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Ready?
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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We're going to start with clashes with the Supreme Court, with the American people, with the justices and with the President. Then we've got an oral argument and a decision to talk about that fifth amendment takings clause case that I've been so pumped about. It is finally the day. As well as the confrontation clause case that we talked about after oral argument, do you have a right to confer with your attorney in the middle of testifying on the witness stand as the defendant? And lastly, fun and appellate law. Lisa Blatt, Ader Blattiest and marmots. Are they effective in self defense? All this and more on Advisory Opinions.
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An all new season of the Secret Lives of Mormon Wives is now streaming on Hulu and Hulu on Disney.
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Mom Talk has just been blowing up.
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Whitney and Jen are on Dancing with the Stars. Taylor is a bachelorette.
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Saying that out loud is crazy.
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Like that is huge. But all the cool opportunities could pull us apart. It's causing issues in everyone's marriage. My whole world is falling apart right now. It's chaos.
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Watch the Hulu original series, the Secret Lives of Mormon Wives now streaming on Hulu and Hulu on Disney for bundle subscribers. Terms apply.
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All right, David, before we get to our court clashes, this is my last pitch for the Supreme Court Historical Society's hometown program. We've gotten some questions that I wanted to answer. So basically when you order Last Branch Standing, or any other book for that matter from Amazon, Barnes and Noble, Walmart, pick your place and you, you know, buy the book, an order goes immediately to the publisher and that publisher then sends me the updates of how many people have bought the book. So nope, you don't have to do anything to make your donation, so to speak to the hometown program because I get like weekly updates of what the book order numbers are. And so however many books are ordered during this two week period, that's how much we're donating times 30 to the Supreme Court Historical Society's hometown program for these high school students. If we hit 7,500, Chris Christie comes on. If we do more than 7,500, that's great. The Supreme Court Historical Society's hometown program gets even more money. So, so we're not quite to our goal yet. We're really excited though. You've got a few more days until March 17th. We will announce whether we made it and whether Governor Christie is coming back for his triumphant Advisory Opinions return. David, anything else on the hometown program that you would like to add?
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Well, I just would like to add that we're really close. You know, it was just encouraging for me to have our little conversation with Abrielle. I consistently am encountering, just as, you know, people always ask me for, what are sort of your flickers of hope and very, very divided time. By the way, Sarah, did you see that polling result that America is the only major country in the world where a majority of citizens don't like each other. They think the rest of the country are bad people. So anyway, against that backdrop, it's really encouraging to see the level of intellectual curiosity I'm seeing from younger people these days. I feel like we're really easing off on kind of youthful intolerance and easing into youthful curiosity. And this is one of the. This is a program that does exactly that.
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So buy a copy of Last Branch Standing, your numbers will end up being sent into Penguin Random House. And for every book sold, we are donating $30 to the Hometown program so that more kiddos like Abrielle can skip school to come on our podcast. David? Yeah, that, that poll you mentioned, by the way, this was a Pew study and it was the percentage who rate the morality and ethics of people in their country from very good to very bad. The US was the only country where a majority rated their fellow Americans as somewhat bad or very bad. 50, like 3% would say that their fellow Americans morally and ethically are somewhat bad or very bad. 47% said their fellow Americans were somewhat good or very good. And Canada, 7% of Canadians said that they thought their fellow Canadians were somewhat bad or very bad. 92% thought they were good. Which like setting everything else aside, means that this is like wholly a vibes based thing. The difference between Canadians and Americans is not so great. I'm sorry, I know we have a lot of Canadian listeners and. And you would like to think that you're that much more morally and ethically good. I guess I have a hard time believing that more so than you guys actually like each other and trust each other. And that's pretty important for a self governing country.
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I think this is in so many ways it's way too simple to say it's a product of the algorithm because they have the algorithm in Canada, they have the algorithm in all of these other countries. I think it's algorithm enhanced by. In many ways we're inherently more fractious just because we're multi faith, multi ethnic, very different. Canada might be the closest analogy to us in many ways. But even Canada is not quite the melting pot that we are. And then you lay over all of that on top of it, a partisan press problem where if you're deep red or you're deep blue, the main content that you receive about the other side is almost wholly negative. And in fact, there's gatekeepers who make sure that's the case. So if you say anything nice or kind about somebody that you disagree with these days, you are absolutely gang tackled. You're just swarmed because it's necessary to be 100% alarmed 100% of the time about your ideological foe. And that's I think we're seeing the result of that entire political culture just playing out right in front of our eyes to the point where we just don't even like each other anymore and we hate it when people try to get us to like each other.
