Advisory Opinions - Death Penalty Distortion

Episode Date: February 15, 2021

The Supreme Court on Thursday granted Alabama death row inmate Willie Smith’s request to have his pastor present at his execution, rejecting the state’s claim that having a spiritual adviser present interferes with prison security. Tune in to hear how the Supreme Court’s religious liberty ruling in Dunn v. Smith might affect future death penalty cases. On today’s episode, our hosts also chat about Yuval Levin’s latest piece in National Review on the sorry state of Congress and the New York Times’ 2020 Hulu documentary about Britney Spears. Show Notes: -Dunn v. Smith, federal Religious Land Use and Institutionalized Persons Act, and “Bong Hits 4 Jesus” case Morse v. Frederick. -“Congress’s Day” by Yuval Levin in National Review and “Transcript: Ezra Klein Interviews Yuval Levin About the Future of the Republican Party” in the New York Times. -Framing Britney Spears Hulu documentary. Learn more about your ad choices. Visit megaphone.fm/adchoices

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With the TD Aeroplan Visa Infinite Card, earn up to 50,000 Aeroplan points. Conditions apply. Offer ends June 3rd, 2024. Visit tdaeroplan.com for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, and we're coming at you on the most festive of holidays,

President's Day. So, Sarah, do you view the holiday season as beginning on Thanksgiving and ending on President's Day. Please say yes, because we still have our Christmas tree. Wow. Really? Yeah. Yeah, we do.

I'm sort of jealous, actually. We had a real discussion here about that because Christmas trees take effort. I really love our Christmas tree. I think our house looks better with it. but how long can you leave it up? And I don't think that one twelfth of the year is sufficient. Agreed. But I'm not sure that one third of the year is appropriate. When do you put it up in the first place? So we have a tradition that is supposed to be upheld, which is the tree goes up the Friday after Thanksgiving or the Saturday, just depending on the Thanksgiving meal. That's normal. That's America. And it comes down on New Year's Day. So it's a whole Thanksgiving, post-Thanksgiving through New Year's.

Yeah. So you're doing the 112th schedule in theory, except clearly it's not. So you're doing the 112th schedule in theory, except clearly not. Except no, except now we have some serious inertia because every weekend, like I'm busy on the weekends. I'm writing my weekend newsletter. I'm responding to a whole bunch of reader comments and things like that. And just doing the extra effort of taking down the tree. It's just been too much. It's been too much.

So, you know, one of my proudest accomplishments was the year that I did not change any of the clocks in the car or my house from October to March. Done that. I've done that. Is there anything more satisfying than when it becomes right again? It feels so good. It's fantastic. And you know you did. Because if I had a phone, I know my time. Right. And then I just knew to pull the hour back. Yeah. Yeah.

Your brain can compensate for that. Like people who only wear a contact in one eye because your brain will know how to bifocal using the other eye. That's similar to how my microwave clock works. And who has time to change a microwave clock? Who knows how to change a microwave clock? That's true. That's true. Okay, we are not talking.

Well, we are going to talk a little bit about President's Day. We are. We're going to reflect on the first anti-President's Day rant I've ever read. It's from Yuval Levin, so it's not really a rant. I don't know if I've ever heard Yuval rant, but he raises some really interesting points because we need to talk about Congress. We're going to talk about an interesting Friday night Supreme Court decision regarding the death penalty. I'm telling you, Sarah, it's like

we almost should schedule a 7 p.m. Friday night, like 10-minute pod, 15-minute podcast, because so many interesting decisions have been coming down Friday evening. It's like the SCOTUS is developing a Friday afternoon news dump habit. So we've got an interesting SCOTUS case with a really interesting alignment of justices. Wait a minute, producer Caleb just texted into the chat. No, we should not have a Friday night. That's like the person who tweeted at me that we should have a separate podcast just on fonts and topography. I bet Caleb also, Caleb's just going to keep that text. No, we should not and send it to us every few minutes.

Well, why would he send it? Caleb, are you really out? are you really out on Friday night? I mean, come on. Come on, Caleb. Okay, so we're not going to do that. We're not going to do that, but we're going to cover what happened Friday night. We're also going to cover Yuval's President's Day rant because it gets into something really interesting. He makes a proposal based in history that is really interesting. And then we're going to wind up with a discussion, yes, of course, of Britney Spears and her conservatorship. There's a new documentary out on Hulu, right, Sarah? Yes, yes, it's Hulu. You're right. Yes, on Hulu, based on a big, long New York Times story. And Sarah's seen the documentary. I've read the New York Times story. So between us,

we have complete information about this topic. So we're going to talk a little bit about Britney Spears and conservatorship. So this is going to be an eclectic pod. But let's, as Sarah says in the dispatch pod, dive right in. Let's start with Dunn versus Smith. This came to the court on a petition to vacate an injunction that prevented the state of Alabama from executing Willie Smith without his pastor present. Willie Smith without his pastor present. And this is one of these really interesting court alignments here. Justice Thomas would have granted the application to vacate the injunction. In other words, he would have permitted the execution without a pastor present. Justice Kagan, Justices Kagan, Breyer, Sotomayor, and Barrett. Now, that's an interesting alignment. That's the Democratic-nominated three with Donald Trump's most recent nominee together. They wrote a brief opinion. Kagan wrote the opinion that Breyer,

Sotomayor, and Barrett joined, concurring in the denial of the application to vacate. In other words, they were saying, yes, he can have his pastor present. Roberts and Kavanaugh disagreed. We did not hear from Gorsuch and Alito, but it looks like- But we know at least one of them had to have joined because he was not allowed to be executed

without his pastor present. I think good money is that at least Gorsuch joined, and I think we just don't know what Alito did. Right, right. Now, this is interesting to me, Sarah. So this is not a case governed by the First Amendment and Employment Division v. Smith. So this is not a standard constitutional free exercise case. This is a statutory case. It is based under ARLUPA, the Religious Land Use and Institutionalized Persons Act. Wait, David, on this podcast, you usually mispronounce things.

