Advisory Opinions - Packing the Federal Courts

Episode Date: October 29, 2024

Sarah and David discuss the battle over the federal courts and how the upcoming presidential election might affect the circuits’ makeup. The Agenda: —Two visions of the federal courts —The growing conservative legal movement — A SCOTUS justice's Oxford thesis from 1983 —Mapp v. Ohio —Utah v. Strieff —Are petitions to recall public officials unconstitutional? Show Notes: —George W. Bush's first inaugural address Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, I am particularly excited about this episode. Oh, I am too. I am too. I think listeners will find this one especially interesting. All right. So first, we have a piece from the New York Times just discussing the makeup of the courts and the sort of Republican versus Democratic nomination numbers and all of that. So I thought we'd walk through that just for those who are looking for some level setting on where the circuit courts are at this point. And then I'm going to take you back to 1983.

It's a good year to find vintage. And a little bit about the exclusionary rule, David. And this is when a police officer violates your Fourth Amendment rights against unreasonable search and seizure, but find something. Can they then use that at trial? No, says the exclusionary rule. And so this is going to be a 1983 paper on the exclusionary rule that we're going to dive into.

And you'll see why, everyone. This is more than just a revisit of Map the Ohio, but it is a revisit of Map the Ohio. And then last, we'll finish up with a dissental from the 9th Circuit on ballot initiatives, which we just found delightful. So David, we'll start with the New York Times. Just to level set here, there are 677 district judge positions and 179 circuit judges. As the New York Times, they have nice little graphics for this.

Of those 179 circuit judges, basically exactly 50 percent were appointed by Republican presidents, and 50 percent were appointed by Democratic presidents. Forty-three were Biden, 53 were Trump. At the district court level, 39% appointed by Republican presidents at this point, 55% appointed by Democratic presidents at this point, 44 are vacant, 44 seats are vacant. And then of course, the Supreme Court, 67% by Republican presidents, 33% by Democratic presidents.

But of course, that's not how each circuit is, right? They're not 50-50 by circuit at all. So I'll just run through the circuits. First circuit, 100% Democratic appointees. Federal circuit. That surprised me. That surprised me. First circuit, you said that so fast.

Please slow down. First circuit, 100% Democratic appointees. In fairness, it's not that big. No, it's not that big, but that's pretty amazing. And the First Circuit, by the way, we're gonna go sort of north east to, I don't know. I'll try to explain what states we're talking about, but here it's Maine, Massachusetts,

and New Hampshire is the First Circuit. The federal circuit is 67% Democratic appointees. They do patent law-y stuff, trademark-y stuff. All right, DC Circuit, 64% Democratic appointees. You know what the DC Circuit is. Fourth circuit, that's Virginia, West Virginia, North Carolina, South Carolina, 60% Democratic appointees. Tenth Circuit, Oklahoma, Colorado, New Mexico, Kansas, what is that over there? Utah. Tenth Circuit's 58% Democratic appointees. 58% Democratic appointees. Ninth Circuit, the giant one, Alaska, Arizona, California, Nevada, Washington, Idaho, Oregon, Montana. The Ninth Circuit, only 55% Democratic appointees

at this point, David. Yeah. Second Circuit, Second Circuit's New York, Vermont. Is that a Rhode Island in there? Probably Connecticut. Second Circuit is 54% Democratic appointees. Seventh Circuit, we're now going to cross the Rubicon. We're now entering into majority Republican appointees. The Seventh Circuit is Illinois, Indiana, and Wisconsin. That's 45% Democratic appointees. The Sixth Circuit, Michigan, Ohio, Kentucky, Tennessee.

You're in the Sixth Circuit, David. Yes. 44% Democratic appointees. Third Circuit, Pennsylvania, New Jersey, the Delaware. Yeah, Delaware. Third Circuit, 43% Democratic appointees, but they have some vacancies, so actually it's only 50% Republican appointees also.

11th Circuit, we talk about the 11th plenty, Georgia, Florida, Alabama, 42% Democratic appointees. Fifth Circuit, Texas, Louisiana, Mississippi, that's my home, 29% Democratic appointees, so 71% Republican. But the most Republican circuit of all, the Eighth Circuit, which is like the whole country. All right, it's Arkansas, Missouri, Iowa, Minnesota, North Dakota, South Dakota, and Nebraska, 91% Republican appointees, 9% Democratic appointees.

And yet we never talk about the Eighth Circuit, David, because there's such a quiet, happy Minnesota Night Circuit, I think. Just a lot of congenial people up there. Yeah, it's really interesting to me because if you had told me beforehand, what's the most Democratic circuit, what's the most Republican circuit or the most liberal and most conservative? I would have said fifth most conservative and second circuit most democratic or most liberal. I was not tracking the first and I was not tracking the eighth. Which is interesting because if the first is 100% Democratic and the eighth is liberal and the eighth is 91%

conservative. And it's interesting that you don't have more big cases coming out of those. Now, of course, that has some geography elements, but in such a forum shopping world that we live in. Except David, this goes to the point that just because you're appointed by a Republican president or by a Democratic president doesn't tell you everything. So that's why people aren't picking those is because the Eighth Circuit isn't wackadoo conservative actually. Right, right.

The New York Times piece also had this interesting little nugget. And this is actually why I wanted to talk about it because it looks on its face like it undermines my theory about the end of the filibuster ushering in this new era of more extreme judicial decision making and the appointment of judges that fall on the further extremes of their ideological sides, because you don't need bipartisan

support anymore. But here's the line. Mr. Biden's judges on average were somewhat more liberal than those nominated by his Democratic predecessors. Mr. Trump's judges were on average ideologically similar to those nominated by previous Republican presidents. And you sort of look at this graphic that they have and they all look about the same, and then you look at how they judged that.

