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Advisory Opinions is presented by Pacific Legal foundation, suing the government since 1973. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We have a lot to talk about with the indictment of Jim Comey. We also have a new dissent, at least from the interim docket. So all that and more on Advisory Opinions.
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SCOTUS Today is your daily briefing from the nation's leading Supreme Court authority. Every week, SCOTUS Today brings SCOTUS Blog's renowned depth and insight directly to your inbox. The newsletter will include SCOTUS quick hits detailing the latest happenings on the Supreme Court. The morning reads a summary of recent news and opinion pieces about the Supreme Court, a feature piece on one particularly.
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A
David, let's hop right in to the Comey indictment. Jim Comey was indicted on two out of three counts out of 23 grand jurors. They got a majority of those grand jurors, but not by much. I believe that they got like 14 on the one they failed on a third count that they tried for. I don't know, should we spend just a moment on grand juries? By the way, fun note from one of our listeners. I've been saying that it's the only right not incorporated from the Bill of Rights. That's not true. The civil jury right in the seventh Amendment has also not been incorporated. And Sam Bray has a great write up over at Divided Argument about why we shouldn't incorporate the 7th Amendment civil jury. Right. So I'll put that in the show notes as well. So. So grand jury presentment, right? A prosecutor goes in to a grand jury. In this case, it was a 23 person group, presents their case. There is no requirement that the defense can, should, will present anything. And so it's basically the prosecutor just talking to these grand jurors and saying, you know, did I meet my threshold to get to go to trial on this? Now the joke is that like a prosecutor can indict a ham sandwich. We've joked about that in the past. This was pretty messy for DOJ to get a bare majority basically of the grand jurors to lose on one of the counts. And David, do you want me to just walk through the three counts? Yeah, we don't know a lot about this. You know how we've talked about speaking indictments in the past. The January 6 indictment against Donald Trump is a great example of a speaking indictment where they ran, really walk you through at a high level what the case is going to be, what they're going to be really telling the story to the jury and a little bit, at least about what the evidence they're going to present is. This ain't that. This is the bare indictment that you actually would see, frankly. Most often, speaking indictments are the exception. So this is not rare, this is the norm. But nevertheless, in a case like this, it leaves a lot of questions. So let me now go to the first count that they got an indictment on. So it was count two in the initial presentment to the grand jury. It's now count one of the indictment that they'll move to trial with. James B. Comey did willfully and knowingly make a materially false, fictitious and fraudulent statement to the legislative branch by falsely stating to a US Senator during a Senate Judiciary Committee hearing that he, Comey, had not, quote, authorized someone else at the FBI to be an anonymous source in news reports regarding an FBI investigation concerning person one. Then count two, did corruptly endeavor to influence, obstruct and impede the due and proper exercise of the power of inquiry under which an investigation was being had before the Senate Judiciary Committee. So these are the same, they're different counts of what we think are the same acts, if you will. And this is the idea that, I mean, this is pretty funny to me in some ways as you compare it to the New York indictment against Donald Trump, by the way. Okay, so back before, where the statute of limitations had already run, James Comey gave testimony to the Senate Judiciary Committee about not authorizing someone else at the FBI to be an anonymous source regarding the Hillary Clinton investigation. Then Ted Cruz asked him on September 30, 2020, you know, you said that and you know that wasn't true, right? And James Comey says, I stand by my testimony. That's what he says on September 30, 2020. That's what allows them to get in the statute of limitations, which of course ran this week. They got the indictment, you know what, three days before the statute of limitations ran again. Compare it to the New York case, and it's eerily similar. So, David, you've written about this. Why don't you give me your high level thoughts, because I have Two really contradict or at least seemingly contradictory but ideas that I hold about this.