And so I just want to check on our pronunciations. I pronounce this RLUPA. How do you pronounce it? R-Lupa. R-Lupa. R-Lupa. Okay, that's definitely incorrect, listeners. So I just want you to know if you're dropping it in casual conversation, it's pronounced R-Lupa.

R-Lupa. All right, please continue, David. All right. It's based on the Religious Land Use and Institutionalized Persons Act. Little known fun fact, listeners, little known fun fact. If you hear anybody ask this question, who is the best president for religious liberty in modern American times? Here is my answer. And it's going to surprise you. My answer is one William Jefferson Clinton. Why would I give that answer? I don't think there's much question yeah yeah i'm glad you agree sarah

you didn't agree on my correct pronunciation of our lupa but on the more important point yeah he signed into law the religious freedom restoration act and the religious land use and institutionalized persons act two federal statutes that have been a firewall for religious freedom the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, two federal statutes that have been a firewall for religious freedom now for more than a generation. And a lot of people just have no real memory of that at all. He signed this into law when religious freedom was a bipartisan enterprise. LOL. Yeah, LOL.

And so here we go the religious land use and institution institutionalized persons act protects um land use and institutionalized persons the land use aspect is the one that most religious liberties practitioners outside of the penal system uh have utilized constantly to protect churches from hostile zoning boards, hostile local authorities who try to prevent, for example, new church construction, or they try to prevent Bible studies. There's just a ton of litigation under that aspect of the statute. But there's also an aspect of the statute that protects prisoners. And under the law, a prison may not impose a substantial burden on a person's religious exercise unless they can stratify strict scrutiny that the challenge

policy must be the least restrictive means of furthering a compelling governmental interest. Now, as Kagan with, you know, Breyer, et cetera, joining says that this Alabama policy is going to burden Smith's exercise. He's not going to have, he would not have clergy in the execution chamber with him. That is a burden on free exercise. There is not a, while there is a compelling interest in prison security, not really showing that the current policy is the least restrictive means of satisfying that. And to me, this was kind of a layup.

Sarah, if I'm on the court, I'm joining with Kagan, Breyer, Sotomayor, and Barrett in this opinion. What say you? So, first of all, the state justified it by saying that Alabama mainly asserts the need to close the execution chamber to all but those whom the warden has found, quote, trustworthy. And that's the categorical bar against all pastors, regardless of what type of religion, et cetera. You know, as you noted, this is not a Smith, you know, as long as it's applied to all religions, you know, in all categories, it's fine, but they do note that it does apply across the board. But trustworthy is sort of odd. I mean, that's just weird. Like you could have metal detectors. You've got a lot of other options. Yeah. I mean, as the opinion points out, you could have metal detectors you've got a lot of other options um yeah i mean as the opinion points out you could do background checks you could interview him you can you know have him

sign a pledge that he won't disrupt the you know event or whatever um that kavanaugh in chief opinion is interesting because basically they're it's a weak dissent, if you will. Yeah. They're like, look, I would have granted the state's application to vacate the injunction, but the court has a different view and denies the state's application. Given the stays of execution here and in Gutierrez v. Saenz, it seems apparent that the states that want to avoid months or years of litigation delays because of this Ralupa issue should figure out a way to allow spiritual advisors into the execution room as other states

and the federal government have done. Doing so not only would satisfy the inmates' request, but also would avoid still further delays and bring long overdue closure to victims' families. It's basically saying like, look, I think legally this probably could go forward, but guys, just let them in. Let's move on from this.

An unusual dissent. Normally people are pretty high on their horse and this is more like, look, there's a pony over there. But anyway, let's get to the actual point of this and set aside the law. Let's be practical. But David, you've talked a lot about the abortion distortion in law. Can there be any question, given how this lined up, the liberals on one side, and at least Kavanaugh and Roberts and Thomas on the other side, of the opposite of where every other religious liberty case has come down,

including pandemic law religious liberty cases, this is death penalty distortion. Yeah, it's death penalty distortion. And it's death penalty distortion, which is an extension, I think, of criminal law distortion. So we've talked about, for example— Okay, so it's a little bit of defendant distortion, criminal defendant distortion. Criminal defendant distortion, and also sort of just criminal law in general. So we talked, we had one of our earlier advisory opinions featured a long discussion of the drug war distortion. And where I have this theory that, for example, Employment Division

v. Smith would have turned out differently had it not involved a hallucinogenic drug. Now, Employment Division v. Smith, for longtime advisory opinions listeners, is the Voldemort of cases. It is the case that gutted religious liberty protections in the First Amendment of the United States Constitution. It was sadly written by Justice Antonin Scalia. It's the case that I always want the Star Wars Imperial March theme to be played on this podcast every time it comes up. And I'm convinced that it wouldn't have come out the same.

I can't prove it. I can't prove it, Sarah. Well, except we have one case that I think more or less proves it, and that's bong hits for Jesus. Yes. Bong hits for Jesus instead of religious liberty is a free speech case uh involving students off campus and we're about to have another students off campus speech case so we'll see whether i'm right about this but in this case the students do not have a right to free speech which is bizarre um because i think the sign said bong hits for Jesus. Although one intrepid listener, the last time we talked about this case, is a teacher of high school students. And he did this case in his high school class.

