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A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French and boy, have we got a podcast for you today. 2 Two hot oral arguments at the Supreme Court. One on when ballots can be received after the election and two, metering at the southern border as well as a qualified immunity decision. Oh, and yes, if I sound a little weird, I am in the beautiful state of Utah and I am loving it. Chronic migraine is 15 or more headache days a month, each lasting four hours or more. Botox. Onobotulinum toxin A prevents headaches in adults. Chronic migraine before they start. It's not for those with 14 or fewer headache days a month. It prevents on average eight to nine headache days a month versus six to seven for placebo.
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- [01:44]
A
Ask your doctor. Visit botoxchronicmigraine.com or call 1-844botox to learn more. Okay, David, I have to tell you. I am in Provo, Utah and I may never leave. I may just send for my family and have them come here. I went to the Tommy's Burger like stand last night. It was incredible. The mountains, every. It just. This is like the best of America.
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I have been to Provo as well and it is. It's tough to leave. It's tough to leave, I've got to say. And then I did a really fun thing of drive from Provo to Aspen, which was a beautiful. I mean, I mean to tell you, Sarah, that is a drive to take. It's that part of the country. You just don't want to leave it.
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A
Well, we've got lots of Supreme Court stuff to talk about. I guess we should just go in order. Should we start with Watson, the ballot case? So this was argued on Monday of this week. The question is whether federal election day statutes preempt Mississippi's law that allows ballots that are cast by election day to be received up to five days after election Day. DAVID I guess right off the bat, I found myself in the end thinking I didn't care much about this case. So we have basically all nine justices agree that the text of the federal statute doesn't really speak to this one way or the other. I'll read it in a little bit. But, like, basically, we don't really have text. And the Republican Party of Mississippi and the Solicitor General's Office of the United States argue that, nevertheless, Congress preempted state law about this question and that election day must be consummated, as Paul Clement the word he used, consummated on the day of the election. So it's not just about casting your ballot on election day, which everyone agrees you must do that by election day, but that the ballot must be received. That's the consummation also on election Day. And the other side, the state of Mississippi argues no, Congress really is just allowing states to do whatever they want in this. They didn't think about it one way or the other, therefore, they didn't preempt it. So as long as you vote by election day, Mississippi can receive your ballot up to five days later. And I just don't think it matters very much. David, like, you as a voter either need to mail your ballot in earlier than you were, like, you can't mail it on election day or go vote in person or like, I don't know. I don't think this changes our elections. I don't think it helps one party or the other. I just didn't care.
- [04:45]
B
I'm gonna be mostly with you, honestly, because while I think election day means casting, when is the cast is a question and when is the count is a question. So I tend to think of the cast and the count as different things. And the cast occurs when I have done everything I need to do to make sure that my vote is counted, and that's the cast. And I think you got a cast by election day. So if you push me on this, I'm going to say the cast has to occur by election day. The count can occur afterwards. You know, the one question that I would have is let's suppose you cast your you mail your ballot 10 days in advance, and for some reason it's just delayed by the postal service. It's just delayed, and then you're not going to be able to get it counted because it arrives late because of just unexpected, unanticipated Delays completely not in your control. So one of the reasons why I like the cast happening by election day as a standard is that is something that is entirely within your control. I can cast by election day. The count side of it, the reception side of it, when they can open and count is not entirely in my control. So that would be. If you're going to push me on it, if you're going to make me choose a side on this, I'm going to go with the cast. I'm going to go with Mississippi here on this. But I. I think I'm with you.
- [06:04]
A
But if you have to push me. Yeah, I think you should have to have everything received by election day. Like, if it were my policy choice. Because your point, David, that, like, unanticipated things could happen, like, can happen no matter what. So Mississippi only allows ballots that are received within five days of the election day. So if you mail your ballot on election day, it could get lost in the mail and not show up until six days after election day. And you know what happens if it arrives six days after election day? They burn it and pour water on it and, you know, treat it like a witch. Yeah. Like, it is not even considered at all. So, but, like, this is inherent to mailing your ballot in instead of voting in person. Okay. So I felt like during the oral argument, there were sort of two different conversations going on. And it's interesting to me that basically universally, the headlines seemed to think that the justices were going to basically find that Congress did preempt Mississippi's state law. But again, when I listened to it, I heard two different conversations. Conversation number one was, did Congress preempt this? And basically, who has the burden of proof? Right. If Congress didn't speak specifically to this, and everyone agrees Congress didn't speak specifically to this, how are we supposed to even figure out what Congress wanted about this? And the fact that Congress didn't speak to it, is that evidence that it didn't preempt it or the fact that Congress didn't speak to it is evidence that, in fact, Congress didn't even. Didn't even occur to them someone would be so stupid as to accept ballots up to five days later. So that's one conversation. That's the preemption conversation, which is really the legal question in this case. But then I felt like there was a second conversation on the policy side of this. You know, the history, why Mississippi did this. This was a recent law passed after Covid that basically Mississippi did because mail in ballots were becoming such a thing. Lots of other states did similar stuff. And this leads potentially to undermining confidence in elections. This idea that someone could be winning on the night of the election and then all these mail in ballots come in for the next five days and turn the election. There were conversations about recalling ballots. So you, you vote on election day, but with a mail in ballot, and then the next day, the day after the election, you learn something about that candidate that you don't like that you voted for. So if you sent your ballot through UPS or FedEx or through your uncle or your neighbor, you could recall your ballot. And so while you may not be able to change who you voted for, you could nevertheless change the count of the ballots being counted. And therefore the election, again to keep using this word, would not have been consummated on election Day. And that separates out your point, David, that it's not just the difference between the voting and the counting, that in fact the receipt of the ballot is part of the voting itself. And that's why, as a policy matter, I think it should all be Election Day. Did Congress preempt this? I don't think Congress thought about it one way or the other, therefore they didn't preempt it.