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Yeah. So I had two thoughts about it. And, you know, on the Dispatch podcast, which we recorded on Thursday, just before the indictment came out, I said, look, everything around this stinks to high heaven. However, I need to see the indictment. You gotta see the indictment before you can make any kind of really, truly substantive assessment of it. Let's talk the stinks to high heaven and then we'll talk about the indictment. So the stinks to high heaven circumstances here. Everything about this was reeking of politicized prosecution. He Donald Trump brags about firing the U.S. attorney in the Eastern District of Virginia. The U.S. attorney resigns. TRUMP wants to say, no, you didn't resign. I fired him. Then has a post on Truth Social calling Comey guilty as hell and talking about his new U.S. attorney, Lindsey Halligan, how she's going to do, you know, expresses confidence in her. That Truth Social post is, by the way, you know, as we talked about before, directly addressed to Pam, Pam Bondi. So Incomes Halligan reporting says that she was immediately presented with the reasons why the Eastern District prosecutors did not believe Comey should be charged. She then goes in and charges him anyway. Apparently, again, this is all reported according to reports presenting it herself in a really pretty confused manner. There were two different indictments. There was two different signatures. There was this very confused back and forth with the court. So all of it just was highly irregular, seemed to be completely in response to direct commands from Donald Trump. But, you know, as I said, I want to see the indictment. Let's see. Let's see what they have. Well, they didn't tell us what they have. Instead, they refer to this September 30, 2020 testimony, which really is kind of piggybacking the 2017 testimony. And there were sort of two immediate strands of inquiry. Here's the key excerpt. Comey. I stand by the testimony you summarized that I gave on May 2017. And this is where he asked if, you know, he'd authorized anyone to leak. And Cruz says, so your testimony is you've never authorized anyone to leak. And McCabe, if he says contrary, is not telling the truth. Is that correct? And Comey says, again, I'm not going to characterize Andy McCabe, McCabe's testimony, but mine is the same today. And so that led to some real speculation. What is this about? There were two potential sort of door number one, door number two. Door number one was Andy McCabe. And James Comey gave conflicting testimony about a leak that McCabe authorized to the Wall Street Journal for an October 30, 2016, teen story about the FBI opening an investigation of the Clinton Foundation. According to Both Comey and McCabe, Comey didn't learn about that test, that authorization until October 31st, the day after the story came out. So how can you authorize a leak when you don't learn about it until afterwards? Now, they did have conflicting testimony. McCabe testified that Comey just sort of was resigned to it. And. And Comey testified that McCabe didn't really tell him that he actually leaked. And there was a whole inspector general investigation that found that McCabe throughout the process, has lacked candor. So if you're going to be saying that anyone here in that particular tempest had lied, it looks like it would be more likely to be McCabe than Comey. And in any event, how can you say you authorized a leak that you didn't learn about until the day after? So that seemed specious right from the get go. But then there was. And this was what a lot of people circled around because Cruz mentioned McCabe in that exchange. But then leaks came out or reporting came out that said, no, no, no, no. It's talking about a friend of Comey's, a Columbia law professor named Alan Richmond, who Comey had used to pass along information to the press, who was a Columbia law professor, but was pulled up to the DOJ for a short period of time for some special projects for Comey. There was an actual investigation of their relationship and leaking a really a. An investigation called Arctic Haze. And that relationship actually got closed after, quote, the investigation has not revealed sufficient evidence to criminally charge any person, including Comey or Richmond, with making false statements or with substances offenses under the investigation. And Richmond specifically denied that Comey, he said Comey never asked him to talk to the media. So here you have Richmond originally at least, saying he never told me to talk to the media, that there was an investigation closed without sufficient evidence to charge. Now, there's some speculation that. Do they have additional information? There was an additional interview of Richmond in the last several weeks or months. But on its face, what we know about the Richmond situation, it appears that appears to be a dry hole. And so it's really leaving a lot of people saying, okay, where's the there, there? And the indictment really gives us nothing. And I'd recommend two Andy McCarthy pieces from National Review that we can put in show notes, one dealing with the McCabe issue, one dealing with the Richmond issue somewhat, where he's very, very Very negative on these indictments, and I found them to be very interesting and persuasive.
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Couple things here. One, do you agree with me, David, that if these charges had been brought in 2017, after McCabe's initial testimony, you would feel differently about them?
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C
No, I wouldn't feel different about the merits because the testimony in 2017 was still had the timeline issue. How can you authorize, retroactively authorize a leak? And then the basis for the prosecution would have been what, conflicting testimony about Comey's reaction to the leak. That's thin gruel.