And I asked him whether any of the students had interesting thoughts, feelings. Did any of them take the school side, for instance? And he said, basically, not really. But one student said, why are they focusing on the bong and not the Jesus? Isn't this a religious liberty case too? A plus. High school student, A plus. Yes, absolutely. But the point being, there's clearly a drug distortion on some of these cases. But I think there is a specific death penalty distortion that adds to it. Although on just the criminal law, criminal defendant issue, Justice Scalia was

known, set aside the Smith case, which I know is your thing, but Antonin Scalia was the conservative justice that often took the side in Fourth Amendment cases, for instance, the side of criminal defendants. And it was sort of the example he always cited as, I don't like the outcome of this case from a policy standpoint, but I am compelled to vote this way legally. And so, C, originalism and textualism mean something. It is not simply your preferred policy outcomes. mean something. It is not simply your preferred policy outcomes. And so I do find it interesting that Justice Barrett, who, you know, everyone said would follow in the shoes of Justice Scalia, sort of the modern Scalia, not in tone, not in style, but in jurisprudence, that she is, I mean, you could see Justice Scalia's name right there quite easily siding with the liberals in a death penalty case and saying, I don't like this. From a policy standpoint, I'd put the needle in his arm myself,

but the law compels me to side with the criminal defendant. Yeah. Yeah. And I was reading an analysis of the case and it said this is the second case in recent days where Justice Barrett did something that outside observers who always put things when in this very binary outcome-based right-left prism said the second case where Justice Barrett ruled in a way that is somewhat surprising. Well, this one did not surprise me at all. Nothing about this surprised me because you're exactly right sarah scalia was a he was you know as close as you're going to come to be one of the more consistent advocates of a a comprehensive and expansive reading of the bill of rights regardless

of the underlying issue uh in many ways gorsuch is like that as well which is why i would uh find it and i would be surprised even though this is of course ralupa not the bill of rights i would be surprised if he wasn't sort of one of the silent fifth here that this is also consistent with the gorsuch uh practice so far as he's been quote unquote very surprising and how much he's ruled on behalf of criminal defendants. But yeah, so with Barrett, nothing about this surprises me. I would say that I was mildly surprised, if you rewind a week ago, to where Barrett upheld the ban on singing, California's ban on singing in California churches.

And with a very super faithful, strict interpretation of Smith, which again, I guess if I'm thinking through this the way you just thought through it, that this is a Justice Scalia protege, obviously her jurisprudence is not going to match his exactly. But to the extent that she's kind of on the Smith train, that would be consistent, right? Because that's Justice Scalia's gift to America. but that was absolutely Justice Barrett jumping on the Smith train last week in a way that reached an outcome that did, I've got to be, I got to confess, mildly surprised me. So that's the explanation of Barrett's vote.

But then I do think there is simply a death penalty distortion as well. You can go look back at so many of these death penalty cases and the lineup of justices looks remarkably similar to this. If there is an option for delay, an option to not administer the death penalty sooner, to provide more process, the liberal justices are for it. And I think that Justice Breyer has said he would revisit the entire application of the death penalty under the Eighth Amendment. at the entire application of the death penalty under the Eighth Amendment. It's fascinating because if you are an originalist, obviously the death penalty is fine because certainly the

founders, when they talked about cruel and unusual punishment under the Eighth Amendment, were not contemplating the state putting people to death. On the other hand, things have changed quite a bit. And I think if you're Justice Breyer, sort of a living constitutionalist, it doesn't matter that that was okay at the time. Lots of things were okay at the time. Hitting your wife was okay at the time. We don't think that's okay. And so now we can have these evolving standards of decency, as the quote goes, and the death penalty should be banned. That's, I think, sort of the less interesting legal debate over the death penalty, because I think you can sort of pick whatever team you want and you can have support for it. And like, it's mostly a difference of opinion that

comes down to maybe where your heart is on the death penalty. What I think is a more interesting legal debate is how this actually works in real life. The application of the death penalty and its disproportionate usage, not just along race lines, but along legal counsel lines, financial ability lines, what types of crimes get the death penalty. That, to me, is creeping further and further up, I think, the concern level. And you have Innocence Project stuff. When DNA first became available and they were finding all these people on death row, they do not yet have a silver bullet case, if you will, of someone who has been put to death who is definitively innocent. But it's a matter of time at some point. The main reason now is that we are putting fewer and fewer people to death. There was sort of a halt, both federally that had gone on until quite recently.

But then at the state level, it was very difficult to get the drugs for lethal injection. Right. But, you know, as someone who has worked on death penalty cases, they don't look the same as other cases, right?

Like OJ doesn't get the death penalty. Right. Yeah. And yeah, I was. It's tough. It's tough to read those cases as well, because the defendants don't look like other defendants. And I don't just mean race. You know, these are people who I'm not sure they ever had any ability to conform with the law sometimes. We're talking about in one case, mom was on heavy drugs at the time she gave birth, gave up the child, bounced from foster home to foster home through abuse. And at 18 years old, he kills people not for fun, but for no particular reason. Right. He wanted to borrow the guy's truck. And so he killed the guy and his mom, borrowed the truck for like 15 minutes based on my memory. And that

was it. Yeah. I'm not saying that that person doesn't deserve the death penalty, but you read it and you're like, what was the point of that life? We failed that person so many times over at so many stages of his life. I don't know that we should feel particularly proud of ourselves for then as the state that failed him, then putting him to death for the things that he did. I did a taping not long ago of The Argument, New York Times' new podcast, or not new, they're revamping it. Jane Koston has been hired from box and is now hosting a new and sort of revamped version of the argument on new york times and elizabeth brunig and i discussed the death penalty i would say debated it was a quasi debate on one hand but an agreement

on the other hand the quasi debate was whether sort of under uh because elizabeth is catholic i'm protestant we talked about sort of the biblical underpinnings of support for opposition to the death penalty, as well as constitutional underpinnings of support for opposition to the death penalty. And the point that I made was that I think that the Constitution permits the death penalty by its language and by its original meaning. I mean, it specifically contemplates taking, the state can take life with due process of law, for example. But there are other provisions of the Constitution

and other constitutional provisions that mitigate against the way it has been applied. And that we have massive racial disparities. We have massive class disparities. We have massive class disparities. We have jurisdictional disparities. In other words, there's one case where Elizabeth was talking about it and she said the guy was executed because he drove, he committed the crime,

but he didn't know that he was on federal land when he committed the crime. So the sort of the accident of being on federal land when he did it meant the difference between not the magnitude of the crime. It was just the pure location of the crime was the difference in whether or not the death penalty applied. And you can sort of go through a lot of these death penalty cases. And again and again and again, you'll see, okay, well, if he'd had better representation, it wasn't that the representation was so bad, it's a constitutional violation,

but everybody knows if he had a better lawyer, he wouldn't be here. Those kinds of obvious inequities. Inequities that if you're a judge, you have to say, okay, not every lawyer is just as good. Not every jurisdiction is just as efficient. What am I going to do about this? But at the other hand, you say, wait a minute, when it's life and death, and we are all sitting here knowing if the guy had money for a retainer for a good lawyer, he'd be alive. Or if the guy had committed the crime in the next jurisdiction over, he'd be alive. Same crime, you begin to have problems in thinking through this. And this has been something I've wrestled with for much of

my adult life because on the one hand, I do not think that there is a flat biblical prohibition. In other words, that Christians can say, we have to be against the death penalty. I don't think there's a flat constitutional prohibition, but I think there are also biblical and constitutional. That's not the end of the inquiry. It's not, is it okay or not okay in the abstract? It's also, has it been okay and is it okay in the application, which is exactly what you've been talking about?

