Advisory Opinions - Princeton Couldn’t Handle Us

Episode Date: September 19, 2024

Sarah and David sparked controversy with their recent speaking event near Princeton University’s campus. The two decide to quell culture war squabbles by discussing ‘Maverick’ Trump-appointed judges. The Agenda: —Sarah and David's Princeton appearance —Intellectual energy on the legal right —Egregious due process decisions —Banning conversion therapy —Should “WAP” by Megan Thee Stallion expel a pharmacy student? 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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Welcome to Advisory Opinions. I'm Sarah Izgurdu. It sounds like I've lost my voice a little bit. And David French, special guest, but maybe you're going to be talking a little bit more today. Yeah, what happened? We, I just saw you Monday. You were fine. We were Princeton. We were talking at Princeton. No hint of any problem with your voice?

I don't know. Partying too hard at Princeton and then I spoke at Brown last night to a group of excellent undergraduates as well. I don't really know. Hey, speaking of Princeton though, I understand that Princeton has received quite a few notes asking them to explain why we were not allowed to speak on campus. We will update y'all as soon as we hear back from Princeton about their side of the story and their explanation. Factually speaking, however, like we did speak off campus

and these students did receive a note from the university telling them that we were not allowed to speak on campus. So we start from that basic premise that something went wrong. Yeah, I mean something had to go wrong. It's very weird that this happened. So we will update you guys as we find out more about that. I did get a great note from a friend and he said you should just change your bio to Harvard Law banned by Princeton. Well, you know, just the tagline of advisory opinions, too dangerous for Princeton University. So yeah. You know, it doesn't feel like an ideological cancellation.

It feels much more like just bureaucratic nonsense than an ideological cancellation. But it's a very weird thing nonetheless. Today we have lots of circuity stuff to talk about. But before we get to that, there was an interesting academic paper that was published. How different are the Trump judges? And it looks through all of these measurements to see how Trump judges line up and especially across the board of judges who are Supreme Court available, if you will, based on their age. So looking at people who were 55 and under as of, I believe, 2020 and who had been on the bench for at least three years, I think. So I thought I would just run through some of those, David.

They're sort of interesting. Yeah, absolutely. So first was productivity. To measure productivity, we start with the total number of reported opinions by a judge, the sum of majority concurring and dissenting opinions. Writing a reported opinion likely takes more effort on the part of a judge than writing one that goes unreported.

Judges who wish to conserve effort will likely choose to write opinions that are shorter and subject to less scrutiny and therefore less likely to be reported and avoid writing concurring and dissenting opinions. And David, I don't think we've talked about this before because it's a little bit bizarre, but basically federal judges can publish their opinions quote unquote or send out unpublished opinions and it's totally up to them. And unpublished opinions used to, of course, be unpublished, but now they're published also. It basically is a way to signal to lawyers that they can't really cite this

precedentially in the future, but even that has sort of fallen apart. You'll see lawyers cite unpublished opinions from time to time. So I actually think their description is pretty good. It's for, it's a judge signaling. I didn't put a lot of effort in this. I think it's an easy case.

So don't, don't hold me to this basically. Yeah. It, the unpublished opinions when I was practicing law were maddening. They were maddening because they weren't actually, as you said, Sarah, unpublished. You would find them on Westlaw. They're there. You could research them. They're all over the place online. And many times they were directly on point to a case that you were working on. But it was an interesting thing because they would often say unpublished,

not to be cited for presidential purposes. Yep. But then it's just too good to not cite when they're directly on point. And then I saw again and again, judges paid attention to them. That when you put the unpublished impendion in front of their face,

that was directly related to the case that you were working on, they constantly paid attention to them. So they were extremely frustrating to me. What does this mean? Why are you doing this? Why is it unpublished but online? It just was, it was a frustrating phenomenon.

Well, so that was a little bit of a tangent, but the point is this only looks at reported opinions, sort of judges who are intentionally putting in the time to quote unquote, publish their opinions. Here's the top 10, just sheer volume. Michael Scudder, Seventh Circuit Trump appointee. Amy Saneve, Seventh Circuit Trump appointee. David Strauss, Eighth Circuit Trump appointee. David Barron, First Circuit Obama appointee. Jonathan Kobitz, Eighth Circuit Trump appointee. Andrew Oldham, Fifth Circuit Trump appointee. James Ho, Fifth Circuit Trump appointee. Kevin Kobitz, Eighth Circuit, Trump appointee, Andrew Oldham, Fifth Circuit, Trump appointee, James Ho, Fifth Circuit, Trump appointee, Kevin Newsom, Eleventh Circuit, Trump appointee, Jennifer Elrod, Fifth Circuit, George W. Bush appointee, Stuart Duncan, Fifth

Circuit, Trump appointee. So obviously Trump appointees really dominating that list. But then they walk through and do it sort of, in football, points above expectations or whatever that's called, David, what is it called? Points above replacement or wins above replacement. Yeah, okay, so then they do excess opinions. So they look at the sort of circuit norm

because some circuits publish more than others. The reported opinions adjusted for circuit court, you've still got Scudder from the seventh, E from the seventh as the top two, but now Oldham from the fifth, Ho from the fifth, jump up in the four and five slot. Barron on the first, Newsom on the 11th, then Elrod. Then joining the list, Judge Stephen Menasci from the second circuit, a Trump appointee. Duncan, still there, Fifth Circuit. And then Daniel Bress from the Ninth Circuit, Trump appointee.