This was weird. The database calculates a score for judges' ideologies using records of campaign contributions they made before they were confirmed to the bench and became barred from making such contributions. The scores do not account for the judges' actual rulings. Those are harder to track ideologically, because very few cases in the lower courts

have a direct impact on political questions Even so the creators of the database say the scores have proven to be reliable indicators of judges Ideological leanings after taking the bench But huh, like is it how much money they gave or who they gave the money to? Yeah, I Thought that was interesting as well. And the other thing is, I do get what they're saying though about it's hard to judge a lot of their cases on an ideological spectrum because let's just take a case that we talked about at some length before. This was the Third Circuit TikTok case that had two Trump appointees and one Obama appointee agree that TikTok may be held liable

for pushing the blackout challenge into the algorithmically pushing the blackout challenge into the feed of a young girl. Who crossed the line there? Who crossed over in that case? What's the ideological valence of that case? And it's extremely unclear to me. And the interesting thing, Sarah, as our ideological categories just get more and more and more scrambled and I really think the average American does not know and they don't, they're not beginning to grasp how much the ideological categories are getting scrambled right now. But as these ideological categories are scrambled into a judiciary that was nominated by and large under old school ideological categories,

it's gonna get even more difficult to make that assessment. So I do find the campaign donation thing interesting, but here's what I also find interesting. So they said that the judges, Biden's judges on average, were somewhat more liberal than those nominated by his democratic predecessors. And the little chart that they have bears that out. It's almost as if you took the judges nominated by Biden

and judges nominated by other Democrats took the exact same sort of blob and moved it half a tick to the left. Just like half a tick, right? But then if you look at the Republican chart, it doesn't seem to bear out the paragraph below it because the paragraph below it says Trump's judges on average, ideologically similar to those nominated by previous Republican presidents. But if you look at the chart, it's a lot fatter on the right edge of it, on the Trump nominees than it is with other Republicans,

which tends to have a more even distribution for longer. And so the chart seems to say, yeah, the nominees were in the same range overall, but there were more on the right edge. So if all I did was look at the chart, Sarah, and not look at the paragraph underneath it, I would have thought, there's your filibuster theory coming into view, because it wouldn't happen immediately,

because 99% of the judges who are up for nomination over the last several years have come up through the old system. And they're sort of legacy scholars and legacy practitioners under the old system. This is what I would expect, a move towards those extremes, not in a big jump, but in a kind of a step by step. So the chart looks like your theory, the paragraph doesn't. Let me also add that the, as you say, the donations are going to become less predictive to the extent they are predictive at all. As the scramble happens. I also agree that this was never going to happen overnight. It was gonna happen slowly because you have to,

if you've changed the incentives for people who wanna become judges, it takes them a hot second. Yeah, for sure. Because your current pool is still of the old incentive group. But the third thing is that, and again, I'll only speak to the right

where I know more about it. The places that people are looking for judges post-filibuster is different. And they tend to now be looking at people who have worked for maybe state solicitors general, or these ideologically based litigation groups. So think Alliance Defending Freedom, Beckett Fund, Pacific Legal Foundation, you pick it. Well, if you work at any of those places, you're not working at a big law firm.

You don't have a ton of money for political donations. So I'm just not sure the political donations are gonna be there to the same extent, because that's not how, of course, anyone who's looking to pick a judge, they're not gonna be looking at political donations at all. I mean, except to the extent that it's like a deal breaker if you donated to AOC or something, I guess, on the right.

But they're looking at a career dedicated to the principles, if you will, and that's gonna generally not come with as much money to do said political donations. So I think the whole premise is getting scrambled post-Philibuster also. Yeah, no, I do think that is an interesting and I do think, you know, you have seen judges coming out of the ACLU from, you know, from Democratic appoint,

from Democratic presidents. There was not the same big right-wing legal infrastructure until really recently. I remember when I was graduating from law school, Sarah, in 1994, there were, as near as I could tell, in the entire country, three conservative, legal, free speech, religious liberty positions available. Three, like at nationally working public interest law firms.

And now, you know, there are, you've got ADF, you have ACLJ, you have Beckett, you have Institute for Justice, you have Pacific Legal, and many of these might've been much smaller 30-something years ago. Some of them didn't even exist at all, but there's a much bigger universe, and also there's a bigger universe, in my experience, of lawyers working for legislators. There's a much bigger universe

of state solicitors general. That's a thing that has really mushroomed in sort of the work that solicitors general do has mushroomed. And so it really is the case that there's just a much bigger public interest conservative, right leaning public interest infrastructure that exists now than existed when I came out of law school.

The big bulk of your pro bono religious liberty work and free speech work was done by lawyers who were doing it as a hobby, who were doing it on the side. And now you've got a ton of specialized law firms. It's a very big sea change. I remember even 20 years ago, young law students would say to me, I remember talking at Christian Legal Society at Vanderbilt Law School. This was, this had to be about 15, 18 years ago. And I asked them how many wanted to go into public interest law. And every hand went up, every hand went up in the whole Vanderbilt CLS. And all of those hands were probably three times the total number of jobs available across the country.

But now when I talk to younger law students, if you're a good student, you know, if you're a really good student, if you're doing well, you know, there's just a lot more opportunities than used to exist. So we're gonna see a lot more of these folks becoming judges, there's no question about it. But there's another thing that was super interesting

about that, that we've just barely touched on, and I did not realize until I'd read the article. The number of circuit court judges appointed by Republicans and Democrats is tied and there's one vacancy remaining right now to break the tie. But I had no idea that as of this very instant, until that one vacancy is filled, there's an equal number of Republican nominated and Democratic nominated circuit court judges. Now, as you rightly said, this does not mean there's an equal number of liberals and conservatives because that's not exactly how it works. Not exactly. But it is that I found that fascinating as well, that we're now at parity on circuit court judges.

