Loading summary
Transcript129 lines
- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. We want to set the stage for two oral arguments happening this week. Oh, did we mention that there's an opinion hand down coming on Tuesday? There's a cert grant we'll talk about. Have you turned on the location on feature for Google on your phone? You may want to think about it because it's going to be really relevant as well as the most amazing group of circuit cases. I recently talked to a law student who said that our circuit case coverage is actually the most helpful for law students because the clerks who are sort of running those judge interviews often are talking about, you know, some circuit case that they think no law student has heard about. But haha, we talked about it on Advisory Opinion. So here we are, law students, just preparing you for your clerkship interviews, one podcast at a time. And I mean Halloween. Sex offenders, truth threats against Jews, sleeping during the death penalty case, and the Satanic temple. There's so many. David.
- [01:23]
B
Sarah, can you pronounce the name of the holiday that happens on October 31st?
- [01:28]
A
Halloween.
- [01:29]
B
Halloween, right.
- [01:30]
A
Halloween.
- [01:31]
B
Halloween.
- [01:32]
A
Are you serious right now?
- [01:33]
B
All Hallows Eve.
- [01:34]
A
But we say Halloween now, David, because this is America.
- [01:38]
B
I object. I object. Halloween. Okay, listeners, help me out here. Help me out here.
- [01:45]
A
We're already in trouble. All right, here we go. This episode of Advisory Opinions is brought to you by our friends at Pacific Legal Foundation. Since they were founded in 1973, PLF has won 18 Supreme Court cases defending the rights of ordinary Americans from government overreach nationwide, including landmark environmental law cases like Sacate vepa. Now PLF is doubling down and launching a new environment and natural resources practice. They're on a mission to litigate cases that make more of America's land and resources available for productive use and to make sure freedom drives our environmental and natural resource policy, not fear. To learn more, visit pacificlegal.org flagship. All right, David. First up, the Supreme Court is releasing opinions Tuesday, 10am SCOTUS Blog will be doing a live blog. This is starting to feel a lot like Lucy and the Tariff football.
- [02:43]
B
Yeah, I'm, I'm not. I'm worried about that. I think it is time. I mean, there's a lot of reasons why it's time. Suddenly it's an emergency that we need Greenland and tariffs are being used for this. I mean, there is no, David, you.
- [02:57]
A
Have it slightly wrong. As has been explained to us by a member of the Cabinet, the emergency under IIPA to trigger these tariffs is the avoidance of an emergency.
- [03:10]
B
Yes. Yeah, I have seen that explanation, Sarah, and I find it.
- [03:17]
A
You're not satisfied.
- [03:18]
B
Unconvincing.
- [03:19]
A
I'm shocked.
- [03:20]
B
I'm not. I'm not satisfied. I'm sure it's my Trump derangement syndrome locking in here, but I'm not satisfied that the avoidance of an emergency is an emergency. But. Seems like a little bootstrapping there, Sarah. Seems like a little bootstrapping if I'm.
- [03:42]
A
A justice, and more importantly, if I'm a clerk for a justice on the Supreme Court. Right now, a couple things are happening. One, I'm furiously adding some footnotes to whatever concurrence my boss wrote, and I feel like we're going to get some really long concurrences. Two, I actually think that, like, time is of the essence, even more so if they're going to keep doing more IPA tariffs, because it's going to keep sort of changing your factual landscape for the legal analysis. So you want to get this thing out so you don't have to keep adding the footnotes and adjusting to the new IEPA world that we find ourselves in. Either way, it's going.
- [04:21]
B
Yeah, no, absolutely. What's happening is facts on the ground are accelerating at a very rapid rate, and these facts on the ground are very dependent. And what happens to these facts on the ground are very dependent upon a Supreme Court ruling. And it's not just now in the United States, Sarah, we're talking about the entire geopolitical fabric of the Western world is now being warped by these tariffs. And I understand the Supreme Court with the concept that, you know, you don't want to rush it too much and have a bad opinion or ambiguities that you don't need to have. But at the same time, we are really entering into a world in which time is of the essence on the constitutional resolution of this. I mean, either way, either way, to know if this is something that Trump can do or not do at this point is a matter of urgent national necessity.
- [05:17]
A
All right. Well, we also have two interesting oral arguments going on this week, one happening Tuesday morning and one on Wednesday morning. SCOTUS blog will also be live blogging Wednesday's oral argument. This is the Lisa Cook Federal Reserve case. Let's start there, David. As Amy Howe has pointed out, as a technical matter, the question before the court is whether it should pause the district court's ruling and therefore allow the president to fire Lisa Cook or instead leave it in place, allowing Cook to remain in her job while this litigation is continuing. So this is one of those rare interim docket decisions that has been scheduled for oral argument. It did not get cert granted before judgment, et cetera. This is actually the interim docket question. Now, this is also one of those things where whatever they say about it will have implications beyond the temporary question, the status quo question. But just to be clear, it is a status quo question, not a merits question, technically speaking. And the other thing that I think people misunderstand about this is there's not a whole lot of room here for the Supreme Court to weigh in on, like the Federal Reserve qua. Federal Reserve and its legal place in our separation of powers framework. This is really about what for cause means in a. For causal removal. For causal. For cause removal statute here. The district judge said that pre appointment conduct of a federal officer cannot support for causal. I'm gonna keep saying for causal. We're just gonna call it that.
- [07:01]
B
Actually just roll with it.
- [07:02]
A
Yeah, okay. Cannot support for causal removal from office. The district court also held that Cook enjoys a constitutionally protected property interest in her office. David, I have to say here, I so remember the Supreme Court in the interim, before the interim docket here has left Cook in place, which has been somewhat telling. It has been more likely than not that whatever they decide on the interim basis has been where it's turned out on the merits. And again, here was sort of like they didn't do anything in the interim before the interim. They just left the district court's order in place, which then the circuit court had affirmed two to one, with Judge Katzis dissenting. But nevertheless, Cook is in office while this is going on. David, I have to tell you, I think there's some interesting chance that on the one hand the Supreme Court could find that the President can't remove Cook, and on the other hand they could just eviscerate this district court opinion, which I think has some real problems with it.
