergencies are an excuse to chuck your principles. However, it's a very understandable human reaction. And so I think that's where like in national security cases where they get it wrong. I am more forgiving. Buck V. Bell was not an emergency. The story itself is egregious. Right. Carrie Bach was raped, but by her foster parents nephew. She was then impregnated through that rape. The foster parents got the child. You won't be shocked to hear the child didn't live to adulthood. The child died. And that's where you get the very flippant line. Three generations are imbeciles enough. And what was the proof that she needed to be sterilized? She had passed notes to boys in elementary school. Like the lack of justice falls off the page and slaps you in the face face in a way that like there's no emergency. It's just that like you were. You didn't have principles about individual liberty. I guess so yeah, I'm pretty unforgiving of that. But the slaveholding analogy for me is convicting. I will say because what is the difference? I'm not sure I can point to one.
- [71:52]
David French
Jarrett, I'm ticked at you. This is a pretty good argument. So listeners, help us out, listen, like rebut my son in law. Anyway. No, I. It's a pretty good, it's a pretty interesting argument. And it's not the case that the slave owners were not exposed to contrary arguments. It's not as if, you know, one of the, one of the rationalizations and justifications you hear sort of of slave owning in the 18th century was. Well, it was just what you did there was, you know, people were not exposed to contrary arguments. Oh yeah. Oh yeah. You know, there were contrary arguments in the founding. There were arguments against slavery in that era. So it's not as if this is just what everybody did. Right. And so there are arguments. This was utterly inconsistent with anything like a, you know, building a land based on liberty. But. Pretty good email there. Pretty good email.
- [72:42]
Sarah Isger
Okay, David, you got an email. This is our last email for this episode. Okay, go for it.
- [72:46]
David French
So this was really one of my favorites. This comes from a judge in Ohio and he was responding to a piece that I wrote, you know, really that was launched from ao. It was a piece that I wrote about the role of common law in regulating AI. And it really went over a lot of the things we've been talking about and discussing when gotten a lot of reader feedback on about how much you're going to hold AI companies responsible for the product that what their chatbots say, are they going to be responsible for it and say the way a human being would be responsible for it. And I was talking about the common law and how the common law is really a foundation of our legal. Our entire legal superstructure. It is. And it's also just kind of out there, no matter what. And it's not like if we fail to regulate AI, there will be no regulation of AI because the common law is out there. And so the judge wrote me this wonderful email, and he talks about the common law, and this is a jury instruction that he gives to his grand jurors every time he impanels a new grand jury.
- [73:50]
Sarah Isger
And.
- [73:51]
David French
And it's a little history lesson, and I want to share it with you because it's just delightful. It's just delightful. And it contains stuff that I didn't know. And I think you'll find this really fun, too. So you'll want to trip over yourself to be a grand juror in this judge's court, because this is fantastic. It says, before I go into the specific instructions of law, I want to provide you with a perspective on the grand jury itself. There is a long history that underpins the process you will enter over the next four months. At the outset, you should know that the grand jury is something of a rarity in the world today. Two countries still use this process, the United States and Liberia. All other common law countries, those whose legal system is traced to the English system of law, have adopted different systems. Although on the federal level, the grand jury system is required under the Constitution, not all states require this process. Ohio is one of the 23 states that require grand jury indictment for felonies. In 25 states, the grand jury is an optional. And in two states, Pennsylvania and Connecticut, the process has been eliminated. The grand jury was traditionally called grand because of its size. Historically, the grand jury was larger than the petite, with a composition of 15 to 20. Today in Ohio, the grand jury has nine individuals, while a petite jury for felony matters has 12. With those basic facts, I now want to take you to a shipwreck off the coast of France. On November 25, 1120, what was known as the White Ship was leaving the Normandy coast and struck a rock, sinking quickly. On board was William Adeline, the heir to Henry I, King of England and the fourth son of William the Conqueror. William Adeline had been in France to be crowned Duke of Normandy and was accompanied by a large contingency of family and friends, all celebrating his coronation and eventual assumption of the English throne. His death left Henry's daughter Matilda is the only legitimate heir to the crown. Although Henry had all the lords pledge their allegiance to Matilda, some did not follow that commitment and After Henry's death, they supported the kingship of Stephen of Blois. Blois. B L O Y S. That's a weird thing to pronounce. Henry's nephew. This led to a civil war, and it's a period known as the Anarchy or the Shipwreck. At one point, Matilda left England for the mainland, but when her son Henry reached the age of 17, he assembled a force to take England and make himself king. Pause commentary when you were 17, Sarah, do you think you were capable of organizing a force to invade a country?
- [76:15]
Sarah Isger
Actually, I think that was the last time I was fully capable of assembling an army to take a country by force.
- [76:21]
David French
As the words were coming out of my mouth, I was like, oh, yeah, totally, totally. She was ready. Okay, back to the email. His army ultimately forced Stephen to acquiesce to a peace treaty. According to that treaty, Stephen was to remain king until his death, and then Henry would become King of England. Stephen conveniently died 30 days later, and Henry became known as Henry II, King of England. He served as king from 1154 to 1189 and became known as the father of the common law. During his reign, Henry was faced with the repercussions of the major civil war and rampant lawlessness and a lack of centralized authority. To address this, Henry adopted the Assize of Clarendon. An Assize is an itinerant, or circuit court. These courts traveled from shire to shire in England, addressing the legal complaints of those in the shire. This court replaced the traditional trial by battle or trial by ordeal with a system that relied upon evidence. In each of these shires was a body of important men who were sworn to report to the sheriff all the crimes committed since the last session of the Assize. Thus began the grand jury. In 1215, the grand jury was recognized in the Magna Carta, and with each succeeding acknowledgment of that document, the Grand Jury became enshrined in a common law and thus an integral part of our criminal justice system. At the founding of Our Republic in 1789, the grand jury became part of the United States Constitution with the adoption of the Fifth Amendment. And it's been part of the Constitution since 1851. Of the Ohio Constitution since 1851. This is all because a ship hit a rock off the coast of France. I love that. That was so fun and so informative. So we're passing on that little historical treat to you.
- [78:02]
Sarah Isger
Do you ever think, David, when you, like, see a rock, that what you'd really like is, like, one of those nest cams or whatever. But going back 400 million years just to see like everything that rock has seen through time and like that rock that the ship hit, I mean probably millions of years of a lot of boredom, but I bet that rock has seen some real stuff in the last few billion years.
- [78:28]
David French
The process. It's another ship coming again. Oh wait, this one's not veering off. Wait a minute. Is that a king? Hold on.
- [78:38]
Sarah Isger
So David, on the next Advisory Opinions, I have a lot of questions about Calais. That Voting Rights act case, including this one that I think is worth us really struggling with. With the ruling in Calais. It feels like from my non legal background that the general rule that courts have been following is that if race is considered when providing a benefit like admissions or representation, that it is illegal. But if race is considered for hurtful actions like travel bans and ice profiling, then it's okay so long as the stated point is not racism. I want us to tackle that and a lot of other really smart questions that we got about Calais, including from a native Michigander whose father grew up in Jim Crow, Louisiana and in fact moved up to Michigan as a result of the Jim Crow era. So lot of interesting questions. I think we're going to focus on Calais again in the next episode of Advisory Opinions. 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 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.
- [80:59]
David French
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- [81:22]
Sarah Isger
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