Advisory Opinions - Bundle of Sticks

Episode Date: June 28, 2021

We’ve got a lot more first rate Supreme Court analysis for you in today’s pod. David and Sarah break down the most recent cert grant announcements and the court’s refusal to hear some contentious cases involving interstate conflict, transgender bathroom access, and marijuana. They then dive into the Supreme Court’s opinion in Lombardo v. City of St. Louis, which asked a lower court to reevaluate whether police used excessive force in kneeling on the back of a handcuffed suspect who later died. Also, Sarah gives her thoughts on Cedar Point Nursery v. Hassid, a property law dispute involving union recruiting that divided the Supreme Court along even ideological lines. Finally, David and Sarah discuss a heated confrontation at the 5th Circuit about a case involving police officers who tased a person soaked in gasoline and set him on fire. Show Notes: -Thomas statement on federal marijuana laws -John Lombardo v. City of St. Louis, Missouri -Cedar Point Nursery v. Hassid -5th Circuit ruling on police incineration -5th Circuit ruling on en banc petition (and Justice Willett’s dissent) Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. We've got Supreme Court cases, rulings, orders to talk about. We've got, wow, a fight at the Fifth Circuit with unusual vitriol, Sarah. Did you say brawl? Yeah. Yeah, that's fair. So we've got a ton to cover today, but before we cover that, priorities are priorities.

Over the weekend, you tweeted out that you were headed to urgent care with the brisket, and there was an outpouring of concern. And what's going on, Sarah? Everything okay? First of all, he is fine. I feel terrible that I worried people. It was one of those things that I'm sitting at a red light and I'm just, you know, I'm feeling so helpless. And I was just reflecting on the fact that like we have this podcast, you know, these law degrees, it's experience and it's all useless. And like, I was thinking like how desperately I wished that like my best friend was a pediatrician, except my best friend from high school actually is a pediatrician and she was on vacation and I was still bugging her a lot. And she was the one who said like, maybe you should go to urgent care. He just had a fever that I was having trouble getting down

and vomiting, diarrhea, all the things that a one-year-old gets. And it was Saturday night. And it's like, do you really want to then go through the whole night? And urgent care closed at 10. It was a judgment call. But I feel terrible that I worried people. That was not my intention. It was a judgment call. But I feel terrible that I worried people. That was not my intention. I felt so guilty that all these people were then worried and spending their prayer time on us, which then I took a beat after the guilt washed over me and was just so incredibly thankful. So I am sorry that I worried people. I am incredibly grateful for all of the prayers and outpouring um and he's doing better today much better good good is he is he well is he but he's um i mean like no not yet but some of this is he's doing better um we we're not quite sure what's wrong yet it's going to take some time to figure that out um but we ruled out a bunch of stuff. And like, you know, this is the joy of a one year old who can't tell you what's wrong. Been there, been there. There was a time period when we were living in Ithaca, New York,

and I was teaching at Cornell Law School at the time that I think in seven days, we made two or three ER trips with Camille, two for food poisoning and not food poisoning. She just couldn't stop. Well, we don't need to get into all that. A stomach bug. A stomach bug. A stomach bug. Yeah. Well, we don't need to get into all that. A stomach bug. A stomach bug. Yeah. So that's actually what we hope this was. There's a great chance that it was a stomach bug. The issue is just like, there's no, he hasn't like no one else has a stomach bug. And obviously he doesn't interact with that many people. We're still in COVID. He can't get vaccinated, all of those things. But like stomach bug would be great. No problem.

Yeah. Well, we're glad Nate is doing well. And yeah, I was in that. I admit, listeners, I was in those ranks. I saw the tweet. Just minding my own business. Texting Sarah immediately. So I'm sure your phone blew up.

Yeah. Yeah. Don't. Yeah. I should have thought more before tweeting. Well, there is no need to apologize for that. We're just glad the brisket is doing better. He's definitely on the mend. He was squealing in delight this morning when he saw his daddy, which is a surprise treat in the morning sometimes.

Oh, well, that's fantastic. There's nothing quite like that. I know. Nobody squeals in delight to see me, but that's okay. Maybe we should pre-record that to start the podcast. Yeah. This is David French with Sarah.

Squeal in delight. We had a huge day at the court today, but no opinion handouts. Thank goodness, David, because we are backlogged. We've got a lot to get through. We don't have time for them to give us Brnovich or the pipeline case or the anonymous donor. Yeah. So like, whew, we need to get through our backlog now, ASAP. Yep. Yep. We have a backlog to get through. We have so much drama to get through. All right. Well, let's start with today. So today, Sarah, as we were doing our sort of pre-show prep, you were telling me what you thought was particularly interesting that happened today. One was a cert grant of a commercial speech case. And one was a rather interesting, you said that there was a pot case that you were interested in as well. So why don't

you walk through what particularly intrigued you? And then I'll talk a little bit about what particularly intrigued me, and then we'll clear our backlog. Great. So the Supreme Court granted two cases today. One's immigration, because 50% of all cert grants have to be immigration, so box check there. But the other case was commercial speech, and I find commercial speech cases really interesting because, David, you and I have done a lot of First Amendment speech cases on this podcast, but for the most part, we're talking about individual speech, political speech. It's sort of the most favored type of speech. Commercial speech, well, it's pretty disfavored speech. It just does not get the kind of protection that your speech does, that Angry Cheerleaders does.

And yet there is still some protection for commercial speech. This is a case out of Texas. So obviously I'm even more into it than usual. And it's about digitizing billboards and whether the city of Austin can ban that basically for commercial speech in a way that it wouldn't be able to for individual speech. There's some more details to it that we'll get into when the case is argued. But just in general, I'm really pumped that next term we get to distinguish between commercial and non-commercial speech. Also, we had two wood grant cases, David, as in cert was denied, but there were two Thomas and Alito would grant these cases. Right. One was New Hampshire versus Massachusetts. This is another one of those

interstate cases where the court in theory would have original jurisdiction. I think that's why Thomas and Alito said they would grant, not because they think the case is so particularly interesting, although I think it is, but because they're saying that the court should have mandatory original jurisdiction. They've already said their piece on that. No need to write a dissent from denial. This was on whether Massachusetts's tax rule, which subjects non-resident earned income received for services performed outside Massachusetts to the state's income tax is unconstitutional confiscation. So just to be clear, you're a non-resident, you earned income for services performed not in Massachusetts, and you're still getting taxed on it.

