Advisory Opinions - Justice Breyer's Warning

Episode Date: April 8, 2021

Our hosts start today’s episode by diving into the Supreme Court’s 6-2 opinion in Google v. Oracle, a multibillion dollar copyright case involving whether Google unlawfully used Oracle’s programming code when the tech titan created its Android operating system. Also on today’s podcast, Sarah and David chat about Justice Stephen Breyer’s Scalia Lecture, misdemeanor prosecutions, a new study on religious liberty’s winning streak on the Roberts Court, and a Native American adoption law case. Show Notes: -Google v. Oracle -Justice Breyer’s Scalia lecture. -Misdemeanor prosecution explainer by Alex Tabarrok and “16 theories for why crime plummeted in the US” by Dara Lind and German Lopez in Vox. -“An Extraordinary Winning Streak for Religion at the Supreme Court” by Adam Liptak in the New York Times and “The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait” by Lee Epstein and Eric A. Posner in the Supreme Court Review. -Native American adoption law case. -Take the next 30-days to try a Dispatch membership Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And we're going to cover a ton of stuff today. It's hard to believe, Sarah, that just three days ago, we were 30 minutes before the podcast and struggling for topics. And here we are once again with a plethora, a wealth of things to talk about. So here's what we're going to do. We're going to humbly approach you listeners and say, we should have talked about the Google Oracle case more than we did on Monday. And so Sarah

is going to correct our mistake, but we're not going to talk about it for long. Why? Because Justice Breyer gave a speech where he said some interesting things we need to talk about. There are fascinating developments in the world of crime and prosecutions and crime rates that are very interesting that I think are worth exploring. We're also going to talk about a new study about religious liberty that Sarah, I'm just going to humbly say, proves I'm right. And then we're going to end up with a discussion of equal protection and adoption. So that's a lot. So start us off, Sarah. What should we have talked about when it comes to Google and Oracle? So on Tuesday afternoon,

I got a text message from my cousin. And it said, finally heard about an interesting Supreme Court decision related to my line of work. I turned on advisory opinions to get the full scoop. And what do I get? Oh, no, David. This was quite embarrassing.

So I need to impress my cousin. Here we go. We mentioned on Monday, this was a 6-2 decision. Barrett didn't take part. She wasn't on the court yet when it was argued. This was the last of the October cases,

as I mentioned, for court bingo. Look, this is a copyright case, but it's a case that kind of preserves the status quo, which is why we didn't talk about it much. If they had ruled for Oracle instead of Google, this would have been the hugest, biggest deal in corporate America ever. And I don't know, buildings would be burning, there'd be riots in the streets, renting of clothes, et cetera. They ruled for Google though, which preserved things the way that they were. And the world as we know it and all the Android phones stay the same. And Google

is still as profitable as ever. Oracle is still not as profitable as ever. And so everyone was like, oh, okay. So from a sort of business expectation standpoint, the world is happy and it looks the same. From a legal standpoint, copyright and fair use doctrine just got us sort of like, huh? So Congress very much included computer code in its copyright protections. Copyright protections, by the way, aren't constitutional. They are created by Congress. Computer code in there. What this opinion does is basically say, yeah, but not really in there. The justices really struggled on how to fit computer code into what they consider copyrightable. And they kind of, well, they kind of just reject Congress's idea about all of this in a lot of ways,

except for two justices. That would be Justice Thomas and Alito in our dissent. So I just want to read a couple pieces of the dissent because I think they have a pretty good argument. Now, again, if the dissent had won here, everything would be turned on its head and the API world as we know it, the thing that makes every app on your phone basically, would be really, really messy. But before you do that,

before you do that, Sarah, and go to the dissent, let me just sort of set the factual stage a little bit so that people know. That's what it's going to do. But yes. Okay. Yeah. No, go ahead. Go ahead. All right. All right. So I'm just going to read to you from the syllabus of the case, and it's kind of got a nice little description. Oracle owns a copyright in Java SE, a computer platform that uses popular Java computer programming language. In 05, Google acquired Android and sought to build a new software platform for mobile devices to allow the millions

of programmers familiar with the Java programming language to work with its new Android platform. Google copied roughly 11,500 lines of code from the Java program. The copied lines are part of a tool called an application programming interface, an API. An API allows programmers to call upon pre-written computing tasks for use in their own programs. And the holding was that Google's copying of this Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work

in a new program, was fair use. So that's the basic guts of the case. Yeah, we'll see how many people understood that. I think the dissent makes this a little more like, why does this matter? Okay, here's how it starts. Oracle spent years developing a programming library that successfully attracted software developers, thus enhancing the value of Oracle's product. Google sought a license to use the

library in Android, the operating system it was developing for mobile phones. But when the companies could not agree on terms, Google simply copied verbatim 11,500 lines of code from the library. As a result, it erased 97.5% of the value of Oracle's partnership with Amazon, made tens of billions of dollars, and established its position as the owner of the largest mobile operating system in the world. Despite this, the majority holds that this copying was fair use. Okay, I want to break that down a little. So yeah, Google kind of knew that this belonged to Oracle. It wasn't like they just always thought, like, well, no, I just found this code on the street and I picked it up and put it in my pocket. Fair use. So they tried over the course of 05, 06 several times to come up with

a licensing system. They weren't able to. So then they just took it. Now, relevant there is that Apple and Microsoft did not. They created their own. So we know that it was doable, A. And also, Apple and Microsoft presumably spent a lot of money doing this, only to have Google skip that whole process and the time involved in that to just copy it. That's sort of a problem. If it turned out that they could have just all copied Java, I'm sure they would have. Second, the 97.5% of value of Oracle's partnership with Amazon being erased also seems kind of relevant here.