And the more information we have about this, the harder it is to say, oh, yeah, this is fine. This is okay. And I was sort of wrestling with that on the podcast and talking through that on the podcast. It's just hard. The more you stare at the inequities, the harder it gets. Yeah. And the other frustration that I think is hard to appreciate from the outside of the legal system is that oftentimes those fabulous death penalty, there are plenty of groups who

have great lawyers who work for them, who work just on death penalty cases. But so often in my experience, what happened was the trial defense attorney was not, it was a,-appointed counsel who failed to object, failed to preserve arguments. I had one case where the prosecutor was saying outrageously racially charged comments in the voir dire for I know, guys, because it was an interracial marriage, all sorts of things were waived because the trial attorney was clearly not prepared. So by the time you get over to the federal system on appeal on these habeas things, and you're bringing up very valid concerns about what happened at the trial, the federal habeas system basically says like, look, if you didn't preserve that at trial, there's not much I can do about it now. And so you end up with, you know, these sort of heartbreaking results where you're

like, oh, because your defense attorney didn't say, I object to you asking jurors whether they support interracial marriage because you know how those people are, quote unquote. Right. Now, because of that, we can never look back

at whether that was an impaneled jury that was, you know, reasonable and fair and whether the entire trial then was racially poisoned. Nope, because we have to set up a system that is relatively efficient. And so you have years and decades of appeals going on in these death penalty cases, the amount of money that gets poured into them, the amount of incredibly smart attorneys who work on death penalty cases when they get over into the habeas side. And it's all a waste because they're not there on the trial level at the state level. That is changing. It is getting

better at the state level. It's getting better. It's quite good at the federal level. But as a law clerk, it was very just difficult to see how stupid the process was, frankly. Yeah. of being locked into the kinds of arguments that you're limited to on appeal and that don't really communicate necessarily how much the die is cast by the way in which a trial attorney defended the case, when and how they raised objections, whether they raised objections at all, the kinds of defenses that were mounted, the kinds of affirmative defenses that might've been left on the table, for example, all of these things really, really, really matter on appeal because one of the things that was so fascinating to me

about when I was learning litigation was, oh, an appeal isn't just a flat out second bite at the apple. No, it's not. And in death penalty, you don't get anywhere near the apple. It's really a debate over whether you can go into the room where apples are. Right. And the answer is always no. No, you do not get to go where the apples are. You're in this other room with no apples whatsoever. And then if you do get into the room where the apples are, then there if you do get into the room where the apples are, then there's another debate over whether the apple is good enough for you to take a bite of.

Is the apple rotten now? Has the apple expired? Or is the apple still fresh enough where you could take a bite of the apple? And then, maybe then, you might take a bite of the apple and then it will be found, in fact fact that your client is still guilty and the whole thing just starts over again yeah exactly and you know and one of the interesting things that also and i think this is important for people to realize because it was important for me to realize as i began to think through it you know if you if you grow up and you sort of grow up in law and order gop circles like i did um then you you hear a lot of things and and you sort of grow up in law and order GOP circles like I did, then you hear a lot of things and you don't really know what it means, but you hear it and it sounds really persuasive.

Like one of them is there's been years and years of appeals and habeas proceedings. And so what does that tell you? That says, this has been looked at every which way, So what does that tell you? That says, this has been looked at every which way. That there has been, we have looked at this closer than we look at any other kind of case. Now, in the one extent, this is true and that there are other cases that don't get the same kind of multiple appeal treatment. But on a very, very important way, it's misleading because what it makes you feel like when you hear years and years and years of appeals and habeas proceedings what it makes you feel like when you hear years and years and years of

appeals and habeas proceedings is it makes you feel like, Sarah, there were multiple fresh looks at the case. What really is often the case is that there are multiple of the same look of the case that multiple attempts to make some of the same limited arguments with rarely do you kind of get to crack the door open and really introduce and really sort of go back and try to unring the trial bell, so to speak. And that was one thing that was really interesting for me to learn was that all these years and years and years of appeals are not the same thing

as years of fresh looks at the case sort of from a de novo perspective. In fact, it's years of sort of looking through the case through the same kind of lens that was created by the trial court and created by the trial attorneys. So. Well, we will have, I'm sure, some death penalty cases that come up in the Supreme Court term. And perhaps we can break down some of the process that is behind that because they're usually very difficult to read on the most narrow of issues. And it might be worth actually discussing how narrow those issues are next time one comes up. So listeners, we will return to this maybe in the next few months. Listeners, we will return to box fan? Happily, yes. A day of sunshine? No. A box of fine wines? Yes. Uber Eats can definitely get you that. Get almost, almost anything delivered with Uber Eats. Order now. Alcohol in select markets. Product availability may vary by regency. App for details. All right. Should we discuss Yuval Levin? And can I start by explaining who he is? Yes, Yuval Levin. And can I start by explaining who he is? Yes, please.

