Advisory Opinions - Qualified Immunity Rap Battles

Episode Date: March 6, 2020

David and Sarah have Super Tuesday numbers to dive into, oral arguments in Louisiana's Supreme Court abortion case, FISA reform, qualified immunity, and is it okay to arrest six-year-olds? Learn more about your ad choices. Visit megaphone.fm/adchoices

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Offer ends June 30th, 2024. New eligible clients only. Complete criteria by August 30th, 2024. Visit rbc.com slash student 100. ride under your supervision with live trip tracking and highly rated drivers. Add your team to your Uber account today. Ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And just like our earlier podcast this week, we're going to cover a pile of topics. We're going to cover Super Tuesday, where Sarah has numbers. We're also going to talk a little bit about Elizabeth Warren bowing out. We're going to talk about the

oral argument that occurred yesterday in the Supreme Court in Louisiana's admitting privileges law, where we might have a little disagreement just to preview. We're also going to talk about a bigger topic or a very big topic that we haven't really addressed, but we teased in a previous podcast of qualified immunity. We're going to talk a little bit FISA reform, and we're going to end up with a discussion of whether or not it's okay to arrest six-year-olds. So that's a lot. But before we dive into it, I'm going to give you the obligatory reminders. Please subscribe to us on Apple iTunes. Rate us on Apple iTunes. Give us feedback. We've gotten some great emails to david at thedispatch.com and sarah at thedispatch.com.

And also your reminder to please become a member of thedispatch.com. Your response to us has been overwhelming and let's keep it up. With all that out of the way, Sarah, we are now two days removed from Super Tuesday. Elizabeth Warren has just dropped out and the people need your expert analysis? The people demand it. Where should we start? I don't want to spend too much time on Super Tuesday because Lord knows there's a lot of other podcasts to go to about Super Tuesday, but I think it is worth spending a few minutes on turnout. And there's the demographic turnout numbers, which are fascinating. And then there's the demographic turnout numbers, which are fascinating, and then there's these sort of subgroup numbers that are fascinating. With Warren and Bloomberg out of the race, this becomes a two-person race,

and the question is, can either of them get over the hurdle now that it's down to two people? There's about 60% of the delegates left. We've talked delegate math before. that it's down to two people, there's about 60% of the delegates left. We've talked delegate math before. Someone needs to get to 1991 delegates, which is 50% plus one of the delegates on the first ballot. I think in a two-person race, which did not seem very likely a week ago, that yes, it is now possible for Biden to get over 1991. Is it probable? Biden to get over 1991. Is it probable? Well, there was just a poll out of Florida. I'm not, you know, me and my polling averages obsession. It's a single poll. I don't like that, but we're moving fast here. And it had Biden at

61 percent and Sanders at around 17 percent. That's. Yeah. Yeah%. That's extraordinary. And that's a really big state. Yeah. And Michigan was a stronghold for Sanders in 2016. It's what sort of turned the race into a panic for the Clinton team to some extent. Michigan is looking like Biden might win it. He's getting a lot of endorsements there. If things like that just start moving so far into the category of voters think that Biden's already got this wrapped, then yes, Biden can get there. Right now, he's holding at about 45 percent of the delegates that have been allocated so far. So he's not percentage wise even there yet, let alone numbers

wise. But again, if you're actually going to hit 61% in Florida, yeah, yeah, you can get there. So here's a question. This is, let's just engage in what, let's engage in what Jonah calls rank punditry and supplement it with rank speculation. So like this is the highest quality stuff here. Rank punditry plus rank speculation. Is there a scenario where Biden in the next few days sweeps so thoroughly that Sanders himself would consider dropping out? Or is he, is Sanders committed to the very bitter end all the way to the convention, even if it's very clear he can't do it? You know, most candidates look at their own self-interest when deciding whether to drop out,

whether to endorse, things like that. This is Sanders' last run, probably. I don't see him dropping out if Biden's going to have it in the in the bag for instance because then he can't be called a spoiler that it's not going to a brokered convention i actually think the more interesting scenario is there is a huge gulf between them but it'll go to a brokered convention bernie can't win at a brokered convention but can he get uh you know chits can he get a promise for medicare for all can he get a promise for Medicare for all? Can he get a promise for the Green New Deal? Things like that.