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And this will bring us nicely segued into our topic about clashes involving the Supreme Court. Now, David, there's a lot to get to here, but I want to start with some polling about what Americans think about the Supreme Court. So this was an NBC poll that has asked how much confidence do you have in the US Supreme Court going back since 2000. So looking at 2000, this is December of 2000, which by the way, is kind of an interesting time because what I really want is the date, because In December of 2000, Bush v. Gore is decided. So is this right before Bush v. Gore is decided on December 12th of 2000 or is it right after Bush v. Gore is decided? I don't know, cause it just says December. But regardless, 27% said they had a great deal of confidence in the Supreme Court. 25% said quite a bit, 32% said some. So the vast, vast majority of Americans had some to a great deal of confidence in the Supreme Court. David, let me tell you what the numbers are. This month, 25 and a half years later, 7% have a great deal of confidence in the Supreme Court, 15% have quite a bit, and 40% have some. So there are now 38% have very little or none at all. That's up from 13% back in 2000. So double the number of people have none. But most Americans have just shifted from having a great deal or quite a bit down to some shrug. But then when you ask about the tariff decision, actually 64% approve, 32% disapprove. And by the way, 84% have heard a lot or some about the tariff decision. So there's a lot of awareness about the tariff decision as well. And so, David, I've studied a lot about the Gallup polls, the Pew polls, and looked at how individual decisions affect these numbers. And it's sort of shocking because you think that we are reality TV memeification people. So, like, the decision from yesterday affects what you think of the institution, and it's just not really true for Americans in the Supreme Court. The Dobbs decision did not have nearly the impact on the Supreme Court's approval rating that you'd think. It went down a little bit and then it went back up quite quickly. But there's been an overall downward trend, which I'm not sure is actually related that much to the Supreme Court so much as American institutions and maybe the rule of law.
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That's what I was going to say is that how much of this, if you're looking at a gradual downward trend, how much of this is related to what the Supreme Court has actually done versus the overall vibes? Because there are very few institutions that have not had this downward trend. Very few. The military has been largely insulated from it, oddly enough. I mean, when Americans vote on sort of their most trusted institutions and it goes from expands beyond government, guess what one of the most trusted institutions is? Amazon. Amazon extremely trusted. Well, but makes sense when you think about it. The package always gets there, Sarah. It's very reliable. If you order it, it will come. But yeah, it's really fascinating the extent to which all institutions are just in this decline. Organized religion, the government, all the various institutions of government, which is happening at the same time. Though, if you look at, and we've talked about this before, it's not relevant for the legality or the constitutionality of any case that the Supreme Court is deciding, but they've actually decided cases very much in the American mainstream of late. Like, you know, as controversial as, say, the youth gender medicine case was very much in the American mainstream to reach that decision.
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All right, well, this week, Justices Jackson and Kavanaugh went to go speak over at the D.C. courthouse and. Okay, well, here was the headline, Supreme Court Justices Jackson and Kavanaugh Clash over Handling of Trump Cases. And I'll read you a little bit more from this write up from NBC News's Lawrence Hurley. In the last year, the court has, among other things, allowed Trump to fire thousands of federal workers, assert control over previously independent federal agencies, and implement various aspects of his hardline immigration policy. All those moves done through the shadow docket have been blocked by lower courts. Quote, I just feel like this uptick in the court's willingness to get involved is a real unfortunate problem, jackson said. Among other things, it affects how lower court judges approach cases, as they already have a preliminary sense of how the Supreme Court might approach them on appeal, creating a warped kind of proceeding, she added. It's not serving the court or this country well, jackson said. Kavanaugh noted that the increase in government applications is not unique to Trump, saying the court also granted similar requests made by the Biden administration, albeit a lower rate. The reason successive administrations have rushed the Supreme Court is that presidents have relied more on executive orders in recent years because of the difficulty of persuading Congress to enact legislation, and those actions are often challenged in court, he said. The justices have aired their disagreements and written opinions, but this was a rare example of two justices entering into a public debate about internal court business. Quote, none of us enjoy this, kavanaugh said of the shadow docket trend, noting that the court has opted in some cases to hear oral arguments and issue longer written rulings in response to some of the criticism. Quote, we have to have the same position regardless of who is president. He added a statement that Jackson expressed agreement with, quote, there is no easy answer for sure, jackson said. It's unfortunate because it relates to a lack of understanding about judicial independence, end quote. So David, feel like the headline didn't quite deliver there. This was hardly a knockdown drag out. I will also tell you that I had a friend in the audience. I sent that friend a tweet from a Wall Street Journal reporter that said in joint appearance at D.C. federal courthouse Brett Kavanaugh and Ketanji Brown Jackson spar over the emergency docket even as they touted civility in bonhomie. Things got a bit heated as they discussed why emergency appeals are now so central to the court's work. My friend, I wouldn't say he did, just a respectful disagreement. Justice Kavanaugh actually made a point of saying that one of the reasons he agreed to participate in this event was to demonstrate that justices can disagree civilly. So that tweet is really fake news. Here's the thing that is interesting, David, which Lawrence Hurley pointed out. This is the first time I've seen justices disagree over internal court procedure publicly, albeit civilly and helpfully, I think, and all of that. But they are in public as two individual justices, not writing in the context of a case before the Court to talk about these internal procedures. And David, I texted you this last night. I can't decide whether I think this is great and they should all do this a lot more or whether I Absolutely hate it. And they should speak as an institution or in their roles within the institution, and this should never happen. And it's the worst thing. I really, I'm totally torn.