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Set aside the merits, because in terms of whether you're going to get a conviction. Right. Like, there's a couple things here. There's the merits, and there's also a conviction charge of selective prosecution that Comey has as much of a slam dunk case as I've ever seen before. Selective prosecution is a loser, Right? It's this idea that other people were speeding. Why did you pull me over? Like, no problem. You have huge prosecutorial discretion. They don't have to pull over everyone that's speeding. If you were speeding and they pulled you over, that's fine. Where selective prosecution ever wins. And again, like, the answer is basically never. Everyone was speeding. You followed me from your wife's, you know, house because you knew I was having an affair with her and pulled me over. And it generally would come with, like, targeting plus disproportionality. You know, you slammed me against the hood of the car. This was clearly not about speeding. This is that right? This is the exact, as close as you're gonna get to a version of that situation. But if they had brought the charge in 2017, even with everything that Trump had ever said about Jim Comey, frankly, I think the selective prosecution claim would have failed on its face. It would have been not credible as even a defense. You'd still have problems on the merits, you know, whatever these problems may be or may not be. But the idea that you think someone lied to the Senate Judiciary Committee and that you're just going to take that seriously and we're going to prosecute people for lying to Senate Judiciary Committee because you shouldn't do that, I think would have been credible for doj, would have nixed any selective prosecution claim, and then, sure, you still rise or fall on the merits of that. I would compare that to Trump's New York prosecution, though, because to me, they're very similar. If New York had been investigating falsification of business records and then stumbles upon the fact that Donald Trump Falsified business records and indicted him. I'd have no problem with that. That's not what they did, though. What they did was that they investigated Donald Trump, ran campaigns on investigating Donald Trump and who was going to be best at holding him accountable, quote, unquote. They investigated all sorts of different avenues that they might be able to pursue, failed on all of those, then come up with the falsification of business records where the statute of limitations had already run. So they had to tie it to a different crime that they never specified for the jury what it was. They gave them three options and was like, pick whatever you want and you don't have to tell us. And then they got the conviction.
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C
The New York indictment, from the beginning, there were two things that it did, which, by the way, if you're going to. If you're going to say, well, you know, one of the differences is that he's guilty of the underlying crime in the New York case and Comey's not guilty of the underlying crime in the federal case. Maybe, maybe what we're talking about right now is the selective prosecution aspect of it, and that it seemed quite clear that they were stretching and bending as much as they could to pull in and get Donald Trump. And. And if you think that that was worth it, if you think that that was worth it, I would say think again, because there were a lot of people of goodwill that I know, people I know who saw the obvious problems with that initial indictment that were screamingly obvious. You could go to Vox and get explainers on how bad that indictment was. You could get it at the Post, you could get it at the Times, you could get it at all of the, like, legacy media that's supposedly totally in the tank against Trump, was publishing op ed after column after op ed saying, this is a problem. And so then what happened as a result of that is every other indictment of Trump got swept up into the same calculus. Oh, there they go again. Even though the January 6th and documents cases were nothing like that New York financial case, nothing like them at all. And so what you end up doing when you selectively prosecute is you not only undermine the rule of law within the case itself, you also undermine confidence in the rule of law in all prosecutions going forward.
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A
There's something that's worse about each one than the other. To me, you've nailed the first one right. What is worse about this is that it's the federal government, it's the President of the United States. I don't think I even need to say More Right. Like we could go on for five minutes about why that's worse. I will say something that I think was worse about the New York indictment. The purpose of that one was to influence an election. And there is something. They thought that by indicting Donald Trump that they would like somehow take his piece off the chessboard. It was stupid of them, I will grant you, but, like, that was the purpose of it. And that's pretty nefarious in a different, totally different way. It also absolutely backfired as these things tend to. Do you assassinate Charlie Kirk because what you think then nobody will ever hear his ideas? No, exactly. The opposite is going to happen. You indict Donald Trump on. Convict Donald Trump on crap charges, and you think people are going to be like, oh, never mind, we can't vote for him. No, that's his whole movie was that people were out to get him and then you proved him right. So I think this one's worse in a lot of ways, but it is worth flagging that I thought the purpose of that one was really bad. When we get back, let's hear from someone who disagrees and thinks presidents have targeted people plenty. Going online without Express VPN is like not having a case for your phone. Most of the time you'll probably be fine, but all it takes is one drop and you'll wish you'd spent those extra dollars on a case. Every time you connect to an unencrypted network in cafes, hotels, airports, your online data is not secure. Any hacker on the same network can gain access to and steal your personal data, passwords, bank logins, credit card details. It doesn't take much technical knowledge to hack someone. Just some cheap hardware is all that's needed. A smart 12 year old could probably do this. ExpressVPN stops hackers from stealing your data by creating a secure, encrypted tunnel between your device and and the Internet. Look, ExpressVPN is super secure. It would take a hacker with a supercomputer over a billion years to get past ExpressVPN's encryption. It's easy to use, which is why it's rated number one by top tech reviewers like CNET and the Verge. Husband of the POD and I travel a lot. We can't wait to do every financial transaction or sign in to any website until we're back home. We have to be able to do it on the road. That's what ExpressVPN is great for. Secure your online data today by visiting expressvpn.com advisory. That's E X P R E S s v p n.com advisory to find out how you can get up to four extra months. Free expressvpn.com advisory mint is still $15.