- [09:19]
B
This is one of those cases where it almost appears like you've hunted through the statute books. You found a statute. The statute has been not that relevant for a very long time. A lot of states have put in place the counting element coming after the casting element. They've done this for years. I can distinctly remember the 2000 election when the overseas ballots start to come in and everyone was expecting that's going to increase George W. Bush's lead because Republicans are more likely to do the absentee ballot thing. And so we've been through this kind of drama for some time. And so I'm with you on the statute doesn't really seem to have contemplated all of this.
- [10:06]
A
Just to be clear, we're dealing with an 1845 statute that establishes the Tuesday after the first Monday in November as, quote, Election Day. And then in 1872, Congress directed that congressional elections should occur on this day as well. That's it, guys. So all we have is that Election Day is the Tuesday after the first Monday in November, and that that will be when congressional elections will occur. The only thing in quotes that I have read to you is Election Day. And so literally we had 90 minutes of does Election Day mean both the, you know, marking your ballot and the receipt of that ballot by state election officials? Or could it mean marking your ballot and Giving it to someone who's not a state official to turn in your ballot or did it, did they not think of it at all? And we have all this Civil War history where soldiers in the Civil War were voting in the field and they could give their ballots to their commanding officer. Again, I'm glossing over some of the very specifics of this thing. That officer was of course not a state official, that was a federal official. They had not been deputized by any state at all. And both sides are like, no, that helps me. No, that helps me. There was a lot of like, actually that helps my side arguments going on. And in the end, David, I just felt like at the end of the day, I agree that I think the justices as a policy matter think it is a really bad idea to accept ballots up to five days later. However, the argument that Congress preempted states ability to experiment with this, I just, I felt like that wasn't proven out and that the burden should lie with the people trying to strike down Mississippi's law. Obviously, right. They're the ones arguing that it's preempted by federal law. I did feel like it was a bit of a lopsided argument, to be honest. Mississippi seemed a little unprepared on a bunch of these arguments. And Paul Clement of course, sort of walked in and owned the field of battle. But I guess things I like about this, David, I guess I don't think it matters very much. Other things I like about it. This is the state of Mississippi, a red state. The Solicitor General, Scott Stewart, is the same guy who argued the Dobbs case, remember? So arguing against the Republican Party of Mississippi represented by Paul Clement and with friends on the same side, John Sauer, the US Solicitor General, like this is an intra Republican fight going on right now. And I think it's really hard to argue which side will benefit about whether mail ballots can be received five days later. Because I think voters tend to be pretty rational and if they understand the ballot has to be received by election Day, they're going to turn in their ballot earlier than they would if they know their ballot can be received five days later. And the people who are procrastinators will be procrastinators under either version of that rule, if that makes sense. And we have this, we have this realignment going on where yes, Republicans used to be the ones to do mail in ballots and now it's more the Democrats do mail in ballots. I felt an ideological line between the justices. The liberal justices tended to want Mississippi's law to be upheld. The conservative justices for the most part seemed like they really hated the law. Barrett right there in the middle, the chief seemed kind of in the middle. They seemed like the two swing votes in this case. So I don't know, Barrett and Roberts
- [13:49]
B
were enough of a mystery to me where I couldn't count to five in either way. But Sarah, I have a proposal for you. I have a, I have something for you to chew on here. I think that the party's constituencies have flipped, but their mindset about voting has not. Okay, so here's what I mean. So for many years, the Republican coalition voting coalition was college educated and Democrats were working class. They had more working class votes. Republicans had more college educated votes. And a lot of the conventional wisdom about voting sort of centered around that. So in a midterm election, you had more higher propensity voters as Republicans. And so because the college educated voters might be a little bit more higher propensity across both presidential years and midterms and local elections, et cetera. So they would be seen as overperforming or the absentee ballots were sort of seen as more of a Republican thing because you're going to have more college educated families out of the country who are going to fill out the absentee ballots. Or maybe the college educated families are sort of better with paperwork, et cetera. And so for all of those things where education was kind of salient here it was favoring the Republicans over the Democrats. And now that's totally flipped. It's flipped. If you