And in many ways likely to remain so because of strategic retirements and then most of the other parts will be randomized when you're talking about 179. That's enough to create enough randomness with the strategic retirements. All right, David, I wanna to take you back to 1983. Yes.

Let me just tell you who was on the Supreme Court in 1983. Berger was the Chief Justice. Then the associate justices were Brennan, White, Marshall, Blackman, Powell, Rehnquist, Stevens and O'Connor. Originalism had started to exist, but not in any serious way and not really on the Supreme Court at this point. You had Bork kind of playing around in the shallows with some of his friends,

but Meese hasn't given his big speech yet. Scalia isn't on the court to really expound upon it. So we're in what I would call in 1983, a pre-originalism world. And we're not that many years removed from the Warren Court, less than a decade. And we're also a decade removed from Roe v. Wade as well.

So just to give you some vibes on what's going on at the Supreme Court in 1983. So a young woman had just graduated from Princeton and had gone to Oxford to get her MPhil. And I wanted to read some portions of her thesis there over at Oxford, mind? Please, please. It is, okay, I just, can I just briefly editorialize?

Yeah. Okay, first I wanna say, I, and you know, we were both kind of hesitant to talk about this because we're thinking about, okay, if someone unearthed my senior paper from undergrad or my 3L paper from law school, what would I think now about it when I'm 55 years old and have lived a lot of life? How fair would that be for somebody to go back and look at that?

And which, so that was one question, but then, so we were a little bit reluctant, but then I read it, Sarah. I know. I know. It's great. And look, this young woman was 22 years old when she wrote this, again, just graduated from undergrad.

She had not gone to law school at this point, though she will right after she finishes this thesis. And I'll tell you who she is in a minute. I wonder if you'll be able to figure it out as I read this. But we're not holding her to these opinions now. No, no, no. It's actually by itself, just really thought provoking and interesting.

100%, I started reading it and I was like, I wanna talk about this because this makes a lot of really good points. And you know what it reminds me of? Sometimes you run across 22 year olds or 20, whatever's in the mid, early mid 20s, and they say something just really interesting. Yep.

Really interesting and insightful. And so I now have- Especially before law school poisons their brains. Yeah. So I have zero reluctance to talk about this now just because it's really good. All right. So let me dive in here. Hi, I'm Nick Gatoggio, AKA, Alla Pundit, a man of few spoken words, but many written

ones. I've spent nearly every day of the past 20 years covering politics, especially the Republican side of it. And honestly, it's not going great. But one nice thing about a civic disaster is that it's never dull. In my Boiling Frogs newsletter each weekday evening, I try to make sense of how the American right is evolving and how national politics is evolving with it. Does conservatism have a future in the GOP? Does populism have a future as a governing ideology? Will Donald Trump's movements survive him? Why do his fans and right-wing media sound like North Koreans talking about Kim Jong-un? At Boiling Frogs, through the lenses of populism and pessimism, we'll track the embarrassing

2024 election and the even more embarrassing cultural developments that led us to it. Join me each weekday on a journey of despair by becoming a member of the Dispatch and for a limited time only using the promo code frogs10 to enjoy 10% off your membership. And if you're already a Dispatch member, head to the dispatch.com slash newsletters to make sure you're subscribed to Boiling Frogs. It beats screaming. We'll start at the beginning. Legal scholars and practitioners alike have often urged the American Supreme Court to pay close attention to traditional standards of judicial method. The late Alexander Bickel once defined such method as the coherent, analytically warranted

principal declaration of general norms. According to Bickel and others, the court should consistently strive to hand down logical, reasoned, intellectually satisfying opinions. The court should further strive to ground these decisions either in the Constitution or in another conventional source of law. Two reasons, one normative, the other practical, have generally been offered for the necessity of the court's making principal decisions. First, some have argued that only the methods of reason and principle justify supreme judicial power in a democracy. Why, after all, should nine appointed lawyers play so large a role in a democratic nation? Only because these nine lawyers arrive at their decisions in a unique and inherently valuable way.

Only because these lawyers resolve all issues by reference to law and legal principle. Second, many have asserted that the court's continued position in American government depends upon its adherence to judicial method. According to this view, the Court's role in government rests upon the widespread public conviction that the Court is acting legitimately. This conviction derives, in turn, from the Court's behaving in a judicial and judicious manner. The Supreme Court, Robert McCloskey has written, must be a court if it is to retain its power. These considerations in and of themselves have significant weight and yet there is still a third,

albeit not commonly mentioned, reason for the court to base its ruling upon legal logic and principle. A decision that has a principled underpinning is more likely than a decision that lacks such a foundation to stand the test of time. Most Supreme Court justices have desired their rulings to achieve some degree of permanence.

