Loading summary
Transcript54 lines
- [00:00]
A
Advisory Opinions is presented by Pacific Legal foundation, suing the government since 1973. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And have we got a lineup for you. We're doing our OT 2025 preview and we've got nine cases to go through today. So we're going to go through it quite the clip. Everything from tariffs to women's sports teams to conversion therapy. And of course, who actually does have the power to quash a subpoena? But don't sleep on that case, guys. Just because it's number nine, don't you dare leave us all this. And more on Advisory Opinions.
- [00:56]
B
Limu Emu and Doug. Here we have the Limu Emu in its natural habitat helping people customize their car insurance and save hundreds with Liberty Mutual. Fascinating.
- [01:10]
C
It's accompanied by his natural ally, Doug Limu. Is that guy with the binoculars watching us? Cut the camera.
- [01:17]
A
They see us.
- [01:17]
B
Only pay for what you need@libertymutual.com Liberty Liberty, Liberty. Liberty Savings Ferry Unwritten by Liberty Mutual Insurance Company and affiliates excludes Massachusetts.
- [01:27]
D
The holidays have arrived at the Home Depot and we're here to help bring the excitement with decor for every part of your home. Check out our wide assortment of easy to assemble pre lit trees so you can spend less time setting up and more time celebrating. And bring your holiday spirit outdoors with unique decor like one of our Santa inflatables. Whatever your style, find the right pieces at the right prices this holiday season at the Home Depot.
- [01:59]
A
Okay, David, we're doing nine cases, but actually we have a bonus 10th case because the Supreme Court just released an order saying that it is going to set the question about the Federal Reserve Board Governor Lisa Cook's firing for oral argument now this term. Now, interestingly, David, this is not a cert before judgment or even assert grant. This is just that they are setting the stay question for oral argument in January and they're not touching it before then. Which means that Lisa Cook is still a governor of the Federal Reserve between now and when they decide this case, presumably, I don't know, late January, February. So like this proves the point that the emergency docket, quote unquote, cannot be called emergency anymore when we're just gonna wait until January to even have oral argument and briefing on the case. But David, you know this. There were questions of whether they would grant this. I always thought they were. There were certainly some who thought that they were just gonna deal with this on the interim docket. And I was like, no, this one's getting set. It turns out we were.
- [03:09]
C
All right, just one super fast comment on this. Cause we got nine other cases we're gonna talk about. But what's interesting to me is they've left the stay in place, which is leaving her in the Federal Reserve. We've had a bunch of cases before where they have allowed terminations to go forward, but then, you know, with the idea that, well, this isn't saying anything on the merits, and then here we have another one where they're allowing her to stay on and setting the argument for much later just makes me question how much of the previous permission grants for firing were actually about the merits. But we don't know because there were not opinions, of course. But it's very interesting to me that in other federal agencies, other executive agencies, they have allowed terminations. In this one, they have not.
- [03:58]
A
And obviously we'll talk about the Federal Trade Commission case where they did allow the Federal Trade Commissioner to be fired in the interim. To the interim. You know, that one also being set for oral argument. But they've said the Federal Reserve is different. They're going to really have to explain why this is different, other than the consequences of it being not different. And because the Federal Reserve does clearly exercise some executive power to investigate, to sanction, there's a chance that they're going to split the baby here a little bit and say the Federal Reserve's monetary policy is different. More like the Second bank of the United States. But all of those other powers are executive. So you can pick Federal Reserve, you can either be removable at will and keep having your prosecutorial and executive powers, or, or you can be protected from removal by statute. But then all of those extra powers are gone.
- [04:50]
C
This term just gets more interesting every day.
- [04:53]
A
All right, so that's number 10. Now to number one. I have ordered these and I have not told you the order. We're going in for a variety of, you know, production reasons. So we are starting with the tariffs case. Now, remember, this is two cases on the lawfulness of Trump's tariffs. One comes from the Federal Circuit, that one comes from the D.C. district Court. I think this is really relevant because I think it kind of previews to us that they intend to hold the tariffs to be unlawful. And yes, this gets a little bit into the weeds. But the Federal Circuit only has jurisdiction over laws that are about tariffs. So if they were to hold that this law was not about tariffs, they would basically have to send it to another court and, like, redo the whole thing. So the reason you take the the district Court's decision from D.C. is to be able to continue to decide the case. I hope that makes sense to people as I'm explaining it. And so you basically use the DC Case, even though it hadn't made it yet, to the Circuit Court, as the vehicle to say this law didn't deal with tariffs. So the Federal Circuit case is now gone, and major questions doctrine, yada yada, yada, like this isn't going to happen. And we talked about the two versions of Major questions doctrine, the Gorsuchian version, which is sort of the strong form, thumb on the scale. It doesn't even have to be the best reading that doesn't allow tariffs. It just is. When it's a close call or when there's a plausible reading, we're going to make Congress sort of be more clear about this. That's extra bad for the administration. And the Baritonian reason of Major questions doctrine is that it's a way to better understand the text. You know, you don't hide elephants and mouse holes, and that's better for the administration. But I still don't think it does enough to, because of the way Biden v. Nebraska, the Biden student loan debt forgiveness case came out. The one caveat to this is that there are differences between the Heroes act and this IIPA tariffs idea that Professor Jack Goldsmith of Harvard Laws pointed out. This is about foreign policy. It was about emergencies. And one might expect Congress to be broader, more delegating, less specific powers to a president in something they believe to be an emergency outside of the domestic United States. But, David, where are you on this?