- [08:07]
B
Yeah, you know, and this is another one where I feel like real world events might be playing, you know, buzzing around in some of the justices heads, because since the court agreed to hear this case, the. The Trump administration has apparently launched some criminal inquiries into the Fed chair, Jerome Powell over the building of the new Fed buildings. And so this is a very similar situation where with Cook, what you're talking about is not a final adjudication against her, but, you know, an investigation investigation here against Jerome Powell. Does the existence of an investigation create an allegations that will give rise to an investigation? Does that create four cause grounds for removal? And I think that if the Trump administration wanted to win this case, they shouldn't have done this to Jerome Powell while it's pending. Because both with IIPA and with Jerome Powell, what you're seeing is sort of if you're a plaintiff, you're often walking into these situations and you're saying however tough my, you know, if you know that you have a difficult case or a very contestable case, one of the a very good argument to make is this might look at first glance like a tough case. But if you think about this for five seconds, think of the slippery slope. If you rule against me and often the slippery slope argument is very theoretical and you're trying to convince that it's realistic. In this case, the slippery slope arguments are unfolding in real time right in front of our faces. And so in that circumstance, you do wonder how much that plays in. As you were saying, Sarah, how are people busily redrafting concurring opinions in the in the case of tariffs or are they rethinking some of their but you know, in advance of the Cook World argument are clerks and justices rethinking some of their approaches as they watch Jerome Powell come under criminal scrutiny apparently for no real reason at all. So this case is very interesting in the way in which the facts on the ground are altering the sort of stakes of the outcome in real time.
- [10:20]
A
Absolutely true. Now to go to like a 50,000 foot level on what does for cause removal mean?
- [10:28]
B
Right.
- [10:29]
A
And who gets to look who gets to determine that right? As long as the president gives some reason is that for cause? Can a judge say that was pretextual or it wasn't a sufficient enough reason? Like all of those are actually pretty interesting legal questions. However, I think the district courts finding that pre appointment conduct can't be enough for for cause removal is bizarre. Of course pre appointment conduct should be caused. You know, if you deter if you discover that as after they're in office and you discover for instance as Judge Katzis uses these examples, the person bribed a senator to vote for their confirmation, the person's wealth that brought them to the sort of national attention and renowned turns out to have been all built on fraud, all of these things would be pre appointment behavior and certainly in my view would fit any definition of for cause removal. It's not like the statute says anything about three year. There's no temporal limit on for cause.
- [11:31]
B
I'm just, I just had this thought. The DNA results have confirmed that the secretary is the Bay Harbor Butcher, but.
- [11:41]
A
Unfortunately that was pre appointment behavior.
- [11:44]
B
Exactly 22 bodies dredged out of Miami Bay. But that was pre appointment.
- [11:50]
A
That was pre appointment. And then the second question, the district judge said that this violated Cook's due process rights because she has a property interest in holding this office. And I'll just read you from Judge Katzis's dissent here. If there is such a claim, we must ask in what, what particularly is the property in a public job? Is it the emoluments of the office, the official power of the office, or the honor of it? All the employee removal cases do not upend the common sense intuition that that one does not have a private property right to wield government power in our democratic system of government. And David, we've talked about this before. You may have a property interest in your salary that you were due, and improper removal would entitle you to that continued salary. But to actually say you have a property interest in the position and the power of that position, I continue to find a bizarre argument.
- [12:50]
B
Yeah, I, I'm, I, I'm with you. I'm with you. I think, you know, you're right.
- [12:55]
A
That doesn't mean that a judge may not have some sort of equity ability to reinstate. So I don't know. But just the property interest question.
- [13:04]
B
Yeah, the. I, I think I'm, I'm largely with you on that. You know, my general thought would be that you, you have your standing and you have your cause of action is rooted in the removal statute. That the fact that you've been granted a statutory right to be free from removal. Now the process, the due process element of that, that is to me, that you're raising the right point. What's the property element? Or is this just a poorly drafted statute where you have a right to employment, but there's no real process defined, in which case it kind of just falls back on the equitable power of the court that we're talking about. So, yeah, it's a very interesting case, even beyond the top line. Hey, this is the Fed. Is the Fed different from, say, the Department of Education or the CFPB or anything else? Or SEC or how is the Fed different? How is the Fed different? That's a very, very key part of this case. And then also, then what if the Fed is different and if the statute means what it says, then what is of course, another part?
- [14:11]
A
All right, so that will be argued Wednesday morning against Scot Blog will be live blogging during the argument on Tuesday, the day before Wednesday is the vampire law argument, David. And we have talked about this when it was granted, but I thought we could just spend a few moments setting the stage so that we can talk about it on our next episode. First of all, love the name vampire law.
- [14:36]
B
I love that.
- [14:37]
A
We'll get to why it's called that in just a second. Hawaii used to have a law that a person with a carry permit to bring firearms onto private property could do so unless the owner prohibited it. However, to get that carry permit was a may issue licensing scheme that was struck down in Bruin. So Post Bruin, in 2023, Hawaii issued a new rule that generally prohibits the carry of firearms onto private property unless the owner allows it. An owner may consent either by unambiguous written or verbal authorization or by the posting of clear and conspicuous signage. So. Right. It kind of flips it, David. In the before times, it was impossible to get the license and the carry permit, but once you got it, whatever, go wherever you want. Of course, you were never going to get that permit. In the new regime, we have to give you the permit under a shall issue law, but you can't actually take the gun anywhere unless there's a sign posted on what is. Again, it's private property for public use. Think gas stations, grocery stores, restaurants, Target, Walmart, yada yada. Those are all private property, but public, you know, publicly available people can just walk in. So why is it called a vampire law? This is a footnote from one of the briefs. Rob Romano is widely credited with coining the term vampire rule. In this context. The term alludes to the fictional vampires whom we are told could enter a place only if they were first invited. See Bram Stoker's Dracula 1897 quote, he may not enter anywhere at the first unless there be someone of the household who bid him to come though afterwards, he can come as he please. So, David, this is Hawaii's vampire rule. Any thoughts before the oral argument of what you're looking for?
- [16:34]
B
So first, Sarah. Objection, counselor. Fictional vampires. I saw a documentary called what we do in the Shadows of a Vampire Family in Staten Island. They're wild and crazy. But, you know, there was a documentary film crew there, Sarah, the whole time, right? Yeah.
- [16:52]
A
Yeah.
- [16:52]
B
Well, speaking of that show, absolutely hilarious for like two, two and a half seasons. And then after that, it just got unmanageably weird. But I can tell you the first two seasons of what we do in the Shadows. Hilarious. Very funny. But anyway, you know, I'm torn about this because, you know, I'm somebody who, as I've spoken about before on this podcast, has concealed Carrie a lot. And one thing that you know when you concealed carry is that it's up to the property owner whether you can have your gun in the property. And so you get in the habit of looking for the sign. And one thing that you will note if you are a person who is in the habit of looking for the sign, is that the signage requirement isn't very big, like say in Tennessee. So you're, you're always walking up there and you're looking for the sign and it will have a, you know, it'll have a line through it. With Tennessee, it's the opposite. You're allowed to come in unless there's a clearly marked sign that says no. But it's in many ways it's the same burden, Sarah. You always are walking up and you're just, and you're looking for the sign. And if the sign says yes, you walk in in Hawaii. And if the sign says no, you leave your gun in a legal safe.
- [18:07]
A
Place.
- [18:09]
B
In, in Tennessee.
