Loading summary
Transcript55 lines
- [00:00]
Sarah Isgur
Advisory Opinions is presented by Pacific Legal foundation, suing the government since 1973.
- [00:07]
David French
Ready?
- [00:08]
Sarah Isgur
I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. First off, we gotta talk a little bit more about Chiles. This was the conversion therapy case that was argued at the court last week. You guys sent in some brilliant questions and I felt like, I guess we didn't do a good enough job explaining some of this. So we're going to try again to answer some of your very, very smart, thoughtful questions that we got from listeners across the spectrum. Also, the Tish James indictment, is it vindictive prosecution or is it exactly what she did to Donald Trump? And we've got three denials from the Supreme Court and some opinions from the justices on those case. Denials that we'll need to talk about. Finally, how the heck have I been mispronouncing this precedent for this whole podcast? Like six years worth of podcasting and I'm still mispronouncing it despite all sorts of efforts. Once again, Sarah can't pronounce the name of that CFPB Humphreys Executor Unitary Executive case. I will try once more on advisory Opinions.
- [01:34]
Meta Ray Ban Display / Liberty Mutual / Capella University / Home Depot / Liquid IV Advertiser
Introducing Meta Ray Ban Display, the world's most advanced AI glasses with a full color display built into the lens of the glasses. It's there when you need it and gone when you don't. Send and receive messages, translate or caption live conversations, collaborate with Meta, AI and more. Be one of the first to try Meta Ray ban display. Visit meta.com metaraybanddisplay to book a demo and find your pair.
- [02:02]
Sarah Isgur
Hablas Espano Spritz to Deutsch if you.
- [02:06]
Babbel Advertiser
Used Babbel, you would Babbel's Conversation based techniques teaches you useful words and phrases to get you speaking quickly about the things you actually talk about in the real world. With lessons handcrafted by over 200 language experts and voiced by real native speakers, Babbel is like having a private tutor in your pocket. Start Start speaking with Babbel today. Get up to 55% off your Babbel subscription right now at Babbel.com Spotify spelled B A B-B-E-L.com Spotify rules and restrictions may apply.
- [02:36]
Sarah Isgur
So we talked about the Supreme Court's argument in this conversion therapy case and we got some of the smartest questions that I think we have ever gotten from our listeners. Just smart questions about, you know, how the case could come out. Smart questions pushing back on some of our ideas all Right, David. So let's set the table on what this case was about. Do you want to give us your version?
- [03:00]
David French
If you are engaged in talk therapy. So in other words, you're a therapist, you're a licensed therapist in the state of Colorado. Do you have an ability to engage in what is called conversion therapy? But let's be very clear here. When you use the term conversion therapy, that's almost sort of. It's a big term that people sort of fill in with their own understanding of what it is. So conversion therapy is specifically defined by the statute in the state of Colorado. It's designed to prohibit licensed therapists from engaging in conversion therapy. And let me read the definition of conversion therapy. That's what will be this definition. And I want to be very clear. This definition is what we're talking about. We're not talking about everything related to the term conversion therapy. We're talking about this definition. Conversion therapy is defined in the law as any practice or treatment by licensee, registrant, or certificate holder that attempts or purports to change an individual sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings towards individuals of the same sex. So that is the core definition. It goes on for a little bit longer. Conversion therapy does not include practices or treatments that provide acceptance, support, and understanding for the facilitation of an individual's coping, social support and identity exploration and development, including sexual orientation neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as the counseling does not seek to change sexual orientation or gender identity or provide assistance to a person undergoing or assistance to a person undergoing gender transition. So that's the definition when a lot of the conversation around that people hear the word conversion therapy, and much like when people hear the word hate speech, for example, they have an idea of what that is. But you're not dealing with what your idea of what conversion therapy is. You're dealing with the definition. Definition of it as enacted by the state. And so those are the stakes of the case. Can conversion therapy, as defined here, be prohibited or be banned for licensed therapists in the state of Colorado?
- [05:31]
Sarah Isgur
Okay, first question. I am currently a sophomore in undergrad, studying government and Spanish, and fascinated with the world of law. Already loving it. In your recent episode, you brought up the hypothetical about a state barring a therapist from encouraging anorexic behavior. My question is, wouldn't the distinction between the law in Chiles and the anorexia law be a question of which could pass strict scrutiny. You mentioned that Childs will likely trigger strict scrutiny and fail. But might the anorexia hypo pass? It seems to me like the state interest is much more compelling. Losing more weight while skinny could be life threatening. And the law is much more narrowly tailored and less restrictive than the law in Chiles. While the hypo seems valid, it seems like the distinction between the two are if they could pass the level of scrutiny they triggered. Let me know if I'm off on this. Not a lawyer, just an avid listener of the podcast. David, that's a really smart question.
- [06:25]
David French
Super smart. And it actually really calls back to a previous conversation we had about the pac, the, the Paxton case involving age gating, access to porn websites, where it appeared to me that the dissenters in the case, they were not saying, for example, that the law was going to be constitutional, they wanted a strict scrutiny analysis and then noted it could well pass strict scrutiny, which was, I thought, a very, I mean, for me, that was a big top line, sort of the, a top line response to that was, whoa, you had even the liberal justices here saying this thing could pass strict scrutiny, that the problem, the problem is so compelling, the governmental interest is so compelling, the means here are restricted enough that it could actually pass strict scrutiny. And so I thought that was a very interesting question. And the reason I brought up the Paxton case, Sarah, because remember, we had a whole discussion over whether the phrase strict in theory, fatal in fact, is or should be the formulation, or if strict shouldn't mean just strict, it doesn't mean fatal. And I think that's a very legitimate question because especially in the First Amendment context, strict scrutiny has meant fatal scrutiny. Are there laws that would pass strict scrutiny in the right circumstances? I thought that was really an interesting question and called back exactly to what we've talked about before.