What? Not granted. And then the other one, David, I'm sure you had some interest in. This was the Grimm, Gavin Grimm case. This is a transgender bathroom case from what feels like eons ago in our political history. like eons ago in our political history, the Eastern District, this school district in Eastern Virginia was letting Grimm use the boys' restroom for several weeks. Then the school board intervened and voted to change the policy, their new policy. The school added three single user bathrooms. Grimm said that was leading to bullying, harassment, urinary tract infections because he didn't want to use those

bathrooms and be singled out. It's really fascinating. Obviously, it's taken this long for the case to come up. What is it, a 2013, 2014 case? Oh, you mean the original filing? Yeah, it's old. I'm not sure when the original filing was, but the most recent Court of Appeals ruling is August of last year. So this thing, I do remember when this case was originally filed. And in the actual circuit court opinion, it notes that the plaintiff is a now 20-year-old college student. So, and yeah, fursuit in 2015. 2015.

Yes. Yeah. So they declined that one. And again, Thomas and Alito said they would grant. David, are you surprised that they didn't have at least two more votes on that? I'm actually not surprised at all. To be honest, I didn't expect this one to be taken up really for no other reason than I think that what's the phrase that you like to use that lower court precedent has to mature. So this is a post,

the August 2020 Fourth Circuit opinion was a post-Bostock Title IX opinion. Now, Bostock, as you guys might remember, dealt with Title VII, the definition of sex in Title VII, and the court held that the definition of sex was broad enough to encompass a prohibition on firing an employee simply because they're gay or transgender. And so a lot of people then thought, well, what does this mean for Title IX, which uses the same word sex?

And so this was one of the first post-Bostock, non-Title VII civil rights opinions. And it would surprise me if the court took one of the first ones, honestly, right out of the gate. So I expect we're going to see this jurisprudence mature a bit for a couple of years before we get a post-Bostock cert grant on Title IX. So I wouldn't read too much into this. I wouldn't read too much into this, other than the fact that if you're somebody who thinks that Bostock was wrongly decided or needs to be confined to Title VII, just remind you that right now there's still, even after Ruth Bader Ginsburg passed, there's a majority of the court that is still, it's still a Bostock majority is still there. There are five justices who are in the majority in Bostock. So I'm not surprised by this.

I expect we'll wait a while before we get a cert grant, but I expect we eventually will get a cert grant on this. Unless there's unanimity in the circuits. Which there will not be. No, ma'am. There will not be. Okay, so back in 2005, David, you may remember a certain case called Gonzalez v. Reich. And no one has ever agreed on how to pronounce that. It's R-A-I-C-H. Is it Raich?

Raich? Who knows? Let's say Raich from Friends. Raich. Okay, great. Yeah. We've talked about drug distortion on this pod before, certainly in the bong hits for Jesus context, for instance,

it just sort of like stands alone out there as a weird opinion. Rach, I don't think is similarly weird in standing alone, but all right. So here's what Rach said back in 2005. The court held the Congress's power to regulate interstate commerce, authorized it to prohibit the local cultivation and use of marijuana. So not limiting the commerce clause, very much extending the commerce clause. Um, I mean, this is pretty similar to wheat, except instead of wheat, it's marijuana, you know, and right. The idea of Commerce Clause is that it needs to be interstate. So the transportation of something across state lines, then of course the Commerce Clause comes into play. The question, Rach, was like, nope, you're growing it on your property for your use. Can Congress reach that

and ban it? And the court said, yes. So there was a petition up for cert that would have at least touched on some of these issues. There were not four votes, but Justice Thomas wrote a statement respecting the denial of certiorari. I think his point is well taken. I don't think Justice Thomas is like at home hitting the ganja. But what he said was, whatever the merits of rage when it was decided, federal policies the last 16 years have greatly undermined its reasoning.

Once comprehensive, the federal government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. The contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary. And then he goes through how sophisticated you would really need to be at this point not to run afoul of federal law while very much complying with

state law and even the memos from the Department of Justice, the famous Cole memorandum. I think that Justice Thomas is right here. I think the court absolutely needs to revisit Rache. I actually, you know, I do have opinions on whether we should have marijuana be illegal federally. But regardless of what I think about that, he's right. It is not 16 years ago. The federal government has no single policy toward marijuana that is discernible, let alone that like an individual could follow.

And because of that, I think it wildly undermines the Commerce Clause argument. And of course, I'm always for limiting the reach of the Commerce Clause. Yeah, of course. But yeah, I think Justice Thomas is right as well. I mean, listeners may not realize what a mess we have right now regarding marijuana, the legal environment around marijuana. Because one of the things that's important to understand is that every time you hear that a state has legalized marijuana, that is a misleading headline. Correct. It is misleading. Now, it may have rendered marijuana or decriminalized it in the state context, meaning that there's no state law

prohibition against the use of marijuana. But guess what? The federal law still prohibits the use of marijuana. It still classifies marijuana as an illegal drug. That has not changed. And because of the Raich opinion, that does not simply prohibit interstate. It's not just if you get on a plane with that marijuana or put it in your truck and drive to a different state. Because of this single Supreme Court opinion, it means that if you're growing it in your backyard and selling it a little, you know,

just to your neighbors or cul-de-sac or something, absolutely you're still dealing with federal illegal marijuana even if the state allows it. Right, exactly. And now the twist here of course is that the federal government isn't really interested in enforcing most of its marijuana law now there are circumstances where you will see some somebody prosecuted but as a general matter you do not have the feds policing individual use um And so it's illegal, but not enforced and legal at the it's just a mess. It's crying out for statutory reform and failing that it's crying out for

the Supreme Court to do something about a bad opinion that is yet another example of the drug war distortion on our constitutional law. Also, who knew that Justice Thomas was getting real sympathetic to some criminal defendants? So this individual case deals with tax law, not the sexiest topic and really complicated, and especially complicated by the distinctions that the IRS was making when you're dealing with controlled substances and what you could deduct. That's what this was about. But as Justice Thomas points out, there's lots of other contexts where this gets really messy. Here's one of his. Many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to business

that violate federal law. This was a huge issue for the Treasury Department. They have still not said anything about it. Cash based operations are understandably enticing to burglars and robbers. But if marijuana related businesses businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a drug trafficking crime. A marijuana user simply can find himself a federal felon if he just possesses a firearm. Or petitioners in similar businesses may find themselves on the wrong side of a civil suit under the Racketeering Influenced and Corrupt