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Payment of $45 for three month plan $15 per month equivalent required. New customer offer first three months only, then full price plan options available. Taxes and fees extra. See mintmobile.com Speaking of the idea that a President of the United States is targeting the prosecution of someone. So can I read you a defense of that from Mark Close, advisor to Donald Trump, General Counsel at the Office of Management and Budget? An overall smart person. Okay. President Trump's recent comments to Attorney General Bondi are perfectly appropriate and following the tradition of our greatest president's founders such as George Washington, John Adams, Thomas Jefferson, Theodore Roosevelt and Ronald Reagan. In fact, they all directed specific prosecutions. Like them, President Trump is the nation's chief prosecutor under our Constitution. As Professor Sai Prakash, a former Clarence Thomas clerk, has written in a compelling law review article titled the Chief Prosecutor, quote, presidential control of our official prosecutions was not something controversial or worse yet contrary to law. The presidents understood that they were constitutionally empowered to direct official prosecutions. Presidents ordered prosecutions commenced and halted, sometimes doing both in the same case runs through George Washington, ordering the prosecution of those involved in the Whiskey Rebellion and then concluding that two men had not been involved, and directly ordered the federal district attorney to not pursue charges against those two. John Adams personally and vigorously directed his Attorney General to prosecute specific people for violating the Alien and Sedition Acts.
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C
Yeah, that was a really proud moment. That was. Yeah, we want to imitate that.
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Jefferson reversed course and ordered the Alien and Sedition act prosecutions dropped. He also, by the way, pardoned them. I'm actually not aware of him dropping them, though. That is possible. I'm aware of pardons for the people who are convicted. President Thomas Jefferson ordered the arrest of Aaron Burr for treason. Yeah, I think that's a little different. Jefferson, though, publicly stated Burr was guilty before Burr was indicted by a grand jury and personally directed the prosecution. Okay, that one. That is the one example here that I'm willing To say like, oh, that that actually is furthering your case. I don't think the Whiskey Rebellion is either. By the way, Theodore Roosevelt personally ordered his DOJ to prosecute the Northern Securities Company for antitrust violations. Reagan directed his DOJ to close a criminal antitrust investigation. Bush ordered his DOJ to conduct a criminal investigation into the Rodney King case. Obama directed his DOJ in the prosecution of police officers post Watergate laws that sought to break the centuries old under way.
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C
That last one again, no, I think.
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All of those, David, actually fall much closer into these are the types of crimes I want you to prosecute, which we've said over and over again is the proper role for the President and the Department of Justice to prosecute types of crimes. Maybe the only one that gets even close is Rodney King. But again, you have a national event that is about the crime that happened. President Bush doesn't know who the officers are in Rodney King and has no particular interest in any of them. It's about the crime, not the person. The objection here is about the person. So the Whiskey Rebellion, Rodney King, all of those all fall into the same category of the crime is being prosecuted. The only distinction here is John Adams who absolutely directed the prosecution of individual political enemies who had been criticizing him. And that's a bad example. That's an example of a bad thing. So don't love that. But okay, here's the overall point, David. No, the DOJ is not, nor has it ever been an independent agency not subject to the control of the President. It is part of the executive branch and the AG and all US Attorneys are under the direct control of the President. In fact, if not all post Watergate laws and so called quote, norms have been meant to cripple the President. Thank God President Trump is fighting back on all fronts against this assault on the executive. So David, here's what's weird. I actually agree that a lot of the post Watergate stuff has not been good for the government, let's say like for the federal government in the sense that like when Nixon happened, when Watergate happened, it was a thunderclap, right? And so if you want to mark these moments in US government, Pearl harbor is going to have a huge effect on the economy and all. If you're just charting a little line, you're like, oh, what's that? Oh yeah, it's December 7th, 1941. Watergate is going to be one of those and maybe bigger for separation of powers than almost anything else. We can point to where Congress then tries to get in the business of running the executive to prevent abuses of power. We may be in a similar time now. I think my takeaway from the Watergate changes though, is that you can't really legislate against abuses of power. You've got to vote in people who aren't going to abuse power. And then the legislative branch needs to use its power to hold that person accountable through their various mechanisms that they have. Impeachment and the threat of impeachment was enough to get Nixon out of office, powers of the purse, et cetera. Right now I think we have Congress not using their inherent constitutional powers to hold a president accountable, but then trying to like hold on to the kite strings of these laws that are post Watergate era that I'm not sure were great or they made people feel like they were reigning in the executive even though they weren't.