- [07:20]
C
Yeah, so I am with you on all of that analysis. I think that when you're looking at, for example, the OSHA vaccine mandate case, the student loan case, and the way the court has developed major questions doctrine, it's looking really grim for the administration. But there's two, I think, distinctive factors here. One that makes it even more grim for the administration, but one that might save it. And the one that might save it is the one you just said. This implicates foreign policy. This implicates the national emergency calculation. And yeah, I think everyone who really follows this stuff closely can agree that Congress has delegated way too much to the President through national emergencies. But it did it and it did it until it takes it back. So if you combine a national emergency declaration with a foreign policy issue, that cuts towards the administration, but the thing that then cuts back against it, which is why I continue to think the court will Strike this down, the IPA tariffs is that the thing that cuts against the administration is unlike say, the OSHA case, unlike say the Heroes act case. What we're talking about is an absolute enumerated power of Congress here, that right squarely Article 1 enumeration and the idea that Congress delegated that to a president at his discretion or her discretion to implement sweeping worldwide tariffs that are, that are, in fact, you know, taxes, I think that cuts strongly against the administration. So on balance, I think the two major differences between, say, heroes almost cancel each other out. And we're just, and we're just left with the statutory interpretation here that goes against Trump.
- [09:05]
A
Number two, ftc. This is Trump v. Slaughter about whether Trump can remove a commissioner from the FTC not for cause, despite the congressional language, you know, going back long time, 100 years that the President can only remove members of the FTC for cause. This of course goes back to Humphrey's executor, that 1935 case that basically validated Congress's ability to put those restrictions on the President's removal power. It was called Humphrey's executor because Mr. Humphrey at that point had died. Does Humphreys die a second time? David? I think literally I've never met anyone who thinks the answer is no at this point.
- [09:47]
C
Let me just say that if Humphreys executor lives, that this is a, I'm trying to think of the sports analogy. Is this Villanova over Georgetown 1984? Is this miracle on? I like, I think Humphreys Executor, it's, it's beyond zombie at this point. It's what's worse than zombie precedent. So, yeah, I think this is the final nail in the Humphreys Executor coffin.
- [10:13]
A
So what's interesting about Humphreys compared to other zombie precedents like Chevron. Let's say Chevron was a zombie for a long time. Chevron was a zombie for longer than it had been alive, actually. Right. Chevron was a zombie for about 20 years. It had only been alive for about 12 years before that. Humphrey's executor was alive for a long time. It lived a long and productive life. And I feel like it's zombification has happened relatively quickly. Of course, SELA law. Hey, look at me pronouncing it correctly. It was what, the 2017 or 2018 term. That was really the true, like it's, you know, walking around groaning late at night type moment. You know, that's not that long ago in the span of Supreme Court precedents. But I Do have two things I want to read about this. One, just because it's been a while, I went and looked back up that law review article by then Judge Kavanaugh where he talks about separation of powers and you know, yes, it's only one justice on a multi member court. On the other hand, it's the swing justice on the court right now in the. To your point, David, like this ain't a close call. So at one point he says, Humphrey's executor says that this is constitutional, but what is constitutional is not necessarily wise. And then gives this example about John McCain calling for the firing of the SEC chairman. They immediately responded. The President had no power to fire the SEC chairman, prompting McCain to quickly back down from his proposal. But was Senator McCain's suggestion so unthinkable? Let us assume for a minute that the chair of an independent agency has exercised his or her rulemaking or enforcement authority in a way that is ethically and legally permissible, but simply turns out to be unwise and causes great harm. Should that official be subject to removal? What if the agency had as mediocre just average at his or her job? Normally, persons exercising tremendous executive power and responsibility are not insulated from direction, supervision and ultimately, if necessary, dismissal, either by elected officials or by the people themselves. Why shouldn't someone have the authority to fire such persons at will? And if anyone is to possess that power, it must be the President. Why is it that the President should not have the power in the first place to direct and supervise that independent agency head in the exercise of his or her authority and then goes on to talk about, you know, despite the fact that the President is elected to execute the laws as prescribed by the Constitution, that is not the way the system works. Now for large swaths of the American economic and domestic policy, including energy regulation, labor law, telecommunications, securities regulations and other major sectors where the President has little direct control in rulemaking and enforcement actions, despite those functions being part of the executive power vested in the President by the Constitution. In short, the President is vested with the executive power and yet actually exercises a relatively small slice of that power in certain critical areas of domestic policy. So this is important. And the reason I read that whole thing is there's two important arguments that are tied together in there. One is a policy argument. This is bad as a matter of how you would want a government to run. You don't want someone insulated from any accountability from the people in a self governing republic. Two, and that's evidence for the fact that it's not the way this was set up. And that when the President was vested with the executive power, he must therefore have all of the executive power to execute the law. So it's like separation of powers, the structure of the Constitution and policy. Okay, I mentioned that, David, because neither of those are originalism. The original understanding of the Constitution and what Article one and Article two and how they were supposed to interact. Thus entereth Caleb Nelson, renowned conservative law professor who just published, I mean, it's at least tied for the most well timed law review article in history. Tied only I think with Professor Bode's fourteenth Amendment disqualification law review article where he basically says, okay, but originalism, no, there was no unitary executive, if you believe in originalism. And these two things are going to come to a head in this case in a really interesting way. I don't think Humphrey's executor survives. This doesn't change my opinion on the outcome. But how are they going to grapple with the originalism aspect of this? I'm eating my popcorn.