- [18:10]
A
But the problem in Hawaii is that the vast, vast majority of businesses have no sign. Which means the answer is no, you cannot bring your gun in with a sign that says no guns or no sign at all. And does that eviscerate a second Amendment right? Anyway, that's what the court will be deciding. Interesting note here, David. There were two questions presented in the cert petition, but only one question granted. And I just thought you would find this kind of interesting. So question number one and the question that will be argued, you know, on Tuesday, whether the 9th Circuit aired in holding in direct conflict with the 2nd Circuit that Hawaii may presumably prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier. Okay, that's what we've been talking about. But here was question two that the Supreme Court just. Naw, dogged whether the ninth Circuit erred in solely relying on post reconstruction era and later laws and applying Bruen's text, history and tradition test in direct conflict with the holdings of the 3rd, 5th, 8th and 11th circuits. David, we have talked about this. I mean everyone's talked about this. But I'm super into this question of when text, history and tradition applies. Is it the ratification of the second amendment or is it the incorporation of the second amendment against the states when the 14th amendment is ratified in 1868? Or is it the recognition of that the second amendment is ratified against the states in McDonald? And what is that, 2012 anyway, Supreme Court not interested in that question so we ain't doing it.
- [19:55]
B
Yeah, that is very interesting that they said no to that because it does really surface all that we've been taught. We haven't had a text, history and tradition rant for a while on this podcast, but that question does surface. The subject of like a good chunk of those rants, what is the time period and why it matters, particularly in Hawaii, is apparently Hawaii has some earlier 19th century legal precedents regarding restrictions on firearms and public. Not firearms, weapons, weapons in public. And they would very much like to apply the earlier Hawaiian legal precedent to this dispute, but if it's Reconstruction era forward, they can't do that. So very interesting.
- [20:40]
A
I just find it to be kind of a really fundamental question. You've asked lower courts to apply text, history and tradition, but you're unwilling to clarify literally whether they're supposed to look at the 1790s or the 1860s and 70s or later, like when the problem arises or when it's actually recognized against whatever. Like, pretty fundamental way to do text, history and tradition anyway. So that's our Vampire Rule case. Now. David the Supreme Court also granted cert in a case that of course the argument hasn't been set yet, but given that it's January, I think we can assume this one's an April argument. And this is on geofence warrants. I'm really interested in this one because I love Fourth Amendment cases. Earlier fourth Amendment cases have applied the Fourth Amendment to recording devices in public telephone booths, thermal imaging equipment aimed at homes, and cell site location data. The cases have protected data that provides an intimate window into a person's life, revealing not only his particular movements, but through them, his familial, political, professional, religious and sexual associations. If that data hasn't been meaningfully disclosed to a third party, welcome to the geofence warrants. This is all of that data that your cell phone is pinging to in this case, Google. This guy, by the way, committed a armed robbery. Let me read here from the lower court opinion. In simple terms, a geofence warrant requires a service provider to produce location data from cell phone users who were near the scene when a crime occurred. Like a traditional warrant, law enforcement, as here, may apply for a geofence warrant from a judge. If granted, law enforcement can then serve the warrant on the provider. Here, Google. This is fun data, David. Google collects the location history of over 500 million users. And it's this data that law enforcement accesses via a geofence warrant. Location history appears to be the most sweeping, granular and comprehensive Tool to a significant degree when it comes to collecting and storing location data. It's also remarkably extensive. Logging a device's location on average every two minutes, even in terms of elevation. That is, if your device is in a building, the location history can show on which floor on the other side. David Chartre, our armed robber, volunteered this information about himself to a third party to Google. He actually like agreed, signed up for the location data part of Google. About one third of Google users do. So in return he got a virtual journal of his past travels, including the armed robbery, I guess, and real 24, sorry, real time traffic updates. So which is it David? Like he gave this information to a third party. He has no expectation and privacy in it. Similar to, you know, boot prints that you leave on the scene, Tire tracks, shell casings, a scarf, a cap, items left with fingerprints or DNA. Or is this more like thermal imaging where it's, you know, we compulsively carry our cell phones everywhere we go. We can't really be expected to leave home without them. We're all helpless babies now, I guess. And therefore he has a Fourth Amendment privacy interest in his location data.
- [24:08]
B
Yeah, you know, I think this would be a much more interesting case had he not opted in to the tracking service. Yeah, I feel like the opt in just really makes it a fundamentally different case. And then at which point you say, yeah, I'm opting in so that Google can tell me when traffic is bad and so that I can have a lot of fun. Sort of like scrapbooking 2024.
- [24:32]
A
It looks a lot more like a real contract at that point. As in like there was consideration. You gave them something, they gave you something, you agreed to it. Meaning like you knew you were giving this information to a third party. Different than like I brought my cell phone with me and it's pinging off towers.
- [24:50]
B
Yeah, yeah. And so I it it that that voluntary opt in to share your information to me is very relevant to any kind of expectation of privacy analysis and also just very relevant to any kind of governmental interest analysis. What is the, is the reasoning that you can opt in to Google giving you real time traffic, but you're absolutely. The government can't touch that. Opted into, opted into information to help solve a crime when they have, when they satisfy it is a, to me that just makes it a much less interesting case. But it's conversely, if the court rules for him, it makes it much more interesting. That would be much more consequential. I think if the Supreme Court rules.
- [25:43]
A
For him, I'm going Bad man stays in jail on this one. Again before oral arguments, we'll see how it goes, I guess. And whether Judge Gorsuch's libertarian freak flag flies at full mass. But I just do want to give advice to you as you're contemplating your next armed robbery or any major felony. I would argue leave the cell phone at home or as we've all learned from infinite shows that we have watched, spend the extra money to get that burner phone. Just like advice from Sarah.
- [26:14]
B
I mean that's what I was going to say. Doesn't everybody know that you have zero expectation of privacy in your phone at this point?
- [26:20]
A
Like your nerd lawyers here know to get a burner phone.
- [26:24]
B
Why don't you criminal you're everyone at this point who's like sentient being knows that you're basically walking around with a radar transponder.
- [26:34]
A
Yeah.
- [26:34]
B
And a listening device at the same time that you are. You're broadcasting your location. It's vacuuming up your. Your words even perhaps. I mean you know I, we've had, I think we've had that discussion. Is your phone listening to you discussion?
- [26:50]
A
It is, yes.
- [26:52]
B
So you're at what point who aside from say a 14 year old who's gazing at wonder at their very first iPhone doesn't know that you're walking around with a beacon that's probably even more consuming more of all of your information and everything than if you were on CCTV in Britain where every investigation begins with let's check the CCTV footage.
- [27:15]
A
Love me some britbox. Yeah. I have like zero sympathy for this person whatsoever. The legal question. I agree with you David. Could have been interesting but the opt in to location. All right, when we get back David, do we have some circuit cases to go through today? They are good like all of them are top level satanic temple machine guns in the commerce clause. And true threats is where we're going to start.