Organization Act. I could go on, he says, and he does. But anyway, I actually think that this means, I think the court will take one of these cases in the next three terms, I predict, David. Yeah, I think that's a solid prediction, but it does really highlight, and Thomas's opinion does really highlight, if you go to Colorado and you see, and it's not just Colorado anymore, but you see, what do they call them over there? I don't know, but a weed shop? Dispensary. Dispensary, that's correct. If you go and you see a dispensary, you're looking at like, it's under federal law, it's basically like hanging a shingle out in front of a crack house. I mean, under federal law. So, you know, and I think it undermines confidence in the legal system overall that you sort of say, okay, wait a minute, isn't this still illegal?

and the legal system overall that you sort of say, okay, wait a minute, isn't this still illegal? But you're sitting there operating open a notorious illegal operation under federal law, but nobody really wants to enforce it anymore, but nobody has the will to do anything about it politically or judicially. Once again, we kind of have the, this is the effect of a political system that is not functioning well. And we're calling on the court to clean up part of it because the court had a role in creating that dysfunctional system. So stay tuned. Stay tuned. We're going to get a pot grant and we're going to get a Title IX grant, Sarah. It's just not this time. It's a matter of time. It's a matter of time. So David, there was a qualified immunity little kerfuffle. Yes, indeed there was. This case was called Jody Lombardo versus the city

of St. Louis. And it has bad, it's just, you know, gosh, a lot of these cases involving qualified immunity, the facts are just terrible. And we're going to get into one that's facts later today that the facts are just unbelievably bad. But in this one, an officer arrests a guy named Nicholas Gilbert for trespassing in a condemned building, failing to appear in court for a traffic ticket. So super minor criminal offenses. He's brought into the police station. He's put in a holding cell. Obviously, Gilbert is disturbed. They catch him trying to hang himself. So they run in, they respond to the attempt to kill himself, which absolutely, absolutely they should. Gilbert is a kind of a small guy, 5'3 one 60. I guess that would be pretty stocky. Um, they tried to restrain him.

He fights back. He fights back. He kicks one of the officers. Um, they brought more officers in. So there were six officers trying to restrain this guy. They put handcuffed him and put him in leg irons. And then now, you know, what's going to happen next. They put him in a prone position, face down on the floor.

They held him down at the shoulder, biceps, and legs. One officer placed pressure on Gilbert's back and torso. Gilbert said, it hurts, stop. He struggled in the position, then he stopped moving. And yeah, that killed him. Putting him in that prone position and putting that pressure for 15 minutes killed him. Gilbert's parents sue, alleging excessive force, and lower courts dismissed the case, concluding they were entitled to qualified immunity. That was the district court.

The Eighth Circuit affirmed on different grounds, holding the officers did not apply an excessive force at all. And so what the Supreme Court did is it reversed and remanded under basically saying, we don't think you applied the test correctly and ask them to consider some additional factors such as, you know, isn't it well known that police guidance is to get

someone off their stomach as soon as they're handcuffed because that causes risk. Isn't it known that even when a prone subject is struggling, it may not be because they're disobedient, but because they're struggling to breathe. And then it concludes by saying, we express no view as to whether the officers used excessive force, or if they did, whether Gilbert's right to be free of such force was clearly established. They granted the writ, vacated, and remanded to give the court the opportunity to employ an inquiry that clearly attends to the facts and circumstances. So, okay, I'm all in on the fundamental core of the dissent here. Alito, Thomas, and G remand according to a decision heard that is fully briefed and argued on the merits. That's where I am on this. I had to read the per curiam decision a few times, Sarah, before I felt like I had a good grasp on what the court was telling the

Eighth Circuit. And I'm still not sure I have a great grasp on what the court was telling the Eighth Circuit. And I'm still not sure I have a great grasp on what the court is telling the Eighth Circuit. And I think it would have been... Oh, but David, you know what the court's telling the Eighth Circuit. Anytime they do something like this, they're telling you that you did it wrong and come out with a different decision. And it doesn't really matter how you do it. Yeah. Yeah.

No, I mean, I get that. I get that much, but that's why I really agree with Thomas Alito and Gorsuch, by the way, note the three amigos there. Because their point is that they're sort of a, is the wrong term, but a bullying aspect to doing something like that. We're not going to tell you why you got it wrong, really, not in any discernible bright line rule test, but we think you got it wrong. We're not going to tell you if to change your opinion. We're just going to tell you that you should really look at it again. So yeah, why don't you do that? And their point is like, no, reverse them, tell them what they did wrong, let's make some law, or leave them alone. But this is the wrong way to do it. And I thought that they wrote Alito for how spicy he can tend to be. I thought he approached this pretty well. He said, I do not think this court is above

occasionally digging into the type of fact-bound questions that make up much of the work of the lower courts, and a decision by this court on the question presented here could be instructive. The court, unfortunately, is unwilling to face up to the choice between denying the petition, and here's the money parenthetical, the court is unwilling to face up to the choice between denying the petition, parentheses, and bearing the criticism that would inevitably elicit, and granting plenary review and doing the work that that would entail. Instead, it claims to be uncertain whether the Court of Appeals actually applied the correct legal standard, and for that reason, it vacates in remands. This course of action may be convenient

for this court, but it is unfair to the Court of Appeals. If we expect the lower courts to respect our decisions, we should not twist their opinions to make our job easier. I mean, you don't have to read between the lines, but to read between the parentheticals there, this is another one of those. Alito believes that the court is making an institutional decision. They don't want to take up a qualified immunity case because qualified immunity is so hot right now. And so instead they're doing this. And his point is our concern should not be about outside criticism. Stop, stop with the institutionalism. And Thomas and Gorsuch are right there with him. Yeah. I mean, take, I mean, the bottom line is, um, if it says the proper course, this is Alito, is to grant the petition, receive briefing and argument, and decide the real question that this case presents.