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You know, when you, when you texted that to me, I thought, huh, I hadn't thought about that, in part because I kind of trust these nine individuals to do this the right way. And so, which kind of reminds me of, you know, if you're talking about policies that are really rooted in trust of human beings, well, maybe that's not a great policy. So I began to think about your thought a bit more, and I realized that, you know, I could imagine that you could walk into a situation like that where the every intention, every intention is for it to be civil, for you to air a disagreement in a respectful way. But something happens. Maybe their way, a question is asked gets under your skin, or maybe the shrimp wasn't great that you ate right before the sit down, maybe you're tired, whatever, and it just kind of devolves. I could see something like that happening. I mean, we're dealing with human beings. Human beings have emotions, and emotions cancel sometimes get the best of you. So, you know, the more I thought about it, Sarah, the more I was coming around to your point of view. But at the same time, I also think that there is some real value in getting the justices individual thoughts and sort of seeing how that dynamic plays out. So I have to say I'm legitimately torn about this. I think there are some interesting insights that can be gained from these individuals whom I respect, all of them, each of them airing out some of their differences respectfully. I think that could be illuminating and actually help build trust in the institution when it's done correctly. But at the same time, hovering in the background is this thing, like five years from now, something happens and you're like, see, David, See, David, I told you, even, you know, even these folks, sometimes it can, it can go badly. So I'm legitimately torn on this.
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Yeah, I was really expecting you to come out strongly in favor of them doing this. And then I was prepared to fight with you as, you know, a steel Manning opportunity. And this has stunned me that you're also torn because again, on the one hand, I think it's important for the American people to actually see the justices because so few Americans are going to listen to an oral argument or actually go read the opinions. And so they're getting everything about what the Supreme Court does filter through something else, someone else. And so to have the justices speak for themselves and be quoted in these stories has to be good in terms of, you know, as I write in the book, naming the lobsters, right? If you've named the nine lobsters, you're less likely to boil the lobsters. On the flip side, though, this is a little like concurring opinions and the proliferation of individual voices instead of the court speaking as an institution. And maybe I wouldn't think that was so bad in a different era, but right now, where I think you have this push and pull between the institutionalists and the non institutionalists, I think the more concurrences, the more individual voices and disagreement, showing that disagreement in sort of non case settings feels a little concurrency to me.
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Well, you know how I like a good concurrence. I'm very much a fan of a good concurrence. And the thing that I'm sitting here processing this in real time, what is the difference between my view of a concurrence and my view of this? Well, a concurrence is something that is very deliberative. In other words, you have worked on this for days. You have circulated it to colleagues, colleagues that circulated responses. And so if you say something in a concurrence, well, by golly, you mean to say it, you mean to say it now. If you're sitting down across from somebody in real time and it's spontaneous, I'm not going to say that you never say something. I mean, like, you say things you don't mean to say, but you do say things in ways you don't necessarily mean. And spur of the moment, your tone cannot be what you would prefer if you'd given, had more time to reflect. There's just more variability. And it's one of the reasons why, you know, when you're talking about the measure of, for example, of integrity in a podcast, it's not that you can sit there and pontificate for one to three hours with no errors at all or with no missed tone of voice or. No, it's that the high integrity podcasts go back and say, you know, when I was in my one to three hours of conversation yesterday, I got something wrong or I said something in a way that I didn't mean to say it. And you kind of develop this relationship with your audience where it's, it really is a, it's like a mutual feedback. You know, it's a symbiotic relationship. And this, you know, you go out every now and then and you have an event and you have a disagreement, it better go, well, like it, it Just better go well. So that's my, that's my caution versus a concurrence is there's just a lot of room for spur the moment that could be damaging. And so that's my concern.