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C
I'm going to mildly disagree with that. I'm going to say what they did is they made. They put up more hurdles between an imperial executive and an abusive power. What they tried to do is create a kind of statutory cage. And now an abusive president can absolutely try to ram through that and then use the vague and inexplicit quoting Cato number four, first sentence of Article two to try to, try to, you know, grant themselves the authority to break through these constraints that Congress put up. So I think that, I think it was quite sensible for Congress to say here we had a guy who was this, you know, the term imperial presidency was applied to him, who was using the vague and explanation inexplicit sentence one and stampeding, just stampeding through the executive branch in a vindictive manner, focusing on his political enemies, covering up all kinds of misconduct. And they said no next president is going to. If they're going to do that, it's going to be a lot harder. There's going to be that thicket of laws, you know, from the, from the man for All Seasons quote that you like. There's going to be this thicket of laws that he has to fight through with his abuse of power Machete. I think that that's a sound impulse. I also think that maybe it wasn't done as well. But I also think that, I'll be honest with you, Sarah, you actually really have to go back to sort of the anti federalist right, the most hysterical anti federalist writing to get to people who are actually predicting a man like Donald Trump. They predicted a ruthless demagogue, but I think it wasn't in the modern imagination. I think these ideas of what a ruthless demagogue could actually do within our system had not been fully comprehended, not been fully appreciated.
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I think it's because the left so built up the reputations of Wilson and FDR that nobody looked back on them with the kind of historical side eye that they should have. And I think Trump in many ways is like the combo, right? They're totally different. But if you combine the problems you have Wilson, Wilson just believed horrible things and did horrible things in furtherance of those beliefs, like resegregating the federal government. I'm sort of less interested in that part of Wilson for these purposes though maybe I shouldn't be. I mean the prosecuting people who criticize you, throwing dissidents in jail, hating free speech for instance, thinking that the purpose of the executive branch is to, you know, perfect man, right? This is the whole point of eugenics, that the government knows best and can perfect humanity without using the messy, messy self governing parts, the legislature and voters and ew. FDR in many ways then takes that and runs with it to an extreme right. He creates an imperial presidency for the first time, what Wilson could have only dreamed about.
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C
In that sense, let's put Wilson in his box. I think the thing with fdr, both FDR and Lincoln to a degree, maybe more than any other president since the founding, faced an absolute existential threat to the existence of the United States in a way that maybe no other president did. And I think that there are some distinguishing characteristics there. But one thing that I do think that is interesting about FDR is that after FDR runs, wins his fourth, fourth term, America said let's not do that again and amended the Constitution. And to amend the Constitution, America had to do it on a big time bipartisan basis. And so there was some post hoc understanding with FDR that we can't do this again. And so if you think about the two most powerful recent presidents, FDR and Nixon, fdr, you had a constitutional answer that said let's not do that again. And with Nixon you tried to have a series of legislative answers to let's not do that again. But Sarah, let me go dark here. I don't know, I don't know that there's going to be an appetite after this Trump term for let's not do that again. So much as there will be an appetite of let's do that to our enemies this time.
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A
So here's my last question to you. The Comey charges go to trial. The Comey charges go to trial and fail either hung jury or full acquittal. The Comey charges never go to trial. How do each of those scenarios play out? Because there's an argument, of course, that Comey being acquitted is so embarrassing for the Department of Justice, so embarrassing for the Trump administration, you know, yada yada. But there's another version that's like, no, it's actually just fine. He gets acquitted. You know, that jury's the worst. They were in the bag. They're all liberals or something. And we still got what we needed. You know what I mean? We punished Jim Comey. Think of how much he had to spend on lawyers or whatever. We've tarnished his reputation. That was the goal. The idea that a judge might toss out the charges on that selective prosecution theory, I don't know that that's helpful for the larger project. David.