- [14:45]
C
We talked about this last week, that there is now a lot of originalist arguments that are like, what are you talking about with this unitary executive? Where are you getting this? Where is this coming from? And so I do think that there is a very important originalist argument about unitary executive.
- [15:03]
A
Here, by the way, is the paragraph that Professor Bode put on Twitter. It would be natural to conclude that as with other issues relating to the structure of the executive branch, Congress has broad authority to address this topic by statute. Given the range of tasks that Congress can authorize different officers to perform, entering into contracts, making grants, issuing licenses, conducting formal adjudications, participating in the promulgation of regulations, and more. And given the variety of things that different statutes require or allow these officers to consider, including legal constraints, technical or scientific expertise, the evidence introduced in adjudicative proceedings, and more, one might not expect a one size fits all approach for sensible policy reasons. Congress might decide that the President should be able to remove many officers or even low ranking employees at will, but that other officers or employees should be removable only for defined causes and through defined processes. In my view, the Necessary and proper clause lets Congress make these judgment calls as it enacts particular statutes that structure particular agencies. All right, David, you ready for number three? Okay, this is Little v. Hickox and West Virginia v. Bpj. So these are the cases about transgender participation in women's sports. So we talked about Little v. Hecox recently because the ACLU has tried to argue that that case is Moot because that student no longer wants to participate in sports is graduating. We think we're going to lose and don't want you to decide this case. Let me just read you some of the facts for both of these and then I'm going to turn it over to you. Idaho's Fairness and Women's Sports Act. This is that Little v. Hecox case. This is the potentially moot one. They haven't decided the mootness question yet. Idaho's Fairness and Women's Sports act is a categorical ban on the participation of transgender women and girls in women's student athletics. The act bars all transgender girls and women from participation in or trying out for public school female sports teams at every age from primary school through college, and at every level of competition from intramural to elite teams. It also provides a sex dispute verification process whereby any individual can dispute the sex of any student athlete participating in female athletics in the state of Idaho and require that person to undergo intrusive medical procedures to verify sex, including gynecological exams. Student athletes who participate in male sports are not subject to similar dispute process. So I'm reading here, by the way, from the majority, it was a 2 to 1 decision from the 9th Circuit. The act likely violates the equal protection clause of the 14th Amendment. All right. Now the other case is called West Virginia v. Bpj. Guess what state it took place in. Okay, reading now from that opinion. The West Virginia law, save Women's Sports act, provides that, quote, athletic teams or sports designated for females, women or girls shall not be open to any student of the male sex, while defining male as an individual whose biological sex determined at birth is male. The question before the court, the lower court in this case, was whether the act may lawfully be applied to prevent a 13 year old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade from participating in her school's cross country and track teams. In that case, the majority of the panel found Title IX violation and Title IX the number one prong of this that is relevant for our purposes. One that a student was excluded from participation in an education program or activity, denied the benefits of this education, or otherwise subjected to discrimination because of sex. Okay, David, are these cases different in any material way for you such that the mootness question matters? Are these cases turning out any differently than we think they're turning out? And is there any like, ooh, there might be a divide on this part of it though, etc.
- [19:12]
C
I think that both of These cases are foregone conclusions in the outcome. I don't think that there is any real argument that they're going to be substantially different. And I think that the reason for that is, what we have to understand is that just to back up a bit, when you're talking about the equal protection analysis, what you're talking about is not that all people are treated equally. So in other words, under equal protection, if all people are treated Equally, a six year old could get a driver's license because a 60 year old has one. I mean, this is what equal protection means is similarly situated. People should be treated similarly. So then the question becomes, are biological males, trans women, similarly situated to biological females when it comes to sports participation? I think the answer to that is just a resounding no, no, no, absolutely not. If you look at the relevant statutes. So from a Title IX perspective, Title IX prohibits sex discrimination. It does not prohibit gender discrimination. And so if you're talking about the sports distinction, sex is what matters, not gender, the difference, not gender identity. The reason why we have male and female sports leagues in this country is not because of gender identity differences. The reason we have male and female sports leagues in this country is because of sex differences. And that those sex differences are so profound that they render the process we apply, say, to race inapplicable to the process that we apply to sex. So, for example, Title 6 is worded very similarly to Title 9, but it prohibits race discrimination. That means you can't have a men's, a basketball, a white men's basketball league and a black men's basketball league because white men and black men are similarly situated. There's no equal protection reason, or there's no, you know, under the equal protection analysis, this squarely prohibits discrimination, but men and women are not similarly situated when it comes to sports. And so if you're actually going to protect and provide for women to have equal opportunity, they have to have a separate league on the basis of sex, not gender identity. So you're actually just talking about statutorily, apples and oranges. And then even if you applied an equal protection analysis, Sarah, could you imagine a world where sex distinctions don't survive intermediate scrutiny?