And Lawrence Van Dyke from the Ninth Circuit, Trump appointee. So that's the productivity score, which I find super interesting. Then they look at influence. Influence is our second tournament metric. We treat judges who write opinions that have greater impact on the law as more influential. As our measure of influence, we look at outside circuit citations to a specific judge's opinion. Outside circuit citations include citations from federal courts and other circuits, including the Supreme Court, bankruptcy and tax courts, and state courts. Courts in the same circuit, in particular the federal district courts,

will necessarily have to cite the circuit court's opinion because it is precedent. Accordingly, looking at outside circuit citations allows us to determine how often other judges find a specific judge's opinion worthwhile. Okay, first up, Eric Murphy, Sixth Circuit, Trump Appointee, Outside Circuit Citations, 499 to give you an idea of where we're at with that. I mean, that's a lot. Amy St. Yves, Seventh Circuit, Trump appointee 451. Kevin Newsom, Eleventh Circuit, Trump appointee 430.

John Nalbandian, Sixth Circuit, Trump appointee 302. Sheryl Krause, Third Circuit, Obama appointee 293. David Porter, Third Circuit, Trump appointee, 293. David Porter, Third Circuit, Trump appointee, 289. Chad Radler, Sixth Circuit, Trump appointee, 275. Stuart Duncan, Fifth instance, that they've done this study before and this is nothing compared to Richard Posner and Frank Easterbrook, for instance, of an earlier era who are just cited by everyone all the time, I guess. Maybe all these judges have Posner and Easterbrook tattoos. that a judge who writes opinions that receive only a modest number of outside circuit citations may still score highly in terms of total number of outside citations due to a large number of opinions written, i.e. if you write a ton, then you're just upping your chances. So then they limited it to just a judge's top 10 majority opinions for outside circuit citations to try to limit that just sheer volume issue. The list looks really similar.

Murphy, Porter, Krauss, Newsom, Eve, Radler, Nalbandian, Duncan, Ho, Oldham. They also looked at quality of those circuit citations, whether they were being cited negatively or positively, and whether they were all being cited, Trump judges being cited just by other Republican-appointed judges. So, for instance, Eric Murphy, who had come in first from the Sixth Circuit, negative citations was only 2%,

and the percent of outside-circuit citations from Republican-appointed circuit judges was only 21%, which is sort of interesting. Sherrilyn Krauss, who's an Obama appointee who was on that list. The 40 percent of her outside circuit citations were from Republican circuit judges, i.e. that was not particularly predictive. And the last measure was a measure of independence. This has been the most controversial of the three measures we use, they note. Independence is generally considered a desirable quality for judges, but how to measure independence?

For some, independence may mean a judge with a strong belief in a particular ideology will not deviate regardless of collegiality, political headwinds, age, and other factors. A partisan Trumpian judge who espouses all the ideals of former President Trump and his political party may therefore be considered, quote, independent by other fellow partisans.

So they look at a judge willing to deviate from other judges and particularly those closest to them in terms of political ideology deviations could be going further to the right or the left. The point is that one is deviating. So they use dissents and concurrences since those are places where judges assert their individual views. A judge who simply writes majority opinions, but never asserts their views through dissent or concurrence

is not much of a maverick. So for our first metric of maverickness, they look at the total number of dissents and concurrences. First up, David, do you want to just take a guess of who's first on the maverick list? Judge Ho? That's right, Judge Ho from the Fifth Circuit, Trump appointee with the most number of sheer

dissents and concurrences, 61 in the time that they were looking at, followed by Judge Oldham from the Fifth Circuit with 53. Strauss, 49. Judge Bumate, who we haven't seen on the list yet. Ninth Circuit, Trump appointee, 44. Newsom, Van Dyke, Judge Rosenbaum, 11th Circuit Obama appointee with 38, Julius Richardson, 4th Circuit Trump appointee with 30, Eric Murphy, and Judge Elrod finish out the list. But they also look at judges ranked in order of absolute closeness to zero for partisanship score. In other words, the most nonpartisan under our measure, their dissents and concurrences and their votes don't line up with the other Republican or democratically

appointed judges. So let me read their explanation. A more negative partisanship score means that a judge tends to dissent less against a same party nominated judge and more positive score means that the judge tends to dissent more against a same party judge compared to the expected dissent fraction. Okay, first up on the least partisan judges, Eric Miller, Ninth Circuit Trump appointee, Lawrence Van Dyke, Ninth Circuit Trump appointee, Jennifer Elrod, Fifth Circuit, then Judge Oldham, Judge Ho, Judge Rosenbaum, Judge Bress, Judge Strass, Judge LaHoyer, an Obama appointee who we haven't seen on the list yet, and Ryan Nelson, Ninth Circuit Trump appointee as well.

All right, David, what do you think of this list? Oh yeah, it's interesting, Sarah. I have some thoughts. Um, it's very it's it's an interesting exercise. I do I do think it's an interesting exercise to look at them. I'm not sure of all of the conclusions to draw, but I will say according to the criteria, the way they articulate these various principles. Nothing is really surprising me about the prevalence of Trump judges in this. And the reason for that is actually, I think there's a lot of intellectual energy in the judicial right right now. And there is also a lot of effort coming up

through the courts to utilize the judicial right now that it has post-Trump term, there's many more Trump judges than there were, there are many more conservative judges, just judges on the courts, especially on the Supreme Court, of course. And so there's more intellectual energy trying to push towards the limits of what is this new

conservative legal culture, what is this new conservative legal jurisprudence. And then you also add on top of that, the kind of ideological fracturing of the right itself and that the judicial right is sort of caught up in this as well. So the old sort of categories of what is right and left when you're talking about judicial decisions,

they're kind of getting blown up a bit. So for example, a couple of weeks ago, we talked about this case out of the third circuit involving TikTok. And that was a combo of two Trump judges and one Obama judge saying that TikTok has a responsibility for its speech in the case of this, the blackout challenge.