Amen. Amen. I completely agree with that. But of course, I've been banging, to use a Jonah phrase, banging my spoon on my high chair for months and months and months about taking a qualified immunity case. You know, Raich, as we just discussed, was an example of judge-made law that has distorted American law more broadly. Qualified immunity is, guess what, judge-made law. Judge-made law. It is not judicial activism or inappropriate interventionism for the court to revisit its own precedents. And this is something that I think in qualified

immunity, in RACH, in Employment Division B Smith, not to be a broken record, but I'm a broken record, and we can go on. When you're revisiting judge made law, it's entirely appropriate for the court to do that. And so instead, and this is a slight preview of what we're going to talk about here in a little bit, the court on qualified immunity is just kind of given off signals. It's just given off signals, not clear ones. Not clear signals. And so if you're a circuit court judge, you're reading, it's like you're reading some tea leaves or maybe some pig entrails

and trying to figure out what the future holds. So, and this is a circumstance where I think Alito's right. Just take the freaking case. Take the case. Brief it. Argue it. Decide it.

I also think this dissent from denial, totally separately from a qualified immunity context, is fascinating and one that I will probably cite down the road when I talk about this being a 3-3-3 court. Yes, it's relatively easy to say that that's along ideological lines, but it's kind of lazy and I don't think it's totally accurate. In some ways, the 3-3-3 split is what you see here. It's three justices who believe that you just look at the facts and the law before you and you call it as you see it, that would be Alito Thomas Gorsuch. And then I think you have the three justices who very much believe that the institutional credibility of the court in the eyes of the public, in the eyes of the lower courts, in the eyes of the political branches is important and a factor, especially when it comes to which cases to take in the first place.

That's your Roberts-Kavanaugh-Barrett. It is not that I think Amy Coney Barrett is somehow less conservative than Neil Gorsuch, whatever that word even means these days. But I don't think she is. But she is institutionalist in a way that Kavanaugh and Roberts are as well. And so what you're going to see are these narrower opinions or cert denials, etc., where she'll join with those three, I think, more often. Again, not because she's not conservative or she's squishy or she's a swing vote or that Kavanaugh, for that matter, is. I won't even, you know, I wrote a whole thing on Roberts that we'll talk about some other time. But that's, I think, the 3-3-3 court is actually a judicial philosophy about the role of the court and external factors. Yeah, I'm glad you brought that up because it also highlights something that I think is really important.

Not just in judicial philosophy, but sort of in our political engagement, because what we're beginning to see is not just a, we have a huge difference in approach to politics, not just in ideological difference, but what I would call a temperamental or dispositional difference. How you might agree that a particular law is wrong, and then the entire question then next becomes, how angry are you about it? From a less angry to a more angry, because what then ends up being decisive in a situation where our nation is highly polarized, what then becomes the real issue then is not the underlying disagreement, but what's the response you're going to take to a situation that, say, somebody who's much angrier versus less angry, what is the response and how are you going to

respond to it? How big of a deal do you think it is? And this is something that divides people a ton in politics now. And in the judicial circumstance, if you have a case before you, and you're an originalist in your philosophy, and you have course A, which is decided on originalist grounds, but that are quite narrow, or course B, decided on originalist grounds that are quite narrow or course b decided on originalist grounds that are quite broad you're not less of a an originalist if you decided on the more narrow grounds there are still there are still branching choices that you can make and so i think that that's a great way of highlighting this is to not necessarily say it means that you're quote more conservative or less conservative it can be that you're more cautious or less cautious that you're quote more conservative or less conservative it can be

that you're more cautious or less cautious that you're and and that they your caution can be influenced by institutional factors but that doesn't make you not originalist and so you know now that's not to say that one approach or the other is going to always be correct so for example, while I'm quite sympathetic to restraint in some circumstances, in other circumstances, I'm less sympathetic. Not to say that I'm the arbiter of this in any way, shape, or form, but I do think those are important distinctions that we make. And an awful lot of the political divisions that we see on right and left are not as much ideological as

they are dispositional yep it's and and and that gets and those disagreements sometimes get more toxic than the underlying ideological disagreement itself and interestingly david that's a pretty good segue to one of the cases that we did not get to talk about from the handout on Wednesday last week. This was the 6-3 decision, and it was along those sort of more traditional ideological grounds. Cedar Point Nursery versus Hasid. You ready for it? I'm ready. Let's do it.

So, David, this was a real sleeper one for me, but it might be my favorite case of the term. Oh, really? Well, I mean, angry cheerleader always will have a special place in my heart, but I am disappointed with how that one came out. Here at Cedar Point Nursery, you have got just some, ooh, it's property law. And David, I love it. I love property law. And David, I love it. I love property law.

Our law student listeners, you just lost probably 97.4% of our law student listeners with that statement. I had the most wonderful property law professor and I just fell in love with property law. And this case reminded me of all of the great cases in property law and how awesome they are. And I'm going to talk about some of them, David. I'm going to do it. So let me remind listeners what this case was about. There is a California regulation that grants labor organizations a right to take access. That's the quote, right to take access to an agricultural employer's property in order to solicit support for unionization. It mandates that agricultural employees allow union organizers onto their property for up to

three hours per day, 120 days per year. Now, what happened in this case is that Cedar Point Nursery, they're strawberry growers in Northern California. They employ 400 seasonal workers, around 100 full-time. None live on the property. That will become relevant as well. According to the complaint, members of the United Farm Workers entered Cedar Point's property without prior notice. The organizers moved to the nursery's trim shed where hundreds of workers were preparing strawberry plants.