look at 2024, the Republicans won the working class vote BY what, about 13 points. Democrats won the college vote by about 14 points. But there are more working class voters than college voters. So Trump wins, he wins a plurality of the popular vote. But then if you go and you look at things like this and the SAVE act, for example, I wonder if Republicans have early thought through the different coalitions now because like if you look at the SAVE act, guess who has passports, College educated voters, guess who has more readily available documentation for a one of the state IDs that's also a citizen proof of citizenship, college educated voters, who has easier access to their birth certificates. Again, college educated voters. So I do kind of wonder if the Democrats who sort of historically had this more access, more access, more to access. And Republicans were like, well, we got our college educated group and you throw a few hoops in their way and they're fine with it. I wonder if the parties have absorbed that their constituencies have shifted, Sarah. And I wonder if the SAVE act, if it actually passes, would end up shooting the Republicans in the foot and not Democrats. And then over all of this, a lot of this is taking place, a lot of the debate about voting is taking place against the backdrop of the total bullcrap fiction that our elections were not previously safe, free and secure, when they have been safe, free and secure. And a lot of the doubts that have been generated about them have been generated by bad faith actors spreading stupidity. Anyway, I just threw a lot at you. But let's start with this flipping of the constituencies. Do you think the parties have really absorbed that yet?
- [16:48]
A
The operatives are well aware of this. I will tell you that from both sides, the Democrats and the Republicans, because they're actually looking at the data far more in real time. They're the ones running campaigns and trying to turn out voters. I guess you could look at it two ways, right, that the elites of the two parties don't understand about the realignment or here's my really generous reading of it, David, that they actually have principled positions on this, right, that like conservatives just are more likely to want to have sort of stiffer rules when it comes to voting. I mean conservatives, not Republicans here, conservatives, you know, your sort of Burkean, Chesterton's fence. Conservatives are like, it's election day. It says election day, that's it, I'm done. And that Democrats philosophically, liberals philosophically want anyone to have every opportunity, more opportunity. And in again, like sort of the most, I think liberal sense don't understand sort of the rational actor problem, that if you tell people they have five more days to get their ballot in, they'll just take those five more days. Like it doesn't actually give them more time that people respond to those incentives, same as economic incentives when it comes to their ballots. So actually it will affect nobody's ballots, in my opinion. There will be no more ballots discounted or fewer ballots discounted than there were before because both sides will educate their voters on the new rule that it has to be in by election day, which was a new rule to extend it past election day anyway. And so none of this matters in a political sense at all. What I am looking forward to, David, to your point, is that all of this gerrymandering, the only way you can further gerrymander House districts is by making them tighter. And if you don't understand who your voters are, you will make them so tight that in a wave election, and I'm counting a wave as being a six point swing, a six point swing, different from the previous election would be a wave to me. In a six point swing election, all those gerrymandered districts, the tide rises above your gerrymander, basically. And that would be glorious. Because if you make tighter districts that are more competitive, I think it's good for democracy. And everyone can complain about the gerrymandering, but actually at this point, they're gerrymandering to make them more competitive. That's bizarrely good news.
- [19:11]
B
It's interesting. It's following the old lawyer's adage, Sarah, pigs get fat, hogs get slaughtered. Because what, what happened here is you have, it's not like the previous gerrymanders that existed were generous to the opposition. They were not. You know, if you're, if you're looking at some of these gerrymanders, they were creating as many truly safe seats as they could. So to add to their margin, they had to make some safe seats truly safe, a bit less safe, and they had to do it with more than one seat. And so that's how you go from a gerrymander that is very solid, that's very reliable, to one that is much more fragile. And, you know, we're seeing maybe this in Texas, for example, in South Texas, where there was some gerrymandering done that was basically that recent trends will continue with Hispanic voters. And so far since 2024, recent trends with Hispanic voters have decidedly not continued for the Republican Party. I mean, we'll see what happens in November. And so that gerrymander could become extraordinarily self defeating. So I know exactly what you mean. It's not like we were placing generous gerrymandering with stricter. They had maxed it out as far as creating truly massively safe seats, and now they had to make some less safe and therefore more vulnerable.