- [21:47]
A
What about the argument that, for instance, the Biden administration tried to make that like, sure, at some points, men and women, biological men and women, are not equally situated, but when we're talking third grade, you know, Pee Wee football or soccer, they are similarly situated. So therefore, you can discriminate in some sports, but you can't discriminate in others. Why Isn't that something cognizable under Title IX or the equal protection clause?
- [22:19]
C
Well, first, as a matter of fact, you know, one of the things about, you know, I remember when my kids were growing up, a lot of the early childhood leagues were in fact co ed. I remember, you know, when my son was playing basketball in second, third, fourth grade, he was playing against boys and girls. When Naomi played indoor soccer in elementary school, even later elementary school, she played in a co ed league. Later elementary school, it started to get rough. This is one again, one of those issues where you, you see that a activist movement pushed very hard, legally, very hard legally. And it's now gotten to the Supreme Court and they, they've gotten what they wanted as far as getting to the Supreme Court. And the outcome is almost, I mean, again, I would be less shocked that Humphrey's executor lives than if the Supreme Court strikes down, you know, sex distinctions in sports.
- [23:15]
A
I will tell you the only thing I'm annoyed about. I wanted the other case to get to the Supreme Court that came from the 2nd Circuit, where it was actually the biological female athletes suing that they had been denied the benefits of Title VII because, I mean, sorry, Title IX because. Let me just read you again that title IX prong 1. If you were excluded from participation in an education program or activity, okay, so the women aren't excluded. But here's the second part. Denied the benefits of that educational activity or program. Well, surely the benefits are to be able to win. And if there's a bunch of biological boys competing against you, you have been denied the benefits of that sports activity. And so I actually really wanted it to come up the other direction. I wanted them to hold that Title 9 guaranteed fair competition. So, anyway, I agree with you, David. This one seems like a known outcome, but when we get back, we're going to do conversion therapy, race gerrymandering and religious liberty. Two of those, by the way, are getting argued in the next two weeks.
- [24:24]
E
Imagine fast hydration combined with balanced energy. Perfectly flavored with zero artificial sweeteners. Introducing Liquid Ivy's new energy Multiplier. Sugar free, unlike other energy drinks. You know, the ones that make you feel like you're glitching. It's made with natural caffeine and electrolytes so you get the boost without the burnout. Liquid IVs, new energy multiplier. Sugar free hydrating energy.
- [24:51]
B
Tap the banner to learn more@blinds.com, it's not just about window treatments. It's about you. Your style, your space your way. Whether you DIY or want the pros to handle it all, you'll have the confidence of knowing it's done right. From free expert design help to our 100% satisfaction guarantee, everything we do is made to fit your life and your windows. Because@blinds.com, the only thing we treat better than windows is you. Visit blinds.com now for up to 50% off primetime deals and free professional installation rules and restrictions apply.
- [25:23]
A
All right, David, Chili's versus Salazar. This is the Colorado ban on conversion therapy. So Colorado's minor conversion therapy law prohibits mental health professionals from providing conversion therapy to minor clients. Conversion therapy, as the lower court panel explained, generally refers to therapeutic attempts by a mental health professional to change a client's sexual orientation or gender identity. So this question, David, is really about when speech is not speech under the First Amendment. So the panel majority held that speech by licensed professionals in the course of their professional practice is conduct, not speech. Right. They are conducting their professional activity. This professional activity happens to involve speaking, but it is still conduct. And therefore any restrictions on their speech is just incidental to the regulation of their conduct, which the state is allowed to do. So, David, as the dissent pointed out, a state could just as easily then prohibit therapy that affirmed a youth's homosexual orientation, and it would have only faced rational basis review would not have been protected speech. I mean, that should be pretty scary, right? If a state can say that a therapist can't say that, like, no, you're not gay, that therefore a state can say, well, then you're not allowed to say, no, you are gay and that's a good thing and you should celebrate your differences. I don't think we want any of these rules.
