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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We're going to check in on the meltdown at the Heritage foundation as the legal center floor flees the scene this weekend. As well as an interim docket order from the Supreme Court about immigration judges and a law to mandate the Supreme Court to write opinions on their interim docket orders. How would that even work? As well as the promised church autonomy doctrine out of the D.C. circuit and making fun of land acknowledgments out of the ninth Circuit. It's a First Amendment circuit extravaganza. Here at Advisory Opinions, we finally we've got some fun listener questions. One from a high school class on forensics that I'm very excited about and another on what happens when no one wants to defend that case at the Supreme Court. All that and more on Advisory Opinions. All right, David, before we start the next episode, not this one, our Christmas Day episode will be available for CLE credit. Again, you can go to scotusblog.comcle this time it'll be available in about 25 states. So make sure that you're in that half of the country, I guess. And this also this time, David, it's for ethics credit. Woo hoo. So it's scotusblog.comcle for the next episode. All right, so the Heritage Foundation, David, normally would not be on our agenda, but we have a post on the VALA conspiracy from Josh Blackmon. My resignation from the Heritage Foundation. It is with deep regret that I must resign my position as senior editor of the Heritage Guide to the Constitution. David, this is fascinating because I got a copy of the Heritage Guide to the Constitution this year. It's know a book that you could murder someone with. It's very big. It's also in the past been a quite famous, much cited, much relied on source for the right husband of the pod wrote one of the chapters in this version. It was supposed to have this like huge signing at the Federalist Society convention this year. But just days before Kevin Roberts put out his, you know, I love Nick Fuentes video or whatever, and you had a whole bunch of people who had written chapters who had contributed to it, who had agreed to be at the signing, say, like I can't associate with the Heritage foundation anymore. I certainly can't write in the future for this book. And so yeah, a month later we have Josh Blackman leaving as well as the entire Meese center with John Malcolm departing to Mike Pence's organization at aaf Advancing American Freedom. Not the only ones, by the way, the data group, the economics group, they all also left this past weekend for Mike Pence's group. I guess they raised like $10 million to support all of these. I mean, new hires, slash heritage refugees, whatever you want to call them. But the legal stuff is really important, David, because I don't know that people fully realized how integrated the Heritage foundation had become. Past our time, certainly, but they do like, you know, clerk school for incoming law clerks. As I said, the Heritage Guide to the Constitution. They put out all this stuff about conservative legal things. I think that all ended this weekend. I do not think the Heritage foundation will any longer be a legal place for policy.
- [03:59]
B
You know, I'm glad we're starting talking about this, because there are so many different ways to go. But I think one thing that when you point out this sort of separation now that's taking place between sort of the legal conservative movement and the Heritage foundation side of the conservative movement, you're revealing something that. I don't think this was necessarily all that apparent to people on the outside and explains one of the reasons why in previous years there has been extreme fury at, say, people like you or me for stepping away. And that is that the conservative movement, if you think about it, was not a set of silos like individual, individual organizations sort of doing their own thing. I think the better way to look at it would be like a jigsaw puzzle where they were all connected and depended on each other in very interesting ways and were connected and intertwined with each other in very interesting cooperative ways, so that if one person pulls out of it, you're losing a lot more than the one person or one entity or one individual. And so you had a lot of we got to hang together because the whole structure was designed to hang together during the Trump years. And then what you're then seeing is pouring in a lot of incompatible people into the old jigsaw puzzle. And it was never going to work. The only question was when? When was it going to start to break apart? And I think the answer to the win is now is now. And, you know, when you're looking at why now, you know, lots of interesting theories come to mind because it's not like there haven't been a lot of off ramps. Every, you know, every few months, there's a new off ramp. There's a new way for people to say that is it. So when Tucker Carlson interviewed Nick Fuentes, that wasn't some magic moment. It just was one of a series of off ramps that a lot of people then chose. And this has led to a cascading series of events, not just at Heritage foundation, but, I mean, the whole weekend was taken up by controversies and arguments happening at TPUSA's America Fest, or whatever it's called. And what it is, is you're seeing the jigsaw puzzle pieces pull apart. And, you know, it hasn't touched Trump yet. We're still all like one, one and a half layers below Trump. But the. The separation is occurring on the right right now. And it is. It was long predicted, but I would say it is. In many ways, the breakup is even more spectacular and wild than people thought it would be.
- [06:35]
A
So here's what I like about how this has gone down. First of all, it was not rushed, right? It's been well over a month, about six weeks since Robert's video. I am one of the people who was frustrated. I will fully admit, in the wake of the Roberts video, that we weren't sort of seeing instantaneous, you know, changes. However, I was wrong. This is the better way to do it. They actually raised the money on. All of these people now have a home. That home is with Mark Short, who was Mike Pence's former chief of staff, who is not a lawyer, but has, I mean, every interaction I've had with him, he has been one of the most thoughtful, careful, generous, intellectually generous people, and really eager, I think, to learn more about legal Conservative world and sort of be there while it's happening. And the other person who's over at Advancing American Freedom is Tim Chapman, who is. Drumroll. The former president of the Heritage foundation, who left for American Freedom before this. To your point, David. So I'm happy that Advancing American Freedom is now going to house the legal conservative advocacy movement, let's call it. I'm also really happy that the Federalist Society will not play that role because, remember, FedSoc doesn't take positions on issues. It doesn't do any of this stuff. And I was concerned that, you know, we've got to save these people from the sinking ship that is Heritage, that maybe Federalist Society would have to step up. I'm really glad they didn't have to and that they can maintain sort of their we don't do advocacy side. We are a convener. We are a debating organization. We focus on students and bringing debates to people around the country. And then AAF can be the one that's like, we do advocacy. We have positions on Chevron doctrine, on unitary executive and we house that kind of research. So I really like the way this is shaking out. And then the Heritage Foundation, I think this one's a little harder to predict. Kevin Roberts, the president of Heritage, clearly has no intention of leaving the group, despite it crumbling underneath him. And how avoidable all of this would have been if he had left, by the way, a new president of the Heritage foundation and like all of this stays at Heritage for quite a while. They would have given that person a chance to, you know, make good on.