Not all justices, however, have recognized how best to achieve this result. In order to give lasting effect to a decision, a justice must root it in an accepted source of law, the constitution, a statute, or a long line of judicial precedents. Further, a justice must buttress each decision with thorough analysis,

powerful reasoning, and careful logic. When rulings are not thus supported, they neither command the respect nor compel the acceptance of future courts. Such opinions are vulnerable to judicial manipulation and subversion. They are vulnerable indeed to outright reversal. Thus, the method the court uses to explain the decision matters quite as much as the decision itself. The law that lasts is likely to be the law that is founded upon the Constitution and upon cogent and coherent argument. lasts is likely to be the law that is founded upon the Constitution and upon cogent and coherent argument. It is likely to be the law that is founded upon the

methods of reason and principle. The history of the Fourth Amendment exclusionary rule well illustrates the dangers and long-term consequences of failing to provide a judicial decision with adequate support. And we're going to return to the history of the Fourth Amendment's exclusionary rule. Yes, we're going to do some map the Ohio today, David. The exclusionary rule's history thus suggests that justices who wish their decisions to survive should adhere carefully to traditional standards of judicial method. Why then did the Supreme Court depart from these standards in its exclusionary rule cases? Why has the court so often appeared to give little thought to the way in which it explains decisions? In all probability, a number of factors contribute to the court's

poor record in matters of judicial craftsmanship. This poor record, however, is at least partially attributable, the enormous power the justices possess and the attendant temptations that they face. US Supreme Court justices live in the knowledge that they have the authority either to command or to block great social, political, and economic change. At times, the temptation to wield this power becomes irresistible. The justices at such times will attempt to steer the law in order to achieve certain ends and advance certain values. And following this path, the justices are likely to forget both that they are judges

and that their court is a court. Their concentration on ends results leads them to neglect legal means. It leads them to neglect the importance of basing all rulings upon conventional sources of law. This neglect of judicial method is unfortunate, not only for normative reasons, but for pragmatic ones as well. By overlooking the centrality of reason and principle in the judicial process, the justices are defeating their own purpose. The sliding of means and the haste to achieve ends is counterproductive.

It increases the probability that the court's rulings will only have temporary effect. The development and subsequent erosion of the Fourth Amendment exclusionary rule amply bear out this point. In their total concentration upon end results, the justices who favored the exclusionary rule unwittingly did everything in their power

to assure the rule's eventual demise. So David Should we drumroll who wrote this? Yeah, let's drumroll and then I've got stuff to say about that passage that you just read Yes, so this is written by future justice Alaina Kagan in 1983 and I do want to go through the history of the exclusionary rule as she lays it out because her surprising no one, it's beautifully written, it does a delightful job at 22. I'm not saying you would know this person's going to be a Supreme Court justice, but you're happy she will be.

Classic essay you read as a professor, you say, this person's going places. essay you read as a professor, you say, this person's going places. That's right. Yeah. But, David, before we get to, again, the history of the exclusionary rule, as she lays it out and some of her opinions on the exclusionary rule since she's been on the court, I mean, I read it, you know, nearly in its entirety because there's several parts of this that just jump out of 1983 and slap you in the face. Yeah, you know, I will tell you something, Sarah, this actually reminds me of a different Supreme Court justices, pre-court writings,

and that's Ruth Bader Ginsburg. When she was reflecting on Roe, this was in the early 1990s, and putting Roe aside for the moment, one of the things that Justice Ginsburg was talking about is there is a way in which you make decisions that inherently builds credibility. And there's a way in which you can make decisions

that inherently creates instability. And that, you know, Justice Ginsburg's point was she liked what she called the interstitial rulings. In other words, step by step by step by step, where you're forecasting your direction, but you're taking that one step at a time instead of the entire leap all at once. And I thought that was very interesting.

And I do think that that is something that is a quite valid discussion of the judicial method, because that step by step-step-by-step really does reflect kind of the way in which precedent tends to work and get extended gradually over years. And that builds predictability, that builds instability into the law. And what Justice Kagan is saying here

is not the step-by-step aspect here, but what's the, what is the method of reasoning? What is the way in which the decision is made? It's not just outcome that builds credibility, it's method that builds credibility. And this is constantly forgotten in our current discourse. Method really matters. Both Ginsburg and Kagan in different ways and sort of different directions are making this point that method really matters. And we can go into the exclusionary rule here for a moment, but when she's talking about sort of instability and method

where you say, oh same outcome but for this reason, no, no, this reason, no, wait, this reason. That creates instability because this reason, no, wait, this reason, that creates instability because it makes people wonder, wait, what's happening here? Is really the outcome the thing that's mattering, not the method? And so, and if the method doesn't get you to the outcome, what's going on here? So I thought that that whole emphasis on the method, both from pre-Skoda's Justice Ginsburg and pre-Skoda's Justice Kagan, is really interesting and actually spot on for judicial credibility. It also struck me that, you know, fast forward to the early aughts and then Dean Kagan is going to

famously say, we're all originalists now, something she has said she regrets saying, as it has been perhaps overly used in- All textualists now, I think she said. I think you're right. I think it was all textualists. But this is where, I mean, you can see the seeds of this, like you have to have a foundation for your opinion. And that foundation, she says repeatedly,

should come from the Constitution. So the, you know, we're all textualists now. I think that's what she's actually referring to, David, is the means matter, not just the ends. And those means have to have some foundation, some real judicial method, and a solid judicial method, whether it's textualism with a capital T, or originalism, or whatever else,

it's going to be textualist. And so let's walk through a little of her history of the exclusionary rule. And I'm going to do this quite briefly, forgive me. But in 1914, in the Weeks case, that's going to be the first time that the Supreme Court for federal purposes, federal police officers are going to create an exclusionary rule and they're going to base it in the Fourth Amendment, search and seizure, right? That this is actually part of the Fourth Amendment. But remember, federal law enforcement isn't doing that much at this point. These are basically all gambling rings and all the cases that we're going to be talking about in the federal context. After weeks, there's going to be another decision, but

this time they're going to uphold the exclusionary rule, but now it's based in the Fifth Amendment right against self-incrimination. Then Brandeis is going to come along and give a whole other reason. The integrity of the judicial system, because if you allow the evidence in, then the judges are participating, if you will, in police illegality. Okay? Then, Frankfurter is going to come along in Wolf and say, ah, I've got a fourth reason. Totally different. It's to deter police illegality. Interestingly, the Wolf case is actually also about incorporation and whether to incorporate the exclusionary rule against the states. And remember, incorporation through the 14th