- [07:54]
Sarah Isgur
So here's my back of the envelope take on this. A yes in theory, right? I think it's a smart question. I think it absolutely could. However, in this case, what it takes you to. Is the standard of care problem that big? Basically, what the state is saying is that conversion therapy, as defined by the state, the reason that this isn't speech and the reason that they can do this at all is because it violates the accepted standard of care. And same with the anorexia hypo, right, it would violate the accepted standard of care. And so I think because this involves a licensing scheme, you get to this weird standard of care problem of does the standard state get to base stuff on the standard of care. How does one define the standard of care? Can the standard of care be speech only? And I think that throws a wrench into the pure does it pass strict scrutiny or not? Question. Because both of them in this case will still involve a. You go back to the, you know, state saying, well, this violates the standard of care. That's why we can do this. Which brings me, David, to the licensing question. We got several emails from doctors. Here's one. The primary difference between a talk therapy treatment and a physical treatment like antibiotics lies only in the modality of intervention, not its scientific basis. A surgeon uses tools to repair damaged tissue. A physician uses drugs to chemically alter bodily functions. A psychotherapist uses communication techniques and structured exercises to facilitate neuroplastic change and alter maladaptive thought and behavior patterns. And David, let me just summarize this in different terms. If the state can demand that a person learn certain things to have a job that only uses speech like psychotherapy, why can't they forbid certain things that are also speech?
- [09:49]
David French
Right.
- [09:49]
Sarah Isgur
The whole job is only speech. This isn't like there's some doctors, you know, like we're telling the surgeon, yeah, but now you can't say this other thing. It is an entire profession that is speech that is licensed. So isn't that then conduct and not speech?
- [10:07]
David French
It is very interesting to me how this whole licensing discussion achieves such outside importance as if licensing sort of exists outside and above the First Amendment, that in essence we have this national value, constitutional value of free speech with strict limitations and prohibitions on government intervention into speech. Then we say, okay, well, wait. In the world of licensing, however, do you really mean it? To me, I guess I'm stumped as to why we would presume to think licensing figures, especially licensing entities that are empowered by the by law through the process of politics. So then if you're talking about licensing and you're channeling licensing standards through law through elected legislators, so now this is directly pulling licensing into the political process that, that is going to stand outside and above the First Amendment. I'm unconvinced by that. I'm very convinced that a private entity can absolutely establish licensing standards and that these licensing standards can be rooted in the licensing entity's best assessment of what the standard of care should be. I'm absolutely convinced that that licensing entity can be relevant and the judgments of the licensing entity can be relevant evidence, say in a malpractice suit. Absolutely. To determine whether standard of care and whether there was negligence. But this kind of, this Idea that you're going to have this category of professions, we'll call them the regulated professions, and that in some ways the act of regulating the regulated professions through means and mechanisms that arose well after the ratification of the First Amendment, that this is. I can wave the licensing wand and suddenly achieve a much lower standard of review for government restrictions on speech involving core, core areas of religion, morality, et cetera, I'm extremely unconvinced. I'm extremely mistrustful of the political process that yields such standards and prohibitions. And I do not think it is superior to the First Amendment.
- [12:34]
Sarah Isgur
But, David, there's two ways of looking at this. You're arguing about whether the licensing scheme saves the state law restricting speech, but what about the other direction that the invalidation of the state law restricting speech invalidates the licensing scheme? Why can the state require a licensing scheme in a profession that is only speech based? If the Supreme Court comes out to say that this is speech and you can't ban this kind of speech, why can you license any of it to begin with? Which is maybe a little bit more concerning.
- [13:07]
David French
I think it depends on, you know, what you're licensing. And can you. What is, what is it that the licensing entity is looking at? If a licensing entity is providing a private validation that the public can rely upon to sort of say, if you're going to be licensed by this association and then you're going to advertise this and you're going to put this out there, as in much the way, you know, you know, contractors will note that they're licensed or bonded or whatever. There will be, there will be, Mark, there's marketing advantages to being licensed. There are quality control advantages to being licensed, all of that. I think that, yeah, in that circumstance, you raise a good point. If you invalidate the law, what are you doing to the private scheme? Well, that's one of the reasons why the law should be very careful, that the legislature should be very careful about legalizing that private scheme. I think there are absolutely areas where, for example, criminal background checks as an element of licensing that are not speech prohibitions or other kinds of educational qualifications and requirements. All of those things I think are appropriate and could be legislated. But walking into the room and saying on this incredibly crucial, incredibly sensitive issue of morality and religion, et cetera, and how behavior and conduct meshes with all of those things, to walk in and prohibit and or ban particular viewpoints, I think becomes very troublesome to me.