So before Google released Android, Amazon paid for a license to embed the Java platform in Kindle devices. But after Google released Android, Amazon paid for a license to embed the Java platform in Kindle devices. But after Google released Android, Amazon used the cost-free availability of Android to negotiate a 97.5% discount on its license fee with Oracle. Also, Samsung's contract with Oracle dropped from $40 million to $1 million. Google contests none of this except to say that Amazon used a different Java platform, Java Micro Edition, instead of Java Standard Edition. That difference is inconsequential because they use the exact same 11,500 pieces of code. The majority does not dispute or even mention this enormous harm. Yeah, if you lose

97.5%, which by the way, the only reason in my mind that they were able to keep that 2.5% of the value was that Amazon wasn't sure how this case would turn out. And so that was a 2.5% hedge that maybe Oracle would win this case, in which case Amazon would owe them a lot more money. And now I assume that Amazon will probably just pay them nothing once that contract runs out. So weird case. It definitely shows to me, David, why you want just smart people on the court. You don't, why we don't just want like one bankruptcy expert, one criminal defense expert, you know, whatever else on the court, like you're putting people on the court for far more important reasons or sorry, uh, far, farther reaching reasons than like abortion or the death penalty or something else.

This will have a huge impact on corporate America. And it's decided by people who, you know, didn't do copyright for a living before they came on the court. They're just sort of these nine smart people who we found in this case, eight. Right? No, that's a really good point. I mean, we tend to think of the Supreme Court as being consequential mainly in the culture war context, but it is incredibly consequential for our economy as well. And rational decision-making, rational judicial decision-making in complex cases involving technology that they're going to have to learn about in the course of the case. This is difficult. It's difficult. It reminds me, Sarah,

of, I don't know if you've ever, well, you know everybody. So you know how if you meet, say, a commercial litigator, somebody who's at the top of their game, and maybe they've been doing it for a while, you're going to suddenly find that they know a lot about a lot of different industries. Why? Because in the course of their cases, they have had to become expert quickly. Quickly. Not just in the law, but in the nuts and bolts of how things work.

But yeah, you raise an excellent point there. These nominations should require and should at a minimum ask for people to be at the very top of their profession, independent of any sort of ideological litmus test. Yeah, and just think about the fact that Justice Breyer was nominated in May 1994. There aren't questions you can ask him at his hearing that will come anywhere close to being able to think about how he may approach a case like Google v. Oracle. So that's kind of fun. Yeah. I like that Justice Breyer is writing sentences like, it is inextricably bound up with the use of specified commands known to programmers, known here as method calls, such as java.lang.math.max, etc. lying.math.max, etc.

That Oracle does not here contest. I felt very much like the justices really did fully understand what they were dealing with. Unlike, you know, at some congressional hearings where it's the series of interconnected tubes conversation or that Guam could tip over

if everyone moves to one side of the island. Both the majority, written by Justice Breyer, as you said, The Dissent, written by Justice Thomas, both men who are not young and were around for the majority of their life before JavaScript, both seem to really grasp what they were dealing with,

which was kind of cool too. Unlike me, who is pretty not able to grasp this. Well, so listeners, I hope we've made up for our grievous, grievous omission on Monday with at least enough conversation about Java and APIs. Y'all have no idea how important this is because the cousin that I angered is the one that controls my favorite family recipe. He sabotaged me once, gave me the recipe, or purported to give me the recipe, and it was not the correct recipe. So we have since mended that family rift. But I can't

make this cousin angry. So hope I made up for it. All right. Are we ready to go to the Justice Breyer speech? Yes. So Justice Breyer was invited to give the Scalia lecture at Harvard Law this week. And boy, did he. He gave, it was just shy of a two-hour lecture. And mind you, he began it by saying, this is going to be long. We're going to take a break in the middle. Get ready. But oh my gosh, it was a fabulous speech. But also you think back to the Justice Breyer, who was a law professor before he was on the court. And man, am I bummed that I did not get to take any classes with Professor Breyer. He started lecturing at Harvard Law School in 1967, and he was a professor until 1980.

He also held a joint appointment at the Kennedy School from 77 to 80, which was kind of fun. So he mostly taught on administrative law, which not known as the sexiest of the law topics, but definitely one that you want an interesting professor from. And look, two hours of Justice Breyer at his most delightful. You get a taste of it in oral argument. He comes up with these sort of colorful hypotheticals and these six-part questions, and he has this very melodic voice. Highly recommend two hours of the melodic voice. Pop in your earbuds and go do some yard work with these lovely spring days that we're having and listen to the melody of Justice Breyer. spring days that we're having and listen to the melody of Justice Breyer. So the title of the speech was The Authority of the Court and the Perils of Politics. And look, Justice Breyer hit

all the high points. There was Cicero, there was Shakespeare, there was Camus. But the point of the two hours was to really try to persuade a liberal audience not to add seats to the Supreme Court. So it was a very practical speech in that sense. But in order to do so, he just did this wonderful job walking through the history of the court. If you are not a lawyer, you are going to get so much out of this lecture, actually. If you are a lawyer, you're still going to get a lot out of this lecture. Yeah, you think you know Marbury versus Madison, but hearing it told from Justice Breyer is simply more delightful. So I just want to read you a couple parts. They are actually going to publish the whole speech in September, but in the meantime, all we have is the audio. So this lecture reflects