Calling through bullhorns, the organizers disturbed operations, causing some workers to join the organizers in a protest and others to leave the work site altogether. Cedar Point filed a lawsuit, the union filed a lawsuit, and then Fowler Packing Company, by the way, it's called Fowler, but actually they do table grapes and citrus. They joined the lawsuit on the side of the strawberry farm. Okay, so the question is, is California's law, that right to access law, a taking under the Fifth Amendment? And is it then a regulatory taking or is it a per se taking, meaning that California owes compensation? And boy, things got fun from there. So you've got Roberts writing the majority for the sixth, no surprise. And you've got Breyer writing the dissent. And just first, right off the bat, David,

one of the things that like, you know, I don't think that Breyer's going to retire this summer. And yet- So you maintain that. You maintain that. I maintain that, but I got to tell you, there were some things in here that were a little strange. So Roberts, in talking about the dissent, you know, the thoughtful dissent, the well-reasoned

dissent, um, sort of goes out of his way to, you know, here's one, in its thoughtful opinion, the dissent advances a distinctive view of property rights. Right? This is not the sort of like, the dissent is wrong and they're terrible. At the same time, then, you have Breyer. The way he ends his dissent is fascinating. I recognize that the court's prior cases in this area are not easy to apply. Moreover, words such as temporary, permanent,

or too far do not define themselves. But I do not believe that the court has made matters clearer or better. Rather than adopt a broad rule and indeterminate exceptions, I would stick with the approach that I believe the court's case law sets forth because the court takes a different view, I respectfully dissent. I wonder whether there's two ways to read this. One, David, this is the swan song. Remember that Roberts is in the majority on the Obamacare case that just came down, but Breyer's the one who writes the opinion, meaning Roberts assigned that opinion to Breyer, which was a little unusual. Was that Breyer, you know, giving, sorry, was that Roberts giving Breyer his ability to write a big majority opinion before he leaves? And then here you have an angry cheerleader, Breyer, angry cheerleader. Yep. And then you have the two of them having this almost like colloquy of like how in a 6-3 court, you lower the temperature. Two things that they care deeply about. Remember, Breyer gave that two-hour address at Harvard about

how he's against court packing, how the court is not a political institution, how you shouldn't do things that make the court look like a political institution. And one of the reasons that I don't think Breyer will retire is because retiring right now would sort of be the political partisan-y way to do it. And Breyer really is against that both in practice, but also even the appearance of that. Is this their way of trying to show a path forward? Or are they just two guys who appreciate one another and it's been a rough year. We'll find out soon enough, I suppose. Yeah, so, okay.

So there's that issue that I was like very like, ooh, ooh, ooh. The real question here, David, is whether the California law allows the union workers, the union staff to appropriate the land or just regulate access to it. And this is where the majority in the dissent just disagree. We do not need to go through all of the intricacies of how they decided this. But in short, the six said that absolutely,

this is appropriating the land. You have a right to refuse access, people to your land. And if not, if the government's going to change that, then it's a taking and California will have to compensate them for the taking or, of course, remove the law. Here's Roberts. According to Blackstone, the very idea of property entails that soul and despotic dominion, which one man claims and exercises over the external things of this world in total exclusion of the right of any other individual in the universe. In less exuberant terms, we have stated that the right to exclude is universally held to be a fundamental element of the property right and is one of the most essential sticks in the bundle of rights that are commonly characterized as property. David, do you remember the bundle of sticks? I do remember the bundle of sticks.

Absolutely. And I remember the words fee simple, absolute, and a few other things. And that's about it. That's about it, huh? That's about it, Sarah. So the bundle of sticks for non-lawyers is this sort of bizarre, I don't know why it's in property and nothing else, because I would say that all of your rights sort of have different components.

But the theory is that your rights to your property are a bundle of sticks. And within that bundle are all the individual property rights that you have. And what this is saying is that one of those rights, the most essential stick in the bundle, if you will, is that the middle stick? I don't know. Let's say the middle stick, the stabilizing central stick. Yes. Stabilizing stick.

Is that right to exclude people from your property? Okay, sure. Here's Breyer's take. As to the first exception, what will count as isolated? How is an isolated physical invasion different from a temporary invasion? Sufficient under present law to invoke Penn Central? And where should one draw the line between trespass and takings? Imagine a school bus. This, David, I found a very interesting hypothetical. I'm curious what your thoughts are. Imagine a school bus that stops to allow public school children to picnic on private land. Do three stops a year place the stops outside the exception? One stop every week? Buses from one school?

From every school? Under current law, a court would know what questions to ask. The stops are temporary. No one assumes a permanent right to stop. Thus, the court will ask whether the school district has gone, quote, too far. Under the majority's approach, the court must answer a new question. Apparently, what counts as isolated? David, if a school bus stops regularly, meaning three times a year, and they know that they're going to stop on your property and in your front yard and let all the kids out of the school bus so that they can picnic in your front yard, What? And Breyer thinks that's just okay and no big deal. And especially if I couldn't ask them to leave. Correct. In other words, under the law says you got to let the picnickers picnic. Well, then you pay me money for the use

of my land. Because now I'm a picnic location and I'm going to have to clean up or they may like scrunch your grass. I mean, they're kids, right? Like they're going to be digging little holes. God only knows. I found it bizarre that this was his most obvious example. When in fact, for me,

it's a pretty obvious example the other way. Yeah, exactly. It's like, wait a minute. A school bus pulls up, a whole bunch of people get on my land, and I can't say, bye, no, go, find another, there's a park. Right, I'm napping today. You know you're being noisy. You're digging holes in my yard. You're leaving trash. Yeah, there's a big park, non-park distinction. Yeah, and you're doing it three times a year and it's every school's bus? What?

Yeah, yeah. All in David's front yard. If a school comes, you know, if a school comes tomorrow to my very small front yard, I used to have a much bigger one. Let's say my old house where I had this big front yard and it said, hey, could we have a picnic here? Well, just this once, sure. But if they unfurl a proclamation from the state that says,

thou shalt designate your yard as a picnic site, then my next question is for how much? Yes. Yeah. All right. So that's the sort of fundamental parts of the case and how it turned out. But David, do you know what case is not mentioned throughout this on takings? Kelo.