- [27:46]
B
Well, the holidays have come and gone once again. But if you've forgotten to get that special someone in your life a gift. Well, Mint Mobile is extending their holiday offer of half off unlimited wireless. So here's the idea. You get it now, you call it an early present for next year. What do you have to lose? Give it a try@mintmobile.com Switch limited time.
- [28:06]
A
50% off regular price for new customers. Upfront payment required $45 for three months, $90 for six months or $180 for 12 month plan taxes and fees. Extra speeds may slow after 50 gigabytes per month when network is Busy See Terms Starting a business can seem like a daunting task unless you have a partner like Shopify. They have the tools you need to start and grow your business. From designing a website to marketing, to selling and beyond. Shopify can help with everything you need. There's a reason millions of companies like Mattel, Heinz and Allbirds continue to trust and use them. With Shopify on your side, turn your big business idea into Sign up for your $1 per month trial@shopify.com SpecialOffer David we've talked a lot about the First Amendment and the limited exceptions to First Amendment speech. One of them is the true threats doctrine. That even if it's just speech, if you are making a true threat, that that is not protected by the First Amendment. And I want to give you Right now the 7th Circuit example, the best example maybe I've ever read of the quintessential true threat. David on August 13th our dude posted the following and I'm going to clean it up here for our kids a little bit, but just know that he didn't clean it up, okay? I am done with my state and their BS abortion laws and allowing innocent kids to be slaughtered for the so called women's rights bs. I've seen nothing but whores go out of the way to get an abortion. But no more. I will not tolerate this anymore. I'm done. On August 23, 2019, I will go to the Women's Aid center in Chicago on Peterson. I will proceed to slaughter and murder any doctor, patient or visitor I see in the area. And I will not back down. Consider this a warning for anyone visiting. He later commented on the same post, this is not a joke and wrote separately to all the FBI agents in this app, I am not all caps a satirical account. I post what I mean and I will carry out what I post. I mean it's pretty hilarious to post all that and then appeal on the grounds that you weren't serious and this wasn't a true threat. Like when you were basically like this is a true threat to the FBI. I mean it. Yeah, okay.
- [30:19]
B
Yeah.
- [30:20]
A
Quintessential true threat. Right David, like any notes which anything you would add to make this a better true threat.
- [30:26]
B
Now the thing that makes it like chef's kiss true threat is the. I'm not joking. Like let anyone misunderstand me. Yeah, yeah, that's. Quintessential is a good one. Good word for that.
- [30:42]
A
Okay, now let's move over to this 11th Circuit case that I actually want to talk about. So this is about a student getting expelled from his university in Florida. Florida. I'm going to read you what he posted on X and sort of the back and forth he had with a University of Florida law professor. So here's what the student posted. My position on Jews is simple. Whatever Harvard professor Noel Ignatiff meant by his call to, quote, abolish the white race by any means necessary, end quote, is what I think must be done with Jews. Jews must be abolished by any means necessary. Okay, so then a professor comments on his post. Are you saying you would murder me and my family? Is that your position? The student replies, did Ignatief want whites murdered? If so, were his words as objectionable as mine? If Ignatief sought genocide, then surely a genocide of all whites would be an even greater outrage than a genocide of all Jews, given the far greater number of whites. Okay, David, let. Before I get to what the court decided in this case, do you want to break down some of the differences between this Post and our 7th Circuit, like a plus plus true threat student over there?
- [31:59]
B
Yeah. Well, so with the, the true threat student over there, he is making a very specific targeted threat against a very specific community of people and then reaffirming that he means it.
- [32:13]
A
A date. He gave a date. He gave a place, like an address, the name of the business and who exactly he was going to kill when he got there.
- [32:22]
B
Yes, exactly. So specific, specific, specific. Whereas this one is what should immediately, what you should do is when I saw this, I thought, I know exactly what this guy is doing. Okay? So first I just want to say before we get into anything that is, you know, before we get into the, the legal analysis here, full stop, terrible. Post reprehensible. Post reprehensible. So, no, I don't want anything that I say after this to be like David's excusing an anti Semitic post. No, no, no. Horrible post. Okay. The question is, is it punishable by the state? That's a different question. And so what he's doing here, Sarah, is he's referring to, I believe, a radical professor who became famous for declarations about things like abolishing and eradicating whiteness. And this became, in parts of the academy, you know, a pretty common phrase, abolish whiteness, eradicate whiteness, et cetera. And so what he's doing is he's essentially saying, I want to be the anti Semitic version of that anti white professor. And so I'm referring specifically back to this anti white professor who wants to abolish or eradicate whiteness and I'm saying when he says eradicate whiteness, that's what I mean when I say eradicate Jews or abolish Jews. And then the professor comes in and says, do you mean murder me? And then he's going, well whatever that professor means. I mean, so this dude is very committed to a bit. And the bit is to show that anti white speech is privileged in the academy when, when speech against racial minorities is prohibited. And so what he's doing is he's showing a speech double standard that there was a professor who said very extreme things about whites and whiteness, etc. About whiteness. And then you can't say the exact same extreme thing about somebody else. So that's what he's doing here. I think it's pretty obvious that's what he's doing here. He's making a political point in a gross way rather than a true threat. Is that how you analyze it, Sarah?
- [34:48]
A
100%. I mean, and far be it from me to sign on to what this kid said. I'm not, but I'm not sure I'm quite as like condemning it as you are in the sense that like he should have phrased it as why would you feel any differently when I switch out the word Jew for white or whatever? Like he could have phrased it, I think in a more articulate way. But he's a college student. And by the way, I'm sure this kid actually holds really gross views. There's some evidence of that, I suppose in the record when we get to that. But that's not what's at issue here. What's issue here is these posts. I don't have a problem with college students pointing out the double standards of their professors and of lauded professors at that, even if they do it somewhat ham handedly because they are not professors. They are trying to learn and debate and figure out why some things are allowed and not. And I love students finding double standards, especially when it comes to speech. I'm all for it. And so I guess I'm a little less willing to jump on the like this is reprehensible. It, it is, I get that. But like it's so clear what he was trying to do. And when the professor engages with him, that's great. And the professor's like, wait, do you mean to murder me? And the student's response I actually think is spot on basically. Did you think this professor meant to murder all white people? And why wouldn't that be worse? I mean, if we're just doing sort of A utilitarian, you know, calculation. There's more white people than Jews. Like, it's very college dorm room. Yeah, but that's the point.
- [36:16]
B
I think I, and I, I, I completely agree that we, we're in total agreement on what his point is. But where I think, you know, I would look at that Harvard professor and say, you're reprehensible.
- [36:28]
A
Yeah.
- [36:29]
B
For saying that this is. Yeah.