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Okay, David, I think I've come to my personal conclusion. I think this is like everything else we talk about on this podcast, a trade off. And so rather than think of these as individual options, I need to think of the trade off between the two. And I think it is better for the Supreme Court to have justices from different ideological paths speaking together, like the quasi road show that Justice Barrett and Justice Sotomayor did and that clearly Justice Kavanaugh and Justice Jackson are trying out. And if the trade off with that is that sometimes they're going to get asked a question that they actually don't agree on, I think I can, I think that's fine. I think I can live with that because I would rather show people that they actually do hang out after work and can speak about these things and sort of a. Oh, yeah, no, I agree with that. Well, I don't agree with that and that that's more important than the fears and the institutional concerns that we have. So that's where I am. David. Justice Kavanaugh, Justice Jackson, this is net good. Go do more of it.
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But what about the substance, Sarah? What about the substance of the dispute here? And to what extent was there a substance? I mean, it just seems to me to be that Kavanaugh was kind of as described, was essentially saying, yeah, I don't like it either. I'm not very happy here.
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They both agreed we need to treat presidents the same. They both agreed that they don't like it. But Justice Jackson thinks that continuing to change the rulings of the lower courts invites more emergency applications. And Justice Kavanaugh's like, look, we're getting more because Congress isn't doing it. We're going to get more no matter what, so we might as well fix the problems. I think our last podcast explored a lot of my concerns. At the end of the day, I think the end of the filibuster led to a lot of forum shopping that I think is unfair to the individual judges who get forum shopped, by the way. I think it makes them look far more outlier, far more partisan, because they're far more likely to get the most partisan and divisive cases filed by either administration. I would like to fix the forum shopping problem. And I think the Supreme Court, in complaining about their docket, misses the cause and that Justice Kavanaugh is right that they are actually correlated. Slash the effect side, not the cause side.
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It just goes back again to what we were talking about in the previous episode, is that there's going to be a necessity for some emergency docket decisions. It is the line drawing exercise that is making everyone nervous. And it really does seem to be. The question does seem to be how much does a majority of the court weigh the various forms of alleged irreparable injury? So, you know, if the irreparable injury is the executive doesn't get to fire somebody right away, is that how irreparable is that? Is that irreparable injury that's worse worth intervening earlier rather than later? That's a question that does not answer itself.
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I was going to say, to be clear, my answer is generally going to be yes, because four years is such a short amount of time to implement policy. Having the person in place to implement your policy and not having that person in place rather for a year or two would seem irreparable harm as the court has previously defined irreparable harm of the government being able to institute its policy that it was elected presumably to institute.
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And then the other one is, well, what about, say, First Amendment rights? That has generally been deemed a just, a per se irreparable harm. The deprivation of a constitutional right for any period of time is deemed an irreparable harm because it's not easily compensable by damages. And so that gets to our parental notification case that we just talked about. We're talking about both substitute due process rights and First Amendment religious freedom rights that have been taken from these parents. How long do they have to wait for their vindication is a key question. And so these things don't answer themselves. These are not self evidently true. Like in articulating the question does not imply an automatic correct answer. So I can see why the court struggles with this a great deal. I tend to put can I fire somebody or not fire somebody? Much less important than can I exercise a First Amendment right or not? The reason why I put can I fire somebody or not fire somebody is that I'm very familiar, of course, with this phrase that personnel is policy. But at the same time, you can still direct a person to execute a policy, even if it is not the person that you've chosen for that position. And so not necessarily blocking policy if you're blocking firing unless the policy is to fire.
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I think it is hard to implement a policy if you do not have a person who agrees to implement that policy because if you don't have the power to fire them, they can simply refuse to implement the policy. And that's what happens. If you've worked in large bureaucratic federal institutions, when people know that you cannot fire them, they will simply decline to do that.
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Yeah. And I see a difference between a cabinet level official or policy making official and the civil service protected officials.