Oh, yes. Nothing on Kelo. And what's interesting about that to me is if you remember back to Kelo. And remind people what Kelo is. Yeah. So this is, what was what was 2005 or so, um, a case that held that basically the city council in new London, Connecticut could condemn a house that they felt was blighted in order to allow a commercial like

strip mall type thing to be built there. Um, now they compensated her, but the question was whether, uh, that was the proper use of eminent domain because was it for quote unquote public use when they were actually handing a piece of private property over to another private owner in this case for a development, commercial development. And the court held that yes, that was public use use and that really expanded the use of eminent domain. Well, David, I do think this is interesting here. There is no discussion of whether this is public use. Remember, they're granting access to the growers for the union, which is a private organization. Now, maybe it just goes without saying that after Kelo, yes, this is the same idea that it's public use,

but I'm surprised no one was like, wait, let's just make sure that we still think this is public use. But nope, not mentioned once. That is, you know what? I'm ashamed to say until you said that, I didn't even think of it. I did not even think of it, but you are correct. You are correct. And Kilo is one of, it's on that list of most despised cases for me. I can't remember what I was doing when Kilo was decided, but it was a feeling sort of like when Luke, when Obi-Wan Kenobi was on the Millennium Falcon, when

Alderaan was destroyed. He had this sense, he could feel it, this disturbance of the force. And he says it was as if millions of voices cried out at once and were silenced. Except mine was like, it was as if the founding fathers all cried out and then were silenced. But yeah, so I should have been on top of that. But good catch. All right. Last thing, because we don't need to belabor this case,

except that, of course, I'm obsessed with it now and really enjoy it. If you're remotely into property law or curious, if you're property curious, there's a great rundown of some of the biggest property law cases that you'll read in your property law textbook. And I just really enjoyed some of, you know, remembering the greatest hits. So David, you will know all of these. The court held that an administrative reserve requirement compelling raisin growers to physically set aside a percentage of their crop for the government constituted a physical rather than a regulatory taking. That was great. The raisin case, yes. The cable one that a New York regulation, I believe, that required buildings

to allow cable boxes to be installed on the building, that was a physical taking, not a regulatory taking, even though it was a tiny little cable box. But perhaps, my favorite, in United States v. Cosby, we held that the invasion of private property by overflights affected a taking. The government frequently flew military aircraft low over the Cosby farm, grazing the treetops and terrorizing the poultry. The court observed that ownership of the land extended to airspace that low and that invasions of it are in the same category as invasions of the surface

because those poor, poor poultry. And of course, most famous is the Nolan case. This is where they bought land on the beach. They tried to seek a permit to build their house. And they said, we will only give you the permit if you will grant a public easement for people to walk along the beach. And that was found, once again, not to be just a regulatory taking, that having this like if and only if permit process for a taking is not regulatory, but in fact, a physical taking. So that's just sort of

a fun rundown of what you can expect if you're into property law, as I love it so much. You know what? United States v. Cosby brings back some good memories for me, Sarah, because it actually helped trigger one of the most interesting and ultimately heated arguments I ever had in the dorms at the law school. And it was with a monarchist libertarian classmate who was convinced that United States v. Cosby permitted him to buy a surface-to-air missile system to protect his property against aerial trespass. Hmm.

Which was an interesting argument that probably went until two or three in the morning. And it reminds me of the difference between 1991 and 2021 because in 1991, you'd have those arguments and they would stay confined in the dorm. In 2021, somebody would put it up on Twitter and then say, everyone who disagrees with me

is insufficiently committed to property rights, which would then lead to like 17 think pieces until it would somehow become a litmus test for some strange offshoot of the right that you can buy surface-to-air missiles and you're just a rhino if you disagree. To be clear, by the way, on the Cosby farm and terrorizing the poultry, once again, the answer is not that you can ban the government from flying over your property. It is simply that they must compensate you.

You gotta pay. So in that case, you don't get to shoot down the military planes. That's not the question here. My point, exactly. That reminds me of a fact check from today, actually, I believe, from the Washington Post. Joe Biden said, the Second Amendment, from the day it was passed,

limited the type of people who could own a gun and what type of weapon you could own. You couldn't buy a cannon. Like, everything in that sentence is wrong. Literally every part of it. Um, you absolutely could buy and own a cannon. Remember the letters of Mark and reprisal. How do you think you were marking or for that matter, reprising it back to America with a cannon? cannon uh it got four pinocchios yeah yeah it was you could build back in the day sarah if you had sufficient funds you could build a ship you could fill it full of cannon and stock it full of militia and set sail and become a legal pirate. Yeah. Anyway, last thing on Cedar Point,

did you notice another case that was mentioned throughout both the majority and the dissent? Which one? Prune Yard. Yes, Prune Yard. Prune Yard's all over it, guys. Remember, this is that case that folks are arguing about when it comes to social media platforms, whether they can ban people. It's the mall with the teenagers who want their petition about basically boycotting Israel, like a UN letter, and the mall wants them to leave.

The Supreme Court says, no, in fact, they get to stay. The Supreme Court says, no, in fact, they get to stay. The extensive Pruneyard discussion is very interesting because, David, you and I had said that we did not think it was good First Amendment law. Now it's not being discussed here in its First Amendment context. It's being discussed in its Fifth Amendment context. But nevertheless, interesting. And the one thing that the majority mentions is that it was open to the public. And that was a huge difference between this and the agricultural farm, which was absolutely not open to the public. Sort of implying that if you're having thousands of people come on your property every day, maybe there are some

regulations in terms of who you can exclude that would be constitutional. Well, that's some interesting reasoning. Yeah, we'll see. We'll see. I've always been more interested in pruneyard from the First Amendment than the Fifth Amendment context,

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That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, we're running out of time. Goodness. Do we want to talk about Yellen or do we want to go to the drama on the Fifth Circuit? All right. We'll save Yellen. FIFA, the FIFA case. Yes. It's worth a mention. I mean, it's not something that, you know, I think that only the tiniest subset of our listeners are just sitting there after Angry Cheerleader, after takings, after Obamacare saying, but what about yelling? Yelling about yelling. For the three of you, just hang on.

We'll get there. This means we haven't even gotten through Wednesday. We haven't even touched Friday's hand down. And then we'll have the next hand down. So we'll see. But we'll say FIFA. Yeah, we've got drama, though though and you you know we're here for judicial drama yes why don't you introduce the drama yeah so this is a hey man if you thought the case we discussed earlier um was a tough case factually where we talked about the um the the the prisoner who was held down who was restrained until he died. This one is nothing but yikes. And it arises out of a case involving a man named Gabriel Eduardo Olivas,

or Olivas, let's say Olivas. Officers arrive. Apparently, Olivas was threatening to kill himself and burn down the family's house. When they arrive, they see that Olivas has a gas can that he later douses himself doused himself in gasoline. He's holding a lighter. And by the way, his wife and his kids are in the house. So they're in the house. They're in the room. In the room. In the room. So he's got gasoline on him, wife and kids in the room, and he appears to be holding a lighter. So what do you do?