- [27:00]
C
Yeah, it's interesting because I can imagine there are some listeners right now are saying, okay, hold on. Wait just a minute. Time out. I remember your discussion of Schremetti, and in Scarmetti you had the state was prohibiting a course of treatment and that was subject to rational basis review. Isn't that what's happening here? Isn't this a situation where a state is prohibiting essentially a course of treatment and therefore it is rational basis review? Well, the distinction here is that the argument is that this prohibition on a course of treatment is a speech restriction. It is not simply a course of treatment. What we're dealing with is speech. And this is going to be, I would say, because of the overall background of the overall approach of this court that we've seen for years on free speech. This is a very speech protective court from 1 through 9. Overall, it's a very speech protective court. For example, we talked about NRA Vulo a couple of podcasts ago. That was a nine zero case by Justice Sotomayor in the majority opinion, writing the majority opinion in favor of the NRA on a speech case. So if you go back and look at this at this court, it's very speech protective. And so the question really does boil down to, okay, in this circumstance, when you're dealing with counseling, talk therapy, is this a speech restriction or is this something more like prohibiting a doctor from saying the treatment for a broken bone is bleeding? You know, that would be speech doctor saying, well, you know, I'm not going to set this, because do you have a straight razor at home? You know, just bleed out a court and you'll be amazed at what it'll do for your bones. I tend to think that the court is going to say that, especially when you're talking about therapy, which is just inherently talk. It's inherently a conversation. It's laden with value questions. Just laden with value questions. You can't separate therapy from values. That this is going to be a zone where the First Amendment is going to extend into this, at least to some extent. I do not think you're going to end up with a rational basis review here. I think the lowest standard review that's even reasonably possible is intermediate scrutiny, is some kind of professional speech restriction.
- [29:15]
A
Next up, David, this one's getting argued. Wednesday, October 15th, is Louisiana versus Calais. As we have now had a Supreme Court justice weigh in on the correct pronunciation of that case. This is the racial gerrymandering case. We have covered this quite a bit. I don't think we need to spend a ton of time on it. But it is the question under the Equal Protection clause whether Section 2 of the Voting Rights act can still exist. When you are taking race into account, to put voters into one district versus another, is that required by Section 2 of the Voting Rights act or unallowed by the Equal Protection Clause? We had this case, but a few terms ago in Alabama. We had a version of it in South Carolina, but they keep coming up and they keep kind of getting more egregious. As we mentioned, in this case, Louisiana first had a district and they were sued from the left. Let's say saying, no, you need another majority minority district. And they were like, shrug, fine. The court held that they needed one, so they drew one. Then they got sued from the other side. No, you have unconstitutionally, racially gerrymandered your districts to create A second majority minority district. And so, you know, the damned if you do, damned if you don't case has made it to the Supreme Court. This one will be extremely contentious, probably more contentious than conversion therapy. But I think it's very hard to guess exactly how this is going to come out. If you just looked at the jurisprudence of the Court, you would have gotten the Alabama and South Carolina cases wrong as well. And so here we are again, which makes it seem like they want to do something different. But also, we just had those cases, and membership on the court hasn't changed dramatically since then.
- [31:05]
C
This is a core quandary here. The Court has said, on the one hand, a political gerrymander is not in our purview. You can gerrymander for partisan political reasons. To your heart is content a racial gerrymander is in the purview of the Voting Rights Act. But what happens if you're dealing with those states and they're not all the states in the Union? Let's just be very clear about that. There are certain states, especially in the Deep south, where the partisan gerrymander and the racial gerrymander are going to be the same thing for lots of historical reasons. The partisanship of white voters is far, far, far more Republican than white voters in other parts of the country. The partisanship of Democratic voters is maybe modestly more Democratic than it is for black voters in other parts of the country. And how much of that is just partisan versus how much of that is the actual legacy of the racial divisions that have plagued the south for hundreds of years? And in the Alabama case, what Justice Roberts seemed to be saying was, the history here just really, really, really matters. And the history shows that unless you do a gerrymander, that unless there is this kind of racial gerrymander towards majority black districts that you just. The history is overwhelming. We know what happens. Right. And so that there will not be a black representative. And the question is, how much of that history is changing? How much of it is still the same? And I have to say, Sarah, this is the case in the term that I am completely stumped by the outcome. Don't make me predict it, because I don't know, I feel pretty strong that conversion therapy is going to be seen as protected, at least as defined here is in a pretty strong, not super strong, that conversion therapy will be considered to be constitutionally protected speech. I feel very confident in the outcome of that. The court will find that biological males don't have a right to participate in female sports on the tariff case, you know, as we've gone through, I have. I have a pretty strong lean on all of them until we get to this one. And I am just stumped.