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I see a difference legally, like constitutionally, separation of powers and maybe what Congress has authority over. Yes. And yes. There's clearly a difference in terms of policy implementation between a cabinet secretary and a Civil Service Protection act protected employee. That being said, I think you're fooling yourself if you think there's like a black and white distinction. Many civil service protected employees do, in fact implement policies, and if they choose not to do that and cannot be fired, that's a problem. Now, we're going to get so much pushback to all this because if they refuse to implement the policy, that actually can give you rise to fire them. So I know all of that, but in practice, it gets quite in the weeds and complicated. But, David, I want to ask you about another institutional clash with the Supreme Court, and this is the clash between the president and the Supreme Court. So we've walked through the American people and the Supreme Court, the Supreme Court justices with each other, and now I want to do President Trump and the Supreme Court. We're not going to rehash everything President Trump has said about individual justices, about their decisions. But this week he came back to the topic and said, I think the Supreme Court ought to be ashamed of itself for a lot of reasons. Okay, I got to live with these people. And I say this and they'll only vote bad. And I couldn't care less at this point. They have hurt this country so badly because they haven't had the guts to do what's right. And David, here's my next philosophical institutional question to you. You know, at Florida State University, we got the question from someone in the audience, and I read that Justice Jackson, quote, can I, can I read it to you again? Because I love it so much. So this is in 1941. In spite of its apparently vulnerable position, this court has repeatedly overruled and thwarted both the Congress and the executive. It has been an angry collision with the most dynamic and popular presidents in our history. Jefferson retaliated with impeachment. Jackson denied its authority. Lincoln disobeyed a writ of the Chief Justice. Theodore Roosevelt, after his presidency, proposed recall of judicial decisions. Wilson tried to liberalize its membership. And Franklin D. Roosevelt proposed to, quote, reorganize. It is surprising that it should not only survive, but with no might except the moral force of its judgments, should attain actual supremacy as a source of constitutional dogma. And so, David, I present this thesis to you. Is it a surprise or in fact, is it causal, that when these very popular big executive power presidents challenge the court but nevertheless abide by its rulings, or the Court just simply withstands it and over time its rulings maintain their moral force, that that's what built the Supreme Court as an institution in the first place. That in fact, the Supreme Court as an institution was nary existent during George Washington because there was nothing to clash with. There was no need for the Supreme Court because everyone trusted George Washington to use his best judgment. And that, in fact, it's only when Chief Justice Marshall has Jefferson and Jackson to spar with, that the Supreme Court becomes an independent branch of government and institution unto itself. That's not a surprise. It's not coincidental. It is, in fact, the very thing that does the work. And therefore, President Trump railing against the Court while nevertheless abiding by its tariff ruling is a gift to John Roberts. What say you about my thesis?
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No, I don't think that Trump railing against the Court is a gift to John Roberts. I do think that you're onto something and that the Court is the only one of the three branches of government that actually seems to play the long game. In other words, it is much more likely than either of the other two branches of government to have an eye squarely on the future when it is rendering its decisions, whereas Congress sometimes does. I mean, obviously, when you're passing things like Social Security or Medicare or, you know, with Bush, Medicare Part D, or you're restructuring parts of the economy, you have your eye on the long game. But one of the problems that we have right now is that there's only one branch that seems to have its eye on the long game. And I do think that that builds its credibility over the long term. I think, without question. But I also think that Trump lobbing cannonballs at it does damage the institution's credibility with millions of Americans. Unfairly. Unfairly with millions of Americans. There are millions of people who hear him and believe what he is saying. And even though he's complying with the rulings, which for him avoids a political crisis that he doesn't want right now, it still has a cumulative negative effect. Now, that's not an uncontested negative effect. The Supreme Court keeping its eye on the long game and rendering solidly reasoned decisions that bring greater stability as opposed to chaos into American constitutional life. I think that over time overcomes the slings and arrows, but the slings and arrows are harmful.
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I'm torn. I'm gonna keep pondering this question because, yeah, maybe they're harmful in the short term, but maybe over time it builds that stress wood that allows the court to withstand storms that come in the future. Like, why is the court able to withstand Trump now? Because it withstood fdr, because it withstood Jackson and Jefferson. And so actually, this will build more stress wood for the next challenge from the next president. I'm not saying I like it or that John Roberts likes it or should like it, but it doesn't mean it's not good. Like all sort of our individual disappointments in life. You don't have to like them to look back and say, yeah. But actually it taught me this lesson. It built this, you know, character trait that has come in handy later in life. So I don't know, David, I'm gonna keep, I'm gonna keep wrestling with that one. When we get back, we are going to talk about some Supreme Court decisions that came out post tariffs that we didn't get to talk about with you guys, but that we're very excited to talk about, including David. It's takings time