my own efforts to be certain that those who debate these reform proposals also consider an important institutional point, sorry, he cited 20 Supreme Court decisions spanning two centuries of American jurisprudence. I mean, it was a tour de force. We go through Marbury versus Madison. We go to the Andrew Jackson, it's their opinion, let them enforce it, in Worcester, the Cherokee Nation case in Georgia in 1832. I really enjoyed, he focused on Brown v. Board of Education,

which, look, we've gotten some questions from listeners of would Brown v. Board of Education, which, look, we've gotten some questions from listeners of would Brown v. Board of Education come out the same way under an originalist or textualist reading of the law? I think that's an interesting question. What I think is a far more interesting question and one that Justice Breyer actually cites Vernon Jordan's opinion of is, did Brown v. Board of Education matter? The schools don't really desegregate for another 10 to 12 years. I mean, even really start to desegregate. Of course, Eisenhower calls in the 101st Airborne into Arkansas. That's the Little Rock Nine. Well, two months later, they shut down all the schools. No one went to high school that year, white or black.

Schools in the South, long, I mean, Brown is 1954. Obviously, segregation doesn't end anytime soon after that. So did it matter? Was the court too far ahead in order to drag popular opinion in the South along? Or was it the clarion call that freedom riders needed to say, look, we have the court on our side. The court then forces the hand of Eisenhower, who's the one who sends down the 101st Airborne. So now we have two branches of government on our side. It's time to push the pedal down. I think it's a really interesting debate. I don't think that there's an obvious winner in that debate, actually. But Vernon Jordan told Justice Breyer that he absolutely thought that the court was that first domino that was needed, which certainly there's plenty of evidence for, and is a very hopeful

view of the court that the rule of law was what was established in 1954. And yes, it took a while, a long, long while for it to be accepted, but that the Supreme Court setting, stating what the rule of law was nevertheless required. So his whole point as he goes on is, look, that is what the Supreme Court has fought for hundreds of years to establish itself as this institution. By the way, one feels like Chief Justice Roberts could have written large portions of this speech, minus the camou in Shakespeare, perhaps, about that this institution has been forged over time. You don't just pick up one day and say, look, we have a Supreme Court. Listen to what they say. That's why Marbury versus Madison was such an important decision because poor Chief Justice Marshall had to create that institutional authority in Marbury versus Madison when you had two political factions that were both going to reject the authority of the court if either one didn't win.

And the genius of Marshall is that he gave each side a win, a small win, and gave a big win to the institution of the court. He says, if you add justices to the court, you are going to undermine all of that. It will be seen as even more political. And then he goes straight at Bush v. Gore and says, you think that was a political opinion? Look, I disagreed with it. I wrote the dissent. I joined the dissent. It wasn't. We're talking about people who have differences in how they read the law. They're not political differences. Conservatives win sometimes. Liberals win sometimes. Don't do this. And then he cites to Gallup and shows that, yes, the Supreme Court is one of the most trusted institutions. But as all of the government institutions go down in trust, so the Supreme Court is as well. And the more you drag it by these headlines that say, you know,

liberals won or conservatives won, or it was a Republican decision or a Democrat decision, it hurts the court. And it most decision. It hurts the court and it most importantly to him hurts the rule of law. It was just a wonderful speech. We will put it in the show notes. And as I said, the written version will be published in September. You know, I think one thing that to pull from that and what he did is, you know, he highlighted, for example, there are cases that came out that demonstrate it's hard to sort of label all of the Supreme Court's decisions as Team Red versus Team Blue. You got to scrape below the surface and sort of figure out what is the reasoning. And he, you know, so he talks about these, you know, victories that most progressives liked upholding the constitutionality of Obamacare, reaffirming precedents favoring right to abortion, finding unlawful immigration census and other orders favored by a conservative president. All of these things happened under a majority Republican appointed Supreme Court. Some of them, for example, as he walks through those, I agreed with. Some of

them I disagreed with. But he's absolutely right that at this sort of core point that the nomination of a judge does not then, and this is an advisory opinions point we hammer home all the time, the nomination of a judge does not set in predictable fashions for partisans the destiny of the court. It doesn't. Sometimes you can predict how someone will rule. Sometimes you can, absolutely. But you can't predict enough that it's just simply wrong to sort of say, well, I know what the law is going to look like in five years. I know what the law is going to look like in 10 years. And often justices decide issues that you cannot predict would arise in five years or 10 years. predict would arise in five years or 10 years. But yeah, I agree with you, Sarah, to say that this speech is one that could have come from Justice Roberts. I agree with that. I think it's very much a defense of the court as an institution. I wonder, of the nine justices, how many of them would make this a similarly rousing defense of

the institution? Well, the important part is that this needed to come from Justice Breyer and not Justice Roberts. It needed to come from one of the three who are now destined to be in the dissent quite often and to say, like, look, I'm over here. I am not a hostage. Do not send help. I am fine. I like that. He had this line that I, it's so succinct in explaining the justices, all nine. Some judges emphasize text and history. Some emphasize purposes and consequences. David, I feel like from now on, for every opinion or dissent, we need to put it into, was this a text and history opinion? Or was this a purposes and consequences opinion? Because for instance, in Google v. Oracle, they basically ignored the text and history. It was a

purposes and consequences opinion, and it was written by Justice Breyer. No coincidence there. When we look at Bostock, that was a text opinion. I mean, what a great way to explain why it's not politics, even though purposes and consequences may often line up with a current liberal ideology, and texts in history may line up more often with a conservative ideology, but Bostock is a great example. Well, that was a text one, and it lined up on the liberal side. So it's not perfect. I also just, in case my dad is listening to this, I thought this was a great little dig he took. An opinion that will have a broad public audience requires writing that is simpler and more direct than does an opinion about bankruptcy. Thereby implying that bankruptcy does not have a broad public audience.