- [08:58]
B
Something, even a new pretty MAGA president. Like they could have selected somebody completely untainted by Tucker Fuentes and continued on.
- [09:07]
A
So what will Heritage foundation become now? First of all, much smaller, both in literal sense and in scope. I think it will look something more like what Obama did to the Democratic National Committee. Remember, originally his campaign was called Obama for America, and then he sort of turned the DNC into Organizing for America and also called it ofa. Not that he called the DNC ofa, that was his, like, political organization when he was in office. But the DNC basically became an arm of ofa. I think the Heritage foundation will turn into VFA Vance for America, and it will become a political quasi policy arm for the fledgling campaign. And then when it announces, sort of stay the policy side, then the campaign will do the actual, like, you know, fieldwork, ballot access stuff. We'll see if I'm right about that. But. And that's fine. Obviously that's a totally different organization. It just happens to also have the name of this previous organization called the Heritage Foundation. But I think the Heritage foundation is gone now.
- [10:12]
B
I think it's done, at least in terms as to what the Heritage foundation is. Kevin Roberts blew it up in a fit of stubborn pride. And I will guarantee you that that stubborn pride extends also to some of the philanthropists in the board. There is an interesting story to be written, I think, Sarah, about the positive and negative roles that philanthropy has played during this period. And I think, you know, the left has learned that there's a negative role that philanthropy played, which was left wing philanthropy, got sort of disproportionately populated by the most left wing people, began to impose a series of litmus tests on left wing organizations, created sort of this momentum that they all have to row together in their sort of move to the left. And a very similar thing, a dynamic exists on the right. I mean, if you're talking to people who are political donors, and I used to know back in the day, I used to raise a lot of money and There was a consistent sort of emphasis which was cooperate with other groups and work together. Cooperate, work together. Cooperate, work together. And then also it began to layer on and never give in to the left. Cooperate, work together, never give into the left. And this. These kind of. And so what you. It wasn't just a social pressure that you experience if you're working in a nonprofit on the right or on the left. It was also a very real financial pressure that deterred any sort of independence. Any sort of like, no, no, no, no, we are not going along with the zeitgeist of the moment. And now look, I very clear. There are lots of organizations that have helped sustain independence during this time. So this is not the whole picture, but there has been in parts of philanthropy, a highly ideological radicalized segment that has enforced ideological discipline and cooperation that only has resulted, I think, in when the detonation comes, when these incompatible factions and movements finally realize they're incompatible, it just makes the detonation all the more spectacular.
- [12:20]
A
Want to move on to the Supreme Court here because we got another interim docket order. This one again, it's one of those that, like, the facts are sort of interesting, but the decision, decision and what the decision was actually based on, maybe less so this is about a 2021 order. So remember, this is. The Biden administration basically says immigration judges, remember, immigration judges are actually housed at the Department of Justice. One of my many things that I actually, I will say immigration judges may not be unconstitutional like some of my Article 1 judges, because it is a fully regulatory state scheme that they are overseeing. And I know I'm going to get so much mail of like, why is that different than anything else? Because I know it better. That's why is the worst answer ever. The people who actually oversee those adversary hearings on asylum status, for instance, live at the Department of Justice. They're immigration judges in the Executive Office of Immigration Reform. What does the R stand for in ER they. The policy. The 2021 policy was that they could not speak on matters related to their employment without getting permission from their supervisors. And they sued, arguing this was a violation of their First Amendment rights. They went to federal court. Well, under the law, because this has to do with federal employment in the executive branch. In the terms of that employment, the argument is they actually needed to go to the Merit Systems Protection Board, the federal district judge, I think 2023, three held. Yeah, I don't have jurisdiction over this. You have to go to the Merit Systems Protection Board. They appeal to the 4th Circuit and the 4th Circuit said, well, the Merit Systems Protection Board, because Donald Trump fired one of the members, no longer has a quorum. We don't think it's actually functioning. Therefore, in terms of whether Congress stripped jurisdiction from the federal courts, we have to kind of. There's the Thunder Basin factors, David. I love some saying Thunder Basin factors. We don't get to say it enough on this podcast. And they're basically like, look under the Thunder Basin factors. They can only strip jurisdiction if their system is actually what they thought it was and what they intended it to be, et cetera. And here, because the Merit Systems Protection Board we don't think is functioning, we're going to send it back to the district court to do some fact finding on whether it's actually functioning and therefore whether we have jurisdiction. The administration, as you can imagine, did an emergency appeal to the Supreme Court, the interim docket, and was like, please, you know, prevent this fourth Circuit decision from going into effect, which would have stayed the 2021 policy. At first they stayed the issuance of the mandate from the 4th Circuit. So it was just like in a little holding pattern. But then we got a decision from the Supreme Court. The application for stay presented to the Chief justice and by him referred to the Court is denied. At this stage, the government has not demonstrated that it will suffer irreparable harm without a stay, meaning that 2021 policy that immigration judges have to get permission from their supervisors to speak on a matter, you know, substantially related to their employment is not in effect. Professor Will Bode over at the SCOTUS blog Interim Docket, which you should check out. It's over@scotusblog.com Interim docketblog It looks like we have our first significant interim docket ruling since the launch of this BL the denial of a stay without noted dissent in Margolin v. National association of Immigration Judges. I do not think we can read too much into this denial, especially since it is without prejudice to a reapplication if the district court commences discovery proceedings before the cert petition gets reviewed. Still, the denial is notable for two reasons. First, given the Solicitor General's track record of successes on the interim docket in recent months, any denial is notable. Second, the reason for the denial at this stage, the government has not demonstrated that it will suffer irreparable harm without a stay. In the past few years, it has seemed like the court was edging closer and closer to suggesting that the government always could show irreparable harm almost automatically. Building and building off of the old in chamber statement that any time a state is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury. Perhaps the court is moving back to assessing irreparable harm with more nuance and precision. As it should, says Professor Bode. So David, you know, for all of the like sort of factual details, the party presentation problem, the Solicitor General's office argued that nobody actually argued that the Merit Systems Protection Board wasn't functioning. The fourth Circuit, just like sua sponte, Thunderbasned itself kind of. Regardless, I think Bode's point is exactly right. The denial itself is interesting cause we haven't seen a lot of denials when it's the government asking the court to slow things down for them and to allow policies to go in effect while the lawsuits are pending. And two, yeah, I thought that the government sort of had automatic irreparable harm anytime one of their policies wasn't going into effect because it's only a four year administration. I think a big difference here is this isn't their policy. I mean it is a version of it was in effect in 2017, it gets re upped in 2021. But you notice some of these dates, right. David, this has been going on a long time. This isn't an emergency. You don't go to the interim docket for a policy that was in effect in 2021 and a lawsuit that's been pending for like four plus years.