- [36:32]
A
But I would say it to the professor before I would say it to the student, I guess, is my problem with all of this. The professor has a, A sort of knowledge base and a position of power that makes his speech, like, sort of more knowing or whatever. But we're, I, we're getting off track. I don't really mean to defend this speech, but it goes to the point that, like, this is nowhere near the true threat category. But let me get to what the 11th Circuit said. So it was a 2 to 1 decision where they said the university can expel him. Well, we just told you it wasn't a true threat. So why were they allowed to expel him? Tinker. They applied the Tinker standard to this, where a school can basically take action, justify intervention when student speech materially disrupts classwork or involves substantial disorder or invasion of the rights of others. Now we have a dissent from our beloved Judge Newsom where he's like, I don't think the Tinker should apply to universities for some really obvious reasons that are different in a junior high or even high school setting. But he acknowledges that the Supreme Court has certainly never said Tinker doesn't apply and leaned into Tinker probably applying. So he's like, fine, Tinker applies. But David, I just think you get into a lot of Heckler's veto stuff, especially at the university level. And again, like, I'm just so hardcore with Judge Newsome on this dissent. I don't think you can expel the student for this. Now, again, is there a whole body of stuff this student has otherwise said and, like, to his classmates and in whatever, fine, but bring that evidence. Make that the standard. But these tweets, these two tweets are nowhere near sufficient for me to expel a student.
- [38:21]
B
No, no, no. And, you know, look, if there's Title 6 precedent that you could bring to bear that says that words like abolishing whiteness or abolishing Jews are constitute harassment under Title VI per se, that, that length, that case law doesn't exist. I mean, you're, you're talking about.
- [38:40]
A
And certainly wasn't applied in 2023 or 20, 24.
- [38:45]
B
No, no. And, you know, this really raises something, Sarah. You know, let me go back to this Harvard professor. There are listeners I know who are going, david, you're missing the point. Abolish whiteness doesn't mean kill white people. What it means is whiteness is a term of art in critical theory for a set of a particular kind of worldview, a particular kind of way of looking at the world and living and being in the world that privileges white. That sort of privileges whiteness. That's what they mean by whiteness. But, you know, I have, I'm at this point where I, I don't just, I. This is going to sound a little bit strong, Sarah, but I, at some point, you just have to have contempt for these arguments that are like, don't pay attention to the actual words of defund the police. Pay attention to the bespoke definition that we've attached to defund the police. That doesn't actually mean defund the police. It means reallocate some social services funding. But that's like, just not as good of a slogan, so. Or abolish whiteness. No, we don't mean actually abolish whiteness. What we mean is abolish a particular bespoke worldview that we've defined. Or, guys, just speak English. Just say words that have a common meaning. And if, if somebody, if you're saying words where the common meaning is vicious, racist, bigoted, don't say those words. Right? Because the double thing that they're doing, Sarah, and I've seen this my entire life dealing with universities, is you say abolish whiteness. And it's kind of a rabble rat. It's a moat a mon Bailey. It's a great rabble rousing. You know, it's great rabble rousing a radical crowd to rise up. And then when you're called on it for the obvious plain meaning of the language, you go, oh, no, no, no, you don't understand. It doesn't actually mean abolish whiteness. What it actually means, like the people with fair skin. What it actually means is abolish a particular kind of white mindset. And that's just, I get what. Tough to put fit on a sign. And so it. We're. And this is heading in a direction that has real consequences legally. And so what has happened, Sarah, because we have such ideological monocultures in many parts of the American academy, is that we've created kind of what you might want to call a crank gap in the academy. And that is for A long time conservative students and middle of the road students have noticed a particular reality, which is there is an enormous amount of grace for radicalized left wing speech. Like, that's what, oh, you're supposed to be challenged. You know, this is supposed to be where you go to law school or you go to college and you just encounter the most jolting and interesting and energizing ideas. You snowflake, why, why aren't you loving your Marxist professor? And then you have like a, maybe a conservative. And there are lots of conservatives who thrive and flourish in the academy, but they tend to have a common characteristic which is they're extremely adept at navigating difficult social circumstances. They're extremely adept socially at being a minority ideological person. And so when you get in somebody who is as rough around the edges on the right as is worshiped and lionized on the left, then they're a problem. You've got to do something. There's an emergency. And so I think that, you know, this is kind of the dynamic that's created in that, yeah, there are very successful people like a Robbie George, say in Princeton or others in very elite academy, and they are just really good at navigating that minefield. But if you're on the left, you don't have to be good at it at all. You can bounce from mind to mind, blowing up rhetorically day after day. And you're going to be appreciated, respected, protected. So if you want to get to some of the core understanding that a lot of people have with parts of the elite academy, that's where you see it is this sort of bear hugging and protection for radicals on one side and a suspicion, a default suspicion of even normie folks on the other side.
- [43:09]
A
And by the way, he did actually say the goal of abolishing the white race is on its face so desirable that some may find it hard to believe that it could incur any opposition other than from committed white supremacists. So, like, to your Mott and Bailey point, he started with white race, he then moved to whiteness, and then it moved to the conversation you talked about. Now, in the same paragraph, he says in the same way that opposing the monarchy does not mean killing the king, it means getting rid of crowns, thrones, royal titles, et cetera. Like he does make clear he doesn't literally mean kill white people. But. Okay, David, I've got another First Amendment case for you then. This one, I don't know, I feel differently, let's say, okay, Thomas Sanderson challenged a Missouri statutory provision that required all registered sex offenders, such as himself, to post a sign at their residence on Halloween stating no candy or treats at this residence. Now, I went and did a little extra work here to figure out what Thomas Sanderson was actually convicted of as a sex offender. Couldn't find a whole lot of details, but it involved a 16 year old, for what that's worth, who was willing to testify at trial, by the way, at this trial about the Halloween candy sign. Okay? So I don't think there's any question that this implicates the First Amendment. So we're in strict scrutiny territory. So let's remember the sign survives strict scrutiny only if it furthers a compelling government interest and narrowly tailored to achieve that interest. Now, the government said the signs allow them to be able to ensure that there is compliancy as a sex offender to make enforcement of the Halloween statute more efficient and provide an extra layer of protection for children. So to make this distinction here, there's no question that you can ban sex offenders from handing children candy on Halloween. The question is whether you can force them to post a sign saying that they're not allowed to give you candy on Halloween. And well, David, spoiler alert, they struck down the statute and the sign violated the first amendment. And I gotta tell you, I'm kind of like, wait, what? This actually feels like it would satisfy strict scrutiny to me. So.
- [45:26]
B
Sarah, I'm with you. With an asterisk.
- [45:30]
A
Okay.
- [45:30]
B
Okay. I think if you had a signage requirement that said you shall post a sign of X size in X location on Halloween that declares that I am. I'm not going to say those words that declares that you. That other person is a sex offender.
- [45:51]
A
David's worried about getting clipped. Clipped right now.