- [20:34]
A
So, David, let's run through some of the justices here of just some of the highlights that I wanted to mention. So first of all, Justice Gorsuch was really the one emphasizing this idea of the recall problem, right? That because you could recall your election or go run after your uncle and make sure he doesn't turn in your ballot that you handed him on election day. The election is not consummated on election day. And that simply violates the congressional law. Not that the congressional law preempts it per se, but that it would violate because the election didn't actually happen on election day. I am pretty sympathetic to that. Actually. That's the best argument because again, I think that preemption argument's a bit of a mess. So we'll see if Justice Gorsuch can win over four more votes for that. Justice Alito had a line drawing problem. This idea that like there's no logical end to when the ballots could be turned in. Like how long after election day can states count their ballots up until when Congress is sworn into office. And that is a problem for Mississippi. Right. And there's, there's all sorts of like, I guess shenanigans isn't the right word here, but like yeah, as long as you voted your ballot on election day, just turn it in, you know, whenever and maybe you'll decide later. You know, let's say it's one month after election day. You're going to see how the ballots were counted, you know, the in person ballots on election night, see what's going on and then maybe wait to turn in your ballot depending on how it's going. It's a version of the Justice Gorsuch recall problem that you have this like choice because you can see the results before you would have to turn in your ballot. That, yeah, that's a problem with again the actual statutory language that there is an election day though again not a preemption problem for me. But David, we had one listener send in this email that I have to read to you. As I was listening to the Watson oral argument yesterday, I couldn't help but notice how it seemed that the liberal justices, particularly Justice Jackson, thought their best strategy was simply to have an impromptu episode of advisory opinions from the bench. Let's play a game. Are these quotes from the oral argument or from the follow up episode of advisory opinions? Quote, I think that the Constitution's allocation of responsibility here actually makes this case about who decides. I mean there are a lot of policy questions. Justice Alito ran through several of them. Who gets to receive the ballot? How long can they be submitted? Does it have to be postmarked? I suppose we can add, is recall allowed, etc. Etc. But the question I think is whether Congress has precluded the states from, from making those calls. Drawing those lines. Next quote. The Constitution vests this issue of elections in the states unless superseded by Congress. So if there is a policy question to be had, the entities to decide that are the states and Congress, not the courts. Next quote Bruin is not even the right methodology by which to be thinking about this. Bruen applied to the second Amendment because the second Amendment incorporated a pre existing right. And the point of the history and tradition test was to try to evaluate the contours of that right. We don't have that dynamic here. We're trying, I thought, to figure out what Congress meant when it included Election Day in its federal statutes. Back to our listener, it is, of course, a trick question, as the episode is not yet recorded. Instead, you have quotes from Jackson, Sotomayor, and Kagan saying, who decides to Congress, do your job and trying to figure out what the words mean. Meanwhile, the conservative justices all seem to think that the election month we currently have has reached a point of absurdity, but don't have, quote, much to go on in terms of text. As Justice Alito said, it was really an interesting oral argument where the liberals made the textualist conservative arguments back to the conservatives, and the conservatives seemed to have a desired outcome, but weren't sure how to get there from a textualist perspective. Maybe Justice Jackson has a secret who decides tattoo somewhere. I mean, David, it wasn't just that like the liberals were doing the textualist argument. They were also, though, doing the if there's a tie, the tie goes to states rights, which, David, you've made this point that in the year of our Lord 2026, when Trump is the president, liberals have found themselves being really in favor of the laboratories of democracy and states getting to make the decisions versus the federal government. And conservatives seem to be like all about federal preemption. Suddenly, what is happening to our world here in the Watson oral argument, I thought that listener just Chef's kiss. Perfect.
- [25:34]
B
That's exactly right. And guess what, Sarah, that's the way the system was designed. The system was designed so that there were various competing centers of power and that liberty could find a purchase and a defense in a lot of different places. But historically, we have viewed the states for only a billion good reasons as the primary architects of oppression. And the federal government has been the primary guardian of liberty. And you know, that could be flipping. That could be flipping right now. And that's. So that's why you're seeing a lot of strange new respect for states rights.