- [33:14]
A
Well, Alan v. Milligan, if you remember, was 5, 4. It was decided in 2023. The foreign dissent were Thomas, Gorsuch, Barrett, and Alito, which meant the Chief, Kavanaugh, Sotomayor, Kagan and Jackson were in the majority. You know, do you think Kavanaugh has moved? Do you think they're going to answer a slightly different question here? Like you said, David, this one, the hardest one. Okay, we have got to go to number six, though. And this one is Landor versus Louisiana Department of Corrections and Public Safety. It's my favorite case from the term right now, David, and I think it might be yours as well. I don't know. This is. This is a case about Damon Landor. He is a devout Rastafarian who vowed to let the locks of the hair of his head grow, a promise known as the Nazarite vow. See numbers 6, 5. So Landor kept that promise for almost two decades. He did not cut his hair. He was then imprisoned for about five years or so in a prison that accommodated his religious exemption. But then he was moved to another prison for the last few months of his sentence. Okay. Upon arrival, he was met by an intake guard. Acting preemptively, Landor explained that he was a practicing Rastafarian and provided proof of past religious accommodations. And literally, David handed the guard a copy of the Fifth Circuit decision in Ware vs. Louisiana Department of Corrections, which held that Louisiana's policy of cutting the hair of Rastafarians violated the Religious Land Use and Institutionalized Persons Act. R. Lupa so, like an on point recent case by the Fifth Circuit in the correct state, like all of the things hands them the case, the guard threw the paper in the trash, summoned the warden. The warden demanded Landor hand over documentation from his sentencing judge that corroborated his religious beliefs. When Landor couldn't instantly meet that demand, as in he did not currently have it on his person, two guards carried him into another room, handcuffed him to a chair, held him down, and shaved his head to the scalp. So can he get damages under rluipa? Under the Religious Freedom Restoration act, the answer would be yes. But the court has never actually held that for RLUIPA and 5th Circuit precedent controls here that says RFRA and RLUIPA are different. Here's the problem, David. If you can't get damages, there's literally nothing that prevents this from happening because like, as you saw, he literally shows up and they shaved his head. He had no opportunity to go to court. Sort of by definition, when you're talking about institutionalized persons, which is the IPA of Ri Lupa, if you don't have damages, you don't have anything. So on the one hand, the court, I think, is very hesitant to extend damages causes to new areas of the law. On the other hand, this law can't really be enforced without damages.
- [36:25]
C
Yeah, this is one of those cases where you can see where the court's overall support for religious liberty is pushing in one direction, whereas the courts doesn't also have a huge love for damage claims. This is one where I not incredibly confident, but reasonably confident the court's going to find a damages claim again. Yeah, I agree with you, Sarah. This is one of my absolute favorite cases in the term. I do think that there should be a damages claim here in this kind of case. What? As you ably said, what more can the man do?
- [36:58]
A
Okay, when we get back, we've got seven, eight, nine to go and there's some fun ones here, David. Campaign finance reform, death penalty, and one that nobody thinks they care about, but everyone does who can quash a subpoena.
- [37:16]
F
This episode is brought to you by Rakuten. If you're shopping while working, eating or even listening to this podcast, then you know and love the thrill of a deal. But are you getting the deal and cash back? Rakuten shoppers, do they get the brands they love savings and cash back. And you can get it too. Stack sales on top of cash back and feel what it's like to know you're maximizing savings. It's easy to use and you get cash back sent to you through PayPal or check. The idea is simple. The brands you love pay Rakuten for sending them shoppers and Rakuten shares the money with you as cash back. Download the free Rakuten app or go to rakuten.com to start saving today. It's the most rewarding way to shop. That's R A K U t e n rakuten.com recently we asked some people.
- [38:01]
C
About sharing their New York Times accounts.
- [38:03]
E
I would be very interested in having separate logins for a shared store subscription.
- [38:08]
A
I'm 35 years old. I still share my parents New York Times subscription. I think if my teenagers were to.
- [38:15]
C
Have their own logins, we could share articles.
- [38:18]
A
It doesn't let us play the same games as each other. I do the crossword, I do the spelling bee.
- [38:22]
D
I do the wordle Please help.
- [38:25]
E
Having our own accounts would be amazing.
- [38:27]
A
My mom could save her own recipes. My friends could save their recipes.
- [38:31]
C
I want to get the weekly newsletter.
- [38:33]
A
But they seem to always go to.
- [38:34]
C
My husband and then he doesn't forward them to me.
- [38:36]
E
We both love cooking. I'm a 30 minute and under dinner girly. My boyfriend is very elaborate. I think him having his own profile would be great.
- [38:44]
A
We love the New York Times and we would love to love it individually.
- [38:49]
C
We heard you introducing the New York.
- [38:51]
A
Times Family Subscription One subscription, up to.
- [38:54]
C
Four separate logins for anyone in your life. Find out more@nytimes.com family.