- [17:51]
B
Yeah, you know, there's another interesting element to this case which is okay, if your view is that there should be constraints on the executive, what side are you on here? Okay, so let's play it out. You might say, oh, immediately, David, your initial thought is, well, obviously I'm on the side of judicial review of this administrative policy in federal court. Right away, pronto. Thank you. Because that's the fastest way to limit the executive. But wait a minute. What if the actual problem here is by wanting you to go through the Merit Systems Protection Board, aren't you going through the statutory system that was created to restrict the power of the president? And this is how it was done was through the Merit Systems Protection Board. And you've then what you've done is you've channeled a lot of disputes into the Merit Systems Protection Board as part of an effort to limit presidential power. So you look at right now, you're looking at two different ways to limit presidential power. One, a direct challenge of a presidential directive in a federal court app certainly valid. Another One is by shunting your challenge to a presidential action through a comprehensive statutory scheme erected for the very purpose of preventing arbitrary exercise of presidential power. So, so it's a, It's a very. It's different. It strikes me as a very fundamentally different case than some of the other shadow docket cases that we've been, or, I'm sorry, equity docket cases that we've been talking about. Because the path here, it's. It's choose your adventure as to limiting executive power versus do you limit executive power or not?
- [19:28]
A
Okay. I also think another thing here is it's one thing when a district court enjoins a new policy from going into effect. That's what the interim docket has been. It's another when the district court actually ruled in your favor, then the circuit court rules against you, and then you go seek, like, basically, no matter what, whenever the government loses, they go straight to the Supreme Court asking for help. I think that would create a mess for the Supreme Court. This is the circuit court. The next stop is the Supreme Court on the merits of the question. And they were just asking for a step day while their cert petition was pending. And so I think a lot of this is just the Supreme Court saying, like, just file your cert petition. We are not having double bites at every apple because a circuit court ruled against you. That's sort of the definition of how the system like this three layered cake works. But, David, speaking of that, Senator Blumenthal, along with Senators Booker, Durbin, Klobuchar, Padilla, Reed, Sanders, Schiff, Schumer, Smith, Welch, Whitehouse, and Wyden, introduced the shadow docket Sunlight act this past week or so. And basically when it says, let me read it to you. To improve the administration of justice by requiring written explanations by the Supreme Court of its decisions and the disclosure of votes by justices in cases within the appellate jurisdiction of the Supreme Court that involve preliminary injunctive relief. So to be clear, under the definitions, it says the Supreme Court may not issue any order granting, denying, or vacating preliminary injunctive relief, or granting, denying, or vacating a stay of preliminary injunctive relief unless the Supreme Court publishes a written explanation of reasons supporting such order and indicates in writing how each participating justice voted regarding such orders. David, I get why everyone's like, what a great idea. But practically, this makes no sense on the ground. So first of all, that order that we just got just sort of backhand denying the request from the administration about these immigration judges, that would have required a full accounting of every justice and a written explanation. And by the way, they note the written explanation shall include an evaluation of the following criteria and includes an A, B, C or D, which, which are the factors for a stay, but nevertheless would have been, you know, a relatively long written opinion about this thing that they were able to handle quite quickly. But number two, David, so what's the law supposed to be while they're working on writing this if they're not allowed to grant or deny a stay until they've written an opinion, what's happening in the meantime when someone asks them for a stay? And now they've gotta go write a.
- [22:13]
B
Thing, I mean, status quo until the opinion. You know, I mean, it's okay, but.
- [22:18]
A
Like, let's go from their side. So. So the administration puts into effect their birthright citizenship Order. And for whatever reason, it lands in the fifth Circuit. And that judge, the opposing side asks for a stay and that judge is like, no. So now the birthright citizenship Order is in effect. They immediately go to the Supreme Court and are like, this is a huge problem. Please stay this. And the Supreme Court's like, hold on for the next two months. It's gonna have to be in effect. Cause we have to write this long opinion right now. To like, they will lock us in, will require all sorts of research to write it. Now, the alternative might be an administrative stay, but then we've just created a docket under the interim docket that also won't have any explanation. Like, this doesn't make any sense to me. David.