Oh, Justice Breyer. So sad. Such a dig at the bankruptcy bar. Terribly sad. Terribly sad. You know, it's interesting how the justices, how frank the justices will sometimes be in their speeches. You normally expect them to be quite close to the best, but every now and then, and typically they are, but every now and then, hoo boy. I remember seeing Scalia speak at the law school back,

gosh, this was 93. And it was the kind of speech that if Twitter had existed at the time, would have trended for days, including Scalia says flogging is constitutional. I mean, maybe. Somebody said, so in your original understanding of the cruel and unusual punishment, what if I was flogged for stealing something out of, I can't remember, stealing something from a local store.

He says, and Scalia was basically fine. Well, he had that stamp, stupid but constitutional. Exactly. So true. So Justice Breyer ends the speech with a suggestion to all of us. He notes that we are a nation of nearly 330 million people of every race, every religion, many different national origins, and holding virtually every possible point of view.

These highly diverse groups of people are working out their differences through law rather than in more brutal ways. Trust in the court, without which our system cannot function, requires knowledge. It requires understanding. It requires engagement. In a word, it requires work. And he says we need to explain it to our children and to our grandchildren, hoping they too will understand the importance of the rule of law. We've talked some about the importance of civic education, either on the dispatch pod and on this pod. Boy, what if we just had a class where people on the first day of class listened to this two-hour lecture from Justice Breyer, like let's call it 11th grade, and then they spent the whole rest of the semester just talking about it. Rather, you know, so senior year, at least in Texas when I was in school, so quite

a few decades ago, you had the first semester government, second semester econ. That's important. Why don't we back it up and add a year in 11th grade that is just on the rule of law? Think of how vitally important that will be to the future of American institutions if we inculcate every child in the country into something that Justice Breyer is absolutely right about. The rest of the system doesn't work unless everyone agrees on the rule of law being not just about reward and punishment, but about justice. about reward and punishment, but about justice. Right. No, I thought that was excellent. Excellent and well explained, Sarah. Well explained. Up your health game with Sun Life and the Toronto Raptors health experts. Access nutritional tips, mental health coaching, and advice on overall wellness. As the official health and wellness partner of the Toronto Raptors, we want you to be a fan of your health with sunlifehealthyyou.com. All right, next up. All right, this is interesting stuff. Okay, headline this under,

huh, life and crime are complicated. Okay, so here's headline number one. Okay, so here's headline number one. And this is a Reason story, Reason magazine from Elizabeth Nolan Brown. Violent crime in Baltimore plung a year of foregoing prosecution of certain nonviolent misdemeanor crimes, Baltimore has seen a serious drop in violent crimes and property crimes. Between March 2020 and March 2021, violent crime in Baltimore dropped 20% and property crime dropped 36%. Homicides were also down slightly, 13 fewer than compared to the previous year. And this came after Marilyn Mosby, Baltimore state attorney, said that during the pandemic, her office would dismiss going down across much the rest of the country, we were experiencing a surge, a big surge in violent crime rates. when she extended this moratorium on not prosecuting misdemeanor offenses, like this is how cities die, with no reflection on the sort of underlying reality

in Baltimore. So that's data point, interesting story, number one. Don't want to draw too many conclusions from it. This stuff is complicated. So here we go in number two. Okay, this comes from the Marginal Revolution website talking about a study on misdemeanor prosecutions. And this was essentially what they did is they compared crime rates when misdemeanor

crimes are prosecuted versus when misdemeanor crimes are not prosecuted. And it says, here's sort of the guts of the conclusion. We find that the marginal non-prosecuted misdemeanor defendant, in other words, a misdemeanor, someone who allegedly commits a misdemeanor and is not prosecuted, is 33 percentage points less likely to be issued a new criminal complaint within two years post-arraignment. We find that non-prosecution reduces the likelihood of a new misdemeanor complaint by 24 percentage points and reduces the likelihood of a new felony complaint by 8 percentage points. Non-prosecution reduces the number of subsequent criminal complaints by 2.1 complaints, the number of subsequent misdemeanor complaints by 1.2 complaints, and leads to more subsequent criminal behavior.

How can this be? How can this be? So I wanted to highlight this. And one thing to say, later on, he asked, so should we stop prosecuting misdemeanors? Again, crime is complicated. Not necessarily. Even if prosecution increases crime by the prosecuted, it can still lower crime overall through deterrence. a level of deterrence that may exist by people seeing prosecutions. And I thought this was fascinating. I have long sort of had this weird side hobby, Sarah, of trying to figure out why crime rates move the way they do. And it turns out there's just an enormous amount of literature and disagreement about this. Just an enormous amount.