- [39:01]
A
Okay David, number seven National Republican Senatorial Committee versus Federal Election Commission this is a case to reconsider The Supreme Court's 2001 ruling in FEC vs Colorado Republican Federal Campaign Committee in which the court upheld federal limits on coordinated campaign expenditures between political parties and their candidates. Okay, so just to refresh everyone, you can only donate X amount to a federal candidate 3,000 or so dollars. The party committees, the National Republican Committee, the National Republican Senatorial Committee and the National Republican Congressional Committee and their counterparts on the Democratic side also have campaign contribution limits to their own candidates. After they meet those campaign contribution limits, they then have something called an independent expenditure unit where the the party committee still spends money about that campaign, but they can't tell the candidate or talk to the candidate about any part of it. What message you like when we're running these ads. There's huge amounts of law on this and like David used to be a First Amendment litigator. This is my past life. There's not too much interesting about this because like so many of these other cases, David, it's very clear they're going to overTurn Colorado the 2001 case because, and I just thought Judge Sapar's dissent in the Sixth Circuit laid this out pretty well. The Supreme Court has said that the only reasons that you can have campaign finance regulations that don't violate the First Amendment is corruption or the appearance of corruption. Therefore, the only reasons for this type of campaign finance regulation is to prevent parties from corrupting their own candidates or to prevent donors from circumventing donor to candidate corruption limits which are themselves anti corruption mechanisms. So here's where the par really gets going. In service of that goal, the Federal Election Campaign act imposes five prophylaxis. First, the donor to candidate contribution limits. Most contributions to a candidate aren't bribes, but the government may limit all contributions as a prophylactic measure. Second, the Donor to party limits to prevent donors from circumventing the donor to candidate limits. The government also limits how much money donors may contribute to parties. Third, the earmarking rule to further prevent circumvention, the act treats earmarked party contributions as direct contributions to the earmarked candidate. Fourth, disclosure requirements to shine sunlight on any potential bribery, a party must publicly report its own spending as well as its donors names and donation amounts. And fifth, in the event that 1 a donor wants to bribe a candidate, 2 the donor to party limits are large enough to facilitate bribe sized contributions, 3 the donor has evaded FEC earmarking enforcement and 4 a donor isn't discouraged by the fact that his bribe will be reported publicly. The act sets another safeguard it limits how much a party may spend in coordination with its candidates. Such a prophylaxis upon prophylaxis upon prophylaxis upon prophylaxis upon prophylaxis approach is a significant indicator that the regulation may not be necessary for the interest it seeks to protect. I just think that's all going to be obviously found to be correct by the majority. This one looks like to me it would be pretty 6 3ish along those ideological lines actually. But David, here's the part that I think you're going to be most intrigued by in furtherance of all of this argument from Judge Thapar in his dissent, he argues that text, history and tradition should not be limited to the Second Amendment and in fact should be imported into the First Amendment. So we may know how this turns out. But David, watch this one closely because you're gonna know why? Because if it's text, history and tradition, it's a whole new ballgame.
- [43:09]
C
If we go text, history and tradition in the First Amendment, there will be a primal scream that will be literally audible on the podcast feed without opening the podcast app. Like it's just going to penetrate the souls of advisory opinions listeners. And then you know what would happen? You know what? All of a sudden we're going to get all these briefs about colonial anti blasphemy laws and established religions in the colonies and all of this bull crap anyway.
- [43:37]
A
Okay, well we also get to my original problem about Are the Alien and Sedition Acts proof of how the First Amendment was supposed to be interpreted or proof of how they didn't abide by the First Amendment? Which is it? Like, how are we doing this? Okay, number eight, Ham versus Smith. This case, David, is the case that actually will not go away. So if you remember when we talked about relist Watch before this was the case that when it was previously being litigated, was relisted 23 times. It currently holds the record for being and relist means, by the way, the Supreme Court tells us when a case is going to be brought up at conference and which conference it's going to be discussed at. Well, they discuss it and then decide they're going to discuss it again at the next conference it gets relisted. So it got discussed at 24 conferences and it was rescheduled for five conferences before that. And in the end they just sent it back down to the 11th Circuit basically saying, like, we don't understand what your opinion was based on. Try again, write better, do better, huh? So the 11th Circuit went and tried again. Well, guess what, the case is back. And they granted cert again. So here we are. Here are the facts. Like most states, Alabama requires that offenders prove an IQ of 70 or less to satisfy the intellectual functioning prong of the death penalty case Atkins v. Virginia. This case was not close. Smith scored 75, 74, 72, 78 and 74 on five full scale IQ tests. But the panel at the 11th Circuit said, okay, so that puts him in about, you know, the somewhat under 75 mark. So then we look at all of the other factors that one might look at to determine his intellectual function. And using that holistic approach, we do not think he is eligible for the death penalty. And what Alabama says is, no, dude, all of his IQ scores were above 70. The rule is 70 or below. So no, you don't look at any other factors. He didn't get past the first factor, which is the IQ test. David, I actually do think this is an interesting question because for a lot of other conservative ideological things we would not trust or rely on for legal purposes, an IQ test that has some number based on what experts think that might be reliable for whether you should get into the gifted and talented program or something, but maybe not whether someone is intellectually functioning enough to be put to death. I would feel much more comfortable if we had a holistic approach and this was based on the text of the eighth Amendment, frankly, the history and tradition of the eighth Amendment. And then a judge uses that to determine themselves whether this person, it would be cruel and unusual because they do not have the mental intellectual capacity to understand what they did. And therefore putting them to death by the state would be cruel and unusual. Relying on just numbers from an IQ test, that seems unconservative to me, even though conservatives tend to be the ones that don't like all this death penalty litigation and the longitudinal nature of it.