- [23:01]
B
I sort of have two responses to this response. Number one is, yeah, I would like to, as we have said many times, you know, we want more writing. We would love to, to see more explanation. But that's a should, not a must. There's a big difference. And I don't even know that they have the constitutional authority to make it a must. I mean, there are some separation of powers issues here. When you're talking about walking into the Supreme Court and describe and telling the Supreme Court exactly how to do its job. I do wonder if you have some separation of powers issues. But as you were saying, this is taking something that is a problem. I would agree. I think I would like more writing and then making it through unintended consequences as you're describing it, Sarah, perhaps making everything worse. And I think you're going to see at least part of the solution emerge through the regular course of business. Because by the end of this term, we're going to have a lot more clarity on a lot of the legal matters that created a lot of the emergency docket, whatever you want to call it, docket to begin with. So you're going to get a lot of resolution to a lot of contentious issues by the end of this term. Doesn't mean that shadow slash emergency docket won't be salient in the future. But a lot of the issues that are being tested, it's not as if there is a just an infinite line of issues that are being tested about the power of the president over the executive branch, et cetera. But a giant percentage of what if of the kinds of cases that have triggered emergency docket decisions are going to be resolved by the end of this term. So I don't know if this is the kind of permanent problem that would even require the kind of legislation that they're contemplating, much less is this legislation ultimately do more harm than good. And also is this legislation really within their constitutional authority to begin with.
- [24:58]
A
Okay, before we go, Eeyore is the executive office for Immigration Review. And if you're a doj, you just call it Eeyore E O I R. But also they can feel a little Eeyore ish at times the donkey. I mean, when we get back, we've got some church autonomy doctrine and land acknowledgments. The First Amendment is back on advisory opinions. All right, David, I know you're champing at the bit to get to the land acknowledgement case out of the Ninth Circuit, but we're going to start with church autonomy, I'm sorry to say. First, let me give you the facts. David o' Connell attends Sacred Heart Catholic Church in East Providence, Rhode Island. One Sunday, in response to a call for alms from the pulpit, o' Connell made a cash donation to Peter's Purse. He understood the special collection to be exclusively for emergency assistance to the neediest people around the world. Peter's pence funds do not always go directly to those in need. Some money is invested or used for other administrative purposes. Believing himself defrauded, o' Connell sued the United States Conference of Catholic Bishops, the church body that administers the Peter's pence collection in the United States. Before the District Court, the Conference of Catholic Bishops argued that a branch of government, the judiciary, cannot wade into a dispute about church governance. The District Court disagreed. In a brief oral ruling, it concluded that proceeding with discovery would not violate the church autonomy doctrine. The Conference of Catholic Bishops appealed that interlocutory appeal to the D.C. circuit, and the panel of the D.C. circuit sided with the District Court, said they didn't have appellate jurisdiction. Then it went to en banc review and only Judge Rao dissented from the denial of hearing. En banc. Now, David, some of this gets into a little bit of the weeds of church autonomy doctrine. Not really so much what is church autonomy doctrine, but at what stage is church autonomy doctrine? Is it an immunity from suit, basically, or is it a defense when you get to trial or the legal questions involved? And the question is, does the church have to undergo discovery? Can this lawsuit move forward at all when it's this question of what happens to donations to the church? Now, we saw a version of this which we talked about also on the podcast. David, as I'm sure you remember, this was back in the beginning of this year. Oh my God, David. This was January 31st of 2025. That was the 9th Circuit. James Huntsman brought a lawsuit against the Church of Jesus Christ of Latter Day Saints over millions of dollars in tithing. The 9th Circuit Court of Appeals found no reasonable juror could have concluded that the Utah based faith misrepresented the source of funds it used to spend 1.4 million on the building and development of City Creek Center, a church owned mall and residential towers in downtown Salt Lake City. But in that three judge panel, Judge Bhumate wrote separately to say basically this is a church autonomy case. It should have barred courts altogether from interfering in matters of religious thought, halting them short of even an initial parsing of Huntsman's fraud assertions. This is a quote from Bhumate's opinion. My colleagues believe that we have a choice on how to resolve this case. The Constitution gives us no such choice. Simply put, the church autonomy doctrine bars federal courts from resolving matters of faith doctrine and church governance. So we can't just sidestep the doctrine and jump straight to the merits. But again, it wasn't actually decided on that question, David. And so now we have the D.C. circuit and the Ninth Circuit opinions from Judge Bhumate and Judge Rao, two of the most listened to judges in the country, if they're not always in the majority, saying like, we need to resolve exactly what church autonomy doctrine is. Because, you know, to Judge Bhumate's point, even if the church wins, if you win on the merits, that doesn't prevent discovery. And frankly, getting to the merits, sort of judges digging through what the church said and whether it was fraud. And David, I figured you would have an opinion on church autonomy doctrine.