- [14:41]
Sarah Isgur
I don't know. I've got some questions. If you've got to sit in a classroom that says X, Y and Z is the standard of care. And in order to pass a test you have to agree that XYZ is the standard of care in a talk only profession that requires a license. I think this is more problematic than anyone who's sort of let on at this point. Okay, but there's two more things, David, because there's two pieces of this case that we didn't talk about in our last conversation at all. We were trying to pull a fast one on you guys and make the case less complicated or less fulsome than it was. So you guys asked us lots of smart questions that made us then answer you with these two things we left out. One is precedent. You'll notice we didn't talk about precedent in our last conversation. And the other one is the what is the standard of care based on? Like there's all these studies, right, that show conversion therapy is harmful. So let's start with the studies. Here again is from one of our Dr. Listeners. Conversion therapy has been shown in multiple studies to not only be ineffective but also harmful to patients. The opposite gender or sexual identity affirming care has been shown to be effective and largely beneficial. Here's the problem with that statement. Colorado didn't introduce any evidence to that effect. They did not have any study showing that talk only conversion therapy was harmful at all. Now there are studies showing that conversion therapy, again to David's point, if you use a different definition, that includes aversion therapy, electroshock therapy, et cetera, there's studies that show that that is harmful. But conversion therapy as defined by the state of Colorado, Colorado didn't have any studies for that showing that it was harmful. Now Colorado in the oral argument said basically like race ipsa, the thing speaks for itself. We don't need studies showing something to be obviously harmful. And in fact, this is where I kind of pulled a fast one on you guys. Not intentionally, but when I was using that anorexia example from Justice Sotomayor, she wasn't using it in the same way that I was using it for our conversation. She was using it. About this study question, would you need a study showing that encouraging someone not to eat if they had anorexia was harmful? No. Race ipsa, we know that that would be harmful. So you don't need a study all the time. Right. Therefore it can't be one of the factors to consider that Colorado didn't have any studies. Let me then continue reading. When I then had this colloquy with our doctor Listener regarding the lack of studies, Even if there were no relevant studies that showed verbal conversion therapy to be harmful, we do know that psychotherapy, a treatment, can be harmful, and therefore it is speech that may be regulated. Right. It could be debated whether Colorado had enough empirical evidence to support its law, but the right to regulate what kinds of treatment are permissible seems obviously unquestionable to me. So what am I missing? Otherwise, what's the point of having regulatory bodies overseeing the work I do? So, David, let me put this in different terms. What's the level of generality? Do you need to show that conversion therapy specifically is harmful, or can you simply show that bad psychotherapy can be harmful and therefore it will be up to the state or the licensing body to determine what that standard of care is and then be able to enforce that standard of care? Because we know that's why it's regulated in the first place. Like, basically, once you get into the regulatory scheme, again, why is this considered speech?
- [18:09]
David French
Yeah, it's very interesting to me because a lot of the questions were along the lines of, okay, you have licensing. There's an enormous amount of trust, at least in some quarters of America in these licensing entities that what they're doing is they're not making value judgments, they're making peer reviewed based scientific judgments. And so talk therapy is bad. We know that talk therapy is bad in the same way that we know that taking too much Tylenol is bad and can harm your liver. And then you scratch below the surface and you realize, oh, they don't actually have that information that's not actually there. And so now we're gone for. We've gone from, well, this was a product of sort of a. Of a dispassionate scientific process that is yielding a sort of just the facts, ma' am kind of analysis. That. Why. Why would you dispute or. Or question. And it turns into, well, this is essentially our informed instinct. And again, if this was slam dunk, if this was cut and dry, why is Colorado not introducing the evidence into the Supreme Court that demonstrates sort of as this slam dunk empirical matter, that conversion therapy, again, as defined in this statute, is going to be harmful to such an extent that it's subject to overriding the speech rights of this therapist and subject to a ban. That to me, when you talk about the absence of studies and that also this is filtered through a political process, it's really demonstrating to me and reaffirming to me some of the difficulty of delegating the first Amendment, essentially to legislatures influenced by licensing authorities.
- [19:54]
Sarah Isgur
All right, and then the precedent question, David. We didn't talk about the NIFLA case much. I think we mentioned it once or twice in talking about childs writ large. But let's do a little bit of a deeper dive into into NIFLA. This was a 2018 case decided by the Supreme Court. It was 54 along ideological lines. It involved California's Reproductive Freedom Accountability, Comprehensive Care and Transparency act, the FACT Act. It only applied to crisis pregnancy centers, pro life centers that offered pregnancy related services, and it required those clinics to provide two notices. One, it had to notify women that California provides free or low cost abortion services and give them a phone number to call. And two, for unlicensed clinics, they had to notify women that California has not licensed the clinics to provide medical services. So the Supreme Court, David, for our purposes, to make this a somewhat shorter conversation, 5:4, struck down the fact act. Again, like if we're doing the footnote here, what it said was it was unlikely to pass muster and sent the case back down. But yeah, the FACT act was no more, in part because Justice Thomas, who wrote the majority opinion, said this thing isn't narrowly tailored even if there is a compelling interest. It only applies to these clinics that look viewpoint based, content based discrimination, et cetera. And the other case that I think is worth mentioning, also California, this one didn't go to the Supreme Court, but we did talk about it on the podcast, David, where California passed a law saying doctors were not allowed to discuss information about COVID with patients. That was not part of the quote, unquote scientific consensus. So if they had a minority opinion about COVID they could have their license revoked if they shared that opinion with a patient that didn't make it to the Supreme Court because it got struck down. So bench slappily. That was an obvious no go. I think these precedents are important because it shows sort of on the outer ends, if you will, basically like California ruined the party for everyone by pooping in the punch bowl that if you abuse your sort of role as a state in a licensed profession specifically to target disfavored viewpoints in that state, then yeah, when you come to these closer calls, it's going to be seen through the lens of those previous cases. And NIFLA of course, got brought up many, many times during the argument. But David, it was only a 5:4 decision and to me looks far more like sort of pure viewpoint discrimination in the NIFLA case. Right? Only targeting pregnancy centers, only requiring them to provide information about abortion services, really. So the state's compelling interest doesn't make a lot of sense there. Right. If it's about, you know, making sure low income women know that the state has free services like, great, they should get a whole packet of all the free services. And that should probably be at every clinic that they're going to where they would have to pay money, not just this specific type of clinic with this specific type of viewpoint about these specific type of services. The Colorado case, I think is a much closer, broader call, if you will. But NIFLA sitting there hanging over this Chiles case, it's very interesting.