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Okay, David, I lied. This was an oral argument, not a decision from the court in the pung case. But we talked about it when it was granted cert the oral argument happened and I've been. I have not wanted to give it short shrift. So we have held onto this oral argument until this episode, so that we could talk about it at a little larger length, because I'm so into this case. All right, dude owns a Michigan home worth approximately $194,000. It was seized over roughly $2,000 tax debt that he owed that, in fact, an administrative law judge had actually already ruled wasn't owed. The facts of this case are very confusing, and it's going to be relevant that they're confusing later on. The home sold at auction for just $76,000. The Sixth Circuit held that surplus auction proceeds are categorically the only measure of just compensation. So Mr. Peng was only entitled to $76,000 minus the debt, not the full fair market value of his equity. All right, so Peng goes to the Supreme Court and says, no, no, The Fifth Amendment requires compensation based on fair market value. Obviously, Michigan's like, no. Fair market value is whatever we can sell it for. And the Solicitor General, appearing as amicus, proposed a middle ground vacated in a man. So the lower courts can consider whether the auction process was fair. Like, let's just do this under the due process clause. Forget the Fifth Amendment. Okay? So, David, you may remember the last time I was really into a case was the Minnesota version of this case. In that one, they take all the money under, like, Minnesota law, and they're like, well, you owe $2,000 or whatever it was, and we took the property. Cause we had to, and we kept the surplus. And the Supreme Court was like, no, no, no. You do have to give back the surplus. This question in this case is, what if you sold the property for one third of its value? So the surplus you're giving back is just nowhere near what the property was worth. Now, David, there's a lot of problems with this case. First of all, the taxpayer maintains to this day that he did not owe the $2,000. And that's why he. He wasn't willing, for instance, to take out a loan on the full value of his property just to pay the $2,000. And why they end up foreclosing on nearly $200,000 worth of property. On the flip side, they foreclosed on $200,000 worth of property just to get a $2,000 debt that at least one judge has said they weren't even owed. This led to Justice Barrett, by the way, saying, I want to echo what Justice Gorsuch said. I mean, it seems like there was some real unfairness to your client. I mean, frankly, reading the briefs, it sounds to me like the tax assessor was like Inspector Javert. But it was even worse because Jean Valjean hadn't stolen the bread. I mean, you didn't even owe the tax. And it's the small tax and the big, you know, the big loss of the family home and of the money. So it does seem that there's some unfairness here at the same time, David, of course, foreclosure auctions do not sell for the full fair market value of the $200,000 because it's a foreclosure. People aren't allowed to, you know, inspect the property. There's all sorts of things that make it go for far less than the fair market value. Now maybe one third is even lower than usual, which is what the remand potent, you know, the middle ground would do. But it's always going to sell for less, basically than if you were allowed to keep it on the market for six months, let people come and walk through the home, whatever, whatever. And who should bear the burden of that? The taxpayer who refused to take out a loan on his house to pay the $2,000 before the foreclosure or all the taxpayers who didn't have a potential tax lien and are now going to have to use their tax dollars to pay this guy the surplus amount between the auction and the fair market value. So that's the problem, David. That's why I'm super into this case.
- [36:28]
A
It's a fascinating case because the first part, you know, the fifth amendment part of this, because there's two elements here. It's the fifth amendment takings part, which essentially says, okay, that surplus between what the house sold for and the actual tax debt, that surplusage, that's what, that's an actual takings. And then the extra when the person purchased the house for 76,000 or whatever, they turn around and sell it for like 194, that extra windfall. That's an excessive fine under the Eighth Amendment. That's an excessive fine. So it's very complicated. And you know, the, the takings part of this seems to be, you know, that's the easy part, the excessive fine part. The more you walked through the opinion, the more you began to see the difficulty in line drawing. So what is the value of a house in foreclosure? Well, isn't the best way to determine the value of a house in foreclosure is to put it up for auction and to allow a market based process decide? And if there are, if there's proof of bad faith in the auction process, it feels like you could challenge that. If there's Some sort of. It wasn't fully advertised. It was, you know, there were certain machinations behind the scenes to give it to a favored buyer so that they could turn around and flip it. That would be a factual determination that says the fix is in. But as a general basic matter, it seems that this is one of those circumstances where bad facts could make bad law. Sarah because the facts here are really bad. This was sold for a very low price. The buyer turned around and flipped it very quickly for a much higher price. It's like the perfect example of how auction can lead to injustice. Like you couldn't design it better in a lab that auction can create injustice. But as the justices were working this through, they were thinking it was very obvious, Wait a minute, are we going to require as an alternative that governments keep a bunch of houses that they then spruce up and they try to then sell on the open market with realtors and they're going to have property managers and all of this stuff? Is that how this is going to work? So, you know, I loved our scotus, your, the SCOTUS blog summary of it because I think it nailed it, which was really struggling with the idea that foreclosure auctions are going to be insufficient, but at the same time really struggling with the unfairness of this case and seem to be trying to figure out a way to not blow up the system of compensation while acknowledging the unfairness of this case.