Well, in this case, one of the officers pulls out a taser. According to the complaint in the case, which at this point in the proceedings has to be accepted as true, an officer says, if we tase him, he is going to light on fire. At that point, an officer discharged OC spray in Olivas' face, blinding him. And this is where the original opinion says it was about this point, whether before or after being sprayed is not entirely clear from the record that Olivas doused himself in gasoline.

So he was holding a can. They're warned about the taser. They spray him. At some point in all this, he douses himself in gasoline. And at that point, shortly after, one of the officers fires his taser at the man, and he bursts into flames. And so he's engulfed in flames. Fortunately, his wife and kids are not hurt. They evacuate the family. The house burns down. Olivas is severely injured and later dies. So the question was, so you have the family sues, and this is where

some of the, boy, this is a little bit, you know, this is a little bit complicated, but this is where some of the signals the Supreme Court is sending out about qualified immunity start to get interesting. And so one of the signals that the supreme court has been sending out about qualified immunity is not necessarily that they've revisited the qualified immunity doctrine but that in toto but that there are some kinds of cases that are so sort of obviously bad that qualified immunity is not going to apply. And what Justice Willis, so essentially what the Fifth Circuit does is they say that the family,

Olivas' family does not have a case, that the officers were facing a difficult decision, that what they did was not objectively unreasonable. In fact, it may have been objectively reasonable, even construing the facts in light most favorable to the plaintiff. Case dismissed. The case is appealed. It is upheld by the Fifth Circuit in a per curiam decision. And then there is a petition for rehearing en banc that is denied. And this is where things get lit, as the kids say, because friend of the pod, Justice Willett, has a rather eloquent dissent from the denial of on Bonk.

And he is, let me just read the opening. When painter turned inventor Samuel Morse sent the first telegraph message, What Hath God Wrought? He was standing in the chamber of the United States Supreme Court, a place that specializes in sending historic messages. Long before 1844, when Morse tapped out his dots and dashes, and for 177 years since, the Supreme Court has issued countless directives, some more emphatic than others, but all of which we must heed. In recent months, the court has signaled a subtle, perhaps significant shift regarding qualified immunity, pruning the doctrine's worst excesses. And so he talks about essentially what these messages are, and then he moves on to this case. And the very

first sentence tells you basically where Judge Willett stands. Gabriel Eduardo Olivas was burned alive. And he says, two, according to the facts alleged in the complaint, which we must accept as true and drawing all reasonable inferences in the plaintiff's favor. Two police officers tase the suicidal Olivas despite one knowing he was soaked in gasoline, two knowing from recent training that tasers ignite gasoline and three knowing from a fellow officer's explicit warning that instant if we tase him, he's going to light on fire. Um, the basic summary of the judge will it opinion is not so much that he was making a final decision on whether the officers violated his rights, but that it was too soon, it was wrong to dismiss the case. determination that the officers behaved reasonably when there had to be and there should have been discovery and more closing and searching examination, not just of what happened, but what alternatives that the officers had. The majority, however, basically saying, look, this was a

comprehensive complaint. Even if you take everything that the plaintiff said was true, what else could they have done? This was incredibly difficult. This was incredibly tense. What were they supposed to do? They didn't have any good options. Are we going to be sitting over the shoulder of, are these police officers going to know that we're sitting over their shoulder at all times in these really complex, fast-moving, dangerous situations to make sure that they did everything reasonably according

to what we think, give them a break, essentially. And so that's the basic outline of it. Sarah, what say you? So there were a lot of opinions written in this. Oh, boy. there were a lot of opinions written in this. Oh, boy. You have Judge Brady Jolly writing the first concurrence in the denial to hear it on Bonk.

I don't think he appreciated Judge Willett's tone. So here's how he starts. The dissent and I must have received different sets of dots and dashes from the 1844 telegraph message that it attempts, strangely, to metaphorically adapt to this appeal. For this appeal is not the particularly egregious case the dots and dashes transmitted to it. Instead, this appeal is a textbook case for the grant of qualified immunity as the doctrine is presently promulgated. His first footnote, this response speaks only to the dissenting opinion penned by Judge Willett. It ends, by the way, his concurrence. In short, I write to say the

dissent is quite unfair to the record, to the law, and to the officers. You then have Judge Ho, joined by Jolly and Jones. There is more about the fact that Judge Willett doesn't offer what the officers should have done. If it's so obvious and egregious that this was unconstitutional, what were they supposed to do when a guy who says he's going to burn down the house is doused in gasoline, his wife and child are in the room, he's holding a lighter, he's yelling inarticulably things that they could not discern? What were they supposed to do in that moment? And if the outcome was always going to be tragic, wasn't this the least tragic outcome? And why are we second-guessing them?

And what makes that unconstitutional? Then you have judges Oldham writing for Jolly Jones, Ho, and Englehart. And this is on the fourth amendment context and we keep going, right? Like what's interesting though, is that, uh, judge Smith joined with judge Willett in dissenting from the denial of rehearing, but his was actually, he agreed with the outcome that qualified immunity very clearly applied. He's complaining about another case where they did not find qualified immunity applied. And so he's like a dissent for opposite reasons. So we're going to talk-

Can I? Yeah. Can I, there's a part of Ho's opinion that I want to highlight for a second. Yeah. Okay. He says, our nation is currently engaged in rigorous debate over the need for police reform. Some argue the police should not use force, even in cases involving deadly threats, or that we should defund the police

altogether. Both of those positions, by the way, were not at issue in this case at all. But anyway, let's continue. But that is a policy debate for the political branches, not the judiciary. As judges, we apply our written constitution, not a woke constitution. What? Sarah?

What? Judge Ho, this is a court, not a Fox News hit. All right? This is not... That really... That piece of it was way absurd to me.