So he is the Director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute. He is also the founding and current editor of National Affairs. Yes, I am reading his bio straight off the AEI's website. But what I found really fascinating as someone who went to Northwestern, my best friend from high school went to University of Chicago. So I was over there a lot. I did not know this exists and I'm sure everyone's going to mock me because I'm sure it's famous, but he holds a master's and his doctorate from the committee on social thought at the university of Chicago, which if it wasn't Yuval and it wasn't the AEI website, I would have thought was some sort of sarcastic joke about the University of Chicago. But the Committee on Social Thought is a real

thing. It's an interdisciplinary PhD graduate program. The guiding principle is that the serious study of many academic topics and of many philosophical, historical, theological, and literary works is best prepared for by a wide and deep acquaintance with the fundamental issues presupposed in all such studies. The Committee on Social Thought. Doesn't that just sound sort of nefarious, David? It sounds like it comes from, you know, some obscure bureaucratic department of East Germany. Yeah. Yeah, yeah, it does.

But, hey, it's, you know, Yuval's academic program, so I like it. And the other thing that Sarah didn't say is it's hard to find somebody sort of in conservative world. Who's more well-liked and well-respected than you've all. Um, he's just a super thoughtful, super respected guy, respected across the ideological spectrum. I would,

um, highly recommend. I, Ezra Klein had a podcast with him in his new New York times podcast, uh, that I would highly recommend you listening to. And it's funny because it ended up with Yuval and Ezra debating the filibuster,

which is what Ezra and I debated at length the last time I was on his podcast. It was, so Ezra wants to do away with the filibuster. There's a faction of us who do not. It's an ongoing debate. It was very interesting. I recommend it. But let's start with...

Oh, and relevant, by the way, to what Yuval wrote about, I think. Very relevant. Yes. Yes. And I want you to explain and summarize Yuval's piece. But Yuval was the special assistant to the president

on the Domestic Policy Council for George W. Bush. So this is a guy who has not just worked in the executive branch, but like at the heart of the executive branch policymaking wing, you know, at the right arm of the chief executive. So David, now tell us what he thinks about the executive branch. So I've never heard an anti-president's day rant before, but it was a great, but Yuval wrote it.

It was put in a national review and it's a great segue to a tremendous idea that he has that I think is worth discussing. And he says, president's day weekend is a good time to think about the sorry state of Congress. Why, does he say? He says, strictly speaking, there's no such thing as President's Day.

By law, the third Monday in February is a federal holiday called Washington's birthday. We have gradually and informally turned it into a broader celebration of our government's chief executive as we have turned almost everything else about politics into such a celebration of the second branch. This is an old story by now, stretching back to at least Woodrow Wilson's misguided notion that the president is the tribune of the people. And of course, in some ways, much further back than that. But it's become a more tragic story as the first branch of our government, the legislative branch, has increasingly taken the lead in its own diminution so that it might be relieved of the burden of taking the lead in anything else. It's very, very true. And what Yuval basically says is that Congress, the primary purpose of Congress as an institution is to enable and to compel accommodation in a divided society.

And the fact that accommodation now seems nearly impossible in our politics is a result of Congress's failure to recognize and serve its purpose more than it is the cause of that failure. And so it's really a fascinating notion that he says, look, Congress is supposed to reach across the divides. It is supposed to negotiate and compromise. It is supposed to act. It is not supposed to look at the divisions and say, well, we're too divided to act. Therefore, we will punt up to the chief executive. And why is this so important? I think that we saw one of the reasons why this is so important, actually, Sarah, on January 6th, that as we have punted more and more and more up to the chief executive, the stakes, the perceived stakes of every presidential election grow.

And we've always heard this statement that says, this is the most important election of our lifetime. Well, I get weary of that because that's something you can't really know until years in hindsight. But this much is true, is that the more power you punt to the chief executive, about every four years, you elect the most powerful peacetime president of our lifetimes because the power just grows and grows and grows and grows. And that creates greater tension and hysteria and raised stakes around the presidency. And I'll end with this. And this is something that I thought was fascinating and a tremendous idea. He says, we're in a moment analogous in some respects to the mid

1970s when modern conservative constitutionalism was born, except at that point, the most urgent problem was a misunderstanding of the proper role of courts. And today it's a misunderstanding of the proper role of Congress. The right's response then was a gradual decades long process of intellectual and institutional work to recover an understanding of the judge's proper role. He says it was enormously successful. It was. It was. We have talked about sort of the way in which textualism and originalism have just overtaken much legal argument. And he says, essentially, we should try to do this again, except with Congress. I just thought it was fascinating. And I thought it was, I endorse the idea completely and worth talking about on the problem. Yeah. And I am sympathetic to his proposed solutions, but for instance,

you know, and the two paths he talks about in particular, I was like, ah, that is, that is a really good way to think about it. You know,

make cross-partisan agreement more likely or make it less necessary. Framing it in that way is a brilliant Yuval move, right? Right. And if you simply try to make it less necessary, that's the folks who fall into the get rid of the filibuster category because that will make it easier to pass legislation. So then Congress may increase its power in terms of passing sweeping legislation, but at what cost, as we saw over the Affordable Care Act, for instance, where if it's not bipartisan, if it's not the product of compromise, it further erodes the ability to compromise the next time. I get that. He's very

smart to point that out. But when he then discusses how you would make cross-partisan agreement more likely, that's where, again, he's brilliant, but he kind of loses me. So he says it could include some electoral reforms, like greater experimentation with multi-member districts in the house and with rank choice voting and some institutional reforms like increasing the size of the house of representatives, letting committees control some floor time in each house or combining authorization and appropriation work. Yeah, none of that's going to happen, David. work. Yeah, none of that's going to happen, David. And so I do think this is where I get frustrated with brilliant think tank people. Now, Yuval is actually, I mean, my God, it's so hard to criticize him because my main frustration with brilliant think tank people is come step into the

arena and then tell me how you want to do things. Having some thought on a piece of paper because you've read a lot about it and thought about it for two years, five years, how lovely that you have had the time to do that. To quote Hamilton in the musical Hamilton, talking to Jefferson, welcome to the present. We're running a real nation. Now, of course, Yuval actually has served in the executive branch, so I don't really get to criticize him for that. But his inability to recognize that, for instance, we're not moving to multi-member districts anytime soon. We're not doing ranked choice voting anytime soon. We're not increasing the size of the House of Representatives anytime soon. And so without acknowledging that