- [39:07]
B
By the way, Justice Gorsuch was at his peak libertarian, anti government bully Justice Gorsuch asking, you know, did they have any constitutional duty to try to sell real property, for instance, to meet the $2,200 tax lien before they foreclose on a $200,000 home, for instance? How about like a car or a chair? I mean, who knows? But this will be interesting because based on purely the questions the Justices asked, you actually had Kagan, Jackson and Sotomayor being the least sympathetic to Mr. Peng and the bad facts and pointing out the unfairness to all the other taxpayers who didn't even potentially owe, you know, taxes. And you had the more conservative Justices seeming to want to go somewhere closer to the Solicitor General's, you know, middle ground. Let's just make sure this process was fair. We're not going to change our fifth Amendment takings rules for this because I don't think we can. But surely this is, we all know this was unfair to Mr. Peng. David, this kind of goes against the stereotype of liberal and conservative that conservatives are the hard hearted against those down on their Luck and the liberals are the bleeding hearts. It was the opposite of this. And I don't know whether that's sort of the libertarian or the anti government thing happening, but I don't know. That was kind of weird.
- [40:33]
A
I was thinking, there's my classical liberals. There they are. There they are. Absolutely. You know, I think there is that libertarian ish element that is inherent in classical liberalism that's coming out here. You see a government process that seems nonsensical, unfair, justified by sort of larger systemic. For larger systemic reasons, but results in a lot of individual injustice. You know, libertarianism kind of invented for some of that stuff. But I'm very sympathetic to Mr. Peng here, but the mechanics of how do you go from, okay, an auction isn't sufficient. Fair market value is. But fair market value is not determined by one of the ways in which we determine market value, which is auction price, which is one way of doing it. I mean, one way of doing it. It is a market. I mean, an auction is if it's done correctly, if it's done fairly, it is an open market. Sarah, quick question. Have you ever been to a real estate auction?
- [41:37]
B
I have been to auctions for like, furniture and stuff, and when I was a child, like all of my childhood furniture came from these types of auctions.
- [41:48]
A
I. If you've never been. If anybody's never been to a real estate auction, especially one in the south, just go for the spectacle of it because it is a fascinating subculture. So you have the auctioneer who is doing his auctioneering at that high rate of speed, and you've got, you know, the clump of people around. Most are spectators, but there's going to be just maybe two, three people who are the serious bidders. And so they'll indicate themselves. You know, they're. They're not going to be very. They're very subtle, Sarah. They might just lift a finger, just wave a hand, like to open the bidding. And then the fun part of it is that you have this squadron. And I don't know what they're called, but they're like assistants to the auctioneer. And they're wearing this. Often wearing a uniform or whatever, like a blue shirt, khakis. And they'll go, and they'll just sit right next to the guy who flicked his wrist in the air. You know, what you thinking there, buddy? You know, hey, I'm Bob. What's your name? Good to meet you. Where's your head at on this? What's your. And immediately insinuate right next to you. Like, I'm your best friend. I'm going to help guide you through this bidding process. And they're obviously gauging seriousness. Do they have financing in order? Do they have the resources? What's their upper limits? And so when it's really raging, you'll have like two or three groups of people with the auctioneer's assistance or whatever right there by them in their ear. And it's just a fun thing to watch. And as the bidding escalates, you know, the crowd gets excited, but it's a lot of fun. I would go to a real estate auction in, like, rural Alabama one day, just watch a cool subculture.
- [43:31]
B
All right, David, I have another decision I want us to talk about, which is this Villarreal versus Texas decision. We talked about it after the oral argument, and this was where the criminal defendant took the stand in his own defense. The court recessed overnight, and the judge said, you can talk to your attorney, obviously, but you cannot. The attorney cannot help you manage your ongoing testimony. Good night. And he was convicted. He is now suing, appealing, rather saying that that was unconstitutional and violated his right to counsel. The Supreme Court unanimously said, no, it didn't. You do not have a right to manage your testimony when you are a witness under the Sixth Amendment. Couple things here. One, David, as I said, unanimous and assigned to Justice Jackson, which means it's like even more than unanimous when it's assigned to the junior Justice. But there was this concurrence by Alito that I learned something during I will read to you. I begin with a word about the origin and nature of the constitutional right. The petitioner invokes, that is the right to confer with his attorney during an overnight break in his testimony. Testimony. Petitioner claims that the Sixth Amendment right to the assistance of counsel includes this right. When the Sixth Amendment was adopted, however, criminal defendants could not testify in their own defense because they were not considered competent witnesses. It follows that a defendant could not consult with an attorney about such testimony. Most states did not allow defendants to take the stand until well into the 19th century. And this court did not squarely recognize a defendant's constitutional right to testify in his own defense until its 1987 decision. Even then, the court did not hold that the Sixth Amendment alone conferred this right. The court pointed to several possible sources of the right, but appeared to rely primarily on the Due Process Clause. And the court made clear that the constitutional right to testify was subject to limitations designed to protect the truth seeking function of trial. Limitations on mid testimonial attorney Client communications must therefore be analyzed against this backdrop. David, I'm sorry, I had no idea that you were not allowed to take the stand in your own defense. Constitutionally, until 1987, even I was alive for that.