- [26:10]
A
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- [28:21]
A
Okay David, this is our Remain in Mexico case. I did get a fun question from a listener because this case is called Nome versus El Otolado and that listener said now that McMullen has been confirmed, do you keep it Nome or does it change to McMullen? And fun fact David, it will change to McMullen. Now until a case has actually been decided, they will switch out for the cabinet official who can be enjoined from enforcing a policy or et cetera. This gets into some very weird sovereign immunity stuff as to why their names are in the caption instead of the United States to begin with. That we're not going to do today. But to answer the question, this will become McMullen soon enough. Okay, so David, I think most people have a good sense of what the remain in Mexico policy is. But let's go over it for a second. When you arrive at the southern border at a port of entry and you want to claim asylum, you tell the officer at that, you know, port of entry, hi, I'm here to claim asylum. And generally speaking in the past they then like wave you in, take your asylum, claim, whatever. Maybe they parole you into the country, maybe they detain you at that point. But either way, like, you get to make your asylum claim. So, David, this remain in Mexico policy actually started under Obama where they would do something known as metering. When they had reached their maximum capacity, they would like go out and tell people like, sorry, we're done for today. You cannot claim asylum, you cannot reach the port of entry. Go away and come back another day. Now the metering policy has gone in and out, you know, based on how many people are showing up at the border. That's going to be relevant to this and whether the case is in fact moot or not technically moot, but moot. Ish. We'll get to that in a minute. But David, this really is just a pure statutory interpretation question as we talked about when the case was granted cert. So let me read you the statute. Non citizens can apply for asylum either when they are, quote, physically present in the United States, end quote. Or when the person, quote, arrives in the United States. Now, there's a whole lot to do here with just the text and the problems with this text. For instance, what is the difference between being physically present in the United States and someone who arrives in the United States? Aren't those the same thing? And therefore did Congress. Why have it as an ordinary. That seems weird. And so does arrives in have to mean something different, like to get close enough to the port of entry? But the problem is you're not in the United States. Now, David, I mean, right off the bat here, just what's your takeaway? What did you think?
- [31:14]
B
So as I'm reading the statute, you're right. If you look at it physically present in the United States or where they arrive in the United States, it feels like it's saying you can apply for asylum when you're in the United States or when you're in the United States, which feels weird. However. However, the way I feel like the plain reading is, is imagine the difference between two people, John and Brian. John is in the United States without documentation and he's working for a roofing company. And ICE rolls up and they grab him and he says, asylum, asylum, I want asylum. So he's physically present in the United States already, and then he's using asylum as a defense to deportation. The other dude, when he arrives in, presents himself for an asylum determination. And so that's how I have read the difference between these two existing presence where asylum is a defense to deportation or are arriving specifically at the port of entry to claim asylum. But in both cases, the words in the United States seem to me to indicate that the Trump administration's on really solid ground here, that if you can put up a gate, so to speak, where you have an agreement with Mexico, you have the right sort of diplomacy with Mexico where you can turn away people on their side before they get to our side, then under this statute, because they haven't arrived in the United States, then metering is appropriate. And again, metering has been a bipartisan practice. Obama, Trump, Biden did away with it after a bit, but back again with Trump. And so, Sarah, for me, this didn't feel like that hard of a case. That in means in. In doesn't mean at if you've arrived at my house, you are not in my house. When I say in my house, that means you've opened the door and you've stepped through the threshold. You can be at my house without being in my house. But if it says in, you're in. And so this actually just to go on a very brief tangent, a lot of people have asked us, well, wait a minute, if you can do that, doesn't that mean that any given president can, quote, unquote, fix the border without Congress? Well, it means that any given president can engage in some pretty extreme restrictions on entry into the US but because it depends on the policy of the president, the president can't, quote, fix the border, which I interpret as enact a lasting change, one that outlives the presidency. That's what I would call fixing the border is a policy change that outlives the president. But any given president, I think, does have the ability to implement this policy. That's why when you're in the green room, I think I didn't find this one that hard, to be honest. So tell me, Sarah, am I wrong here? Am I just totally missing that in the United States also can mean at
- [34:22]
A
the United States, I think there were several problems pointed out with that reading. Right. So it privileges someone who, you know, goes to the port of entry, is turned away and then crosses the Rio Grande, comes in illegally, they are allowed to claim asylum, but the person who actually follows the rules refuses to break American law. They can't apply for asylum under the metering rules. It's a policy problem for the rule, or it's a way to say that that's can't be what Congress intended when they wrote this, and therefore you should read the text differently. David, this is worth a moment to just say in both the last case and this case, we're having these highly, you know, emotional arguments where both sides feel like they're fighting to the death about something that Congress could feel fix and clarify tomorrow. Congress could say whether states can receive ballots after Election Day. We all agree that that's up to Congress. They could speak to that. In fact, there's a bill pending in Congress, as Justice Jackson pointed out, about the ballot issue. And, my God, when it comes to immigration, they could simply clarify whether metering is lawful or not. But none of us have any hopes that they'll do that. And so it turns up the temperature on these oral arguments. And I felt like the temperature was very high in this. This was one of those pretty clear6,3 ideological oral arguments from the justices. And I didn't like it because really, it should be like, oh, well, we just need to pick a default because Congress will address this in the next term. That's what it. That's how it should work. If we had a functioning first branch of government. But because we don't, it made this feel so personal, I guess, is maybe almost the right word for this. You know, at one point, Justice Sotomayor accuses the Solicitor General's office of being quite misleading in their briefing and some of the historical citations that they were making. I felt like the solicitor, the Assistant Solicitor General, who argued it was pretty, I don't know, evasive isn't the right word, but not really answering the questions a lot of the time, the whole thing. Let's just put it this way. This is my least favorite oral argument of this term to date, in all the ways.