- [23:23]
David French
We keep getting when you raise these two California situations, you are reaffirming in many ways what I was talking about about the licensing schemes and licensing structures. It is a very sad reality of our current life that licensing schemes, licensing structures, dispassionate, allegedly dispassionate professional societies are constantly being lobbied by activists, constantly being lobbied by activists and often changed and transformed by activists through political pressure, not so much scientific argument, but through political pressure. And then once political pressure yields the desired results, you then retreat behind the alleged dispassionate reputation of the licensing authority and say, how dare you question this judgment when everybody has been watching in real time. A political argument play out, an ideological argument play out, resulting in very ideologically oriented licensing schemes and structures that don't survive very well in court for a lot of good reasons. And so I almost feel like saying to the activist community, you either have trusted licensing institutions that apply a genuine scientific consensus reached cautiously over time, or you have aggressive licensing entities that are pushing at the edges of various, whether it's progressive or political, cultural agendas. And one of them is going to be more legally relevant than the other. One of them is going to be more legally important. If you're talking about standards of care, one of them is going to be more persuasive to juries. If you're talking about where there's been negligence in there, where there hasn't and the other one isn't, it's just not going to be. It's just going to become part subsumed into the kind of the activist industrial complex.
- [25:17]
Sarah Isgur
Footnote about nifla, by the way. There was a concurrence, as I said, NIFLA was a 5 4, with Justice Thomas writing the majority. There was a concurrence written by Justice Kennedy, joined by the Chief, Alito and Gorsuch. So that's four. Right. A. I want to read you a piece of the concurrence because I think it is relevant to the child's case. But B, we've talked about this before. Why is there a concurrence that four people join but not the majority author? Because if a fifth person joined, what is it? It's not really a concurrence anymore. What, It's a second majority opinion. It just gets really messy. So you will see this from time to time. And I think it's, you know, maybe fair to think that perhaps the majority author would have joined this. Regardless, I think you can sub in Justice Kavanaugh or Justice Kennedy on this one. So think of it this way. Of here we see the thoughts of probably Kavanaugh, the Chief Alito, and Gorsuch, who all currently sit on the Court. This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern. The Court, in my view, is correct not to reach this question. It was not sufficiently developed in the rationale for the Court's decision today suffices to resolve the case. It does appear that viewpoint discrimination is inherent in the design and structure of this act. This act is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought and expression. I think that's the question for Childs. Is it more like this? Does it fit into that sentence? Is it similar to a paradigmatic example of viewpoint discrimination by the state, or is it something more like a licensing scheme where this is like, obviously would be bad practice. And I think, David, what we saw through the course of the oral argument, and this is the punchline, it's more like nifla. And apologies, listeners, because we probably should have gone into NIFLA in more detail the first time around. When we get back, David, the indictment of New York Attorney General Letitia James. Thumbs up, thumbs down. Is it the same as the case she brought against Donald Trump? Let's find out.
- [27:30]
Meta Ray Ban Display / Liberty Mutual / Capella University / Home Depot / Liquid IV Advertiser
And Doug, here we have the Limu emu in its natural habitat, helping people customize their car insurance and save hundreds of. With Liberty Mutual. Fascinating. It's accompanied by his natural ally, Doug.
- [27:45]
David French
Uh, limu is that guy with the binoculars watching us.
- [27:48]
Meta Ray Ban Display / Liberty Mutual / Capella University / Home Depot / Liquid IV Advertiser
Cut the camera. They see us. Only pay for what you need@libertymutual.com Liberty Liberty Liberty.
- [27:54]
David French
Liberty Savings Fairy Unwritten by Liberty Mutual.
- [27:56]
Meta Ray Ban Display / Liberty Mutual / Capella University / Home Depot / Liquid IV Advertiser
Insurance Company and affiliates Excludes Massachusetts at Capella University.
- [27:59]
Capella University Advertiser
Learning online doesn't mean learning alone. You'll get support from people who care about your success, like your enrollment specialist who gets to know you and the goals you'd like to achieve. You'll also get a designated academic coach who's with you throughout your entire program. Plus, career coaches are available to help you navigate your professional goals. A different future is closer than you think with Capella University. Learn more at Capella. Edu.
- [28:30]
PNC Bank Advertiser
Well, I was down on my last dollar. Then I started saving because the bank said fiscal restraint is what you're craving and so I, I put my earnings in a high yield account, let the savings compound and the interest mount. I'm optimizing cash flow, putting debt in check. Now time is my friend and not a pain in the neck and we've got a little cash to rebuild the old deck.
- [28:49]
David French
Boring money moves make kind of lame songs, but they sound pretty sweet to your wallet. PNC bank brilliantly boring since 1865.