And a lot of what we think we know, we don't know. And this is, file this under extremely interesting. And you had, in our ongoing Slack discussions here at the Dispatch, you had some interesting thoughts. And so how did you receive this information? I am not surprised. So backing up a sec to how they did the study is also really important to understanding the results. The Suffolk County District Attorney's Office, that's Boston, randomly assigns misdemeanor cases to those lower assistant district attorneys. Some are more lenient than others. So what they were doing was basically comparing between if your case gets assigned to a more lenient ADA or a harsher

ADA using that lock. Not surprisingly, the biggest change is the first time defendants. If you're a third timer and you get lucky and don't get prosecuted, the marginal recidivism is not nearly as big as the decision at your entry point into the criminal justice system. If you're prosecuted, it's not good. If you get lucky and you don't get prosecuted, your recidivism rate is, that's where you're going to see the largest amount of that lower recidivism rate. His point then on why, if you just stop prosecuting all misdemeanors, you won't necessarily see this, is because all potential criminals know about the luck involved. Well, if it's a coin flip of whether you're going to get

prosecuted or not versus knowing that you're not going to get prosecuted, that would obviously change the outcome of the study. We don't know the outcome of that. It's not that we know it one, you know, that it would, oh no, it would erase all of this. Maybe it would increase it, but that's not at all what they were able to study. Um, because then everyone knows that there is a, you know, whatever that coin flip is of getting the lucky versus not lucky prosecutor. Here's what we know about some brain stuff and some crime stuff. So I actually worked in a neuroscience lab working on recidivism issues for a year after law school. David Eagleman, if you have not read

basically everything that David Eagleman has ever written, you are missing out. David, one of the topics that I was dying to talk to you about at some point, maybe it'll be an August topic and we'll really expand on it, is synesthesia, which is sort of how David Eagleman became sort of a household name in the neuroscience world. Wednesday is Indigo Blue is such a great book, but I was working on recidivism issues with him. So look, most crime is committed by young males. And we kind of know why. Their frontal lobes just aren't developed and those frontal lobes are what has impulse control. So for some young males who have underdeveloped frontal lobes, as young men tend to do, they're going to see that shiny car and say, I should just take that

car for a joyride. Now the rest of us, and particularly the women, go, yeah, that's not worth it. And we keep walking down the sidewalk. But some young males just go and take the car. males just go and take the car. What we also know about underdeveloped frontal lobes, how to increase that impulse control, is that immediate consequences matter a lot. So in the criminal justice system, if you wait 145 days to have any consequence, then your frontal lobes didn't learn anything. There was no sort of muscle work there where they build up their impulse control. But if the second you get caught driving behind the wheel of that car, they throw you in jail for a day or do some other immediate punishment, that action consequence, I mean, it's the same thing in kindergarten, right? Or your dog. You don't punish the dog for peeing on the rug two days later. The dog doesn't understand. The

dog learns nothing from the experience. You think that humans are better? Eh, only a little. You need to punish the dog right when they pee on the rug. And by the way, I'm not actually for punishing dogs who pee on the rug. It's not their fault. It's your fault they peed on the rug. You didn't train them. You didn't take them outside enough. But I'm using this as an example because it's easy. Do not punish your dog. So what was interesting to me about this is that we also know that there are certain things just incredibly broken in the misdemeanor system. It does take often many, many months for these trials, prosecutions, plea deals to actually work. This is why the conversations about monetary bail,

like whether we hold people before trial, whether we release them before trial, to me, misses the point. Regardless, the consequence of their action is not being felt because there's no justice delivered in a system that waits three months to punish someone. So I'm not surprised by the findings. I don't think it tells us much public policy-wise about what we should be doing more or less of because it's basically just telling us about the world as it is, and it's not able to study the world as it would be if we stopped prosecuting the misdemeanors or if we prosecuted all of the misdemeanors. In some ways, the very worst thing

you can do is have this coin flip system where the consequences are unknowable, random, and not immediate. Those are probably the three worst, worst things you can do to increase impulse control in young men. Random, unknowable, and not immediate also does not sound consistent, Sarah, with something called the rule of law. Oh, correct. Which we just talked about. You know, it's interesting. And let's just dwell here for a minute. let's just dwell here for a minute because one of the interesting things about the modern,

the modern history, not just of the U S but of the Western world was there was a crime increase, generally a crime plateau and a crime decrease that was in the United States. Yes. But also across many other countries as well that had different gun laws, that have different criminal penalties, they have lots of different policies. So something happened sort of across cultures and across nations for crime to increase, plateau, decrease. And years ago, six years ago, there was this really interesting piece in Vox.com, and it has 16 theories for why crime plummeted in the U.S. It was really interesting talking about popular, 16 popular theories, and I've probably heard one or more of these basically used as the explanation, the explanation. basically used as the explanation, the explanation. But it demonstrates how complicated this is, that you have these 16 popular theories,

all of which have been studied more or less to death and often have inconclusive results. I mean, so they go from- Does it include the most controversial theory that was presented in Freakonomics in what was that, the late 90s, early aughts? It does include. That was a doozy. Oh, boy. Yeah. So here's some of them. More criminals being put in prison. Well, there's some evidence for it. There's some evidence against. Best assessment, it's a small effect. More police on the streets.