- [36:41]
B
You know how we talked the other day about the Judge Oldham dissent. And I said, my quote from Nancy was like, not the judges, too. I got a little bit of that vibe from this argument. Not the Supreme Court also, where when you watch congressional hearings now, you get the sense that everybody in that room hates each other, that the members of the House hate each other, the witnesses hate the members of the House who are questioning them, and the members hate the witnesses right back. There's just this constant sense of seething anger, just fury that is underlying almost every contentious House hearing, Senate hearing, Senate's a little. Not quite as bad. But, you know, we had a situation where Mark Wayne Mullen, now Secretary of Mullen, tried to fight somebody at a Senate hearing, if you remember that, not long ago. Now, to be clear, even with this oral argument, even with the tension between the Solicitor General's office and Justice Sotomayor, it's nowhere within shouting distance of, say, A median House hearing or even a Senate hearing. It's just nowhere within shouting distance. But the trend is bad, Sarah. The trend is bad. And I do not want to see the last branch standing. Love that title. I don't want to see the last branch standing yield to the spirit of the age.
- [38:03]
A
Like Mississippi, it felt that the other side here had a logical conclusion problem, right? So they argued that it's the person, like touching the turnstile who has arrived in the United States. And so, like everyone else in the line, actually hasn't arrived. And so as Justice Kavanaugh pointed out, he's like, okay, so right now the officer is standing at the turnstile, and you're saying that that person has arrived in the United States. If we say, sure, that person has arrived in the United States, they're just going to stand behind that person and tell everyone else that they have to leave. So also, like, again, there's a rational actor problem here. People are simply going to conform their conduct to whatever we say, and it will not change the underlying, you know, fact of people trying to claim asylum in the United States. Now, this is where I think the side that feels like they're going to lose, right? That wants more people to be able to apply for asylum at the southern border. This is where we get into the mootness argument that maybe because the Trump administration isn't currently metering and said during the oral argument that while they would meter again if situation at the southern border changed, they would not start metering tomorrow, for instance, because the situation does not demand it. So therefore, this is maybe not ripe yet. Now, that didn't seem to get a lot of purchase with most of the justices. But I don't know. I, I sort of thought that as well. Like, there were some factual questions here about how the Trump administration would implement this policy. And so what they could do is lift the injunction. Nine, zero, by the way, I think lift the injunction against metering, allow the Trump administration to start metering. But that would leave open a future lawsuit about whether the metering is, in fact, in line with the congressional statute and different types of metering. Right? There's the. Clearly, all of our detention facilities are full. We literally do not have room metering. And then there's we're metering for fun, right? We don't want to let more people apply for asylum. We do have room in our detention facilities, but we just don't want to do this metering. That is a real factual dispute here. And if you don't know which one it is it does potentially affect the legal outcome of the case. So I think this case will be 6, 3, and they will simply say that arrives in means you have to, like, be touching the port of entry type thing. Be in the port of entry. However, there is a world in which it's simply, you know, 9, 0, with some cranky concurrences from, you know, three or four of the conservatives where they lift the injunction and say, fine, let's just see what this actually looks like in practice and decided on the facts when it comes back up.
- [40:52]
B
I think it's 6:3 on the merits, potentially 9,0 on something procedural. But, you know, this is one of those where I think if it does get to the merits, I can easily count to six. I can absolutely count to six on one side on this. And look, I totally get the conundrum of the two different ways this seems like the exact same concept is phrased, but it's phrased as the exact same concept. It's there. The words say what they say. And so it just strikes me as. And I get it. It's poorly. It's not very well drafted. The distinction I made between somebody who's already there versus somebody who's absolutely just arrived at some level doesn't even, you know, why. Why draw that distinction? Why even have that if. If the one. If the one criteria is that you're here. And also, I totally get that. What that means is, well, if you can't waltz in and present yourself to a border agent, you sneak in and then, you know, present yourself and claim asylum if caught. I don't know that that's a better world. That's not necessarily a better situation. It seems like one that could actually empower the cartels a bit more. You know, more coyotes, more tunnels, more. All of that. Those are all policy questions for Congress. And Congress dropped the ball in drafting the statute, as you said, they could do it today. Today they could pick up, you know, they could pick up their fumble and run with it into the end zone with clear language, but they won't do it. I was speaking recently at Hampden Sydney College about the topic of America at 250. Do we need a third founding? And by that mean. By that, I meant constitutional amendments every bit as substantial as the constitutional amendments that happened after the Civil War. And even without the constitutional amendments that I was talking about, one point that I was making is the average American has no idea how much the tension and anger and angst of politics is just directly related to the passivity and negligence of Congress. And it just radiates out in 15 million different ways. And one of them, Sarah, of course, is the tension in this oral argument that shouldn't exist. If Congress all of advise your opinions listeners shout out at once does its job. It's like peeling an onion of awfulness when you just look at all the different layered ways in which this negligence and passivity is harming our country and spurring the culture war.