- [28:59]
Sarah Isgur
All right, David. New York Attorney General Letitia James was charged with one count of bank fraud and one count of making false statements to a financial institution related to her purchase of a property in Norfolk, Virginia. David, a lot of people have made the case that there are many similarities between this case that Donald Trump has brought against Letitia James and the case that Letitia James brought against Donald Trump. Andy McCarthy over at National Review. I'll read a little piece of this. The minute details of the Letitia James indictment are going to make our heads hurt, and trust me, they are minute. Still, the overarching storyline is easy. New York's attorney general has been charged with doing pretty much what she sued Donald Trump for doing. She tried to bankrupt him and destroy his family business over making financial misrepresentations. And now she's accused of doing the same thing. If the allegations in the indictment are accurate, she will be forced to counter that the misstatements are trivial. Her lenders knew exactly who she was. Prosecutions claim that they'd have charged her a higher interest rate if she'd been more accurate in the paperwork is complete speculation. She paid her bills on time and her bank made money off the transaction. That is this is a fraud case with no fraud victims. Where have we heard this before? Oh, right. In Trump's defense against the allegations in the fraud case with no fraud victims that James lodged against him. Naturally. She'll also contend this is totally political. She's being singled out because she's Trump's political enemy and ran for office promising retribution against James and his other tormentors. The video clips are all over social media. Sound familiar? Plus, the alleged offense is so minor, it is beneath the Justice Department standard for fraud Prosecutions, meaning that were it not for the fact that Trump has Tisch Derangement Syndrome, she would never have been charged. What do you think, David? Does he have a point, and is it a legal point or just a political point?
- [30:56]
David French
I don't interpret that argument as saying that this is a solid indictment of Tish James. So I think he would say this is a punitive indictment of Tish James. And so I agree with that legal point as well, that this is a punitive indictment. There's a lot about that is suspect. But it's also absolutely true that the New York cases against Donald Trump, if you're talking about Alvin Bragg and Tish James, those are, in my view, of the potpourri out there from Jack Smith and documents. Jack Smith In January 6, Georgia January 6, the New York cases strike me as far more problematic, the criminal prosecution in particular, far more problematic. But the actual case against Tish James is a. I don't know, Sarah. It's really hard to look at these facts and say this is the kind of case that just is regularly brought. This strikes me as a very unusual case. And essentially the argument in the case is that she lied when she sought a mortgage, saying that she was going to be using the mortgage or she was going to be using the property as a secondary residence, but instead used it as a rental investment property. But at the same time, there's reporting that her grandniece who lived there, lived there and did not pay rent. In other words, there was a property that was used for the family and that Tish James stayed in on occasion. So she was there sometimes she did not rent it out. So if those are the facts of the case, it's very hard to see how this prosecution could go anywhere. And if it's that easy to find out these competing facts. So immediately after the filing of the indictment, it does demonstrate why perhaps the prosecutors did not bring this indictment prior to the firing of the old U.S. attorney, the hiring of the interim U.S. attorney, and oh, by the way, in the Comey case, Comey's already filing a motion trying to get her disqualified that her appointment is improper. So there's a lot of messiness around this.
- [33:06]
Sarah Isgur
A couple things here, though, David. One, if you talk to people who support this indictment and who support kind of the retribution theory, they're making a game theory argument at the end of the day that when one side in a cooperative game violates the rules by bringing criminal cases, sort of lawfare, if you will. And again, I think that the Tish James civil lawsuit and the Alvin Bragg criminal case against Donald Trump can't really be defined as anything except lawfare against a political enemy. They're cases that would not have been brought against anyone else. And they basically investigated Donald Trump for years until they found something. It's not like they were investigating those crimes and stumbled across Donald Trump. No, they were investigating Donald Trump. So game theory, one side violates the norm. Deterrence theory would tell you that what you do is basically hit them harder, disproportionately punish them for that behavior, and that will bring them back in line. And I have to say, Damon, I don't like this, but it is true in game theory that that is usually the most successful option available to the one who's on the losing side of that first norm break. It's not great for democracy, though, or the American public.
- [34:22]
David French
Well, I would also say from a game theory perspective, if we're moving into the real world, punch back twice as hard. Also known like in military terms, escalate to de escalate is. Let me just say the examples of that working are fewer than the examples of escalate. To deescalate really generally tends to mean escalate to escalate. And that's especially true if you're in a world where, you know, and I said this in our podcast that we record at the Free Speech Summit, this fight fire with fire, hit them back twice as hard until they learned their lesson. How does this play itself out in the real world? Where is the summit meeting that occurs? Who signs the peace treaty? You know, we're talking about a huge country full of millions of people, including millions of political activists, very ambitious, very full of anger, rage against their political opponents. I do not see any indication that escalation is leading to anything other than more escalation. I do think there is a window, there will be a lane for somebody at some point in the future to sort of say, I am the voice of de escalation. I'm the voice of calm. I'm the voice of return to normalcy, to use the phrase after the dreadful Wilson administrations. I do think there is room for that. I do think there's room for that, and there's a political opportunity for that. But in the short term to medium term, this escalate to de escalate is just resulting in incredible additional division, incredible additional bitterness. And I think it's making it only more likely that tit for tat is going to be the pattern until the damage is just so great.
- [36:07]
Sarah Isgur
Two pushbacks on this one Set aside the lawfare. Let's focus on a different area where deterrence theory, I think has been used, and that is in the area of speech censorship on college campuses, corporate boardrooms, et cetera. I don't know, David. It kind of seems like it's working. A lot of those things do feel like the temperature has been going down and that colleges are actually reevaluating some of their policies that were in the heat of 2020-2022 that were clearly race based, clearly viewpoint based, and that now they're like, oh, intellectual diversity is important. Free speech is a value that we care about and that we want to inculcate in our students. Don't you agree that that appears to be what's happening in a lot of these places now?