So that's what their team's going to be looking at if it gets to that point. Now, of course, remember 72 hours ago or whatever, Bernie was the front runner. So I think at this point, the Sanders campaign probably is not having those discussions yet. But so let's dive into some of these numbers, though, because Biden has some problems here for sure. So let's do good for Biden. OK, so Biden did well with moderates, conservatives, voters older than 45, African-Americans. Just as a note on that, Biden won close to 70 percent of African Americans in Alabama. That's, you know, just a huge, huge number, much higher even than South Carolina, where he had

Clyburn support, for instance. In many of the states, Biden won among women, college graduates and voters who attend church at least once a month, David. Yep. So none of that's super surprising. I think we could have guessed all of that. This number won't be surprising, but I think it is a sign of why we're seeing this consolidation in Florida and other places. In North Carolina, which is the only state I have this number for, for voters who wanted a president who would restore politics to a pre-Trump era, Biden won that group. So it's not moderate versus progressive to me, what these numbers are saying.

It's revolution versus, dear God, let's go back to 2008, 2010, whatever. And that's the message. It's an electability message for biden for sure moving forward but it's also a risk you know return to sanity whatever slogan that you want for that and that's working for him um okay but the good news for bernie the latino vote the latino vote has uh is now larger than the african-american vote not i mean tiny tiny bit larger but still in california bernie got uh that was 30 of the vote was latino he got half that group wow biden got yeah i mean he doubled biden's support in the latino vote um in california and colorado bernie won about% of the votes under 30. Not a shock,

but again, those are just such high numbers and so skewed. And then, and here's, you know, where you can really sit around and talk about the future of the Democratic Party past 2020. Bernie won about 40% of Texas and Minnesota voters who said that recent economic gains had bypassed them. So you have Biden making this play in the suburbs, the security moms post 9-11 who used to kind of split between Republicans and Democrats and it sort of moved in the Republican column in the Bush years. And then you have Bernie saying, no, what we need to do is go get these middle-class. They feel like they're slipping voters. Right. And,

and Bernie's doing well with those. And so that's a conversation that the Democrats will have to have. Here's the biggest problem for Bernie, David, his whole argument was that he was going to, you know, have this political revolution, this movement that was going to increase turnout.

It didn't happen. It just like it's not even close. As someone who wrote. As someone who wrote and Vox said, if that's not happening, then how is the Sanders campaign a movement at all? So I'm not going to go through every state. I'll just pick a few. campaign movement at all. So I'm not going to go through every state. I'll just pick a few. But for instance, Virginia, where Biden won big, turnout in 2008 was just under a million. In 2016, it was around 800,000. This time it was closer to 1.3 million. And I think it's hard to argue that those people were just so enthusiastic for Biden. Right. So there's something else going on at the same time. And I'm going to pick your home state. OK.

No, wait, I'm not. I'm not. It's you're not. I'll pick North Carolina. I lied. In North Carolina this time, there was a 2% drop in youth voters. But more importantly, Sanders' margin with those youth voters dropped. So there were fewer youth voters turning out to vote, and Sanders won fewer of them. In 2016, he won 69% of those voters under 30. And this time, he only won 57% of those voters under 30. And don't you only won 57 percent of those voters under 30. And don't get me wrong, those are big, big numbers, but that's a, you know, a double digit drop. Yeah. You know, one of the things that's interesting to me is there's a lot of speculation

after 2018 where the suburbs, many suburbs went so decisively for the Democrats? Was this a move that was this a sign that the suburbs were becoming more Democratic? Was this a sign that the suburbs were just wanting to check Trump and they'd come home in 2020? And one of the interesting things that you just said that I think is a data point that might be ominous for Republicans, that there's an awful lot of time between now and then and everything is so volatile. We could be having a conversation 72 hours from now that's dramatically different. But if you look at this expanded turnout and it's coming from these two sources, the suburbs and a really strong African-American turnout, that is exactly kind of that 2018 coalition persisting for the Democrats in 2020.