What was the ideological valence of that? That's really hard to know. I mean, in this world of online speech, there's a lot of cross-pollinization ideologically. So nothing about this according to these criteria really surprises me, given the energy coming from the right into the courts, the conflicts within the right within the courts tells you there's gonna be a lot of activity.

That's just sort of my basic take on it. Yeah, I mean, so by the way, at the end, they have sort of a roundup where they combine maverickness and the partisanship score with the dissents and concurrences score to find the least likely to fit with their partisanship and most mavericky by having the most number of dissents and concurrences and all of that. And if you're curious, Judge Ho, obviously still number one. And for me, David, what Choi and Gulati, who by the way are professors at New York University

Law School and the University of Virginia Law School, Stephen Choi and Matu Gulati, thank you for publishing this. What I think they have failed to sort of sprinkle in here is the expected effect of getting rid of the judicial filibuster. And so I think you will see more concurrences and dissents, for instance, I would expect that from the end of the judicial filibuster. Because if you wanted to get on the Supreme Court or anything else really,, when there was a filibuster, your incentives were to keep your head down, if you will, and give quiet indications to your side

that you should be looked at. But you didn't wanna have a lot of attention drawn to yourself. This is the John Roberts model, right? Don't write anything, don't say anything, just have everyone think you're the smartest guy and keep your head down. Without the filibuster,

you don't need to be approved of by the other side. So you're really now angling among your own team, so to speak, for attention. And so I would expect to see a lot more concurrences and dissents just on that aspect alone. But I would also, when you think about it, and perhaps ironically, perversely, whatever, I would also expect to see a lot more concurrences

and dissents against your own team, so to speak. Because if your only, let's say, Republican appointees are now only fighting amongst themselves to be the most interesting judge in the world or whatever. Descending and concurring is now going to be valued against your own team to show how actually you're the truest to your judicial philosophy is going to be more effective when you're doing it against your side.

Yeah. Yeah. You're, you're jockeying for position within your own ideological peers, yeah, absolutely. So A, I think the judicial filibuster not factored in enough here. But B, as the two parties realign, I would also expect to see less agreement among those appointed by Republicans because the Republican

party is shifting. And so the types of judges and the judicial philosophy, perhaps, of those judges should probably look pretty different from 2005 to 2020, for instance. Right, right. Absolutely. No, I think all of that is absolutely legitimate. And, you know, it raises, once again, something that we've been talking about for some time, which is the downstream effects of the removal of the filibuster. That it's not just jockeying for position now when you're talking about joining the federal bench,

being nominated for federal judge. Once you're there, once you're there, and if you have your sights set at all on the next layer of courts, that ideological positioning, which used to be death to your dreams, is now in many ways mandatory for consideration. It's a big change.

I was talking to somebody the other day about this very change, and they asked me to sort of, wait, I don't quite understand what you mean. And I said, let me put it this way. Back when I was practicing law in big firms, you knew who in the legal community was angling for a judicial nomination. How did you know who was angling for a judicial nomination? They were some of the most respected lawyers in the community who published a lot. In other words, they would write about esoteric elements of the law. They would write about interesting developments in the law, mainly from an analytical standpoint, not an advocacy standpoint. But they are also very close to the vest politically.

They were political ciphers in many ways. And so there was a judicial career track that was be smart on the law and be quiet on ideology and sort of allow your prior associations to do the speaking for you. Were you in Fed Soc and Law School, for example? That's all different now. That's all changed now. Now it is transparency, openness. This is where I, who I am. This is where, you know, what I believe. You can count on me to be a person of these specific convictions.

And look, there is an argument. There is an argument for that kind of transparency. No question about it. But many of the sort of the downline effects, I think, are more than a little negative in the way they do incentivize that sort of auditioning process and do incentivize that auditioning to continue on the bench, which again, has its own distorting effect as well.

So yeah, this is something we've talked about and I'm glad you brought up that aspect of it. And it's also worth, even if these appellate judges, for instance, aren't auditioning, don't wanna be on the Supreme Court, never thought about it, have no chance, whatever, the types of people who are getting on the bench now will be the types of people who are more likely

to concur, dissent, throw some elbows. And so I just think behaviorally, that's going to continue when they get on the bench as well. And as you said, there's some good aspects to that. We love having more concurrences and dissents. It flags interesting cases for us. It provides these little smaller fractures in judicial philosophy that we can probe and get interested in.

But as Justice Kagan has noted, a lot of concurrences isn't great for the stability of the law and the consistency of the law because it doesn't provide as much clarity, especially the lower courts who are just trying to get their cases done. So anyway, I thought it was a really interesting piece and it cuts against a whole lot of people's priors.

If your whole thing is Trump judges are ideologically monolithic and lazy, this blows you up, right? They're writing more than any other judges and they're more mavericky, they're writing more concurrences and dissents against their own team. So just, you're wrong

and you've been reading too much hyperpartisan media. On the other hand, if you believe that getting rid of the filibuster has just allowed us to, you know, fill the bench with these right wing monolithic judges who are just marching in lockstep towards some conservative end. Not that either, obviously. The Trump judges are still very much figuring out what this means in a post-Philibuster world. Yeah, absolutely, absolutely. And at some point we need to have a conversation

on what kind of judges do we think if Trump wins again, what kind of judges do we think he would be nominating this time around compared to last time around? And would it be the same? I'm very skeptical that it would be. I'm very skeptical that Trump dredged judges 2.0 or the same as Trump judges 1.0. But I think that'd be a fun conversation to have.