- [36:56]
David French
Can I just say I'm skeptical that what we're dealing with is anything other than negative polarization against the censor of the Trump administration. In other words, that what you're seeing is we're not having an escalate to de escalate. You're having a continually escalating anti free speech campaign on the part of the Trump administration. That one of the political responses to it is a free speech campaign in response to a censorship campaign, which is exactly what the right did in the Biden era when they were the anti woke movement was centering around free speech, free speech, free speech. And then they got into power and it turned into repression, repression, repression. And so I'm just not sold that what we're looking at is escalate to deescalate. I will say I think that the best argument in the moment against censorship is the free speech argument. That's how you win people over is to make the free speech argument as the anti woke MAGA right articulated for years. And then the question though is if the real question on free speech is all is not do I support free speech when I'm in dissent? Of course you do. The question is, do I support free speech when I have power?
- [38:11]
Sarah Isgur
Again, yes. Your point is, let's see what these colleges, universities and corporations do when, you know, AOCs in the white House. Well, back to the Jim Comey. Well, James Comey and Letitia James, we can really just call them the James's indictments. Looking at the Comey one in particular, here's some motions that you're gonna see. We've already seen the motion trying to disqualify Lindsey Halligan as U.S. attorney. Mind you, those motions worked up in New Jersey against Alina haba and in D.C. against Ed Martin. Right. And we've talked about this a lot, about how the U.S. constitution says principal officers have to be confirmed by the Senate. And then of course, Congress passes the Vacancies Reform Act. That's basically like, hey, but like, if we haven't gotten to it, you can put someone in for a little while. It was actually meant to cabin the president's powers to some extent. And instead it's like this loophole that you can drive a Mack truck through here in the Lindsey Halligan case for the Eastern District of Virginia, she was basically hired as an assistant to the president and then sent out as an acting U.S. attorney. No, that does not even meet the Vacancies Reform Act. I think it will probably suffer a very similar fate to what we saw in New Jersey and in D.C. other motions that you're likely to see selective prosecution, meaning, you know, lots of other people did this, but only I got picked vindictive prosecution. You did this to me because you don't like me and just insufficient evidence to go to trial. Like, yeah, the grand jury said it was, but like, there's no evidence here. All of those motions will go before this judge. David, I have to tell you, I am torn on what should happen here because legally I think some of these motions are valid. But again, they didn't work for Donald Trump, even though I think those cases were just as weak and weaker at some points of them. Also, it would be actually, I think, helpful to the overall experiment of this country if this would go to a jury and a jury found the evidence insufficient for a conviction or even for an acquittal. If this case gets sort of thrown out on what people will see as a technicality or that Jim Comey gets a motion for vindictive prosecution, but Donald Trump didn't. It's a judge who was appointed by Biden. It pulls the judiciary once again further into the morass. And that makes me nervous.
- [40:42]
David French
I thought about this almost immediately as I saw that it was a Biden appointed judge who just by the luck of the draw, got the Comey case. And I would say this is a case that should be dismissed. But having it dismissed by a Biden appointee strikes me as a really, really unfortunate thing. But at the same time, if you're a judge and you have a meritorious motion in front of you, you can't say, well, I'm a Biden appointee, so this guy's going to have to stand trial when he shouldn't have to stand trial. So, I mean, the bottom line is you gotta do your job, evaluate the motions on the merits. You can't evaluate them and say, I'm gonna deny this because a state trial court judge in New York denied the Trump similar motion. You just, you can't do that. You have to, you have to try the case in front of you. You have to adjudicate the case in front of you. And that case, it's one of the strongest cases I've ever seen for vindictive prosecution.
- [41:36]
Sarah Isgur
All right, we're going to be right back and talk about some more orders from the court that are worth at least a moment of our time.
- [41:45]
PNC Bank Advertiser
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.
- [42:17]
Babbel Advertiser
Imagine fast hydration combined with balanced energy. Perfectly flavored with zero artificial sweeteners. Introducing Liquid 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 IV's new energy multiplier, Sugar free hydrating energy. Tap the banner to learn more.