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C
Yeah, I'm of two minds about that. I mean, one, this is going to sound terrible, but first, let me just say, to put a pin on what you said about the jury, you're already seeing it. You're already seeing that a Eastern District of Virginia jury is not, it's too blue, it's not going to convict. The fix is already in for Comey with the jury. Right. I've been seeing that kind of language. So just get ready for that. And then the other thing is they drew a Biden appointed judge. I had, I really wish they'd drawn a Trump appointed judge because even if a selective prosecution motion is meritorious, if the Biden appointed judge tosses it, that is fuel. That is like pouring gasoline on maga. If it's a meritorious motion. I mean, if this is something that is should be granted, then it should be granted. You can't sit there and say, well, because I'm a Biden appointed judge, I'm not going to grant a meritorious motion because of the public reaction. That's not what we want. And so it's just a miserable, dangerous situation all the way around. And I don't if there's anything that we know about maga, it's if the jury rules for them, vindication. If the jury goes against them, the fix is in. I'm not quite sure, certainly over the next four, three plus years how we get out of it.
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A
All right, David, shifting topics. We're about to talk about a dissent from the Supreme Court on the interim docket. But before we do, I've got a little segment presented by the Pacific Legal foundation suing the government since 1973. Anastasia Bowden has a column over at SCOTUS Blog that highlights a descent per column. And I Wanted to bring her on to talk about one of her favorite dissents. And I'm so excited to talk to.
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B
Anastasia Bowden, senior attorney at the Pacific Legal Foundation.
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A
Anastasia, you have been writing my first. I can. I can. I call it my favorite column at SCOTUS blog. I'm worried of hurting all of the other children's feelings. I mean, they're all my children. I love them equally. But your column in dissent has just been this real highlight for me. You just do this deep dive into a dissenting opinion. Your Baker V. Car 1 is the one that, like, just shook my world. So here's the question. What is your favorite dissent?
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D
Oh, that's. It's like choosing your favorite Beatles song because dissent serves so many purposes, right? Some of them are just a real joy to read since the justices can let their hair down and be themselves. Um, and other ones serve a real meaningful purpose in constitutional law. But I think I'm gonna go Justice Thomas in Gruder vs. Bollinger. Whoa.
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A
That wasn't even on my bingo card. That's interesting. Cause, like, for instance, I think my favorite. It's close between the Baker and vicar Gobitis. But what's neat about gobitis to me is that the court flips three years later about these conscience rights of students in public school gobitis itself. The majority opinion led to a lot of violence against Jehovah's Witnesses. And I haven't been able to think of certainly a major case where the court reverses itself, you know, overturns its own precedent so quickly. And obviously, Justice Jackson's opinion in the case that overturned it. If there is one star in our constitutional constellation, yada yada, First Amendment, and, you know, we all sing from the hymn book together. So in that sense, Grutter also gets overturned. But why is this dissent your favorite?
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D
Okay, here's why. And I agree, you know, gobitis with the Supreme Court's probably quickest U turn in history. I think that has to be the quickest flip, you know, and that. That future majority opinion is so beautiful. But the dissent itself, it must have been powerful because, you know, I mean, it did. It became the majority opinion. But the dissent itself is not that beautiful. Right? It's good, but it doesn't have those quippy sort of dissent quotes. This Justice Thomas dissent in Gruder has so many beautiful quotes.
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A
All right, we're in affirmative action. We're in Michigan.
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D
Tell us.
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A
Give us.
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D
Give us the vibe. Okay, so this is the case where the majority approved of racial preferences at university of Michigan Law School for the purposes of the so called educational benefits that flow from a diverse student body. And Justice Thomas starts with a quote from Frederick Douglass. You know, he's just right there, connecting the Reconstruction era and the purpose of the 14th Amendment to the modern day controversy, saying that, you know, racism is racism, no matter how you dress it up. Discrimination is discrimination, even if you want to call it benign in this day and age. So he uses this wonderful Douglas saying, where Douglas effectively says, you know, leave us alone. You think you're helping us? You want to help us? No, we know what that means. Government, get out of the way, leave us alone. That's the best way that you can help us. And then he has this wonderful quote. Like Douglas, I believe blacks can achieve in every avenue of American life without the meddling of university administrators because I wish to see all students succeed, whatever their color. I share in some respect the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School. And then he goes on to say, but effectively the Constitution doesn't allow it. He's leaning on Douglas. He's saying, I wish to see all a student succeed, whatever their color. And then he says, but this type of discrimination, he's labeling it discrimination. He's not saying this is not racial preferences, this is not affirmative action, you know, sort of softer words for what this is. He says, this type of discrimination is unconstitutional.