I mean, the punchline of that is nobody knows. There's a version of Trump where it's the same, and there's a version of Trump where it's totally, totally different and we've never heard of any of the people who would get appointed, for instance. Who knows? Right, exactly. There's a world in which it's, wait a minute, my people really liked what I did the first term with judges and I'll just keep doing that. And there's another one that says, wait a minute, some of the judges I appointed

did not do what I needed in 2020. In fact of the judges I appointed did not do what I needed in 2020. In fact, many judges I appointed did not do what I needed in 2020. So forget that Fed Soc nonsense. I'm going from the Magathon book this time. And I think the latter is more likely than the former, but as you said, we don't know. Looking for a path to accelerate your career?

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offering for a limited time only 10% off of your dispatch subscription. All you have to do is enter All right, David, will you tell us about this en banc Fifth Circuit opinion and the spicy dissent written by Judge Willett? Oh, goodness gracious. Okay. This is a wild, wild case. So I'm going to just begin by reading a little bit of the facts. Irma Wilson was convicted of cocaine possession and given an eight-year term of supervised release. That felony conviction created an insuperable obstacle

to Wilson's lifelong dream of becoming a nurse. Then, many years after her sentence expired, Wilson discovered that her criminal trial was tainted by egregious due process violations. Now, when you say egregious due process violations. Now, when you say egregious due process violations, we mean egregious due process violations. As the court goes on to say, what happened at Wilson's trial 23 years ago

was according to the panel decision, this is an en banc, according to the panel decision, the three judge decision before the en banc ruling, quote, utterly bonkers. And that is correct. We've talked about this before, but Wilson alleged that at the time of her trial, a man named Weldon Ralph Petty Jr.

was working both as a Midland County prosecutor and as a law clerk for the Midland County district judges. And it was such bad misconduct that when his misconduct came to light, he was forced to surrender his law license. And for the non-liar listeners, let me explain what this means, the magnitude of the conflict of interest.

What it means is that the prosecutor was also part of the adjudication team. So a law clerk, a clerk for a judge, genuinely helps them make the decision, helps them research the decision that they make, often writes up the decision that the judge makes. And so this was the prosecutor also being part of the judicial team, way out of bounds, way out of bounds. And so what ends up happening is Irma Wilson seeks relief from her conviction. So she tried to, she filed a lawsuit under federal civil rights law, 42 USC section 1983 and was pursuing money damages saying I was damaged monetarily by

this egregious due process violation and that she's entitled to relief because her criminal conviction was tainted by violations of the due process. Okay, so here we are. She's been convicted in a proceeding that was fundamentally tainted. Years and years later, she learns that it was fundamentally tainted, files a lawsuit, and drum roll, please, she loses, she loses.

And the reason that she loses is that, boiled down to its essence, is that she can't make this civil rights claim until in a different proceeding that she receives a favorable termination of her cocaine possession conviction. In other words, is there another proceeding where her conviction is wiped out and unless there's another proceeding where her conviction is wiped out, she can't pursue a lawsuit. So a necessary prerequisite to her civil lawsuit is a proceeding in mainly in the main options would have

been in state court to vacate, vacate the judgment against her and then file the lawsuit. And the majority relies on precedent. This is not something they made up out of thin air, but they rely for precedent on a series of Supreme Court cases dealing with people who are actually in prison who are challenging the validity or who have filed civil rights lawsuits based on problems with their criminal proceeding. And the general view and the general view of the Supreme Court is no, no, no, no, you have to get relief from the conviction before you can file your civil case for damages.

That if you're in custody, you've got to be non-custodial. So here comes friend of the pod, Judge Willett, in with the dissent. And let me just read a little bit of Judge Willett's dissent here briefly, Sarah. Judge Willett joined by judges King briefly, Sarah. Judge Willett, joined by Judges King, Elrod Graves, Higginson, and Douglas, dissenting begins like this.

The Constitution's fair trial requirement is Con Law 101, a bedrock due process guarantee. In fact, the framers cared so much about the sanctity of the criminal jury trial that our Constitution specifically mentions it twice, not only in the Sixth Amendment, but also in Article 3. And just underscore that they really meant it, italicize really, that criminal justice fairness is sacrosanct, the founding generation doubled down enshrining a host of procedural non-negotiables and

multiple provisions of the Bill of Rights. Indeed, more words are devoted to we the people's fair trial right than to any other constitutional guarantee. That's an interesting factoid I did not know. Safe to say the framers were fixated on the adjudication of criminal charges with the power to bring them and the process for resolving them

and spilled a lot of ink to ensure that the Constitution's inviolable fair trial guarantee is no empty promise. And then he goes on to say, during our second founding, almost a century ago, when he's referring to the second founding, he's talking about the passage of the 14th Amendment and associated statutes. Congress, besides passing the 14th Amendment, also acted statutorily with a sweeping textual command in the Civil Rights Act of 1871 that rights violators, quote, shall be liable to the party injured, unquote.