- [45:53]
B
I don't want to be clipped. That's right. So if there is a requirement that says a sign, let's say it's got to be the size of a standard poster board, written in X font, etc. Then I'm, I'm with you 100%. But the. What the weird. What's weird about this case is it says the sign mandate. The evidence presented, however, failed to show how the sign mandate achieved the specific goals. And the statute does not set any requirements for the size or location of the mandated signs. According to one law enforcement officer, a registrant could put an itty bitty little post it note on the door and still be in compliance so long as the note had correct verbiage. Another law enforcement witnessed that the compliance sign could be as small as a postage stamp. Postage stamp. Both officers further testified that under the statuted registrant would still be in compliance even if the sign was on the back door or inside. Inside the house.
- [46:54]
A
Okay, well, that, that, that falls apart a little bit for me. I agree.
- [46:57]
B
Yeah.
- [46:58]
A
But the idea of this law would pass strict scrutiny for me. Maybe this law could use a little more detail.
- [47:06]
B
It could use some more detail, Missouri.
- [47:09]
A
Because if you can try again, don't give up. I think this is a good idea. Just, you know, 8 by 11 piece of paper. And it needs to have these words printed on it either, you know, like, you can do this. This isn't hard.
- [47:20]
B
Posted on the center of the front door. Yeah, this is not difficult here. And so, yeah, I, I was, I was reading that opinion and I was like, wait a minute. Why are you. If anything meets strict scrutiny, this. Oops. This statute has problems. Yeah.
- [47:38]
A
All right, well, try again, Missouri. All right, when we get back, David, I've got two fifth Circuit cases that I think you're going to be interested in. One's on machine guns, and one is, does it really violate your right to counsel if your lawyer slept through part of your trial? Let's find out. David, we're back. And this is the fifth Circuit case on machine guns. Now, we've talked a lot about 924, but this is actually 922 that prohibits the possession of a machine gun in the United States for our purposes. All right, now, there's several things that make this decision interesting. One, we have an opinion by Judge Willett. Now, David, just for fun, Judge Willett here pulled a Newsom. He wrote the opinion and concurred with his own opinion to cast doubt on it because the decision itself was bound by circuit precedent. But he writes separately for an issue that he has brought up before and that I'm very interested in, and that is under what limited power granted Congress under the Constitution can you pass this law? So I'll read here. Congress has the power to regulate activities that substantially affect interstate commerce. Mere possession of a firearm fits uneasily within that category. Nor does the fact that the firearm happens to be a machine gun make a regulation of simple possession any more compatible with it. Section 922, in fact, has been described as a clone and the closest extant relative of the provision invalidated in United States v. Lopez. That was the Commerce clause decision in what, 94, 96, David. That invalidated the guns in school. School zones law. And then we have Morrison, and then we never heard about the Commerce Clause again. Really? And don't Send me all your stuff on Obamacare. I'm not that interested. Okay, Both are.
- [49:46]
B
I know exactly. I know some individuals for whom that is directed.
- [49:51]
A
Both are criminal statutes that regulate the purely intra intra state possession of firearms. Both lack a jurisdictional element, I.e. they do not require federal prosecutors to prove that the firearms were possessed in or affecting inter interstate commerce. And in enacting both laws, Congress made no findings regarding the link between the intra state activity regulated by these laws and interstate commerce. So David, I find that pretty interesting.
- [50:21]
B
Yeah, you know, I think on the, on the first prong and then we have. We need to talk about Judge Ho and the. What is. How. How do you.
- [50:28]
A
Dubatante. Okay, so there's another concurrence by Judge Ho, but it's not a concurrence. It says Dubitante. In 2005, by the way, Westlaw had recorded 626 uses of that term in the history of the United States, nearly half of which came from four federal courts of appeals judges. Frank Coffin of the First Circuit, Henry Friendly of the Second Circuit, Frank Easterbrook of the Seventh Circuit, and James Hill of the eleventh Circuit. So dubitante isn't that fun that it.
- [51:01]
B
What does it mean?
- [51:03]
A
It means that you are concurring but you're doubtful that this is right. But you're not like sure it's wrong. So you're just, you're doubtful, you're dubitante.
- [51:13]
B
That is fascinating. I. I love seeing that word. Had no clue how to pronounce it. None.
- [51:18]
A
I'm not saying I'm pronouncing it correctly.
- [51:20]
B
Well, it's elegant.
- [51:22]
A
Just so we all know, you know, normally it would say James C. Ho comma circuit judge concurring. This says James C. Ho comma circuit judge comma dubitante. So it's not like in gerund form. You know what I mean? It's like it stays in just like this French. Yeah, I don't know.
- [51:43]
B
Yeah, it's fascinating. But onto the main event, I think.
- [51:48]
A
No, that was the main event of the whole pod. Actually I've been waiting to say dubitante.
- [51:53]
B
Many been building 51 minutes in Dubitante. Yes, I might need to start doing that. Like when I mostly agree with you, but somewhat I'll just say dubitante.
- [52:03]
A
Sarah, I'm dubitante on this podcast all the time, but I've laughed a word for it.
- [52:08]
B
I know, it's fantastic. So anyway, I don't think there's much question that this current Supreme Court would uphold on the merits a machine gun ban. Everything that they are pointing to since Heller has indicated that, oh, decision after decision has been, well, here's the new legal framework, but we don't mean to disturb dot, dot, dot. And it will cover things like, you know, Heller and Spec Heller specifically mentioned, you know, machine guns and the, the.
- [52:46]
A
Particularly sensitive places have been mentioned. And your point is under the second amendment, you know, if the state of New York banned machine guns or the state of Texas banned machine guns, that would be a second amendment analysis. And you're like under Brahimi, thumbs up to a machine gun band.
- [53:04]
B
Exactly. The one way to think about Brahimi is that the Supreme Court has looked at the history and concluded that text, history and tradition means that, that unusually dangerous people cannot possess weapons and no pe. No person can possess unusually dangerous weapons. So it's the unusually dangerous prong where both people and weapons seems to be what's going to be governing going forward. And under that analysis, the machine gun ban would be upheld on the merits of a state did it. Now on the commerce clause point, Sarah, this is unlocking questions that are so far beyond guns, so far, it really does go to conceptually what, what should be done with decades and decades of commerce clause precedent that have expanded the commerce power to such a degree that, you know, go back to the famous slash infamous case of Wickard v. Filburn where there can be regulation of your local home grown wheat plot because the fact that you grow food for your own consumption has some tangential relationship to interstate commerce. Because what it diminishes demand for interstate commerce.
- [54:11]
A
Your demand, your personal demand.
- [54:13]
B
Yeah, yeah, exactly.
- [54:14]
A
You would otherwise have to buy wheat. And by the way, Wickard and the wheat case is different than Rache and the weed case, even though the analysis is identical. So you would have to buy your weed from interstate commerce if you didn't get to grow it yourself. I guess.