- [35:12]
A
If I'm going to pick a Justice Thomas dissent that I think is most interesting and peeling back who Justice Thomas is, maybe not even as a justice, but as a person, I. I've got to pick his dissent. In Virginia v. Black. This is the cross burning case where the majority strikes down a Virginia law that criminalized cross burning basically by itself and said, no, it needs to be cross burning with the intent to intimidate. And he dissents alone. In that case, it says everyone knows what cross burning means. And he walks through the history of it. You feel his experience growing up, you know, speaking English as a second language when MLK is shot and his high school classmates taunt him and cheer the assassination. Just a lifetime of experience growing up in the segregated South. Well, as I said, Anastasia writes the indecent column for SCOTUS blog. She's a senior attorney at the Pacific Legal foundation who's sponsoring this segment. And Anastasia, I look forward to your column every time and it's the most fun read of my week.
- [36:18]
D
Oh, thank you so much, Sarah. And it was really fun talking to you about the greatest thing dissents.
- [36:23]
A
Well, that was fun. When we get back, we'll talk about that dissent from the interim docket decision that came out this week.
- [36:31]
C
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- [36:47]
A
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- [36:49]
C
We say that may have been too much feeling. Only pay for what you need@liberty mutual.com Liberty Liberty Liberty Liberty Savings Very unwritten by Liberty Mutual Insurance Company and affiliates.
- [37:00]
B
Excludes Massachusetts SCOTUS Today is your daily briefing from the nation's leading Supreme Court authority. Every week, SCOTUS Today brings SCOTUS Blog's renowned depth and insight directly to your inbox. The newsletter will include SCOTUS quick hits detailing the latest happenings on the Supreme Court. The morning reads a summary of recent news and opinion pieces about the Supreme Court, a feature piece on one particularly.
- [37:23]
A
Salient aspect of the Court's work, and more.
- [37:26]
B
Whether you're a legal professional tracking every cert petition, or a citizen seeking to understand how the Supreme Court shapes American life, SCOTUS Today is set to become an unmissable part of the Court Watchers morning routine. Head to scotusblog.com scotus today to sign up today.
- [37:45]
A
All right, David, now time for us to talk about our dissent of the day at least. This is the case Department of State vs AIDS Vaccine advocacy Coalition. It's about impoundment. And David, it's another six 3er out of the interim slash emergency docket. Kagan this time wrote the dissent. Thoughts and feelings. Do you want to run through the case a little bit for us?
- [38:11]
C
Yeah, this is another one of these pretty quick little. You know, it's a majority that has very little to say but very many implications. So I'll just read give you from the start. On September 3rd, the United States District Court for the District of Columbia entered a preliminary injunction directing the executive to obligate roughly $10.5 billion in appropriated aid funding set to expire on September 30th. Of that 10.5 billion, 4 billion was proposed to be rescinded in a special message transmitted pursuant to the Impoundment Control Act. This is our editorial insertion, Nixon era reform. After the District Court in the United States Court of Appeals for the District of Columbia denied stays of that order, the government filed this application. Blah blah blah. It says the government at this early stage has made a sufficient showing that the impoundment control act precludes respondent suit brought pursuant to the Administrative Procedure act to enforce the appropriations at issue here. Okay, what does that mean in plain English? It is not saying that the rescission on the merits was legal. It is saying that the terms of the Impoundment Control act don't permit this particular lawsuit. Then it goes on to say the government has also made a sufficient showing that mandamus relief is unavailable to respondents. And again, this was. We've talked about this in previous podcasts. The writ of mandamus is an extraordinary writ. It's a very not. It is out of the norm for extraordinary circumstances. And they're saying this extraordinary writ is not available currently and on the record before the court. The asserted harms to the Executive's conduct of foreign affairs appear to outweigh the potential harm faced by respondents. This goes back to another thing that we've talked about. This is like a greatest hits paragraph that I'm reading, which basically is saying, okay, look, the Supreme Court, this current Supreme Court, is taking very seriously the idea that restraining of the executive does harm to the executive. And so it isn't just that you can sit there and say, well, there's an illegal act, or what we've said as a colorable claim, or what we, at a very preliminary view say is a meritorious claim of an illegal act. You're still going to have to balance the equities. And they're placing a lot of emphasis on the power of the executive. Again, going back to this court has a high view of the executive, of the president's power over the executive branch. And then it says this order should not be read as a final determination on the merits. The relief granted by the court today reflects our preliminary view, consistent with the standards for interim relief. This is just rinse, repeat, lather, rinse, repeat on these cases. And it feels to me, Sarah, that what they're really moving towards is because they're specifically in case after case, not weighing in on the merits, but weighing in on things like the balance of the equities. Weird. A branching tree here. It's either one, they're talking about the equities, but really it's also about the merits. Or they're changing their approach to how you check the executive. Do you check the executive on the front end in a preliminary basis, or do you say the executive's power is. That is too much of an inhibition on the executive's freedom of action. We're going to only check the executive on the back end after full examination of the merits of the case. So is that what's happening here?