These lofty words, however, are just that. Petty parchment promises if the judicial fine print of made upup caveats exceptions and qualifiers ensures that abuses and abusers get a pass even for the most egregious conscience shocking deprivations and the actual guts of that opinion make the case that wait wait a minute wait a minute here this is a quote DEFCON one legal scandal She learned about it well past the expiration of her sentence. And she is encompassed within the plain language of 42 USC section 1983, a due process violation firm to her rights. So why are we going beyond that text? And by the way, the Supreme Court precedent really is focused on what happens when someone's in confinement,

that a person who's at this favorable termination rule really applies when you're in confinement. And it's a really fascinating dispute, Sarah. And I gotta say, this is one of those situations where if you go back, this is very reminiscent of our qualified immunity discussions, where I'm with Judge Willett, I'm with Judge Willett, 42 USC section 1983, which grants me a right,

a cause of action against agents of the state who violate my rights, is very plain on his face. It's very plain. You know, as the dissenters quoted, it says you shall be liable to the party injured. So I understand where the majority is coming from. There are Supreme Court cases, again, in this custodial realm that talk about

a favorable termination of conviction before a lawsuit. But I think Judge Willett is right. The combination of that she was non-custodial and Section 1983, also by the way, the enormous passage of time after her conviction adds up to she should win this case. As Judge Willett says, it took her 20 years to learn the brazen prosecutorial misconduct that laid waste to her fundamental fair trial right. So that's a not so brief intro, but it's an important complicated case.

Sarah, your thoughts. I am moved by your point on the text of section 1983, but according to that logic, people who are currently in prison should be able to bring 1983 claims, which is sort of nonsensical, right? That your conviction would stand for the purposes of keeping you in jail, but also it was unconstitutional. Your constitutional rights were violated in some ways. You can get monetary damages. Like those are incompatible facts, and I think that's what the Supreme Court precedents are trying to get to, is that it cannot be the

case that your conviction is acceptable, but that nevertheless you get monetary damages. I think, though, that we can still marry these up in that you can have some sort of 1983 factors that include sort of this impossibility defense of a sort that if the conviction is valid, then by definition, your constitutional rights weren't violated or something to that effect. And that evidence of that conviction being valid, for instance, would be you're currently in prison and haven't been able to overturn your conviction, which presumably you would do before, that would be more important than seeking monetary rights.

And so in this case, if it was just a factor, you would say, well, overturning her conviction doesn't do her a lot of good now, so I can see why she would pursue monetary damages. Right, the ship has sailed on like all her career and everything, yeah. And so if it were simply a factor, she would probably have won rather than a bar.

And the Supreme Court hasn't really spoken to these non-custodial cases. You have the majority in the dissent arguing about whether they have and what's dicta and what's not. By the way, a lot of dicta fights happening recently. Lots, lots. Dicta fights happening recently. Lots. Lots. Dicta fights.

You have a Judge Souter footnote where he says it wouldn't have mattered if it was custodial or not in one of these Supreme Court cases. But of course, in that case, it was custodial and it was a concurrence. And I mean, that actually is kind of the definition of dicta where you're reaching something that was not an issue in the case. Overall, David, though, I feel like I have bad news for you. I think it's very unlikely that the Supreme Court will take this case. On the one hand, I think it's nicely teed up.

It's an egregious fact pattern, plus the non-custodial fact. And no, as far as I can tell, real procedural footfalls. That's what the Supreme Court likes, right? It's egregious and easy fact pattern that we can all sort of wrap our heads around. But I just have a feeling that this one isn't going anywhere. I wonder about that also, you know, but the other factor I think that would indicate maybe that the Supreme Court would take this case is, you know, as is pointed out in the opinion, that five justices had indicated support

for the Willett position, but not in the form of a binding opinion. If you're counting noses in looking at the old court, Supreme Court president, you're gonna find five justices that really seem to back the Willett opinion beyond the majority opinion. But again, not in the form, not in presidential form. So I do wonder if that's an additional factor for granting cert,

but I think you, you very well might be right. And there is a circuit split, by the way. The footnote 12 and Willett's descent lays out the circuit split, but you've got the first, second, third, fourth, sixth, seventh, eighth, and ninth, and tenth, all weighing in on this. Since 1998 though, David, and I think that's evidence on my team here, this has been going on for a long time. These questions have persisted for a long time. They haven't felt the need to take it yet.

They will at some point. Again, I think these facts are pretty good for the type of cases that get Supreme Court treatment, but just the amount of time that's already passed militates that like any given case is unlikely to be taken. Yeah, it's it. I'm very interested to see. I would love to see them take it. And the one thing that I will say were from opinion, from the majority opinion dealing with this idea that, wait a minute, under the plain language of 42 USC,

section 1983, it seems as if even while I'm in custody, I can file a lawsuit for money damages regarding my conviction, which doesn't make a lot of sense, which is why there's this harmony with the habeas statute. So the habeas statute is a quite specific legal process that can apply to get me out of prison. In real time, this can get me out of prison. And so how do you read this very specific habeas statute

in harmony with the more general section 1983? And I think the majority is right in the custodial sense that in that circumstance, the only way to really make sense of the law is to say, when you're in prison, step one, habeas relief, step two, civil suit. Makes all the sense in the world. Makes so much less sense in this context

where you've got a, you were never in custody. It was the supervised release type of situation. You were never in custody. It's 20 years removed from the end of probation, whatever supervision you were under. Your career is gone. There seems to be no conflict really with the habeas statute from the standpoint of federal law.

And a lot of the avenues under state law to vacate the conviction, such as timely appeals and things like that, that's all gone. So it makes so much less sense to read 42 USC Section 1983 out of this process with this plaintiff. This plaintiff is in a very, very different situation. All right, next up, David, let's talk a little Rahimi. Yes.

We've talked about it plenty on this case. This is our gun case with eight opinions and this is our gun case, eight to one decision with lots of concurring opinions. The chief justice writing that, yes, you can disarm someone like Mr. Rahimi under 922 G. That doesn't violate the Second Amendment just because he hasn't been convicted. If there is a domestic violence restraining order against him, he had the opportunity to appear and be heard. That is enough due process to disarm him.