Some effect before, some case for, some case against. Bottom line, probably a small effect. Broken windows policing. Now, this is something that goes to the misdemeanor issue there, that broken windows policing is essentially saying, we're really going to enforce these minor quality of life offenses, which is the exact opposite of, for example, the approach in Baltimore. Bottom line, nobody really knows. Other forms of policing, such as improving techniques like

CompStat, which was the data-driven program popularized in the 1990s, which puts police where violent crimes are, for example. Bottom line, CompStat probably helped. Other tactics, don't know. More permissive gun laws. This was the argument that the more people who carry a gun, the less likely there is to be violent crime, for example, because criminals are going to be deterred by the idea that their victim might be able to shoot back. That's the first one I've heard where I'm like, really, we have a both sides argument on that? Surely the data, that one, I'm side-eye.

Yeah, the bottom line is essentially that there's no effect, that the link between gun laws and crime, that there's no real effect that guns deserve credit for crime decline. Yeah, Okay. Improvements in the economy. Well, interestingly, when there was a major recession, the Great Recession, crime did not spike.

So, yeah, there's a lot of evidence for correlation between better economic conditions and less crime. But we've had some periods of real economic trouble and haven't had crime spikes. But we did during the pandemic. We did during the pandemic. Here's another one. People use less cash. So you're not running around carrying cash that's vulnerable.

Unclear. Technology keeping people inside the home. Unclear. Gentrification. Unclear. Less alcohol consumption. Some effect. The use of antidepressants.

Unclear. Less crack consumption. Don't know. And so as you go down, here's one that's interesting, population just aging out of crime. We have an older population, small effect. Here's the one that you talked about, legal abortion is preventing would-be criminals from being born. This was the Freakonomics argument. And they say, they conclude maybe some effect in the 90s, but crime continued to decline well after any sort of like Roe v. Wade effect. And also,

crime continued to decline even though the abortion rate and ratio declined dramatically. Lead, Sarah, this was one that was, a lot of people made the argument that the amount of lead in the environment had, was much of the decline. Again, some effect, but probably in the 1990s. So in other words, this stuff is complicated, complicated. It reminds me of our discussion of the border a week or so ago, where we were talking about one of the easier ways to figure out if somebody doesn't really know what they're talking about on the border is if you say, hey, I've got this super simple solution for this. So I just think that's fascinating. And we'll come back to this because I'm sure in the future...

Interestingly, none of those on your list were really prosecution side. There were a lot of police side. There were some environmental side. There were some economic side. Very few prosecution side. I have seen some quite persuasive statistics that throwing the book at people arrested with illegal guns can really drive down crime locally. Whether that would have a national effect. I don't think

we really can test that yet. But if a felon in possession of a gun is pulled over in their car and you really throw the book at that person, that can make a difference of getting illegal guns off the street, disarming the people most likely to commit violent crime. And it's a nice trickle down effect from there. And one of the few areas that is prosecution based and statute based instead of just putting more and more on the police to say, like, go fix this. Right, right. Yeah. You know, I do think there's a lot of things that when you look at them, you think, okay, well, using advanced data to put police where criminals are, oh, that seems to make an intuitive sense. And they said, you know, that that CompStat kind of tactic did have some effect. side is the is mass incarceration um which is which is less a prosecutorial discretion and much more sort of a prosecute prosecutorial mandate and sentencing mandates but yeah

very complicated very complicated stuff okay before we move on to a 300-plus page adoption case, can we do a brief discussion of religious liberty? Absolutely. Okay. So, one thing that I have said, and you guys have heard me say this many times, is that you are living in the golden age of religious liberty doctrine. And a lot of people say, what do you mean? That's crazy. There are all kinds of attacks on religious liberty. Yes, there are attacks on religious liberty that religious institutions are fending off time and time and time again. And there was this interesting new study

that now looks at, that was just published, that considered 70 years of data about religious liberty cases. And it says that the study, this is an article I'm reading from an article by Adam Liptak in the New York Times, the study to be published in the Supreme Court Review documented a 35 percentage point increase in the rate of rulings in favor of religion in orally argued cases, culminating in an 81% success rate in the court led by Chief Justice John Roberts.

The court led by Earl Warren supported religion 46% of the time, 51% under Warren Burger, 58% under Rehnquist, and then 81% under Justice Roberts. Fascinating. of all, when you're going through the different justices, chief justices to look at their court, they're missing kind of a huge part that undermines this. Now, mind you, I'm reading the New York Times write up, not the study itself. Maybe they address this. Maybe they have no idea. The cert grant rate is dropping precipitously over the course of each of those. And so what's happening is as the cert grant rate drops, the rate of cases being overturned also increases. Anyway, so it's this weird effect if you're trying to study the court over time. You know, if they're taking 300 cases in 1986 and they're only taking 70 now, that's going to have a pretty distorting effect on any data you're trying to gather because it's not randomly assigned which cases they're taking. They pick

which cases to take. They're almost always the ones that they're going to overturn. I believe it's roughly 70, 75% if your case is granted cert. So that statistic is meaningless to me. So is the 81% success rate at the court, actually. But the statistic that they don't include that we need is the increase in the percentage of religion cases that are getting granted cert from, let's call it 2000 to 2016 to present or so. That would be a statistic that I would actually dig my teeth into because my impression is that in fact, there is an increase in the number of religion cases that are getting granted cert. That to me would tell you whether this court is particularly into religious liberty, not actually the win rate, weirdly. is particularly into religious liberty,