- [46:56]
C
I think the desire of the IQ test rule was to eliminate ambiguity. In other words, let's treat this like it's a scientific thing, like, you know, two plus three equals five, and that there's just an empirical number. And when we get to that empirical number, anything below bright line, they're eligible for the. I mean, above anything, they're above bright line, they're eligible. And anything below bright line, they're not eligible. But the problem is the. The test itself is not a precise measurement of intellectual capacity. It's. There is ambiguity in the test results, which is why the, you know, in the 11th Circuit, they're talking about. What that means is a result is really a range. The result is not a sharp, distinct, specific. I don't even think IQ tests are that commonly given anymore. I think the last one I was given was, say, in high school, and I think I took them two or three times in high school and had two or three different results. So they're just not precise. Right. So the ambiguity here is found in a test that's inherently imprecise. And it strikes me that the holistic response is that's the fair way to deal with ambiguity is to, when ambiguity is inevitable, get holistic about it. So, yeah, I violently agree with you on this one, Sarah.
- [48:17]
A
Okay, we made it to number nine. This is exciting. This is a lot of people's favorite case from the term. It is called First Choice Women's Resource Centers versus Platkin, and it involves crisis pregnancy centers. David. Who were subpoenaed by the attorney General of New Jersey for, for instance, donor lists. I mean, all sorts of pretty intrusive stuff. So they go to federal court to say, like, no, this is targeting. It violates the First Amendment. We're being punished for our speech and views. And the federal court was like, nah, this is just like a subpoena from the state attorney general. He has to enforce that in state court. So, like, not ripe. So then the attorney general goes to state court to enforce the subpoena, and the state court's like, thumbs up. So then they go back to federal court, the crisis pregnancy centers. And they're like, see? No, he's. The court said he can enforce it. And the court was like, but you don't have, like, a contempt citation against you to enforce it. And so, like, go back to state court because they can litigate these constitutional issues as well. And then maybe you could come back or something. But the crisis pregnancy centers make the Pretty valid point that if the state court litigates their constitutional questions, then it's like res judicata, they can't litigate them again in federal court. So they never will have a federal forum to litigate their constitutional argument that the state is attacking them for their viewpoint or investigating them for their viewpoint in this question, et cetera. So, and the argument, by the way, of why you don't want to be in state court is that the state courts are. There's a few reasons. There's like the legal reason why the state courts shouldn't get to litigate their own state interest, basically. And then there's the very practical reason, David. Nobody ever wants to be in state court unless you're like, trying to get in front of a jury to, you know, on the plaintiff side or something. And part of the way that state judges are selected in a lot of states, just the overall vibe between state and federal courts, I mean, yeah, nobody wants to be in state court if you're on the this side of the things. Okay, so the question who can quash the subpoena? Can the federal court say that the state has violated the First Amendment in targeting a group for their viewpoint and therefore can quash the subpoena? Or dare you always left to the mercy of the state courts. The reason I put this, David, as number nine, is because the bedfellows on this amici. I mean, all over the place, you have net choice with an amicus brief. Chamber of commerce is on it. Like, this is not just the right versus the left. This is in our current era of culture wars. Everyone who is part of either side of the culture war, who thinks that they could get investigated by a red state or a blue state, wants to make sure that they have a federal forum and are paying very, very close attention to this case. In the era of government punishment of viewpoints, it's like a. It's a sad state of affairs case, boy, isn't it?
- [51:22]
C
And, you know, if you think that these sort of subpoenas can be like, what's the big deal? What's the big deal? We just had an Entire podcast, or 90% of a podcast, that we dedicated to the kind of the concept of the comey prosecution, which is show me the man and I'll show you the crime, to use sort of the Stalinist secret police formulation that, hey, look, you've identified the target, and we will figure out, we will do what we need to do to figure out how to punish the target. There are ways in which the very aggressive bulking up that we've seen of state attorneys general, State attorney general's office is interesting and a reflection of the time in which we live where the legislative branch is so impotent that so many of our truly important fights are moving to courts, which means state litigators, the attorneys general are going to be much more engaged in national politics. But also this sort of escalation of the red blue divide in America means if you're red in a blue state or if you're blue in a red state, you are in a position often of acute vulnerability. And there will be every incentive you can imagine for the leadership of red state or blue state to inflict pain on their political opponents. We're not anywhere. We're not anywhere near. I don't want to, I'm going to raise an analogy. I just want to be super clear. We're not anywhere near this. Where you had the Jim Crow south, where the state courts were just, it was all 1 billion percent baked in. If you were black, you were losing, you were in trouble. But we're heading in a negative direction where if you're red in a blue state or blue in a red state, you might begin to feel as like a second class citizen and that your institutions are second class citizens. And in that environment, the federal courts were a saving grace at that very dark time. And I don't want to get anywhere near that dark time ever again. But we're moving towards a kind of acute political polarization and favoritism. And so shutting the it feels as if this is extremely inopportune time to slam the courthouse door and in federal court.
- [53:33]
A
All right, David, our next episode will be dedicated to the orders coming out of the Long Conference. So look forward to that. We are hoping for those orders probably on Friday. And again, could it get 5 to 15 more cert petitions granted? Plus we'll have to talk about all things Long Conference because we are headed up to the first Monday in October. Woo. OT2025 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@advisoryopinionsedispatch.com we read everything, even the ones that say David's right. That's gonna do it for our show today. Thanks so much for tuning in. We'll see you next time.