In fairness, though, I think Judge Willett set this up, right? He set the tone and they're all responding to his tone and I think that his tone was

perhaps a little more chastising and grandiloquent than maybe not, I don't know whether he intended it or not, but then people are going to respond in kind when they feel like you're saying this is so obvious, you dum-dums. saying, this is so obvious, you dum-dums. Now we're going to talk about Justice John Marshall Harlan in just a couple of weeks with the author of a fabulous book, a new biography of Justice Harlan. He was on the Supreme Court. I mean, his life story is incredible, but what he is most famous for is being a man out of his time of writing dissents to the court's most egregious race, labor, all sorts of cases that were coming up at that turn of the century time. And he is a hero. Maybe I don't want to put words in Judge Willett's mouth, but Judge Willett's number one judicial hero, Judge Willett named his dog after Justice Harlan. I think that Judge Willett, I think it should be clear now, qualified immunity to him is one of those issues that the courts, we will look back on and just

say it's wrong. And Judge Willett will be vindicated by time. And so he, I don't think, was writing this opinion for now or even for his fellow members on the court, despite how it appears that they might have taken it. I think he's writing this for an audience 10, 15 years from now. Yeah. And I also think he's writing it for an audience of nine people right at the moment, the justices of the Supreme Court. Look, I think that the fundamental underlying point here is this, and I think Justice Willett, in very vivid language, puts it pretty well when he's essentially saying, look, when they arrived here, the emergency was that this man might light himself on fire. That was the emergency. So what did the police do? They promptly lit him on fire, okay?

Knowing that what they were going to do was going to light him on fire. And that was, they went and they, and again, nobody's doubting this was difficult circumstances. Justice Willett is not doubting that this was difficult circumstances. But they went and the first thing they did

was cause the harm they were there to prevent. And now what Justice Willett is saying is, whoa, wait a minute. Don't we need to at least explore this pretty carefully through a discovery process before the judges are going to say, well, because we can't, in our own judge minds, imagine, based on reading the complaint, a different way that officers could have responded. We're going to go ahead and get rid of this case. It's incredibly solicitous of these agents of the state. And I think that's where, to me, as I'm reading this opinion, I'm thinking, okay, let's set aside all the rhetoric for just a minute. Let's just set aside the rhetoric. It is absolutely true that these officers were called, a man's threatening to light himself on fire, that's the one thing nobody wanted to happen, and they immediately lit him on fire.

not lead to a need for a searching inquiry here. And what the majority seems to be saying is that, you know, look, our judge minds have determined that they didn't have great options. So we're just going to leave this alone. And by leave this alone, meaning not just, you know, maybe it would be after a searching factual examination that there's no reason to impose liability here. But here, by leave alone, we're saying we're not going to even have that searching factual examination. And I think that's important when you're walking through this and you're reading through this and people talk about second-guessing officers, etc., etc. This is a level of deference, which means I don't even really get to try to prove my case. And that, to me, is problematic.

I want the court to revisit qualified immunity. I think there are many, many cases where the court should revisit qualified immunity, and then maybe an officer will get it or maybe not. Again, I think that my husband's law review article that talks about what qualified immunity, and then maybe an officer will get it or maybe not. Again, I think that my husband's law review article that talks about what qualified immunity was at common law pre-1871 is kind of spot on, perhaps, on where the court should go. And it won't get rid of qualified immunity in all cases, but it will get rid of this judicially defined doctrine about clearly established law. That being said, in this case, David, I agree with Judge Ho. Let me just read a part of his. How can a constitutional violation be obvious, egregious, and conscience shocking when the dissent can't tell the officers what they should have done differently to keep

people safe? The dissent responds that if we allow discovery, we might uncover some reasonable alternative actions the officers could have taken. Let's assume the premise that discovery is necessary to prove the existence or absence of reasonable alternatives. If the only way to know what the Constitution requires is to consult lawyers and conduct discovery, what message does that send to police officers? What are they supposed to do in extremely dangerous situations such as this? What are the rules of engagement they can follow so that they know how to protect innocent people from violent criminals while avoiding a career-ending lawsuit? The dissent has no answer. I'm just going to give that a big nope because essentially what that is saying, again, I'm putting on my constitutional plaintiff, constitutional plaintiff's attorney hat, because that's what I spent most of my career as, as a constitutional plaintiff's attorney, is that I would then have to plead.

Essentially, what I would have to plead is not only the facts known, I would also have to plead and understand and know the fullness of appropriate police training in that circumstance. And I don't think that's a reasonable burden to place upon a plaintiff. Because essentially what they're saying, again, what Justice Ho is saying is my judge mind can't imagine something. I want just because Justice Willett's judge mind can't imagine something we're not even going to hear from police minds okay I think we're not even going to hear there's an underlying thing in our qualified immunity jurisprudence that no one wants to talk about because technically it's not supposed to be considered the first is always was there a constitutional violation now David you and I have said that actually a lot of the courts don't bother to ever get to that because the second question is,

was it clearly established? And oftentimes, they just stick to clearly established and they never do the first one. But imagine if we did change our QI jurisprudence so that you do have to first answer the question, was there a constitutional violation? I'm not sure that there was one here, but okay. There would then be, I think there just naturally is for all of us, this second inquiry. Did the officers act in good faith? There are plenty of examples where you see officers not acting in good faith. Those are the qualified immunity cases I think that people find most egregious. You know, they're shooting the dog for no reason. Or in the supreme court opinion we just talked

about they're putting pressure on the guy's back for 15 minutes when he's in leg shackles and arm shackles um we can at least question good faith in that case i don't see how you even remotely question the good faith of these officers given the moment that they are in and the snap second decision making that they have to make. Again, another distinction that you and I have made in, for instance, the Derek Chauvin cases versus the majority of police-involved qualified immunity cases. You have good faith and you have a snap second decision where other lives, not just the officers, are in danger at that moment. I don't see how, unless we just get rid of qualified immunity entirely, in which case I do think that we so fundamentally change what it means to be a law

enforcement officer in this country, this would meet any new non-judicially created definition of qualified immunity, in my opinion. I am skeptical of that for reasons I can't fully go into because I need to take my daughter to summer camp right now. All right. Yeah. That's a forfeit. I win. I was going to say, that leaves you with the last word.

That leaves you with the last word other than my send-off of the podcast. Thanks for listening. Please rate us on Apple Podcasts. Please subscribe on Apple Podcasts. Please check out thedispatch.com. And we will be back on Thursday. And Sarah, are there any opinions between now and Thursday?

I have not seen a hand-down schedule. And if there are, if Brnovich comes down, we might have an emergency pod. We'll just have to see, folks. We'll just have to see. But either way, we'll talk to you again on Thursday. Thank you.