not actually the win rate, weirdly. Now, what's interesting, and this is something that, I mean, religious liberty practitioners have known for a long time. They say, and this, again, I'm reading from Liptack, the kinds of cases the court is hearing have changed too. In the Warren court, all of the rulings in favor of religion

benefited minority or dissenting practitioners. In the Roberts court, all of the rulings in favor of religion benefited minority or dissenting practitioners. In the Roberts court, most, certainly not all, of the religious claims were brought by mainstream Christians. Okay, so here's the change, Sarah. Forty years ago, there was less religious liberty, but mainstream Christians had more power. religious liberty, but mainstream Christians had more power. Okay. So, nobody was challenging or very few people were challenging the liberty or very few people were challenging these mainstream Christian institutions. But that didn't mean there was more religious liberty. In fact, a lot of these minor or smaller, when I say minor, I mean smaller religions were losing a lot. And so there was less religious liberty. One of the interesting things that to me was when I was learning religious liberty doctrine in con law in 1992 was just how much religions lost at the Supreme Court, even under the strict scrutiny standard.

It was not fatal, in fact, strict scrutiny on, especially when you're talking about some of the more minority religions in the United States. So you didn't have a robust, particularly robust religious liberty doctrine, but the big mainstream world of Christianity didn't know, frankly, didn't care because nobody was coming after them. They had power, which is different from liberty. Liberty is something you can exercise against power.

Power feels like liberty because no one's stopping you, but power and liberty are not the same thing. So what began to happen is as we began to see a cultural change in the U.S. as the number of people who belong to churches, synagogues, and mosques, as we talked about in a previous Dispatch podcast, began to plunge. Then all of a sudden, mainstream Christians began to be in the crosshairs. And when they were in the crosshairs, they brought religious liberty claims to exercise against power and won again and again and again and again. And the way I put it in a recent newsletter is two things are happening at once.

The citadel of religious liberty is being built tall and strong, but the cannonballs that are being shot at it are still real. There are still cannonballs being shot at that citadel, but the citadel is tall enough and strong enough to ward them off. And this study kind of shows, and I thought that was interesting and a good insight to show that the nature of the religious liberty claims has changed, which is why people feel under siege, but the success rate is high. So it also indicates that people shouldn't feel so uncertain, if that makes sense. That makes sense. I still wish they'd looked at the cert grants. They did not. There is nothing about which cases are accepted for review.

And I think that would have actually been a more productive, to go back to Justice Breyer's point, the whole sort of thrust of this piece is like, which justices are voting which way, all the democratically appointed ones are voting this way and you can predict and, eh. I don't find that that helpful to exactly your point, David. You have cultural changes in religion and you have Supreme Court practice changes that are also happening at the same time. They're huge.

You cannot simply compare things over time and say, look, causation. No, I reject that. Appreciate the law review article. I reject it. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app,

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conditions apply. All right. So, Sarah, are you ready to summarize for us in exquisite detail a how long is this opinion? Oh, it's 325 pages, David. 325 pages. So, what is it about? Here is the first two paragraphs from an AP story about a 325-page decision. Parts of the federal law giving Native American families preference in the adoption of Native American children

were effectively struck down Tuesday by a sharply divided federal appeals court, a defeat for tribal leaders who said that the 1978 law was important to protecting their families and culture. The complex ruling from 16 judges of the Fifth U.S. Circuit Court of Appeals upholds a lower court's finding that the Indian Child Welfare Act's preference for Native American families or licensedian foster homes violate constitutional equal protection requirements 325 pages is that a fair summary no let me tell you about what this case says absolutely nothing it is truly 325 pages of sound and fury signifying nothing because as, uh, that couple of paragraphs did mention, there were 16 judges on the en banc court. Do you know what's particularly interesting about the number 16, David?

It can be divided by two. It can be divided by two, and indeed it was. Why, do you ask? Because Judge Ho was recused. Fine, nothing to do about that. That should still leave you with 17 judges, except Judge Wilson joined the court after the case was submitted and did not participate. Why, Fifth Circuit, why would you not then put it off,

rehear the case with Judge Wilson, and have an odd number of judges? And what happens when you decide not to do that aside from 325 pages? Well, you have two opinions. You have the Dennis opinion and the Duncan opinion. Oh, but that's not all because you also have a seven page on Bach opinion that tries to go paragraph by paragraph to explain which judges are joining which paragraph and upholding which parts of the statute. I'm just going to, this is just one, one so small part. This is just the commandeering claim. An en banc majority holds that the law's active efforts, section 1912D, expert witness, 1912E and F, and record keeping requirements. 1915 E constitutionally commandeer state actors. Footnote five, footnote five,

parts three B one, a one, two, and four three B one B and three B two B. In so far as it addresses sections 1912 D through F and 1915 of judge Duncan's opinion are the en banc majority on these issues. That is, it is literally 325 pages of that David incomprehensible. So, um, this case is almost certainly going to the Supreme court.