- [29:15]
B
Well, you know, one of the first things we have to establish is that there's really a couple of things at issue here. 1 Absolutely. There is 9,090 going back to Hosanna Tabor case that we have talked about before, which was a case involving did federal non discrimination law apply to ministerial employees? That 90 the Supreme Court has said no, it is not applying to ministerial employees in this people who are ordained ministers. And then later cases talked about people who perform functions equivalent to ministers. And so on the one hand you've got a overwhelming Supreme Court majority 90 and Hosanna Tabor majority in other contexts as well that say government really is limited in its ability to tell, say the Catholic Church who can be a priest or the Baptist church who can be a pastor. It's hands off. Like you can't do that. That is not what we permit state officials to do for a million obvious reasons. Do we want the state helping determine who ministers the gospel or who is leading Friday prayers in a mosque? No, that is not the role of the government. At the same time, we can't join the first church of murdering each other and claim religious autonomy over something as dramatic as actually inflicting physical harm on another person. And so there is a line in which civil law, criminal law, does rightfully intrude upon the operations of a church or religious body. And there is a line where it absolutely does not. And where is that line is the key question here. And there's a lot of reasons, I think, why judges don't want to actually wade in and resolve that that much. And so they will punt to these so called neutral principles where they'll weigh in on what's happening with the church and ultimately decide in the church's favor, but not based on church autonomy, based on other civil principles. But the church still tends to win. But at some point we gotta draw some of these lines or at least draw them with more clarity. And it seems to me that if you're, you know, on the church autonomy side of things, when you're talking about expenses of church funds, that's one of those areas that's much closer to deciding who can be a minister, say, than was the parking lot adequately paved so that, you know, people aren't injuring themselves? Like these are sort of on different ends of the spectrum. And so with Judge Bhumite and Judge Rao, Judge Bhumite, who really urged the ninth Circuit to have decided the LDS case on the basis of church autonomy, Judge Rao, talking about church autonomy here, I think it's pretty clear that at some point we're going to need greater clarity on the church autonomy doctrine, that the case law that we have that just mainly centered around employment matters isn't providing the necessary depth of precedent and doctrine. So we are going to have to decide this. I do think we're going to need more case law on it, but I completely understand why judges are saying, boy, this looks thorny, this looks tough. Let's just treat this like a normal case. Let's just treat treat this like any other case. Because the church autonomy doctrine is a tough line drawing exercise.
- [32:39]
A
So reading from Judge Rao's dissental the church autonomy defense prohibits state interference in matters of faith and doctrine and in closely linked matters of internal government. Because the donations at issue here implicate the faith, practice and governance of the Catholic Church, the district court wrongly relied on neutral principles of law to overcome the bishop's church autonomy defense. Moreover, because state interference can include the process of judicial inquiry, the church autonomy defense is best understood as a constitutional immunity from suit. The rejection of a church autonomy defense therefore supports interlocutory review under the collateral order doctrine. David I guess in my view, the collateral order doctrine I don't want to get into that here, mostly because I don't want y' all to turn off the podcast. But in terms of whether it's an immunity from suit, it feels to me like you need a first order inquiry. Is this about where donations that were correctly given or whatever ended up going? If the answer to that is yes, you're never going to be able to look at the merits. You know, I would. I'm disagreeing with the majority of the 9th Circuit. You shouldn't get to the merits of the question of whether they were used then for fraudulent purposes. If donations were taken in like not under duress, for instance, something like that, then you're exactly in church governance. Church autonomy doctrine would apply. If you can't get to the merits in the end because of church autonomy doctrine, I think I agree that it's a constitutional immunity from suit in the first place after you've gotten past that first question. So perhaps in some cases you will need limited discovery to determine whether the donations were freely given in sort of a proper protocol y kind of way. But in terms of like what you told people they were giving the donations for and then what the donations were used for, I think that is absolutely internal church governance. There's a board of the church. If they don't have a problem with it, either you shouldn't be a member of that church, there should be a different board, or it's up to the board to deal with. But I don't think you want judges digging through that on fraud questions.
- [34:43]
B
It is just absolutely the case that if you are diving into discovery and you are having judges looking over the shoulders of pastors, elders, deacons, it is very difficult to do that without also interfering with ecclesiastical matters. It's just as a practical matter, it's really, really difficult. And so I do think as a threshold, this should be decided as to whether or not diving into discovery is even something that is necessary in this circumstance. So I do think that, you know, Bhumite and Rao are right on this. That is just as a preliminary matter, we got to look at church autonomy. And I also think that if you're going to be asking where the line is, it's going to be hard to persuade me, for example, not that persuading me matters, because you know what my vote is worth, but it would be hard to persuade me that fighting over the allocation of tithes of donation dollars, boy, that's getting really close to sort of the core of church governance. Very hard, Very hard to unpack all of that without getting into the core of church governance. But I think this idea that we have to, as a threshold matter, even determine whether church autonomy applies seems to me very sound reasoning.
- [36:01]
A
All right, we're going to move further down the First Amendment. We started with. Congress shall make no law respecting an establishment or religion or prohibiting the exercise thereof. Let's move to the next clause or abridging the freedom of speech. So, David, I'll let you introduce this delightful little 9th Circuit case on mocking land. Acknowledgments in your syllabus, I will note that the opinion was written by Judge Bress, who I continue to call my cousin. So why don't you introduce us to cousin of the Plots opinion?