and acknowledging the practical reality that we're in, you're basically saying, yep, there are some things we could do. Doot-a-doo, I solved it, bye. Well, but he is saying, he says this is a gradual decades-long process. Doesn't mean I there's an, doesn't mean I think that we have

an immediate response right now. I think he acknowledges that. To say that it's a gradual process, okay, what, how are we doing any of those things gradually? They're not gradual processes. They're, I mean, increasing the number of people

in the House of Representatives is a thing that we can do. It's not something that will happen over time. I don't understand how it's going to get more support. What? No. And so then I go back to, okay, what if we simply made it easier to pass legislation by getting rid of the filibuster? And yes, it would start by being more partisan. And early on, you could argue that that will hurt the overall goal. But as people realize that Congress is where legislation is happening, more people would move to the middle because they want to be part of that action. And you'd have more Joe Manchins and more people joining Joe Manchin.

That at least is something that I could argue could happen gradually and can actually happen. Unlike moving from 435 members to 1,000 members in the House of Representatives, I don't know where they're all going to sit. And I think that would actually have a lot of unintended- Closer together. Yeah, really close together. And I think that would have a lot of unintended consequences

of making the speaker and the leadership so much more powerful than they are now. And by the way, they're incredibly powerful now. If you're a back-mitch member of the House, even in the majority, you are useless to Nancy Pelosi. As she has said, remember when AOC was a freshman and they kept asking Nancy Pelosi what she thought of her? And I won't get the quote exactly right, but she's kind of like, why do I care? Wait, it's a freshman. I mean, truly she sounded like the prom queen, like senior year of high school asking like whether you liked, you know, freshman Betsy's new shorts. And it's like a freshman. Oh, I don't even, they're freshmen at this school. And so if you increase it to a thousand, I think that I,

I would like a whole other piece on his proposed solutions, how he sees those coming about, even if gradually and what the unintended consequences of multi-member districts or ranked choice voting would be because he's a smart guy. And I think he can think through some of those better than we were given a window into in this piece. That being said, it sounds like I'm disagreeing with his piece. But my God, he's laid out the problem about as well as anyone has. So my concern about the filibuster is that I, well, let me say this. I feel like the filibuster is not long for this world.

is that I, well, let me say this. I feel like the filibuster is not long for this world. I feel like that there is a lot of momentum moving for its elimination. And I think it's elimination just because the way things go now is that we implement policy changes within the worst possible fashion and the worst possible way.

I tend to think that the way filibuster reform would move is a snap decision in response to a perceived crisis or an angry response to blocked legislation rather than, okay, we're running on this platform of reform and we'd like the American people to buy into it. And here's what we're going to do once we cross this threshold. Here's our program. Here's our plan. We don't want the minority to be able to block it.

Hey, buy into this. It will be something along the lines of there's a crisis moment. There's a popular piece of legislation that pops up. It's going to be filibustered. Boom, down goes the filibuster. That's the way I think it will go in a way that will be maximum, sort of in a way that is sort of quote that court packing would happen like or that there would be a serious move towards court packing would happen in response to a decision that outraged a whole lot of people when the Democrats control. Both houses, the legislature and the presidency, which is why I've always thought that the real sort of Damocles over the court is not. Hey, I'm running for president will pack the court. The real sort of Damocles is, hey, we run this whole place right now, and nice little nine-member court you got

there. That's the real sort of Damocles. And so that's one of my concerns is about filibuster reform. Look, and I also think, and I think that Yuval's right, passing sweeping social legislation 5248 is in a highly polarized, highly polarized environment, I think is very difficult. But there's something we have not talked about yet, Sarah. And that's how this remarkably enormously successful judicial revolution can help smack Congress back into reality. So this is where I thought Yuval had his strongest argument because it was something gradual. It is going to be incredibly slow moving, but he makes a brilliant analogy here and one that I would have dismissed, but for the existence of the Federalist Society, which was started in 1982 and probably began to reach the zenith of its power in what, 2004, David? Is that fair?

I would say, yeah, I would say mid-2000s. Yeah, more than 20 years after its founding is when the Federalist Society starts exerting real influence over both the judiciary in terms of who's becoming a judge and also how those judges are thinking about the law, even among people who are not members of the Federalist Society, like an Elena Kagan, for instance, quote, we're all textualists now. Yeah. So explain the analogy because it's brilliant. So, yeah. So explain the analogy because it's brilliant. Yeah. Well, so essentially what happened is and this is something that I kind of came of age in was, look, the judiciary was perceived as overwhelmingly progressive, just overwhelmingly and an extraordinarily powerful instrument of what was functionally becoming legislative change in our nation. And legislative change sort of against the will of the people time and time and time again. And so, as Yuval says, it began with ideas, it began with pointy-headed think

tankers, but then it began with infrastructure. It began with infrastructure, building out a legal culture. And the Federalist Society has got to be, honestly, one of the single most successful intellectual organizations ever to have launched into modern America. And the idea that it would be this successful is something that would have surprised a lot of people even when I went to law school. So I get to law school in 1991 and the Federalist Society at Harvard Law School was a small divided group of people.

It was very, the idea that the Federalist Society would be this massive colossus astriding the legal landscape would have been laugh-out-loud funny. But it's the way in which patience and persistence come married to a good idea, an intellectually coherent philosophy, can really pay off. And I think there's a way it could continue to pay off, and that is the courts prior to this sort of conservative judicial revolution had really endorsed an enormous amount of delegation of congressional power to the executive branch. And even had endorsed an element of judicial power to the executive branch. the executive branch. And so right now, because of the gutting of something called the non-delegation doctrine, and also right now because of something called the Chevron doctrine, which requires courts to defer to agency interpretations of statutes, what we have seen is that we have

had a legal system that now allows Congress to delegate an enormous amount of power to the presidency and then requires the judiciary to defer to the executive branch's interpretation of statutes. That one-two punch has resulted in a giant amount of power being accumulated in the executive, and this conservative judicial revolution, I think, could help roll that back by rolling back the non-delegation doctrine and rolling back Chevron, neither of which were constitutionally required doctrines to begin with, and could sort of smack Congress and the presidency back into reality a bit.