And this got to what exactly is text history and tradition with Justice Thomas in dissent saying, no, no, y'all are doing this all wrong. I'm the one who made text history and tradition a thing. So obviously, I would know. Judge Gorsuch saying, that's nice old man, but we've got it from here. This is text history and tradition. That's nice old man. That's funny Sarah.

Justice Kavanaugh going on a little bit of a tirade against tears of scrutiny and why text history and tradition is better. Justice Barrett saying, yeah, yeah, look, I'm totally cool with all this, but we shouldn't be ever looking at the history or tradition or whatever post ratification, except in some very unique circumstances. So what exactly are we doing in text history and tradition is still up for grabs. And at the end of the day, of course, these cases don't end with the Supreme Court. In that case, don't end with the Supreme Court. In that case, they get sent back to the Fifth Circuit telling them that 922-G, as applied to Mr. Rahimi, did not violate the Second Amendment, please continue. So, for instance, Mr. Rahimi had other claims that his sentencing was unlawful, etc. So,

we now have the Fifth Circuit opinion on the rest of Rahimi. And basically they make short shrift of the rest of Rahimi's claims and bye bye, Mr. Rahimi. Enjoy the rest of your time in prison. But David, Judge Ho wrote a concurrence. And if you remember, Judge Ho has quite a history with this case. When Rahimi first comes out, they rule against Mr. Rahimi as in this does not violate the Second Amendment. Then Bruin comes out, then they reissue Rahimi, and Rahimi, then they say it does violate

the Second Amendment. Then Judge Ho reissues his concurrence, explaining why a domestic violence restraining order, there is no text history and tradition model for that kind of disarmament at the founding and the due process potential problems with using domestic violence restraining orders without a conviction, for instance. So Judge Ho has some thoughts now.

And I thought it was worth reading a couple pieces of this. The Supreme Court can adjust or amend its own precedent at its discretion. Inferior courts have no such luxury. The Supreme Court has repeatedly instructed us to follow its precedent, whether we agree with them or not, and whether we expect the court itself to follow them or not. So we'd be defying the court's express command if we decided cases based on anticipated changes to its precedent. It's up to the court to modify or overrule its own precedent as it alone deems appropriate and to reverse us when it does. That's exactly what happened here.

We faithfully applied the court's decision in Bruin. No member of our court disagreed with our interpretation or application of Bruin. As one of our distinguished colleagues put it, our job is not to relitigate Bruin, but to operate in good faith and faithfully implement Bruin. The court has now modified Bruin, as our decision today explains. I write separately to note a second alteration to court precedent. In the past, the court has held unconstitutional laws that punish people who don't belong in

federal prison, even if the defendant himself does. That principle readily applies here. Victims of domestic violence don't belong in prison. And he's going to continue discussing how this could really affect both sides of a domestic violence dispute potentially. But David, that is some real side eye at the majority in the Rahimi case. And just to translate from Judge Ho's speak into layman's speak, Justice Thomas was right. We apply Bruin. You guys pretended to apply Bruin, but you didn't because you didn't want Mr.

Rahimi to be shooting up water burgers anymore. And that was some bad facts. And so you changed Bruin without saying you changed Bruin and you made me look like an idiot for following Bruin and made it look like I didn't follow a Supreme Court precedent when I absolutely did. And from now on, you should say it when you're doing that because you suck.

You know, it was such a side eye concurrence. It was actually kind of fun to read through that prism, but I would like to address this sort of larger point, which is, okay, okay, it's kind of like, okay, Supreme Court, I hear you on how dangerous Zaki Rahimi is. I hear you on that, not gonna argue, he was a bad plaintiff, bad facts plaintiff.

However, however, and this is a point that Judge Ho has made before, wait a minute, if you actually dive into the domestic violence restraining order world, you see that often they're granted kind of willy-nilly or they're granted in an over-inclusive way. You might have one person who's dangerous, one person who's a victim of domestic violence, but for reasons related to expediency, compromise, etc., you might have a mutual restraining order. In other words, they're both ordered, they're both subject to a restraining order, even though one person is a victim. And so when he says, it sounds strange, when he says,

wait a minute, this actually will disarm some victims of domestic violence. This is what he's referring to, this kind of practice where lower courts will often, and family courts will often issue these orders, kind of, you know, they're strongly incentive to issue these orders when they're requested. And I totally get that. The problem that I have, I get that criticism. I've spent any time talking to family lawyers and they will tell you about sometimes competing specious claims of domestic violence. They'll talk about how some of these orders are granted.

In fact, they are granted willy-nilly. But is that really the role of the federal court to go back and ree-evaluate the underlying state court brand of a protective order when that protective order is imposed after due process with opportunities to contest it? And so to have it where federal courts become essentially a check in the Second Amendment context on the validity of domestic violence restraining order strikes me as just kind of fundamentally unworkable. At some point, you're going to have to credit

the work of the court below, of the family court. And if the victim of domestic violence doesn't want to retain ownership of weapons, they can contest and perhaps even depending on the state, appeal the domestic violence restraining order. So this is something that strikes me as a not the right context for a federal court to jump in and act essentially as sort of an appellate court

for domestic violence or straining orders. I'm pretty sympathetic though to the idea that Zaki Rahimi should have been convicted of something. This was a failure of the system. The long line of shootings that Zaki Rahimi is involved in and he was not convicted, he was not a felon in possession of a gun, I think shows the

failing of enforcing our gun laws. We talk about all sorts of new gun laws that people want to pass to prevent shootings, but if someone like Zaki Rahimi, if we don't have the resources to prosecute someone like that and get a conviction so that as a felon he can't possess a gun and we're relying on domestic violence restraining orders that do have due process problems that are not get a conviction so that as a felon he can't possess a gun and we're relying on domestic violence restraining orders that do have due process problems that are not the same as a conviction, that don't carry all of the due process indices of an actual felony trial? Yeah.