Amendment is whether an individual right from the Bill of Rights applies to the states because when they ratified the 14th Amendment, they were ratifying these individual rights that were protected from state and federal law enforcement. And so the quote is, is the right, quote, fundamental to our scheme of ordered liberty or deeply rooted in this nation's history and tradition? So in this Wolf case, basically, Frankfurter is going to say, no. Then you're going to get the LA confidential era of the LAPD, as I will call it, where the LAPD does totally insane things. They bust into some guy's house without a warrant, so he swallows some capsules of drugs. Then they just beat him to a pulp to see if they can get him to vomit the drugs up and he does it

So then they like bound and gag him and take him into like a hospital to get him to throw up the drugs I mean crazy stuff. So now the Supreme Court's like well, this isn't great so this brings us to the Warren Court as Justice Kagan describes the Warren Court the Warren Court was on a mission to correct social injustices and equalities in American life. Chief Justice Warren would often ask during oral argument, but is it fair? And so let me give you the facts of Map v. Ohio from 1961. And remember, up to this point, we now have four justifications for the exclusionary rule, the Fourth Amendment, the Fifth Amendment, integrity of the judicial system, and to deter police legality.

Thus enters Dallry Mapp in 1957, when three officers from the Cleveland Police Department arrived at Mapp's home and demanded entry. The officers believed that the prime suspect in a recent bombing was hiding in Mapp's house, and they wished to conduct a search in order to find him. Mapp asked the policeman whether they had a warrant. When the officers conceded that they had no such authorization, Mapp refused to grant them admittance. The policeman informed their

superiors of Mapp's refusal and proceeded to wait outside her home. Three hours later, four more policemen arrived on the scene. These officers bore instructions from police headquarters to forcibly enter her home. In accordance with this directive, the policeman kicked down the door to Mapp's house. But the law enforcement officials now in her front hall, Mapp again demanded to see a warrant. One of the officers held up a piece of paper and claimed that it was a warrant.

She grabbed the paper and hastily placed it in her bosom. That is Justice Kagan's writing, by the way, and I love this. I said it. A struggle ensued and the seven policemen succeeded in recovering the supposed warrant. The officials then handcuffed Map to her bed for being belligerent and conducted an exhaustive search of her home.

They failed to find the bombing suspect or any evidence related to him. They did, however, discover a large quantity of pornographic books and pictures and they arrested Map under an Ohio statute that made the possession of such materials illegal. She, of course, moves to exclude the obscene material on the grounds that the officers had seized it unlawfully. She also, by the way, challenges the Ohio law that makes it illegal for her to possess pornographic books and pictures. Okay, so this is fun, David, because basically all the briefing on the way up is going to be about the First Amendment. And then, all of a sudden, you get to the Warren Court

and they're like, yada, yada, yada, First Amendment, let's overturn Wolf and incorporate the exclusionary remedy against the states. And so they do, but now Powell writing for the court basically just lists all the reasons. So now it's the Fourth Amendment, the Fifth Amendment, judicial integrity, and deterring police illegality. And he sort of goes through them one at a time.

They all are supposed to buttress each other. But as Justice Kagan explains, that's not what it does, actually. It doesn't put it on more solid ground. It puts it on less solid ground because is this actually a fundamental right, in which case it's coming directly from the Constitution, or is it judicially created or what is this? And so enter the Burger Court and a Kalandra is the name of the case, I might be pronouncing that wrong. And they recreate the remedy. They uphold it, interestingly, but they say it is a, quote, judicial remedy to safeguard Fourth Amendment rights through deterrence rather than it being an individual constitutional right of the accused. So now it still exists,

but if it's not an individual right, it's open to all sorts of balancing tests. They're going to say that it's a cost-benefit analysis. That's how you're going to get stuff like if it's independently discovered, maybe some good faith type analysis starts coming in. Her argument is that the exclusionary rule is good. She doesn't say this exactly, but that it's constitutionally based. And then if they had simply stayed with a Fourth Amendment analysis, the exclusionary rule both would have been applied against the states earlier, it would have a much more

solid foundation, and the Burger Court wouldn't be eroding it as quickly as she felt that it was in 1983. By the way, she notes that in between the Warren Court's MAP decision and the Burger Court's Caldera decision, so between 1960 and 1968, murders rose 52%, rapes increased 84%, assault 86%. By 1969, 75% of Americans thought SCOTUS was too lenient

on criminal defendants, only 2% thought they were too harsh. This is an interesting sort of legal realism section of the paper as well, David, where she's gonna say, the Warren court, by not having this solid judicial method and constitutional basis for their decisions, also failed to bring the public along with them. Nixon comes in and is under a lot of pressure to appoint justices and judges, the justices in this case, who are going to undo the Warren Court's work. It's easy to do because it wasn't based on anything

and therefore the American public didn't believe in it, so to speak. And so, she's going to end with a few quotes. No court should justify its decisions solely by reference to the demands of social justice. That was Kagan herself writing. And then this was a quote that she used a few times during the paper. The law of the future is likely to be the law that earns its endurance through solidarity and strength of workmanship. Yeah, well said. Two or three things in response.