- [42:47]
Sarah Isgur
All right, David, let's hit some more Supreme Court highlights. As I said in the intro, Calais, the Voting Rights act case is being argued. As we record this podcast. We will no doubt have endless things to say about that argument on our next episode. A few other arguments that we're not going to talk about on this podcast, but we will talk about the opinions when they come out. And I really enjoyed the arguments. Villarreal this was a case about whether a judge can prevent a defense attorney from conferring with his client about his client's testimony during an overnight recess. It's kind of technical, David, but kind of fun at the same time. And in this case, the district court said, yeah, the judge can ban that. The circuit court said, yeah, of course the judge can ban that. And so when the Supreme Court granted cert on it, I think everyone was like, oh, well, obviously the judge can't ban that. Of course you can speak to your client about their testimony in a recess. That is, you know, the absolute obvious nature of representing your client and trial strategy and everything else. And I gotta say, David, whew. That was one of the most 90 Supreme Court arguments I've ever heard where it's just gonna potentially go all the way up. You know, as we said, when the Supreme Court takes a case, you've got a 70% chance or so that they're gonna flip whatever the circuit court decision was. It gets even, you know, a little more fun when the district and the circuit court decide the same way. But 30% right. They're just going to uphold what the lower court did then. David, there was also this Postal Service case. The actual legal question in this case was not interesting, but the facts are wild. Now, remember, we're taking the facts as alleged here. These are not facts that have been proven yet at trial. But in short, David, what happens when the Postal Service refuses to deliver your mail because you're black? They just don't like you. They don't like that you're black, they don't like that you own the building and they refuse to deliver it? Then a court says, no, you have to deliver it. And they're just like, no, we're still not going to deliver it. And literally, as of the day at least of when the brief was filed, and I believe the oral argument, the mail is still not being delivered. What is your recourse then? So that'll be a fun little opinion when we get it, too. But, David, we had three orders from the court denying cert on three cases that I thought, you know, were worth a few minutes of our time. In the first one, we had a dissent from the denial from Justices Sotomayor, Kagan and Jackson. Now, remember, it takes four votes to hear a case. So when you see a three vote dissent from denial, to me, David, like, not great, Bob. You know, really, there wasn't a courtesy fourth there, a join three, and those are slightly different. Courtesy fourth means three of your colleagues want to hear the case. And so as a courtesy, you will throw in your vote because they want to hear the case. A join 3 vote to me is slightly different, although people use these terms interchangeably. When you go around the room in seniority order, you basically say, I vote no on this case unless there are three votes, in which case I will be that fourth vote. I'm a joined three only vote. We've pretty much seen the death of the courtesy fourth vote. So here was a three justice descent from denial. It's a death penalty case in which Humphreys was convicted of murdering two women inside a construction company's model home, during which he forced both to undress and rob them at gunpoint. He was convicted, but then in the sentencing phase, David, one of the jurors basically goes bananas. She had been the victim of a similar crime. She had said that during voir dire. But she had said, like, this won't affect my ability to be fair in this case at all. And when they went back for jury deliberations, it looks like it very much affected her ability in this case.
- [46:43]
David French
Yeah. Oh, my goodness.
- [46:45]
Sarah Isgur
There's like screaming. I think there was some throwing of things. Jurors repeatedly ask if they can please get out of this because one of the jurors is so unprofessional. She says she will stay until she dies to make sure this guy gets the death penalty. And what starts as it appears, an 11 to 1 vote for life without the possibility of parole turns into a unanimous decision to give him the death penalty. David, this one's a hard one for me because on the one hand, pretty egregious, and it involves the death penalty, which, my God, there's nothing more final. On the other hand, boy, this seems very, very fact specific. And the Supreme Court isn't really in the business of correcting errors.
- [47:28]
David French
I'm with you, Sarah. On. Okay, do you want to. How much do you want to open up and impeach a verdict based on the conduct and jury deliberations? This is a. This is a really loaded question. But this is one of those cases where you think if you're ever going to do, has to be here, because this is a woman who lied about her own experience and the, the impact that that experience with crime had on her. And then it got so bad. Let me just read a little bit of this. Sarah, that you. The flavor here. It's. Whoa, okay. Jury deliberations almost completely broke down. Screaming could be overheard from the courtroom. One jury juror took a swing at Chancey and punched a hole in the wall. Jurors were seen crying on several occasions. Juror later recalled that it was as if an evil fellow force took over. Chansey, the foreperson wrote a note asking to be removed from the jury. The foreperson wants to be removed from the jury because of the hostile nature of one of the jurors. The court instead gave an Allen charge and instructed the jury deliberate further. It also rejected defense counsel's renewed motion for a mistrial. On the third morning of deliberations, the jury returned a unanimous verdict of death. My goodness, Sarah. My goodness. And if those are. This is one of those things where, you know, I have talked A lot about pardon and clemency powers and limiting pardon and clemency powers. This is one of those circumstances where clemency, say removing the death penalty and leaving life without parole. It's an interesting way to cut through the, put the square peg into the round hole, use the very, very unique facts of this case to prevent what seems to me to be an obvious injustice from happening. But you do it without sort of disturbing and opening Pandora's box on the larger precedent.
- [49:27]
Sarah Isgur
Right. And the point here is we don't want people opening up jury rooms and this is the law, in fact, the precedent that, you know, we don't look at jury deliberations because my God, you would find all sorts of things. You're like, well they said that and it wasn't true and they shouldn't have gotten that from the evidence. And you also aren't in there. So you're basing it on what other jurors say that some other juror said. And you're going to have a trial about the jury deliberations and credibility of. I mean it's a mess. So we don't do that. But what if it reaches to this level and should the trial court have declared a mistrial at that point, et cetera? Here's the money line, David. Tragically, the court denies review, allowing a death sentence tainted by a single juror's extraordinary misconduct to stand. By the way, Jordan Rubin over at MSNBC noted this use of the word tragically because we're going to see that again in one of the next orders. This was Justices Alito, Thomas and Gorsuch also again three justices. Now this is respecting the denial of cert Sharari, as in they also don't want to grant cert. But this is a case about schools policies related to what they do and don't tell parents about their students transition, desire to use other pronouns, desire to hold themselves out as the opposite gender, et cetera. Now in this case, pretty big screw up potentially in the cert petition. They basically don't challenge the policy or that there even is a policy. This instead turns on one teacher. Here is the statement respecting the denial of certiorari. I concur in the denial because petitioners do not challenge the ground for the ruling below. Again you have to find that there was a policy at the school related to this and they never really argued that. But I remain concerned that some federal courts are tempted to avoid confronting a particularly contentious constitutional question colon whether a school district violates parents fundamental rights when without parental knowledge or consent. It encourages a student to transition to a new gender or assist in that process. Petitioners tell us that nearly 6,000 public schools have policies that purposefully interfere with parents access to critical information about their children's gender identity choices and school personnel's involvement in and influence on those choices. The troubling and tragic allegations in this case underscore the great and growing national importance of the question that these parent petitioners present. So first of all, that's never good when you get that as your statement on the denial, because it just means like, if you had argued the case differently, you would have had at least three votes to grant cert. But David, again, this is an example of some pretty egregious facts. Again, as alleged. At least let me read you just a piece of this. Like many 12 year old children who attend a new school, CL struggled. Her homeroom teacher noticed and began talking one on one with CL. These talks included discussions about CL's gender identity and her freedom to use masculine pronouns if she preferred. Despite these conversations, C.L. never questioned her gender identity. Eventually, her homeroom teacher, who was also the school's art teacher, invited CL to attend an after school art club meeting. When Ciel arrived at the meeting, however, it was really a Gender and Sexuality alliance meeting and featured a guest speaker, a substitute teacher in the district. That teacher lectured the assembled students on gender identity for about 90 minutes. She said that students uncomfortable with their bodies were likely transgender and as such, were prone to suicide. She gave prizes to students who came out as transgender. During the meeting, she warned the students that it might not be safe to tell their parents about the meeting. And she invited the students to communicate with her confidentially, providing them her personal contact information. Though CL had not previously questioned her gender identity, she announced herself as transgender at the meeting. Again, as she was leaving, the teacher told her that she didn't have to tell her parents about the meeting, but when she got home, she did. The parents pulled her from school, et cetera, et cetera. David, not good facts.