- [54:33]
B
Yeah. So I, I honestly, I found the whole thing interesting, but for the moment largely academic because I don't see a lot of appetite in the court to really reopen all. Reopen Commerce clause jurisprudence. I haven't, I mean to some degree maybe, but I'm not seeing any indications that that's, that's sort of on the agenda.
- [54:59]
A
And I'm not sure they're going to start with machine guns if they were to open the commerce clause Pandora's box that was shut in Morrison. I, Yeah, I don't know about that.
- [55:11]
B
I guess especially a case like this where somebody machine gunned someone to death.
- [55:17]
A
Yeah, this feels a lot more like Rahimi of like. Yeah, you're no wrong, wrong dude, my dudes. That being said, like I'm. This calls into question not just the commerce clause power for me, but all sorts of things on the purpose of federalism and what it means to be a neighbor state, you know. So for instance, if your neighboring state has allowed machine guns, but you've banned machine guns, if you're able to show that X number of machine guns cross the border on a yearly basis and cause machine gun related crimes and deaths in your state, does that then give Congress a commerce clause power hook, for instance? Because like the 50 laboratories of experiment and all of that, I'm super into. But at some point there's externalities then that's the point of the federal government. And yeah, to your point, David, like I don't think we're starting with machine guns on this one. And I disagree that I think gun free school zones are so obviously specific and local and by the way, something that every state should pass. But I, I really don't see a commerce clause hook there in a way that, for instance, I think the machine gun ban looks a lot better under the commerce clause because of those externalities I talked about. You know, the gun free school zones wasn't that you couldn't own the gun, it was that you just couldn't take it to the school which is only located in that one place in the state. Like the state has an interest to do it, the state can do it. So what is the federal government's role there? Not much of one. Not like a compelling interest, if you will. If we're doing sort of a intermediate scrutiny for commerce clause. But David, I've got another 5th Circuit case for you. Okay, so we've got a pretty bad dude here. Alvarez is involved in two deadly gang related shootings. At trial, Framencia Reyes and John Denninger represented Alvarez. Reyes, a well known Houston lawyer, had been retained by the family a couple months before trial and took over first chair from Denninger. Denninger was court appointed counsel who had already worked on the case for at least a year. As stated by the court below, the defense faced a daunting challenge. Eyewitnesses had identified Alvarez as the shooter. Gang members pointed to Alvarez as the one who ordered the violent acts. Ballistic evidence tied Alvarez to the crimes and Alvarez's own statements confirmed some involvement. Moreover, Texas's law of parties means that Alvarez could be convicted even if he personally never fired a shot. So he's convicted in Texas, he's sentenced to the death penalty. That conviction is upheld by the Texas Criminal Court, which like we have our Supreme Court is split into two. David, as we discussed on that state court podcast back for Christmas. So the highest court for criminal appeals in Texas is the Texas Court of Criminal Appeals. That's their supreme court for criming. Okay, so how did this get into federal court in the fifth Circuit? EDPA so a state conviction can be overturned by federal habeas courts only if the state court's decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. That is the statutory language of aedpa. Or if the state court decision amounted to an unreasonable application of the facts to the law. So Alvarez now claims that Reyes, that lawyer who was hired by the family, who's well known in Houston, yada yada, claims that he fell asleep a couple times during the trial and didn't cross examine some witnesses perhaps because he fell asleep. Now the question David is for our strictly purposes for your right to counsel, your constitutional right to counsel because that's the federal hook right. Does it matter that you had two lawyers and that one of them like the other one had been on the case even longer like knew everything about the case. He could have objected, he could have done the cross examination. Or is your one lawyer, who's your like main non court appointed counsel lawyer, first chair lawyer? Is him falling asleep enough to violate your right to counsel? What say you David? Before we talk about what the court said.
- [59:45]
B
The very first question that I had in my mind is when I saw that one of his lawyers had fallen asleep was did he have a non sleeping, a competent non sleeping lawyer at all times? And that would be the key question in my mind. Did you have a competent non sleeping lawyer? If you have two or more attorneys and one nods off for a time period I, I don't see that as ineffective assistance of counsel. So the question really is what is what was my non sleeping contingent? Now can I can imagine. Let's suppose you had a, let's suppose you were on trial for your life and you had a pro bono big firm lawyer and you as, as your as your main counsel and he has his co counsel was a first year public defender and the super experienced lawyer falls asleep throughout the trial leaving you in the hands of a first year public defender. Then I think you've got, then you then then you've got a much better ineffective assistance claim. But if you have two attorneys, both are competent One nods off on occasion in the trial. I'm not seeing that as that's just my coming in blank slate position on it.
- [61:06]
A
Well, to remind everyone of the Strickland test, Strickland's test for constitutionally ineffective counsel includes two requirements. A, counsel's performance fell below a standard of professionally reasonable conduct, and B, counsel's inadequacy prejudice the defense, resulting in a verdict that is not reliable. I kind of think you fail on both counts here, David. Now, what's interesting is that Strickland, of course had one attorney. And so it's counsel apostrophe S's performance, not counsel's apostrophe performance. Does that make sense? Like there is a. I mean, so do you only look at the lawyer in question here to determine whether their performance fell below a standard of professionally reasonable conduct, or is it the people with law degrees next to you at the table? I think it has to be the latter. And to your point, David, I think that would capture the, you know, super experienced first chair and the first year associate second chair, that if all you have is a first year associate because the other guy is unconscious, then that probably falls below a standard of professionally reasonable conduct. Yeah, but here you had both lawyers who were quite competent. So at that moment you only had one lawyer who was quite competent. That would still show to me that your counsel's performance was above professionally reasonable conduct. And then on the prejudice thing, I mean, I read you the other evidence that they had. It's really hard to say that it prejudiced him in any way given the mountains of evidence and probably why that lawyer fell asleep. If, by the way, he fell asleep. It's worth noting that there's questions on like the factual veracity of that. We're just going to take it as true that like, sure, counsel fell asleep and it still doesn't matter. David, the fifth Circuit agreed with us. This was two. One, it was a very big dissent, that that second lawyer was basically not empowered to, to cross examine, to make those objections, even though he was there, et cetera, and that the lawyer did in fact fall asleep, etc. But I don't know, David, I, I'm not offended by this fifth Circuit decision, I'll tell you that.
- [63:18]
B
No, no, I'm not either. I'm not either. If you had competent counsel at all times alert with you, and yeah, it's, I'm closer on the first prong maybe than you are, but it would depend greatly on the facts. But on the second prong, I just, I don't I just don't see it.