One, the exclusionary rule discussion is really interesting, especially if you are interested in criminal justice and how do you get an exclusionary rule when the Fourth Amendment is silent about remedy? So there's a prohibition against unreasonable searches and seizures, but there's nothing about remedy. What are you supposed to do about it? So how does a court approach things when there is no, how does the court approach the Fourth Amendment when there's no defined remedy? Is it up to the court to craft a remedy? What is the remedy that the court crafts? These are tough questions. So that to me is, you

know, that, so the exclusionary rule discussion on those grounds is interesting. And we're going to put it in the show notes so you guys can read the exclusionary rule analysis for yourselves if you're interested. But it is fascinating, Sarah, the more you read a lot of the debates and discussions about the law going back 10 years, 20 years, 30 years, in this case, 40 years, the more you realize a lot of the conversations

are quite similar to what we have now. We often think that, well, what we're facing is new. What we're facing, these are completely unique arguments. We've dreamed them up in our current generation. No, some of the language has changed. Social justice, for example, political correctness was then a word used more than social justice comes back. And then you have wokeness and then you have, there's all kinds of different words that

have been used to describe roughly similar phenomena. And the fact that we use different words deceives us into thinking that we're talking about something totally new. So I think that that's interesting. But then going back to what I said earlier, you know, we're still having these discussions about the judicial method. I mean, this is not something that has ever been settled, nor necessarily will it ever be completely settled. And I just thought it was very interesting to read, you know, read a thoughtful, putting

aside that this is Justice Kagan, a very thoughtful paper from 1983 that just amplifies a lot of the themes that we talk about now 41 years later. That is something that is really interesting to me, how what is old is new again, or what is old never actually goes away. So I have a couple thoughts. One, you read this in the shadow of Dobbs right now, and I really wonder, to her point, One, you read this in the shadow of Dobbs right now.

And I really wonder, to her point, that it wasn't just that MAP v. Ohio had four reasons for the exclusionary rule, but it was also this history of flim-flamming around between reasons. And I really wonder whether if Roe v. Wade had been decided with the reasoning of Planned Parenthood versus Casey, which was on far more solid ground, legally speaking, than

Roe v. Wade was. And so Roe v. Wade gets decided, then Planned Parenthood versus Casey upholds it on the same grounds, which is not what happens. Planned Parenthood versus Casey overturns Roe v. Wade basically in its entirety and just creates a new framework, not unlike what happens with the exclusionary rule between it being the Fourth Amendment. Nope, it's the Fifth Amendment. Nope, it's judicially created and this is why.

Nope, it's judicially created, but it's for a different reason. That that itself arose any ability to build the foundation later as well. So you've actually, it's important to get it right the first time. You can't fix it later on because people already sort of see the Wizard of Oz behind the curtain at that point. Also, I wanted to read this description from her of the Warren Court. The Warren Court believed that it had to assume an active role in the governmental system. The orthodox view of the judicial branch, perhaps best articulated in Hamilton's 78th Federalist paper, conceived of the court as relatively passive bodies. This view assumed that Congress and the president would serve as the initiators in the governmental process, while the Supreme Court would act as a check against transitory inclinations and rapid

change. The Warren Court, however, refused to confine itself to this largely negative and restraining role. Time and time again, the court asserted its right to do no less than lead the nation. Essentially, the Warren Court lacked faith in the ability of the president, the Congress, or the state legislatures to guide America in the proper direction. The justices perceived the political process as responsive only to short-term pressures and powerful interests. Elected representatives seemed unable to articulate or enforce the long range enduring values that the court saw as vital to the maintenance of a just political order. Only the court could provide justice for minorities and the oppressed. Only the court could ensure

the open and egalitarian operation of the political system. Only the court could voice and give effect to the noblest aspirations of the American people. The Warren Court then felt a positive duty to assume an active role in the governmental process. The Court became a major initiative supplying agency of American government. During the 1950s and 1960s, many of the most important innovations in public policy stem from judicial rather than from congressional

or presidential activity. The Court, for example, mandated school desegregation and legislative reapportionment in these areas and in others as well. The Warren Court goaded America forward while the legislative branch dragged its heels and the executive stood idly by. The court attempted, if necessarily single-handedly, to engineer significant domestic reform. Arguably, the Warren Court became the innovative, active branch of the American government.

I don't even know that that's arguably, I think that's just obviously so. So David, obviously she's describing this with great frustration and negative reaction to it. If I read this from a 22 year old, this would read as very, very conservative in 1983. Like justice, you know, well at that point, Judge Scalia could have written this in 1983 about Like Justice, you know, well, at that point, Judge Scalia could have

written this in 1983 about the Warren Court. Bork could have written this previous to 1983 about the Warren Court. And what I find interesting, Justice Kagan, obviously, is not a conservative, but I still see parts of this lingering in her jurisprudence. And in fact, I see it as her main frustration with the conservatives on in fact, I see it as her main frustration with the conservatives on the court, that they are- Interesting. In some of these opinions, she believes Warren courting it up. Right, right.

And that the Dobbs decision, which I've said, I think the outcome of the Dobbs decision is correct. But the reasoning of the Dobbs decision leaves much to be desired in my book. I think this is why. I think she puts it better than I ever could as to why Dobbs was unsatisfying to me in its reasoning and its foundation. And, you know, when she, I think, is arguing in dissent on some of these administrative state cases. Of course, I want the presidency to be weakened because I think that's Congress's role.

But reading this, I think I understand her points a little more. And again, I'm not holding her to actually like that she reads this every night before she goes to bed like some religious text or whatever. But this idea that the worst thing that the Warren Court did was play this active role in American government instead of letting the other two branches work it out. It's a pretty viable argument if you're in 1983 and you've come up through the post excesses of the Warren Court. And I just find it really fascinating as perhaps this like background principle as she criticizes the conservatives. You know, remember that wonderful line that she has,

the get out of text free. Yeah, I like that. Doctrine as she described the major questions doctrine. Like, oh, huh, sort of interesting. I wonder, I actually doubt very much that again, she's even like, particularly knows what she wrote in 1983. But it is funny how sometimes you go back and read something you wrote a long, long time ago, David, and you don't recognize it at all.