- [53:38]
David French
Terrible facts. Yeah, terrible facts. In that case, you know, this is a case. I think we're going to see a version of it. I think the Supreme Court is going to take cert on a version of it. I'm just going to go ahead and warn you school districts, if you have a policy that is blocking parents or teachers from telling parents that their child is transitioning socially at school, you're going to lose. You're going to lose. I would invite you to read Mahmoud versus Taylor and see how incredibly Expansive. The court majority outlined the religious just, the just on the free exercise basis, the free exercise rights of parents to reach into schools and shape the education of their child in schools. And so you need to be rethinking those policies pronto because this is, I think it's a clear signal that at least three justices have an eye on. This would really surprise me if this continues to be an issue that they wouldn't take this case, take a, take a similar case in the future. And you know, it's one of those again that it, it, you know, the outcome here is not going to be mysterious to determine.
- [54:49]
Sarah Isgur
All right, and last order that was of interest, David, because we've talked about it so recently on the pod. Remember I've made these jokes about the only right in the Bill of Rights not held against the states, not incorporated against the states through the 14th amendment. I was saying it was the grand jury, but as one savvy little listener pointed out, the 7th Amendment civil jury right also has not been incorporated. And lo and behold, a case just got denied. About this question, Justice Gorsuch respecting the denial of certiorari. And there's like a whole little thing on incorporation. So again, this is interesting coming from Gorsuch. To be sure, debates exist around the edges. There are, for example, those who hold the 14th amendment incorporates provisions of the Bill of Rights through its Due Process Clause, while others believe that the Privileges or Immunities Clause supplies the truer source of authority for the job. Similarly, some have argued that the 14th Amendment selectively incorporates only fundamental or deeply rooted aspects of the Bill of Rights, while others have suggested that under that test or any other, the 14th Amendment renders all of the first eight amendments enforceable against the states. But whatever one's position on matters like those, it is hard to imagine how the 7th Amendment might not be among those rights the 14th Amendment secures against the states. David, I have a pet theory that basically incorporation doctrine got so messy because due process makes no sense as a way to incorporate rights against the states. But to reinvigorate the Privileges and Immunities Clause opens up a total Pandora's box of what else Privileges and Immunities Clause actually means in and that maybe you need to revisit all of those other due process and substantive due process cases than through the Privileges and Immunities Clause to decide whether they all fit that or some or none. That basically it's so messy that only your low institutionalists, your YOLO justices, cough, cough. Justice Gorsuch are really interested in visiting that. And so until they're willing to. You don't have enough justices to say that the Due Process clause incorporates the Seventh Amendment through that, but you also don't have enough justices who want to play with the privileges and immunities. Fire.
- [57:08]
David French
I love the way he laid that out. It was sort of. Here are lots of different strands of thinking as to why we're incorporating the Bill of Rights to the States, but we don't have to get into that, because this is clear.
- [57:22]
Sarah Isgur
But you do. You will have to get into it.
- [57:24]
David French
You will. You will. But not. Not this day. Not this day.
- [57:29]
Sarah Isgur
All right, David, last thing. Do you remember the case about Humphrey's executor and the CFPB that we talked about and how I had been calling it Celia Law? And then we got all this hate mail about how I wasn't pronouncing it correctly. And I explained to you guys that I know I'm not pronouncing it correctly, but I can't, in my head figure out what the right pronunciation is while I'm about to say it. And then I figured it out. Right? I really practiced. Literally, I practiced Sela Law. Well, David, it turns out that was wrong, too.
- [58:02]
David French
We cannot do this.
- [58:03]
Sarah Isgur
It's not possible. It turns out I can't read, which I already kind of knew. So this case is spelled C E I L A, not C E L I A like I thought C E I L A. And it's actually pronounced C la Sala Law Sela.
- [58:22]
David French
Say la la. Okay.
- [58:23]
Sarah Isgur
Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes. Two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns, or corrections, you can email us at Advisory Opinions the Dispatch dot com. We read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.