Like, this is a problem with the system, if that's what we're relying on. That's not to say that I don't think we should be able to rely on domestic violence restraining orders. I wish that we had a time limit on them, for instance, or some other, you know, we can disarm someone for six months while we pursue charges against them that would allow us to permanently disarm them, for instance, rather than using this as just a two-year disarmament and then we're gonna give them their guns back because you never got a conviction, you just used the domestic violence restraining order,

that's always going to be temporary. Right. So if this person is actually a danger and shouldn't have a gun, it shouldn't be temporary. And if they're not dangerous, then they shouldn't have been disarmed. You know, in the red flag context, you know, that's a situation where you can intervene

in the face of, say, a temporary mental health crisis or something where somebody is struggling, you know, has suicidal ideation, et cetera. And that, you know, that red flag context is a situation where you're able to intervene in that, on that temporary basis to say, wait, hold on, press pause. For whatever reason, you're presenting yourself as dangerous to yourself or the public. And that can be a temporary deprivation. But I'm with you if the person is truly dangerous

in the way that like Zaki Rahim, he demonstrated that he was. One of my favorite elements of the case was that part of his misuse of firearms, wasn't it firing his gun when a fast food order was not to his liking? Not just any fast food order, David. It was a Whataburger. Whataburger, that's right.

It was a Whataburger. It climbed his friend's credit card, I believe, and wouldn't give him his burgers. And who hasn't felt rage if the possibility of Whataburger is so close and yet suddenly so far? I mean, any reasonable person will go Yosemite Sam at that point and just start firing their guns into the air. Whataburger is so good.

But it's just, yeah, absolutely. This person had demonstrated in multiple ways that they were deserving of multiple felony convictions which would then have the absolute desired effect of depriving this person of the right to keep and bear arms. So I'm with you on that sort of underlying idea that Zaki Rahimi, it should not have been the domestic violence restraining order that disarmed him. There were more reasons or I shouldn't say it should not be just the domestic violence restraining order that disarmed him. There were more reasons, or I shouldn't say, it should not be just the domestic violence

restraining order that disarmed him. There was many, many reasons. But at the same time, and I also understand Judge Ho's concern about over-granting of restraining orders, but there are state core processes to control for that, to limit that, to check that. And again, I just don't see a way for the federal courts to step in, adjudicate 922

G8 in such a way that they're also adjudicating the validity of the underlying domestic violence restraining order. All right. Some quick mentions of some other cases that popped up this week. Judge Manashi over on the Second Circuit wrote an opinion upholding the conviction of a defendant when he was convicted by only 11 jurors. They had sat the 12 jury panel and the two alternates through the course of the trial. Three different jurors were removed, and the final conviction was only 11 jurors. While Judge Menashe said that that was actually not okay, he also held that it was harmless

error. The defendant had argued that this was a structural problem with his trial, and Judge Menashe said, no, you had a jury. The difference between 11 and 12 is not a structural problem with the trial. I flagged this case as, again, these are all the cases that we talk about, will go up on cert to the Supreme Court for them to look at. Again, just any given case is a very low likelihood

of getting granted, but that one's always an interesting one. What is a structural defect in your criminal trial and what can just be put under harmless error review. Eleven members on your jury. Interesting. This episode is brought to you by CIBC. From closing that first sale to opening a second store, as a business owner, you've hustled to accomplish a lot, but the rewards don't stop there.

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Details at fizz.ca. Last one, David, we've talked about a different version of this case coming out of the ninth circuit on banning conversion therapy, the idea of talk therapy for someone who is attracted to someone of the same sex and trying to convince them not to be. At Oregon, I believe, it was Oregon that had banned this. That went up to the Ninth Circuit. This is now the Tenth Circuit dealing with this.

this, that went up to the Ninth Circuit. This is now the Tenth Circuit dealing with this. They also hold that this is not a violation of the First Amendment for the psychiatrist in question and that it is conduct. Professional speech is conduct. Interesting dissent here about how no, it's not. I'll read just a few pieces of it from Judge Hartz. This case presents two distinct but intertwined fundamental and important questions. The first, which is the only one addressed in the majority opinion is when, if ever, speech is not speech under the First Amendment.

The majority opinion holds in essence that speech by licensed professionals in the course of their professional practices is not speech, but conduct. Because, says the majority opinion, engaging in the practice of a profession is conduct, even if the practice consists exclusively of talking. Any restriction on professional speech is just incidental

to the regulation of conduct. In my view, and more importantly, in the view of the United States Supreme Court, such wordplay poses a serious threat to free speech. The second question, which the majority opinion did not need to address because of the way it resolved the first issue, is whether a court should treat as, quote, science, the pronouncements of prestigious persons or organizations that are not supported by sound evidence. Science

has enjoyed tremendous respect because of the great advances it has made since the beginning of the Scientific Revolution, but it has not made those advances by respecting, quote, unquote, authority. To give just one illustration, although Albert Einstein is widely recognized as the greatest of physicists, virtually all theoretical physicists then and now have rejected his view of the nature of quantum mechanics. Only in a very weak moment would a true scientist say, I am science. The progress of science has resulted from the creative genius of scientists whose imaginations are then tested through the scientific method. Absent such rigorous testing, their views are no more plausible than theory.