And it doesn't really have your beliefs at all. But sometimes you'll read it and be like, I did not know I already thought that way when I was 22. Yeah, it's interesting because you know what's so funny, Sarah? We were talking about this beforehand. When you first mentioned this, I actually have my senior paper from college. What was it about? And so I went back and I looked it up and I was talking about how, and this is going to be, sound really familiar to a lot of people, I was talking about how a rights-based society really can only flourish truly

when the government is focused on preserving the rights of the citizens and the citizens are focused on exercising rights virtuously. Not all citizens and not all the time and not perfectly. But it was a meditation on, you know, sort of Edmund Burke, and, you know, Thomas Jefferson and John Adams and the letter to the Massachusetts militia and all of that. And wait, I had this weird thought of, do I have no new ideas?

Right? I mean, are we all fully formed at 22? I'm concerned. That's funny. So through a series of tragic events, I was not allowed to write my senior paper in college. This was the email that I received. I may have mentioned this before. There was about a three day I didn't leave my room

and I just cried under a blanket moment in my life. I think it's the only one I can think of that was truly devastating. I turned in my proposal, they said no, I wrote back and said, look, even if you don't give me the honors designation, I won't regret spending the year writing this paper. Just deny me the honors designation at the end, but allow me to write the paper." And the email I received back was quite short from the head of the history department,

and it said, it's not whether you will regret investing the time in us, it's whether we will regret investing the time in you. Which, to a 20-year-old, was devastating. Oh my gosh, I can't imagine writing that. Who writes that to a 20-year-old? As a professor. I just cannot imagine that.

Why? Why be cruel like that? Anyway, I wanted to write it on Lincoln's use of religious rhetoric during the Civil War, and the title of it was actually from George W. Bush's first inaugural, which I'm sure is why the paper was denied. We know the race is not to the swift nor the battle to the strong. Do you not think an angel rides in the whirlwind and directs this storm? The point was going to be on religious rhetoric from Lincoln during the Civil War, building

that foundation for American exceptionalism that came through even today in the current administration. And it was about American exceptionalism and its religious foundation from Lincoln and that refounding concept. And I was very into the concept of American exceptionalism at that point. And here I am, David, still very, very obsessed with American exceptionalism, actually. Something we don't talk about a ton on this podcast, but yeah, I have a very firm belief in it, actually.

But I will say, I can point to a number of things that we, speaking of the exclusionary rule when I was in law school, I was like, I'm not so sure about the exclusionary rule. I don't see it in the text. As I've gotten older, I've been much more along the lines of, okay, there has to be a remedy for this violation. You know, this seems to be the most constitutionally sensible remedy for the violation. But yeah, there are, of course, things we can both look at

and see that we've changed on. But at the same time, there is moral formation and there's sort of character and ideological formation that takes place. And no question elements of it stick. So David, can I tell you a little bit how this story ends? Because Justice Kagan, now a Supreme Court Justice, has had exclusionary rule cases on the Supreme Court. And I thought exclusionary rule cases on the Supreme Court. And I thought this one from 2016 was interesting. Utah v. Strife, that's 5-3 because

Justice Scalia has passed away. And she is in dissent. So in the majority, it's Roberts, Kennedy, Breyer, Alito, and Thomas. And in dissent is Sotomayor Ginsburg and Kagan. So let me read you the paragraph from her dissent. If a police officer stops a person on the street without reasonable suspicion, that seizure violates the Fourth Amendment. And if the officer pats down the unlawfully detained individual and finds drugs in his pocket, the state may not use the contraband as evidence in a criminal prosecution. That much is beyond dispute. The question

here is whether the prohibition on admitting evidence dissolves if the officers discover after the making of the stop, but before the finding of the drugs, that the person has an outstanding warrant. And of course, the majority holds that that intervening moment of finding the outstanding warrant now cures the search and that you can still use the evidence at trial. Justice Kagan saying no, because there's millions of outstanding warrants in the country. And it's basically like the lottery for police officers that as long as they can find an outstanding warrant, suddenly they can search someone who they otherwise had no right to pull over. So Justice Kagan, still very much in favor of the exclusionary rule. And interestingly, at the end of her paper,

she predicts the fall of the exclusionary rule or that the exceptions would eat the rule itself, that there would be basically a good faith exception as long as the officers weren't sort of L.A. confidentialing it as they were in the wake of Weeks and Wolf, that it would be gone. And she actually proved incorrect on that. So the principles may have remained to some extent, but we're pretty bad at predicting. All right, David, we're going to finish up with a little dissental coming out of the Ninth Circuit. This is from Judge Boumete. I went to law school with Boumete.

I consider him a good friend. Disclosure, disclosure, disclosure. But this is fun. So in Oregon, if you want to recall, have a recall election for a government official, you can circulate a petition. The petition has to have the signatures of 15% of the electorate, and you have 90 days to collect and submit these signatures, which is not a lot of time, David. So like you're trying to recall a statewide official and you need 15% of the voters in Oregon in 90 days, that's going to be tough. Now, on

the other hand, if you want to recall a city council member, maybe less tough, although again, your pool's smaller. So 15% out of a small pool, maybe still really tough. Well, this group actually, weirdly, meets the 15% threshold and does it in the 90 days, but they file a lawsuit arguing that this is unconstitutional. And the panel at the Ninth Circuit agrees. They say that these sorts of restrictions have to meet strict scrutiny, as in they have to be narrowly tailored for a compelling government interest.