- [36:32]
B
Well, this involves. And I just apologize. I'm going to apologize in advance. This is what happens when you read a name rather than hear a name. How would you pronounce R, E, G, E, S, reges? I'm going to say Regis from this point forward. So the case is called Regis. And then how would you pronounce C, A, U, C, E, caucy? Cause I have no clue. But anyway, here we have a guy named Stuart Regis. He's a teaching professor at the University of Wisconsin. He's been. He's a kind. He's one of these professors who's not afraid to take on controversial issues. In the opinion, it talks about how in 2018, he wrote an article entitled why Women and Don't Code, which led a group of students to petition against the Renewal of his contract. Don't know anything about that essay. That's not really just to sort of give flavors like, this guy's not afraid to defy consensus. So UW had a policy that recommended that land acknowledgments be included in university materials. So land acknowledgments for those who had never encountered these, which is probably most Americans have never encountered a land acknowledgement. This was a thing that kind of became very trendy in the late 2000 teens, very early 2000s, in mainly pretty far left spaces, where you would begin a meeting by sort of acknowledging that the land that you're meeting on was held by somebody else at some point. And Professor Regis was not excited about this when the school revised its best practices for inclusive teaching to recommend that instructors include an indigenous land acknowledgement in their course syllabi. Well, he did that. He did include a land acknowledgement, but it wasn't the land acknowledgment that the university wanted him to do. So he thinks land acknowledgments are. That's expressing that UW's presence is somehow illegitimate, shameful, morally wrong, or unlawful. He considers land acknowledgments an empty, performative act of moralism ripe for parody. And so that's exactly what he did. And he put a land acknowledgement that said, I acknowledge that by the labor theory of property, the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington. He briefly mentioned the statement during class. Students didn't notice it at the time, but after the class, it got attention. There was a student who submitted a complaint that after the student committed the complaint, they did further research, found the Women Don't Code article, which the student, quote, had not been able to fully read because it is very triggering. As you might imagine, this land acknowledgement creates a cascading series of controversies that results in litigation with the question. Very simple question is his parity land acknowledgement protected speech? And the answer to that question that the Ninth Circuit reached was absolutely yes. And a couple of things I want to talk about this case, other than sort of the facts about it, is that, number one, from the very beginning of this wave of things like mandatory diversity statements or land acknowledgments, or a lot of the hysteria that descended on college campuses in the teens and early twenties, it was all illegal from the start. Like, a lot of this stuff was flat out illegal from the start. It didn't have a ghost of a chance in federal Court. And so a lot of us looking at this saw a contagion, a fever that sweeping the academy that had a very short shelf life because it was going to get a litigation response. It was going to lose and lose and lose and lose, and that this was going to face a decisive legal defeat on campus. So that was actually one thing that was very real at the time. But that number two, that didn't mean that for the people who were going through it, it wasn't absolute hell. And even though it was illegal, even though in many ways you were going to have your rights vindicated if you had the courage to file a lawsuit, this atmosphere of stifling intimidation that descended on college campuses was horrific. And when you look back, and I think it's worth remembering this time period, because when you look back on it, you realize, okay, if there's one thing that we cannot do in response to this moment of explosively growing antisemitism, explosively growing bigotry online, shocking levels of just explicit racism celebrated across the length and breadth of websites like Twitter, that the answer to that is not to snap back to the opposite extreme of, I'm going to file a complaint against a professor based on a paper that I haven't read because the very existence of it is too triggering to read. So there is a, we don't have to swing between extremes, everybody. We don't have to do this. And yet we just seem to be caught in this pendulum where we're swinging from extreme censorship to extreme bigotry and pausing very little anywhere in the middle of that pendulum.
- [42:12]
A
All right, when we get back, I've got some listener hypos that were really fun. So we want to tackle some, you know, like law school hypotheticals when we get back on advisory opinions. Okay, First, David, we have an amazing question from a high school teacher who teaches forensic science, Career pathway program. I forgot to get his permission ahead of time, so I'm just going to call him Mr. E. So, Mr. E, if you're in Mr. E's class, who teaches forensic science, I think you'll recognize this question because it sounds like y' all had a hell of a day in class the other day. All right, now I'll read it. Let's say a police officer had a warrant to search someone's garage for a stolen high end vehicle. Officers enter the garage and find no sign of the car. One of the officers sees a locked cabinet the size of a shoebox. The officer forces the lock and finds a human hand that is linked to a homicide There was also a thumb drive containing video evidence showing the owner committing that murder and a dozen others. Maybe far fetched, but it came from a 10th grader. I love this. I am so excited 10th graders are thinking this way. This is actually pretty sophisticated and absolutely could be on a real law school exam, so congrats. There was no other connection between the garage owner and the murder case. Obviously the stolen car could not fit in the lockbox. So my thought would be that the hand and videos would not be admissible. The items were not in plain sight from a location. The officers had a legal right to be looking. So the fruit of the Poisonous Tree doctrine would apply and couldn't be presented. The students wanted to know what would be the outcome if the only evidence of the crime was inadmissible. Would the killer really walk free? As I understand it, if a legal search for evidence of one crime turns up evidence of a different unrelated crime, that is admissible. For example, if you were searching my house for a gun but found heroin, I could face the drug charge because the officers had a right to be there. But if completely convincing evidence of a horrendous crime is found but isn't admissible, what options do the police have? Would it really result in bad man goes free? Would any future investigation of those crimes be tainted? Because the police were only looking at that suspect because of what they found and one kid wanted to know, would the guy get the hand back?
- [44:31]
B
I love that question.
- [44:34]
A
I hope that students like that the teacher told the parents because as a parent I would want to write that down in the equivalent of the baby book. To just be able to look back someday and be like, when my kid heard this story about the serial killer keeping hand trophies and whether he would go to jail or not, his first question is would he get the hand back? Which is an amazingly smart. You're thinking like a lawyer now, kid. Because like truly, that's a very fascinating question. The teacher that just seemed too far fetched to me that there would be a de facto get out of jail free card. So I figured I would reach out to a real legal scholar for a verdict. First of all, real legal scholar is a stretch podcast. Legal scholars are happy to answer this question from the high school students. First of all, David, Fruit of the Poisonous Tree doctrine just to like go through that. Although I think it was explained pretty well here that if you don't have a search warrant or violate that search warrant, anything you find can't be used. But also anything you find because of what you just Found can't be used. It's the fruit of the poison, meaning the warrantless or, you know, unconstitutional search. And so it's all getting thrown out together. Now, this usually happens when you find something. It leads you on this whole trail, and then later they challenge the search. And, like, the whole trail has to be thrown out, not just the initial thing that you found. But, David, there's another doctrine called inevitable discovery. If you knew, which the police officers I think would, in this case, that you went in looking for a car and you found a hand and a thumb drive in a locked box that you definitely weren't allowed to open, you would shut that box, pretend you never saw it, basically, and immediately try to have some sort of independent discovery of who committed this crime. Now, this is going to get a little bit, you know, shady, if you will, because we all know you wouldn't have maybe reopened these cold cases if you now didn't know who the murderer was. And that's definitely what this defendant's going to argue. But independent discovery isn't like a pure doctrine, if you know what I mean.