To be sure, some science are softer than others. For example, I doubt that any proposition in psychology can be tested with the rigor of typical in physics. But for each field, there are appropriate standards for collecting and analyzing data and experience that are objective. That is, independent of the prestige of the person's expressing a view.

Applying those objective standards, whether this application be called strict review, exacting review, rigorous review, or some other term, is an essential task of the judiciary when, quote, science is invoked to justify a restriction on speech. And so you have that conduct a speech question, David, which I think the Supreme Court will have to resolve at some point. And I found so interesting this discussion on the science question. When it comes to professional conduct, of course, we do rely on experts and organizations of those other professional experts. But his point is, look, it wasn't so long ago that that same organization said that homosexuality was a mental disorder. So could the state of Colorado have passed a similar law saying that anyone who affirmed

someone's attraction to someone of the same sex was violating professional conduct standards? Because that's the equivalent of what this is. Because really what they're saying is that's the same thing right now. It's just that the organization in question has flipped what not may be done, but must be done, and that the power of the state is being put behind that. It must be the case that homosexuality is a mental disorder that should not be affirmed. And now they flip that and said homosexuality is not a mental disorder and must be affirmed. So David thought I'd highlight that case as well. Yeah, I'm glad you highlighted that case and I do think this is going to be something

that goes to the Supreme Court. And I got to say when it comes to the high level principle that talk therapy is speech. Yes, yes, talk therapy is speech. And, but also, when we're talking about conversion therapy, this is a term that can be very, it's not self-defining. And so people have a difference, strong differences of opinion as to what conversion therapy is. So for example, is conversion therapy saying, I can, as a therapist or through therapy, I can change your sexual orientation.

In other words, I can take, make, we can through therapy, make it to where you are from being attracted to men. If you're a man, you, I can, through therapy, you can become attracted to women. That is what, when you hear conversion therapy, that's sort of what most people think. And I do think there is, and I know there is a long record of that crashing and burning

and causing an enormous amount of anguish. But there's a different kind of therapy, which is, wait a minute, I have values. I say I have religious values that say that, for example, marriage is between a man and a woman, that sex is reserved for marriage between a man and a woman, that sex is reserved for marriage between a man and a woman. I have values, but I also have desires that conflict with my values.

How can I bring my conduct in alignment with my values versus my desires? Does that make sense? Is it different? It's not saying how can I change what my fundamental orientation is. But it's more like how do I reconcile, how do I live with a particular set of values when I have a particular sexual orientation?

And that is different. There's differences with that and sort of the idea that I can walk in to a therapist, the therapist can make it to where instead of liking men, I like women, those are different things. And a lot of times the conversation about conversion therapy flattens that difference. And I think that's a big mistake.

Last decision, congratulations to FIRE for another win for free speech. The Sixth Circuit Court of Appeals ruled in favor of one of their clients. She was a pharmacy student who had a social media account where she had thoughts on pop culture and the song WAP by Cardi B and Megan Thee Stallion. pop culture and the song WAP by Cardi B and Megan Thee Stallion. It included talking about getting ready to go out by referencing Beyonce. There was some sexually explicit content,

let's say that, and they removed her from the school saying that she was not demonstrating the sort of professional conduct that one would need to be a pharmacist. So they sued and the Sixth Circuit held Judge Radler, friend of the pod, in fact wrote the majority opinion holding that yeah, her speech outside of school that never talked about that she was a pharmacy student or anything related to her to the school was absolutely First Amendment protected. And as one of the fire attorneys said, and I liked this line, all professional school students should be able to have a life outside of school.

But David, this is the problem coming out of our angry cheerleader case. Social media, you know, I drew that like quad box back in the day. Yeah. On campus, you know, I drew that like quad box back in the day. Yeah on campus, you know speech You're on campus using social media You're off campus using social media about school and you're off campus using social media Not about school and it always seemed to me that that last quad box should have been really easy If you're off campus and you're not talking about school and you're on social media, of course that's protected. It's sort of stunning that we still need some cases on that quad box,

because frankly it's the other boxes on campus using social media but not about school, or off campus using social media about school that are the harder cases. And, you know, angry cheerleader was off campus about school. So yeah, this one though seemed like an easy one. I'm confused. Yeah, I'm confused too. And as Judge Radler notes in the majority opinion, that other cases where courts had upheld expulsions or disciplinary action, in those other cases, you could point to a

straight line between the speech and harassment of, say, specific students. In other words, they're harassing students online or between the speech and a direct tie to the program of the school or some to disruption in the school's program related to misconduct within the program itself. None of that was operating here. None of that. She was just a person who was also at the school posting, you know, I mean, it was pretty bawdy stuff, but they're just posting as a person. It really is fascinating to me, it's surprising to me,

that this got as far as it did. But you know, what we're dealing with here, I think Sarah, in some interesting ways, are the last dying gasps of public university cancel culture. In other words, so the kinds of gang tackling and pylons that we saw that resulted in people losing admissions, for example, to private universities that resulted in people losing jobs, people facing public

humiliation, that this really peaked around 2019-2020. It wasn't just confined to private spaces. This kind of notion that people who say offensive things can be purged, this leaked into public institutions as well. And so this is yet another case that is saying, wait, hold on, hold on just a minute. Free speech is still free speech, even when students and or administrators grow more intolerant. Free speech is still free speech.

I will say, however, I'm disappointed in Judge Radler. He had no point quotes any of the social media posts. There's no Beyonce. I know, I know. Alternative WAP lyrics. So bummer, Judge Radler. It could have been a lot more salacious opinion, frankly. With that, David, and thank you for bearing with me on my voice.

This concludes another episode of Advisory Opinions, and we'll see you next week. Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,