And that basically like 90 days is not narrowly tailored. It's not a compelling enough government interest, yada yada. So Judge Bumate circulates this for en banc review to overturn the circuit precedent that this was based on, that strict scrutiny part of the circuit precedent. And he does not get enough votes. So here's his dissentals from en banc. And remember dissentals are like little love letters to the Supreme Court. We can't file our own cert petitions, but it's like a, you know, when someone does file the cert petition,

it's like a recommendation letter from your professor someone does file the cert petition, it's like a recommendation letter from your professor. This is the best student I've had all year. Love judges, Bumate, Bennett, Nelson and Van Dyke. So I just wanted to read a couple paragraphs from it. The right to speak out is not a right to prevail. While the First Amendment guarantees freedom of speech, nothing in that constitutional provision means that a person's position on an issue must become law or even be voted on. A dissenting opinion, like this one, provides a fitting example of this principle. I called this case on Bonk because I thought

our court needed to reconsider our decision in Engel. In that case, the Ninth Circuit held that the First Amendment requires that we apply strict scrutiny to any regulation that significantly inhibits the placement of voter initiatives on the ballot. Angle needs to be revisited because it departs from the text and historical understanding of the First Amendment. But a majority of my colleagues disagree. Because there weren't enough yes votes to rehear this case en banc, angle remains the binding law of the circuit.

While our failure to jettison this precedent was wrong, no one would seriously contend that my inability to prevail on an en banc vote means that I was unable to effectively address the legal issues brought before our court. That my views are relegated to a dissental doesn't mean that my judicial role was inhibited or that our en banc rules need fixing. The same goes for free speech. Having strong views on a political issue doesn't equate to a right to have the issue voted on by the people. But this is the slippery slope that Engel creates. It extrapolates a right to have the issue voted on by the people. But this is the slippery slope that Engel creates. It extrapolates a right to put an issue on the ballot

from the right to advocate for an issue. That's simply incorrect. In our Republican system, states are under no obligation to allow their citizens to legislate directly. Yet through history, states have done so. States have long experimented with direct democracy, goes on to talk about this. Into this realm of direct bureaucracy,

the Night Circuit has inserted itself and the First Amendment's free speech right. Engel subjects any ballot access rule to exacting judicial scrutiny if the regulations make it too difficult for the direct democracy petition to succeed. This applies even if the rules are neutral procedural regulations. Nothing in the text history and tradition of the First Amendment supports the expansion of judicial power over state ballot initiatives and other direct democracy petitions. David, how do you feel? I, okay, you know, this is one of those things

where when I first looked at it, you know, I'm a First Amendment attorney for most of my career, vast majority of my career, have zealous defender of the First Amendment. And I'm literally stumped at the idea that there's going to be a strict scrutiny applied, strict scrutiny applied to any regulation that significantly inhibits the placement of voter initiatives on the ballot when there's no right to put voter initiatives on the ballot in the first place.

Indeed. In other words, you don't have a right to live in a state that has voter initiatives on the ballot. Now, if the state gives you that under the state constitution, great, fine. But this is really fascinating that this appears to be, you know, one of these doctrines that the court has said, well, we like voter initiatives, voter and direct democracy. Good. Yay. Okay. Well, that's a very defensible position on a policy basis. I don't necessarily agree with it, but

it's a defensible position on the policy basis. Where is this coming from? This idea that, what's the textual basis? What is the basis here for this idea that a restriction on a ballot initiative when there's no right to ballot initiative? Now, to be clear, once you create something, when you create a ballot initiative process, that process, because it's a state-created

process, is going to have some constitutional restrictions around how it's used. So, for example, even though there's no right to a ballot initiative process, you couldn't say, well, only white voters can sign it, and then defend that discriminatory rule on the basis of, well, you don't have a right to begin with. Now, once you create the process, it is true that there are some constitutional obligations that are going to attach. This idea that a restriction on an activity that there is no right to in the first place is going to be subject to strict scrutiny, pretty remarkable.

Pretty remarkable. And I thought that was a very effective way of articulating it. I will continue with a bit of the dissental, which I enjoyed. Ultimately, it's federalism that suffers. Following Engel and its progeny, courts within the Ninth Circuit have taken it upon themselves to rewrite the neutral, non-discriminatory state procedures that structure ballot initiatives and the like to give proponents a better shot. Absent content or viewpoint-based restriction of political speech, states should be free

to experiment with ballot initiatives, recall initiatives, and referenda as they see fit. These decisions involve fundamental questions of state policy and the fine-tuning of the democratic process, as we of the least democratic branch of the federal government must tread lightly here. Indeed, if the First Amendment protected against rules that make some political outcomes less likely, that would be grounds for federal courts to intrude on all sorts of state political activity, like state supermajority rules and veto rules, and may discourage these direct democracy petitions. Since Engel has no support in history and tradition of the Supreme Court and comes at a great price to federalism, we should have reconsidered it

en banc. Here, no hot button issue proposal looms over the case. No election awaits right around the corner. No emergency hangs over the parties. Safe from the pressures of a political battle, we should have reconsidered Engel when we could give it our best attention. David, I think he is 100% right. The reasoning behind this is bizarre that one political outcome, meaning direct democracy good is up to the courts to put their thumb on the scale.

It just has no basis in anything. In fact, we'll discourage direct democracy processes in other states if then it becomes a court mandated direct democracy process where you have to have a lot more direct democracy once you crack the door open. That all being said, I don't think the court's taking this one. No, I don't think so. I don't think so. Like a little quirky Ninth Circuit rule about direct them.

I don't, yeah, I don't. Sorry, Bumate. I know. Judge Bumate. I know, you're right. You're right, judge. You're right, judge. You're totally right. But I don't think this is going up to the big house. Sorry. Yeah, yeah.

All right, well, next time on Advisory time on advisory opinions we have a Fifth Circuit decision on What exactly election day is speaking of constitutional rules applying to direct democracy? as well as a DC Circuit decision affecting January 6th prosecutions and Whatever else may pop up in the meantime next on Advisory Opinion.