- [43:17]
A
All right, David, when we get back, we're going to talk about your favorite topic, qualified immunity, the Supreme Court. I mean, you are going to hate this decision because it's really not just a qualified immunity case in the way you hate. It's a sum rev, a summary reversal of a qualified immunity in the way you hate, which is like a double bounce on the QI trampoline. We'll be right back.
- [43:44]
B
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A
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B
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A
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- [44:28]
B
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- [44:31]
A
And remember, Red Bull gives you wings. Supplies are limited. Terms apply. Visit the website for more information. Okay, this is a case called Zorn vs. Linton. We got this decision from the Supreme Court earlier this week. And let me read you the facts. David. On the governor's inauguration Day in Vermont, protesters staged a sit in at the state Capitol. When the Capitol closed for the day, police officers told them that they would be arrested for trespassing. They refused to leave. As officers removed the protesters one by one, Sergeant Jacob Zorm asked Sheila Linton to stand up and warned her that he would eventually have to use force to remove her. She refused to stand. Zorn took Linton's arm, put it behind her back, placed pressure on her wrist and lifted her to her feet. Linton sued Zorn for using excessive force, claiming the arrest left her with arm injuries and psychological Disorders. The second Circuit said that the officer was not entitled to qualified immunity, that it was clearly established that you could not use pain to remove a nonviolent protester. And the Supreme Court, some revved it, David. They didn't take cert. They didn't. I mean, they did take cert by virtue of doing this, but like, they didn't hear oral argument. They didn't put it on the merits docket. They simply took it, wrote it. It's a per curiam opinion. And in a sum. Rev. David, the, the implication is that the circuit court got it so wrong that we don't even need to hear this or think about it deeply. We just have to correct their stupidity with, like, this backhand. Some revs are relatively rare at the Supreme Court because generally the court wants to be solicitous of the circuit courts and respectful of the work that they do. And the oral argument is a way of doing that. This ain't that. And so, David, like we've talked about, has the Supreme Court fixed qualified immunity doctrine yet? This, for your purposes, is the opposite of fixing qualified immunity. It really doubles down. And we do have a dissent from, written by Justice Sotomayor, joined by Justice Kagan and Jackson on pain compliance techniques, whether that's clearly established, et cetera. But I wanted to read you the very end of the dissent, David, because I thought, I thought you would like this. In the past, I have noted the troubling asymmetry in this court's unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity, but rarely intervening where courts wrongly afford officers the benefit of qualified immunity. This case unfortunately represents a resurgence and perpetuation of this one sided approach to qualified immunity that transforms the doctrine into an absolute shield for law enforcement officers gutting the deterrent effect of the fourth Amendment. The majority today gives officers license to inflict gratuitous pain on a nonviolent protester, even where there is no threat to officer safety or any other reason to do so. That is plainly inconsistent with the fourth Amendment's fundamental guarantee that officers may only use the amount of force that is necessary under the circumstances. Dad, David, you hate qualified immunity. And I simply want to clarify qualified immunity. So I'm thinking you're pretty mad right now.
- [48:07]
B
Yeah, I'm so mad about this case that I literally stopped reading at the end of the Purium decision and missed the dissent. I just threw my hands up in despair. I was like, this is the worst. You know, it's interesting because just to make it very clear, I saw some commentary about this online saying, well, what do you want the officer to do? I mean, if somebody won't move, you gotta move them. Right? The officer was denied qualified initially not because the officer moved the defendant, it was because the officer used a pain compliance technique to move the defendant. It was intentionally inflicting pain rather than just like simply lifting them up. The way you, you often see this on TV where you'll have these peaceful protesters who just, they just refuse to cooperate. And then usually one officer will lift them up by their shoulders, the other one officer lifts them up by their legs and they just carry them, they just carry them out of, you know, out of the location. So this was not you can't move the person. It was you can't use the pain compliance technique to move the person. What's particularly troubling about this is they just went per curium and some rev with a clear pain compliance technique being used here. And so, you know, what is Sheila Linton to do? I think the only thing that's left to her, Sarah, the only thing that's left to each of us in the circumstances. Well, we know she can do some parody, hip hop rap songs and calling out the officer and she'll win the defamation case when he sues. But that's just not an effective check for virtually anyone not named Afroman when it comes to abuse of power. And so, you know, once again we have this immunity problem and I'm just going to, I'm not going to do my full immunity rant, but I just would ask those who are quite sympathetic to immunity to ask if in your experience, institutions and individuals behave better with accountability or without accountability. I don't know about you, but in my experience every institution that has accountability is a superior institution than those that do not have any form of accountability or that limit accountability dramatically. And so I think healthier institutions have greater accountability, weak and sick institutions have less accountability. It's almost like math, Sarah. And so when we cheer immunity, we are cheering less accountability and we are harming the governmental institution. End of rant. End of rant. I've said it too many times before.