- [46:52]
B
Yeah, there's a lot of room in this hypo for bad man stays in jail. And I will tell you some of the room. So, for example, you see a locked cabinet the size of a shoebox, all right? Under the hypo, you might immediately say, well, obviously, if I'm looking for a car, why would I open a shoebox? For the key fob, Sarah, for the key fob. So you see how this goes, right?
- [47:18]
A
Or if you're a really smart police officer and you think, ooh, locked shoebox. I'm curious, you would go back and get another warrant for the key fob.
- [47:27]
B
Exactly. Get a warrant looking specific. We did not find the car, but we do have a lot of reasons that created the initial warrant to go. So I think part of it is, okay, you're wanting your police officers to be shrewd, huh? Don't see the car, but there's a locked box here. Huh? I think it could contain a key fob, perhaps. Let me go make sure I dot my I's and cross my T's. Inevitable discovery, I think, is a really interesting. Also, there's a lot of ways to play with that. But let's just take the hypo at face value, Sarah, and just. Let's just say, okay, kids, let's presume there is no way to kind of retcon this into legality through either through inevitable disclosure or through. Wait a minute. Under the hypo I could open the lockbox because of a key fob, or I could get a warrant for the key asking to look for a key fob. Let's just put all that to the side and say, is it actually possible that you cannot prosecute somebody that you know is guilty because all of the evidence is either tainted or it is the fruit of the poisonous tree of tainted evidence? And then the answer to that is yes, that it would be a quote, get out of jail free card. And it happens. It does actually happen. There are people who are released from prison who are guilty of crimes because the evidence to secure the conviction was obtained illegally. That it just absolutely happens. And the fact that we talk about, quote, unquote, bad man stays in jail does not mean that bad man always stays in jail. What that means is that when there is clear and unambiguous evidence of guilt, or clear and unambiguous evidence that somebody is the proverbial bad man, you'll often see the benefit of the doubt given to the prosecutor or the doctrine sort of expanded in subtle ways to keep the bad man in jail. It does not mean literally, quite literally, we will always warp the law and push it beyond the breaking point to keep the bad man in jail. I think because we know it, we see it, it happens that even with real proof of guilt, if that proof is obtained illegally and against the Constitution, people are released. It absolutely does happen.
- [49:55]
A
All right, David, next question to the pod. I really liked this one. I was just reading about Smith v. Allwright from 1944, which ended the white primary, which refers to. David, primaries, where like, yeah, of course you could vote in the general election, but only white people can vote in the primary, which basically made it de facto a pointless general election in one party states. Going on with the question, it noted that attorneys for the state of Texas declined to appear, leaving Thurgood Marshall unopposed to argue the other side. That seemed like a strange decision. My question is whether that would ever happen today. Is there any realistic scenario in modern Supreme Court practice where a party would skip oral argument for strategic reasons or otherwise? So actually, David, this or a version of it at least happens all the time, meaning that a party will refuse, usually the government will refuse to defend the decision that they got in their favor. They'll basically confess error. And what we've seen is that the Supreme Court, if they think the question is interesting and they grant cert, they will appoint someone to argue the position. So we just saw that in the Federal Election Commission case, Roman Martinez was appointed to defend the 6th Circuit's decision, because no one else would. We saw this in the Glossip case. Chris Michelle was appointed to defend the lower court. The Oklahoma Supreme Court's decision, Like, is it like, once a term? Probably close to once a term and some terms, maybe there's two and some terms, maybe there's zero. But my average would be like, once a term, some state or DOJ declines to argue, and the Supreme Court's like, well, we still want it argued. We're not sure. And so they just appointed an attorney to do it. How does the attorney get appointed? Interesting question. The circuit justice appoints the attorney. It is usually one of their former clerks who's just like, coming up in the world. It's often their first argument, or at least that's the way it used to be. That's what's been really weird. Chris Michelle and Roman Martinez are not coming up in the world. They have arrived in the world. And so it seems like the court is maybe in these cases wanting more expert advocacy. And again, I think this is an overall trend that, David, you've said you've liked because, like, just look at the written opinions and how much better they are than in the past. On the other hand, the, like, professional path to Supreme Court justice, Supreme Court advocates, Supreme Court clerkship has become so narrowed and professionalized that I sort of question what we've lost when we used to have generalists who had done other things with their lives and might bop in for a Supreme Court argument or to be a Supreme Court justice. And now it's like, no, you will have checked these 12 boxes to even be in the running. And then we're gonna pick from the best of, you know, this professional class of potentials.
- [52:53]
B
It's a really good question. And I think I would be more open to sort of the democratization of the process if I didn't think that the actual. What we were actually getting wasn't better for America.
- [53:06]
A
But doesn't this sound like the justification for the administrative state? David? We have these experts, and they're like, you know, doing expert y things.
- [53:15]
B
We're not in the elected branches of government, Sarah. We're not in the executive branch. We're not in the legislative branch. This is the counter majoritarian branch of government. This is one that is very different. And so, yeah, I do want, and I would like to see sort of a greater democratization, I guess, of the. When you're talking about, say, the backgrounds of the judges, justices. So, for example, why are so many coming up through the executive Branch rather than the legislative branch. Why are there fewer people who've actually spent much time practicing law in the real world? I think those are all various different kinds of expertise that shape and form, you know, the elite layers of the profession in different ways. But I still think we want the elite layers of the profession arguing the highest stakes cases. But the question I have for you, Sarah, you get a call from the court, and it is, you know, this case is so toxic that the state respondent is not defending it, but the court's calling and says, look, the system of justice needs. It needs zealous representation. Sarah, will you argue for the white primary?