- [63:38]
A
All right, David. Last and definitely least, we have a 7th Circuit case. The Satanic Temple is a Massachusetts nonprofit corporation organized as a religious institution that seeks to ensure its members in Indiana can use telehealth medical services as a means to receive medication to induce abortion. But Indiana prohibits and criminalizes the administration of such medication with limited exceptions. This actually was a standing case, David, and here's how the Satanic Temple argued that they had standing. Instead of identifying an individual member who has suffered an injury in Indiana, the Satanic Temple relies on statistical probability to show it has some unnamed members who might be injured. Specifically, it cites to the declaration of Dr. J.D. an obstetrics and gynecological osteopath proceeding pseudonymously, who claims it is reasonably likely that 94 of the Satanic Temple's 11,300 members located within the state of Indiana could become involuntarily pregnant during the course of a year and that it is reasonably likely that there is at least one involuntarily pregnant woman in Indiana at any given time. David, how do you think that flew at the 7th Circuit?
- [65:01]
B
That is a weak standing case. Oh, my goodness. But I'm actually, I. I'm actually not at all surprised as tossed on standing. I. I wish. And. But part of me wishes that they'd gotten to the merits, because I hear all the time from people who say, wait, why isn't there religious liberty claim for abortion rights? In other words, you know, if a lot of the opposition to abortion is religiously driven, the support for abortion is religiously driven from people who have very different theologies and understandings of things like insoulment and things like that. And so therefore, aren't you burdening my religious liberty rights by burdening my right to an abortion? I think the answer to that is ultimately going to be rooted in something that the Supreme Court said in Dobbs when it was talking about how Roe was different from other 14th Amendment precedent. And the way in which Roe was different and Dobbs was different from other 14th amendment precedent was that there had been a. A determination, at least by some of these states, that you're talking about a separate life. And so my religious liberty rights end where your rights begin. My religion cannot compel me, for example, and I don't have a protected interest for my religion to hurt you. I couldn't belong to the first Church of punching someone randomly on the street, for example, that even though I might be concerned that I'm going to go to hell if I just don't punch someone randomly on the street. There's no circumstance where the First Amendment would give me the right to do that. And so in those states that have banned abortion, they have made a determination that the unborn child is in fact an unborn child. And so therefore, under no understanding of religious liberty do I have a right to physically harm that underborn child. And so that's what separates this from other kinds of religious liberty claims, because part of the fundamental state reason for the abortion prohibition is rooted in an understanding that you would be harming another human being and you don't have a religious liberty right to do that.
- [67:09]
A
Well, David, you missed the whole point of that case for me, which is there are 11,300 people in Indiana who have signed up for for the Satanic temple. That just feels high to me, but.
- [67:21]
B
Okay, that feels high to me as well. True, you bury. I buried the lead here.
- [67:28]
A
Dubitante Satanic temple. Dubitante. David, before we go, I do have an important correction to issue. On our last podcast, several of you wrote in about this. I just want to apologize up front. This is the problem with speaking, you know, mostly extemporaneously. For a long time on the pod, I talked about individual electrons spinning around the atom and it really should have been electron shells or orbitals. And indeed, David, I made a little like offhand Heisenberg reference and we got this email from an undergraduate. I loved your episode and all you do. I am studying biochemistry, but I'm very law curious. Upon hearing Sarah's electron shell metaphors today, I feel I must honor the long standing chemistry tradition of making pedantic corrections. Sarah refers to the Heisenberg Uncertainty Principle to explain why there are discrete orbitals of electrons in an atom. This is a common mistake. The Heisenberg Uncertainty Principle states that we cannot know the precise location and momentum of an electron at the same time. The more specificity with which the location is known, the less precise the the momentum can be measured, and vice versa. What Sarah means to reference is the Pauli Exclusion Principle. This states that no two particles may occupy the same quantum state at the same time. This is why after filling up the first orbitals, electrons must occupy higher energy orbitals further from the nucleus. Thanks for reading. I love ao. Okay, Nicholas, I'm offended that you think I don't know what the Heisenberg Uncertainty Principle is. I do. And I did mean in fact, the Heisenberg Uncertainty principle, because at some point we were talking about trying to pin down all of these things. We were trying to know, to decide, like, where they go in our electron orbitals. That being said, did I know that what causes an electron to move to an outer, you know, a further and further outer shell was the Pauli exclusion principle? Maybe at some point, but I sure didn't know when we were recording that podcast, as is evidenced by the fact that I didn't actually use the term shells or orbitals. I got all that wrong. So as much as I want to stand on my Heisenberg high horse, I'm backing off the whole thing. I appreciate this. Now we've explained it to everyone in much better, clearer language. And I apologize for misstating, et cetera, or anything I did to offend the chemistry gods. Because remember, David, I went into college as a math and chemistry major and dropped it like a hot effing potato within the first few months.
- [70:11]
B
So I went in as a math and political science major and dropped math like a hot potato after my first year in college. You know, Sarah, I didn't fact check you in real time there because, you know, I just. I wanted to let a reader intervene and have a moment to shine. Really. I was going to intervene with the orbitals fact check, but I chose not to. You know, it would upset the dynamic. I didn't want to. I didn't want to interrupt you in that moment.
- [70:41]
A
No, for sure. By the way, there is one more serious note. You know, I talked about Robert Moussey as the Deputy Assistant Attorney General in the Civil Rights Division of the Department of Justice. He did in fact retire this past year, so he is no longer dag. But I do think a lot of people misunderstood what I was saying. I was describing my own knowledge base for working on police involved shootings at the Department of Justice. I was not saying that Robert Moussey or anyone at the Department of Justice would be running the investigation involving Renee Goode, because obviously there is no investigation at doj. That's why we were talking about the state bringing charges and how that would work with federal removal statutes, et cetera. That being said, I do think that I was maybe not clear as to why I was bringing up my DOJ experience. It was just to establish, like, why I know anything about this and that I learned it from the very best human to ever teach someone about it. Robert Moussey, who again, is no longer a doj, which won't come as a surprise to anyone who's read the news about anything going on at DOJ.
- [71:45]
B
DOJ. Yep.
- [71:45]
A
Well, David, what do you think? Are you dubitante of this podcast or.
- [71:51]
B
You feel I'm in full concurrence.
- [71:53]
A
Full concurrence.
- [71:55]
B
I'm joining them. I'm joining the majority here. I don't even need to concur. I'm joining the majority. This is an excellent pod.
- [72:01]
A
Next up, we will talk about the oral argument in that vampire rule gun case out of Hawaii and God only knows what else. Because we're getting opinions odds, it's tariffs. I mean, it increases by definition of running out of days left. Like there's only so many opinion days between now and June. But I got to tell you, there's a lot of opinion days left between now and June. So while the odds have increased, they have increased quite smallly.
- [72:29]
B
Yes. And let's just use this as an opportunity to plug Sarah's idea. Court. It would be awesome if at 9am tomorrow morning you put out a press release saying we are expecting to release opinions in the following cases. That would be tremendous for all of us.
- [72:44]
A
Yep. Alas, you know, like Lucy, I'm gonna kick away at that football. So here we go.