- [50:43]
A
This is where I'm going to distinguish my complaint from David's complaint. David's complaint is a universal complaint about qualified immunity and its effect on the system. Fair, David, like you don't like the whole immunity situation.
- [50:57]
B
It's a systemic complaint.
- [50:59]
A
Yes, my complaint is, is far more rifle shot. But this opinion is a perfect example of my complaint. So qualified immunity, remember you have to have a violation of, you know, in this case, the Fourth Amendment. And then the question is whether that violation was clearly established at the time of the officer's conduct. If not, he gets qualified immunity. My problem has been that courts skip the first question because if they can find that it wasn't clearly established, then the officer's definitely going to get qualified immunity. Immunity. So the first question doesn't matter. Was there a constitutional violation? I don't know, but it definitely wasn't clearly established even if there was a constitutional violation. So this officer gets qualified immunity, end of case. Because of that, we never actually decide whether it was a constitutional violation. And in this case, that's exactly what the Supreme Court did. It simply says that the case that the 2nd Circuit cited called Amnesty America did not establish that pain compliance techniques violate the Fourth Amendment. Therefore it wasn't clearly established. Therefore this officer is going to get qualified immunity. But the Supreme Court's majority here in the PC opinion never says whether it is a Fourth Amendment violation. They just say that it's not clearly established. So once again, we don't actually have the answer to the first question. So the next time this happens, it won't be clearly established again. And therefore that officer will get qualified immunity. And so you have this potential for a whole lot of constitutional violations that will never get addressed. I always use the example of the chalking tires thing because like, maybe chalking tires is unconstitutional, maybe it's a violation of your fourth Amendment rights, but we'll never know because it's never been clearly established. And therefore we just keep chalking tires and everyone keeps getting qualified immunity because it's never clearly established. And it's never clearly established. So we keep chalking tires. And that's my problem with the current doctrine and this case. Unfortunately, the Supreme Court is like showing circuit courts how to keep doing it wrong, in my opinion.
- [53:13]
B
I mean, I love that point, Sarah. I mean, like, your point is my backup point. If I can't have my way, I'd much prefer your way to the current way. I think there's very little question about that. And that that very problem that you articulate was one that I dealt with in my practice, which is why I tried constantly to file lawsuits. That would be the holy trinity of causes of action. I would be going for backward looking relief, financial compensation for the past harm. I would go for forward looking relief, an injunction to prevent future harm. And then I'd just throw in requests for declaratory relief because why not? And so the whole time I'm trying to, even if I can't get backward looking relief, I try to worm my way out of that kind of challenge by saying, okay, even if qualified immunity applies, you're still going to have to opine on the constitutionality of it to rule on my request for injunctive relief. But that's not going to, you know, you can't do that every, every constitutional case. That was what I tried to do. That's why how I tried to file cases. I tried to file cases where that was a viable approach so that I could kind of control for that problem of you lose on qualify qualified immunity, you just completely lose. I would go to the court, okay, even if we lose unqualified immunity, you still have to hear this case for a request for injunctive relief. So there were things you can do to mitigate that problem, Sarah, but it's still a problem. Anyone who thinks that I'm just nothing but a rah rah cheerleader for this current court, let's just bring up this case. Let's just bring up this case.
- [54:50]
A
All right, David, that's going to do it for today. There was a decision that came down Wednesday morning, Cox versus Sony Music. That is going to be a very big deal. We will break that down on the next episode. This is on Internet companies being held liable for illegal music and movie downloads by individual customers. And if you think this sounds like Napster in 2000, well, maybe you're not wrong about that. But it's going to have a lot of other far reaching implications. And frankly, we don't talk enough about the business docket on this case on this podcast. So we're going to fix that for one episode and one episode only.
- [55:30]
B
I love it. I love it. And also our listeners, especially our new advisory opinions listeners, we are on the verge of the happy time, which is we have key Supreme Court cases coming up and then critically, we're just going to get more and more and more decisions. So this is when advisory opinion starts to sing. And sometimes Sarah does literally.
- [55:55]
A
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@advisoryopinionsthedispatch.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.
- [57:03]
B
Sam.