- [45:52]
A
That's absolutely fascinating, but I think the outcome in this case is just so common sense and right. Yes, they can consult with their attorney during the overnight recess. No, they cannot shape their testimony with the attorney, which is exactly the way you harmonize the two previous cases, which was, number one, overnight recesses in a trial do not foreclose you from access to your counsel in total. But also during daily recesses during your testimony, you can be cut off from your counsel. Well, how do you reconcile those two things? When they recess from your testimony is also overnight. This seems to be incredibly common sense. Just incredibly common sense. And by the way, it's honor system. It's honor system. You're trusting these lawyers to do this, but it strikes me as a very, very common sense response.
- [46:45]
B
All right, David, when we get back, I've just got some fun moments in appellate practice from the last couple weeks. Lisa Blatt, of course, is involved, but so is friend of the pod DC Superior, you know, Supreme Court justice, except they go by judge because D.C. only has two layers. Josh Deal, who's going to talk about using marmots as weapons. All right, David, we're going to start with Lisa Blatt. In the Hunter oral argument, where Lisa Blatt was at her blattiest. There are really two moments that I think got the most attention from this argument. The first is when Justice Gorsuch is trying to ask her a question, and she responds, I'm just trying to get Justice Alito's vote. And what I'm trying to say to Justice Alito, I care about the rest of you, too. Justice Alito then says, thank you very much. It's very few advocates that have that goal. And Justice Gorsuch says, I'll just stop then. And it's this great moment of levity as an advocate admits that they're like, only after one justice, and the rest of you can go jump off a bridge. But that's not the best moment of the whole thing. So here's the Chief Justice. You know, if it doesn't, maybe that's something that could be brought as an ineffective assistance claim that would allow him to get out of the sentence. Lisa Blatt, I don't think that would succeed because it was not ineffective. And this guy doesn't. There was no mental health condition. He did it for the assistance of the probation officer. Just said it might be easier if this guy were medicated. That's preposterous. I mean, it might be easier if you were medicated too. For my job. It's just. That's not how you get to medicate people. Chief Justice Roberts. Okay, thank you. All right, David, my next. Having fun in appellate land, the D.C. high Court strikes down a D.C. ban on high capacity gun magazines. Super interesting. Judge Deal wrote this opinion. But David, this paragraph, I just, I keep giggling. I don't know why. Maybe it's because I know Josh Deal. He is one of the funniest people you can ever spend time with. But let me read this to you. He's referring to the common use inquiry, like what is some, you know, a weapon in common use? And he says this apparent tension in the Supreme Court's directives is best resolved by recognizing that there are distinct common use inquiries relevant at each step of the analysis. At the threshold inquiry. The Supreme Court has said that the sorts of weapons protected by the Second Amendment are those in common use and that the Second Amendment protects the possession and use of weapons that are in common use. We take that to mean that an instrument must be designed or at least somewhat commonly used as a weapon to qualify as an arm covered by the Second Amendment. So while you could bludgeon somebody with a taxidermied marmot or beat them with a non stick frying pan, a ban on stuffed rodents and regulations on Teflon cookware do not implicate the Second Amendment as a threshold matter because those instruments are not designed or typically used as weapons. This threshold inquiry is not an exacting one. If the instrument is the type of thing that generally facilitates self defense, which as we have explained magazines of all sizes are, then it is in common enough use as an arm to receive some second Amendment protection. David, you could bludgeon someone with a taxidermied marmot.
- [50:20]
A
Very effective last ditch self defense measure, I would say. If you've got nothing but the taxidermied marmot, don't consider yourself helpless.
- [50:30]
B
Also, the nonstick frying pan, at least in like 1950s television, feels like a very common self defense weapon. To your point, David, as sort of a last defense, like somehow only used by women, but nevertheless that, you know, you're in the kitchen and a guy walks in and you hit him with the frying pan across the side of the head. Yeah, totally.
- [50:53]
A
Absolutely. No, that's a tremendous paragraph right there. I love that.
- [50:58]
B
All right, David, for our next episode. Who knows what fresh legal decisions we will have to decide. There's some interim docket stuff pending about the revocation of temporary protected status that the administration has filed, not to mention all the other pending decisions that have yet to come out again. I mean, I just cannot guess at this point 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@the dispatch.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.