Boy, we're getting into the weeds now, Sarah. But I think he also makes the point that the next, I'm going to quote from him here, the next phase of conservative constitutionalism will require a similar set of efforts, similar to that which created and allowed the rise of the Federalist Society, intellectual, institutional, and ultimately political, but aimed at recovering an understanding of Congress's proper role, the source of its legitimacy, its value to our society, and how it needs to change to be worthy of all of that. And so we need a federalist society about Congress and about Article I. And I don't know anyone who's founding that yet. And it would mean potentially 25 years before the fruits of that labor would really come forth,

and it would have to have well-timed, you know, potentially presidential ascendancy or congressional folks who matter and belong to this group. But I thought that that analogy worked really well for me. And then now I'm looking around going, okay, who's starting it? Yeah. What are we going to call it? Like the Daniel Webster Society or? Ooh, I kind of like that. I like it. That's good stuff right there. Take notes, some funder with a billion dollars. Well, the Federalist Society didn't start with money. It started with students, which is crazy. I mean, the story of the Federalist Society really is something that I think will be studied and emulated for decades to come because it is so unlikely. It is not, yeah, it was purely grassrootsy. It's so powerful it has a problem now, Sarah. Yeah.

Can I, here's the problem. It's such a mandatory ticket into success for a conservative lawyer or a lawyer who wants to have, let me be more precise, a lawyer who wants to uh who has ambition to succeed under conservative governance so that what used to be sort of a signal that if i belong to the federalist society i have a particular set of ideas of of legal ideas and values it's the other way now yeah it's now it's saying if i want if i belong to the federalist society it's saying, if I belong to the Federalist Society, it's saying, I want to be promoted and get a job, which is not the same thing. We had this problem when I was in law school. People would join, you know, I was in law school during the Bush administration, and people would join the Federalist Society for the clerkships.

Yeah. Yeah, exactly. But, you know, there's always ways to check that. Judges would call the president of the Federalist Society to ask whether this person had actually been active. Had you heard them discuss their ideas? Do you think that they are a true adherent to some of these beliefs?

Or are they just here to get the clerkship? And, you know, not surprisingly, I would think a lot of the students who joined just to get the clerkship did not realize that the judges would do that. Well, and you know, what was interesting to me is some of these legal disputes post-election ended up being FedSoc versus FedSoc. Uh-huh. originalist, textualist judge against some of these FedSoc attorneys general from the states who were, quite frankly,

pretty hackish. But even within the Federalist Society, there's non-hackish disputes over, I mean, we saw it in Bostock, right? No, yeah. I mean, there are non-hackish disputes within the Federalist Society, and there always have been.

There always have been. But what I was talking about was, and there are non-hackish disputes within the Federalist Society, and there always have been. There always have been. But what I was talking about was, and there are disputes, you know, over the meaning and text of statutes and the Constitution that are intellectually rigorous and interesting. But what you saw was sort of in some of that election disputes was the battle between the intellectual wing of the Federalist Society and the ambitious wing of the Federalist Society and some of these state attorneys general. Because they would trump as their FedSoc credentials to the heavens. And I read some of their pleadings and I'm like, no, sir. But anyway. And with that, I think it's time for some hashtag free Britney. I don't want to spend too long on this, but I needed a break from impeachment. A whole bunch of my friends were talking about the Britney Spears documentary on Hulu. So I watched it. It's

only an hour. In fact, I think it's a little bit less. It's done by the New York Times. It's based on this New York Times piece that David read that I have not read. So I'm curious what it says. And speaking of hackish, David, I thought it was a pretty hackish documentary because the premise of it is to talk about whether Britney Spears should be under a legal conservatorship. about a legal standard, a legal process, you know, through the lens of this celebrity and whether there's, you know, conservatorship abuse in general, they don't spend a ton of time on that, but whether there's conservatorship abuse in this specific case is the premise for the whole hour. I mean, you couldn't have put together a less compelling documentary, I think for an attorney than this, the people who they talk to are so in the outer orbits of Brittany world. Um,

the only attorney who they talk to on the Brittany side of the ledger is someone who never represented Brittany Spears. In fact, when he went into court because he had met with her in an attempt to represent her, the court rejected him as her attorney. And then they do talk at one point to the father's attorney who, of course, because of privilege and a thousand other things, basically doesn't say anything at all. And it's about, I don't know, maybe it's two minutes. It struck me as less at the time. Otherwise, the documentary turns on, for instance, Britney Spears' assistant when she was 15.

Oh, my. You know, people from the town she grew up in, people who know record company executives, a lot of reporters, many of the paparazzi folks who took pictures of Britney Spears, and whether they think that she's competent, why do I care what multiple people who work in the paparazzi industry think about this. Because here are the facts, David. A judge put Britney Spears under a conservatorship. We do not know the facts. We do not know any of her medical history. But here's what we know. Her attorney has never asked that she not be under the conservatorship. They've never asked for that. And the way that the New York Times documentary explains that away is by saying, well, that's because they know that that would never happen. So instead they asked for

modifications to it. So for instance, she doesn't want her father to be the conservator. And again, we only have the judge's rulings on this. The judge determined that no, the father will stay the conservator, but he added in a third party, which in the end was actually what Spears asked for. There was like a moment where she asked for her father not to be the conservator, but really then she asked for her father not to be the sole conservator and for there to be a third party, which other than I think about six months has always been the case.