- [54:39]
A
Oh, no. I was so prepared to answer the question based on the hypothetical. Literally, my hands were up in John Adams flair. And then you added in white primary. Yes, is my answer. I do think, by the way, though, that there is a difference between criminal representation. Your client has committed a heinous crime. I think the whole system relies on zealous representation for that versus civil representation. I still think it's quite important. You know, it's not criminal side, though. So, like I am. There's not even a doubt in my brain. I don't need to ask anyone about the criminal side. Okay, but now we're on white primaries, which is clearly the civil side. I would not take up that representation below because they offered me a lot of money or because I think the system needs someone to defend white primaries. However, if the circuit justice said, you know, we think this is a close legal question, for whatever reason, like, here's the QP we're granting and we want you to defend it, I would defend it. I think that that's, you know, how the Supreme Court thrives with zealous advocacy on both sides. And, David, I really like steel manning arguments, so I would enjoy it as an intellectual exercise, if I'm being honest. Like, there's no question with that. I would actually. Probably not. Probably I would. It would be a far more interesting intellectual exercise to come in on the side of white primaries than on the side against them. Again, intellectually, because I disagree. Obviously, from a policy standpoint, it becomes like this pure legal question about the right of association and about the slippery slope, which, by the way, that case actually is worth reading because of some of those issues. It's not so obvious when you get into the legal questions as a policy matter, it's very obvious as a legal one. What are political parties? Are they arms of the state? Because that's what that case held. And that makes me a little jumpy.
- [56:39]
B
I think the issue, and I think this is the thing that a lawyer has to be aware of. So, for example, if you're saying, well, I don't want to be the kind of person who argues for certain kinds of people and certain kinds of causes. Okay, okay, I got it. That means that though, when you're drawing those lines, what you're saying is, I have voluntarily chosen to step back from the full range of the legal profession, but still, somebody still has got to do it. Like somebody's got to do this. And so if somebody's got to do it, I have real problems with casting aspersions on those people who do. At the same time, here is something that happens to human beings when you get into advocacy mold is often you end up convincing yourself. And so, you know, I, what I would say to lawyers who are asked to or who are called to take up very difficult cases as part of a process, let's suppose you're defending just an out and out rapist, just somebody.
- [57:35]
A
Who'S right, they've admitted doing it. But this is like the lockbox problem, like maybe the warrant something. But you have the thumb drive. He did it.
- [57:42]
B
Yeah, exactly. Or you're defending the Nazis marching through Skokie. You have to remember, what's that famous tweet? You do not have to under any circumstances hand it to isis. In other words, you can defend bad people, but watch your soul because it is a natural human tendency to identify with the causes and the people that you're representing. And so I'm not saying dehumanize people, but I am saying if you are called upon, if you do dive into these really, really, really tough kinds of cases. And Sarah, on a lesser scale, first amendment attorneys deal with this all the time. I can't tell number of people I defended and I strongly disagreed with their words. I mean, we've talked about this, that Ward Churchill, the guy at University of Colorado Boulder who compared 9, 11 victims to little Adolf Eichmanns when I was president of fire, we defended that speech. Not in the moral, not morally. We defended the legal right to say it.
- [58:45]
A
I mean, that's the slight difference here. On the white primaries, one can argue, you know, you weren't defending the speech. You were defending the First Amendment and the right to speech to protect everyone's right to speech. On the white primaries, you're not defending the, you know, racial segregation of primaries, you're defending the right to association. But it gets a little bit harder on the white primaries, especially as we know history, the limiting Principle is like, nah, political parties are an arm of the state, at least in part. So we're just like, we're, we're creating a little, you know, bubble aneurysm, if you will. That's just gonna like include parties and nothing else in this associational little bit here. But if there is a principle at stakeholders, often you will be defending someone who isn't great looking person because otherwise we would all agree on it. Right. This is the counter majoritarian point. If the majority liked X, Y or Z, we wouldn't end up in court. The problem is that, you know, this person is outside the majority. But do they represent a principle? Is there something more at stake here? So yeah, David, you have now handed to all of my enemies me saying I would defend white primaries at the Supreme Court. Thank you for that. I've got a book coming out and you're like, let's get Sarah on record.
- [59:58]
B
I will stand with you. I will stand with you so that we go down together. We go down together. But see, unlike, see your situation, Sarah, I just presented you with a hypothetical. I have an actual. I haven't actually defended people who. Someone who compared innocent murder victims to Adolf Eichmann. Yeah. So.
- [60:21]
A
All right, as I said, the next advisory opinions will be for ethics CLE credit. You can go to scotusblog.com CLE to get that credit now and then listen to it when it comes out on Christmas Day. I know it's the thing you're most looking forward to opening. So what exactly is this ethics CLE credit? It is a sit down with three state Supreme Court justices. Justice Evan Young from Skotex, if you didn't know, that's the Supreme Court of Texas. And Justice Carlos Muniz from the Supreme Court of Florida and Judge Josh Deal from the highest appellate court of D.C. which is not called the Supreme Court and therefore he's not called justice. And we're going to get into all that as we sit down with them and talk about, well, ethics. David, there's a lot of ethics conversation as well as explaining how state supreme courts work, how they should work, how they could work and everything in between. I hope you will join us whether you need the CLE credit or not, because you're allowed to listen to the pod even if you don't need CLE credit. Otherwise, David, we will be back in the new year. We are actually taking real time off between Christmas and New Year's. Yay us.
- [61:36]
B
Happy holidays, Merry Christmas, Happy New Year, all of that to everyone. We really very much appreciate you.
- [61:42]
A
Okay David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at opinions the dispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [63:04]
C
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