- [41:43]
A
The 6, 3 breakdown on the interim docket is getting pretty depressing. I do think that it's more driven by judicial philosophy differences, as you note, David, about the views of the executive and the administrative agencies and the role of Congress restraining the executive, things like that. Those post Watergate norms that we were just talking about, and whether they were good or bad for separation of powers. I think conservatives, by and large, think the post Watergate stuff was bad, and I think liberals, by and large, think the post Watergate stuff was good. And so if you play that out, you're gonna get a lot of six, three, because a lot of what Trump is trying to disrupt are those post Watergate norms. But I don't think that's how that's translating to most people, even most court watchers, frankly. I think it just looks 6, 3, liberal versus conservative, because this is touching on different topics. It's, you know, like it's not all been firing someone at an independent agency or on impoundment or immigration stuff, et cetera. Now, again, I still think you can put it into that grander point of Trump trying to break, disrupt, reimagine the executive branch.
- [42:58]
C
You know, I've now gotten a couple of emails from law professors saying, whoa, David, this unitary executive theory that the court has is not necessarily consistent with originalism. There is an originalism critique of this court's approach to the unitary executive. I'd be very interested to flesh that out, to hear that, because unitary executive has always been sort of sounding in originalist terms, and now there's a lot of original scholarship saying, no, no, no, no, no, slow your roll here. That's, you know, and in fact, I got a very thoughtful email. Sorry, Professor, I haven't had a chance to respond to you saying, david, you know, your whole proposed amendment that you wrote about in the Times is completely unnecessary because that's the actual original and public meaning of the first sentence of Article 1 is much more along the lines of the executive power is to enforce the law passed by Congress, not that the executive power is this freestanding, independent thing. And so I'd be very interested in having someone make that case from an originalist perspective.
- [44:01]
A
I love that idea. Well, look, I think we can call it on this podcast because our next podcast is gonna have to run a little bit longer than usual because this was long conference. David, we are on the verge of the first Monday of October. OT25 is upon us. So for our next podcast, we need to do a pretty big term preview. We need to walk through the cases that have already been set for oral argument, the ones that have been recently granted, and maybe if we've got time, walk through a few of those big ticket cases that were considered at the long conference and maybe explain what the long conference is as well, because we expect to get the orders from the long conference. Again, that's usually 5 to 15 cert grants we're expecting, which when you're talking about 60 cases total, 15 is a lot. 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@advisory opinionsedispatch.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.
- [46:09]
B
SCOTUS Today is your daily briefing from the nation's leading Supreme Court authority. Every week, SCOTUS Today brings SCOTUS Blog's renowned depth and insight directly to your inbox. The newsletter will include SCOTUS quick hits detailing the latest happenings on the Supreme Court. The Morning reads, a summary of recent news and opinion pieces about the Supreme Court, a feature piece on one particularly.
- [46:31]
A
Salient aspect of the Court's work, and more.
- [46:34]
B
Whether you're a legal professional tracking every cert petition or a citizen seeking to understand how the Supreme Court shapes American life, SCOTUS Today is set to become an unmissable part of the court watcher's morning routine. Head to scotusblog.com scotus today to sign up today.