There's always been another co-conservator. To not have any of her medical records, to not have any facts about what's being discussed in court over whether the conservatorship should end and basing it on this movement called the Free britney movement which is fans of britney spears who think that she shouldn't be under a conservatorship because she is able to work for instance and put on shows what yeah it was it was such a disservice where they could have really explained the law behind conservatorships instead of, you know, again, having a reporter who works in the entertainment industry give their version of conservatorships. that's yeah that you know what the idea that you can now judge whether somebody's worthy of leaving a conservative conservatorship because they can put on a um vegas show or sort of have

an eccentric instagram feed is strikes me as a little thin and to be clear maybe she shouldn't be under a conservatorship i have maybe i am not weighing in on the merits of that at all. What I'm saying is we have no idea. And these people who are standing outside court waving signs that say free Britney, they don't know either. And the paparazzi doesn't know. And her assistant from when she's 15 doesn't know. And so I think it's just irresponsible for us to weigh into it at all.

Now, the part of the documentary that was interesting and that they should have spent an hour on is the way that culture and media treated Britney Spears in 1998 versus how they would have treated her now. Yes. That, to me, is what's very interesting. As far as whether or not Britney Spears should be under conservatorship,

I have no idea. I don't know. I think that one of the real interesting aspects of this documentary and this moment that has arisen that's really fascinated me is it's led to people pulling up old video clips from the pre-social media era, the way in which we treated celebrities in this pre-social media era. And it also, in an interesting way, connected with me in the Michael Jordan Last Dance documentary because of this. There were things that were said and done in public to Britney Spears and to, in a super different context, Michael Jordan, that would have led to immediate outrage and retribution now. Like the way in which Spears was so explicitly sexualized as a minor, as a minor, and the way in which people treated her that way as a minor, as a minor, and the way in which people treated her that way as a minor, if that happened now, it would be way out of bounds, way out of bounds. And to connect with the Michael Jordan thing, there was some open speculation about how Jordan's gambling might have led to

his father's death that was based on nothing that would have led to the kind of outrage that would have caused newspapers to apologize and to backtrack. And people have been pulling up other kinds of clips, like, for example, one of the way David Letterman treated Lindsay Lohan, for example, and other things where you're just thinking,

what on earth? Or all these clips of the way in which uh in 1998 99 monica lewinsky and not bill clinton was dragged publicly time and time and time again and they draw that comparison in the documentary that this is going on in the time of monica the comparison that they don't draw, though, that I think hangs over all of this, and if you didn't live through it, you may not feel unless they mention it,

is Diana, Princess Diana. That, you know, in 1997, this was a woman who we sort of all agree was killed by paparazzi. Right. And then still in the next five years, we're allowing paparazzi to just hound these people. Yeah. Yeah, exactly. It's interesting because we always have this narrative, Sarah, of cultural decline. It's like we're locked into this narrative of cultural decline. And every now

and then we need to sort of hit the rewind button and i'm not saying that there aren't things that are getting worse but we are always of this view that everything's always getting worse and but then when i think back to the this combination of in just insatiable desire for celebrity access this insatiable desire for celebrity access combined with a complete sort of denial of their humanity in many ways, it created this environment that, you know, honestly, I don't know. I don't know how people navigated their way through it to be on. I mean, just the amount of pressure.

I'll tell you another thing that it really makes me realize. We're just pulling celebrity names from all over the place. It makes me admire LeBron James all the more. Because this is a guy who, this is when he came up. He was anointed the chosen one about 20 years ago. Right in this time, in this era of this complete, incredible, intense exploitation of young celebrities. And my goodness, the guy has just navigated it incredibly well for 20 plus years, pre-social media age, social media age. Anyway, that's a complete tangent. But I was thinking

about that because I was watching him play against my Memphis Grizzlies over the weekend. And he flopped. You flopped, LeBron, too much. But he has navigated this whole era. Yeah, no. Okay, so. We're not off. If you're looking for a documentary to watch, I do not recommend the Britney Spears documentary.

I think it is jumbled. I think it lacks focus because they were never able to actually, they didn't want to, they weren't able to focus on whether she should be under this conservatorship because they don't have any facts as to whether she should be under this conservatorship. I also watched the Paris Hilton documentary. I don't recommend that one, but for very different reasons, it is totally coherent. And a total sales job on Paris Hilton, where she basically says that she's been lying for 20 years and playing this character in public, and that now she wants to stop lying and play a different character. And I just found that

to be, it's funny because she invented so much of this. She, in some ways, invented reality television that we know today with Simple Life. She certainly invented influencer culture. She certainly invented Instagram before Instagram even existed. And it felt so authentic back then. And it is striking how inauthentic she feels in this documentary because we now expect even more authenticity

from our celebrities. That is probably a false authenticity, but basically people have shot beyond her level of authenticity to bring us a feeling of greater authenticity. And it will also remind you that Kim Kardashian was initially her assistant and that is, I think, the best example of someone who learned from the master at the time and is now Aristotle, Plato, Socrates style. It's getting better and better

depending on your point of view. From Obi-Wan to Luke. That's, yes. From Paris to Kim. Yeah. So I was pretty cranky after watching that one, but it is sort of interesting in a meta context if you are into that sort of thing, but basically folks, all the media that I've consumed recently, I don't recommend, sorry, I will try to do better.

I'm my next up is the David Attenborough documentary, which I know that I will love. So, um, look forward to me gushing about Birds of Paradise and Bowerbirds. And I'm obsessed with Bowerbirds. At some point, we also, Sarah, have to talk about why is Peaky Blinders so darn good? We don't. We do. We have to. It's so good. And we also need to talk about, are you going to watch the Snyder Cut of Justice League when it comes out on HBO Max? There's very few of those words I understood

that you just said. Okay. Well, we're going to have to talk about the Snyder Cut. Maybe that will be on the Dispatch Pod. Maybe that'll have to be

like Jonah and I just finding time, but that's going to have to be discussed. This has been Advisory Opinions with David French and Sarah Isger.

Please go rate us on Apple Podcasts and please check us out at thedispatch.com where Sarah writes her outstanding newsletter, The Sweep. I write a newsletter called French Press and we have a host of other offerings. So please go to thedispatch.com. You can sign up for free and you'll get part of it but if you subscribe you'll get all of it and all of it is better than part of it so go to thedispatch.com and thank you for listening And we'll take a quick break to hear from our sponsor today, Aura.

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