If for no other reason than someone needs to say what the actual law is after this, when you have a divided, well, let me back up. So you have a district court that holds a trial. They fine for party A. Then it goes to the appellate court. That's going to be three judges. That panel fines for B, let's say. So overturns the district court, the trial court, and finds the other way. So then you have an en banc. When they accept the en banc, meaning that all the judges are going to hear it, it immediately vacates the panel opinion. So it's like the panel opinion didn't happen. So we're back to A winning. When there's then a divided en banc, it affirms whatever opinion is still standing at the end of the day, which in this case is the trial court,

you know, finding for party A, kind of, but then with all of these different opinions and more judges joining parts and things. Okay. So this is an adoption law that is based on race. And it says, if you are a native American child, there is a preference for you to be adopted by a native American family. It was challenged under the equal protection clause, including by native American parents who wanted their Native American child to be adopted by non-Native American family that wanted the child. Also, a chunk of states, but then there were 26 states who wanted the statute upheld the way that it was. I also think that in this case, saying that this is purely a race-based statute kind of

misses the point of our history with Native Americans. It is based on race in this case, but the reason that it is getting different treatment is not because of their race, but because of their historical relationship to the United States, I would argue. And that certainly at least is distinguishing, if not definitive in how it should come out. Regardless, we will deal with this case next when there are nine justices deciding it. Do not. We are putting it in the show notes, all 325 pages. Do not read it. Yeah. Now, a couple of thoughts on the issue as a general matter. One is, I think you hit the nail on the head on something important that is different in the Native American circumstance compared to, say, if you're talking about a rule that says we want, there should be a preference for African-American families to adopt African-American children or Hispanic families to adopt Hispanic children.

And that is the issue of different sovereignties. And there is a very complex relationship between the United States of America and the various Native American tribes within its jurisdiction. As Oklahoma learned last year. As Oklahoma learned. As Oklahoma learned. So this is something that it's not necessarily, you're not talking about a community similarly situated historically as,

not just historically in the sense of here are the facts that occurred in the history of oppression of Native Americans, but legal history, legal history. It's complicated. We just said complicated about crime. Holy smokes, the web of treaties and laws dealing, you know, in creating the legal relationships of Native Americans with the United States of America is complicated. And so that's going to make this a little bit different from a case that might go to the Supreme Court that might, if a state, for example, let's just say that New York passed a law that said that, you know, black children should be adopted by black parents. Well, that's going to be struck down.

That's going to be struck down. That's going to be struck down. Like, I don't, it would be hard for me to imagine that getting a vote in the Supreme Court. But this is a different thing. And so it's going to be very interesting to see that. And it also, well, maybe this is, we should table the discussion of this because this is kind of, this is going to touch on some other topics that we've addressed like admissions, policies, civil rights. Are there completely race neutral ways to reach outcomes that ameliorate past racial discrimination? Do you have to engage in what you might want, some people might want to call sort of a kind of reverse discrimination or benign or positive discrimination

to ameliorate the facts, the effects of past malign or malicious or invidious discrimination? Or are there ways to use race-neutral concepts to ameliorate past racially discriminatory outcomes? It's a really interesting and rich area of both constitutional law and policy. It's worth a discussion at some point. constitutional law and policy, it's worth a discussion at some point. Did you see the Jeopardy question from yesterday that was pretty funny? Was it the question about slaves or was it the Jeopardy answer about field goals?

Both were good. This was in 2015, Congress authorized payments of $4.44 million to each of these people for each day of their captivity. Oh, I saw this. Yes. And the question was, like, you know, who did that go to? And the first answer was slaves. No. Second answer was Gitmo detainees. No.

The third answer was Japanese internment prisoners. No. Second answer was Gitmo detainees. No. The third answer was Japanese internment prisoners. No. But boy, is that a tour de force of people America might owe money to. Yeah. The answer, by the way, was Iranian hostage victims. So actually, not the United States. Now, did you see any of Aaron Rodgers hosting Jeopardy? I did. I saw the final Jeopardy question.

What did you think of Aaron as a Jeopardy host? I'm a huge Aaron Rodgers fan. I'm not sure this is his calling. Well, you know, it's his first run through. It's his first try. Yeah. But that was, I don't have the exact answer in front of me,

but the contestant who did not know the final Jeopardy question, who then responded with something along this, who wanted to kick the field goal, reference to one of the most catastrophic coaching decisions I've ever seen in my entire life from the NFC Championship game, seemed to catch him off guard. It did.

And that's why I don't think he's the right host for Jeopardy! Because some of it, you want to keep it pretty even, but it's sort of like Chief Justice Roberts. The occasional quip goes a long way, and his lack of quipness at that moment, I was like, oh, nope, nope, sorry. You needed a quip there. Yeah, but quipping is a muscle. It is.

You know, you got to train that quipping muscle. I guess all those all-state commercials weren't really working that muscle. Is it all-state? Who does he do? One of those insurance companies? Farmers? I can't. State farm.

State farm. State farm, says Caleb. Yep. State farm. State farm. But yeah, Alex Trebek had, by the time we're watching him later in our lives, he's been doing this a long time. Fair.

You know, it's like watching Michael Jordan in a very extended prime. And Aaron Rodgers is a rookie, a draftee. Rest in peace, Alex. We miss you. Yes. All right. Well, come back on Monday, listeners. We're going to have more and more and more discussion because, my goodness, as we gain more and more listeners, we get a lot of great questions, a lot of people flooding us with potential content. So keep your questions coming. Keep the court cases coming. Keep your commentary about court cases coming. We really appreciate it.

And please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts. Please subscribe on Apple Podcasts and check out thedispatch.com and we will see you on Monday. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting. Superstore, our colleagues collectively speak over 100 different languages and counting. We pride

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