And if that is the coalition they have in 2020, then Trump has some real problems. I agree with you. I don't think that this is all, you know, cult of personality for Joe Biden. I don't think that such a thing even exists. But I would say that if this is the coalition of 2018 replicating itself in 2020 and finding a candidate, then that's something that seems to be pretty promising for the Democrats. And look, Virginia, I use Virginia turnout numbers for a reason. Virginia is a state made up of predominantly those two coalitions, high African-American population. And then the D.C. suburbs are like the most overeducated, high median income college, you know, suburbs ever. And it's a big population. Right. Right. Exactly.

And so, you know, it strikes me that, you know, again, the volatility here, we could see a reversal of fortune after the next debate or the next news cycle. the next debate or the next news cycle. I'm still sort of gobsmacked by the speed of the Biden transformation. I mean, he literally... For sure. I mean, he was totally dead in the water 10 days ago, Sarah, like 10 days ago. It's still amazing. 10 days ago, we were just coming out of the Nevada caucuses, which feel like they were in 1836 at this point. But it's a great warning about caucuses. Yes. Caucuses require a high enthusiasm level to want to show up and spend that amount of time. But look, moving forward to the general

election, let's assume it's Biden for a second. Biden has got to fix this problem with those, you know, Texas and Minnesota voters I gave you the numbers for who said the economic gains had bypassed. Right. Sanders is winning the majority of those. That's a big problem. Biden has to get some of those. He really can't let Trump get them. Yeah. Yeah. Yeah. Well, before we move on to the Supreme Court, the people are also demanding the Sarah Isger postmortem on the Elizabeth Warren candidacy. She was a very effective debater on occasion. She eviscerated Bloomberg, although, of course, Chris Christie eviscerated Marco Rubio, didn't help him very much. Why did Elizabeth Warren fail? Well, I actually think it's the most interesting candidacy of the whole large, large field. I think that Bloomberg's will be looked at because it's easier. You know, what happens

when you spend a lot of money and have nothing else going for you? But Elizabeth Warren's candidacy, she had the ability and, you know, I've I've said this before. She had this incredibly popular book, The Two Income Trap. She's all over Oprah. She's the voice of, again, these voters who said the recent economic gains had bypassed them, of corruption, of the systems rigged against you. And it's not the campaign she ran. Right. And she ran in Bernie's shadow, assuming perhaps that people would want a progressive, but not that progressive. Right. It was sort of as if she ran as it's as if she ran as as an improved version of Bernie. It's like Bernie GT or Bernie, Bernie 2.0. But why would I think she

underestimated the sort of movement aspect of Bernie and the authenticity aspect of Bernie? You know, you and I point to Bernie's comments about Castro and then say and look at Florida and wasn't that dumb. But the truth is, Bernie had a real catch 22 there. His authenticity is why he has a movement behind him. He can't flip on some of this stuff. And she could and she could pivot a little more. She was a Republican in the 90s. A lot of those things would have helped her if her message had been different.

You know, and I also think that her evasiveness in the early debates about paying for Medicare for all and middle class tax cuts, I really think that that hurt her because she was always in almost any other context. She was very sharp. She was very decisive. She could be eviscerating. She could be cutting. She had a plan. She had a plan.

She had a plan. And then she's asked this very simple question. And I saw some people on Twitter saying, well, she was subjected to harsher criticism and questioning about her Medicare for all pay for plan paying for Medicare for all than Sanders. But Sanders was pretty frank in saying, even though his numbers don't add up, he's pretty frank in saying, yeah, people's taxes will go up. And it goes right to the authenticity. Exactly. Bernie was like, yep, I'm raising your taxes. And she was pivoting to the general too soon

is sort of the quick version of that. But I do want to make one other note, which is there's a I've seen conversation, particularly among conservatives, that because I liked Amy Klobuchar and hated Elizabeth Warren, it means I'm not, there's no gender reason why I didn't like Elizabeth Warren. I don't necessarily agree with that. I think that there was a big gender gap around Warren. And I do think that she suffered from some of the same Hillary Clinton problem. And I, you know, those things are always hard to put a number on. And I'm not saying, by the way, if you support Joe Biden or Bernie Sanders, you're sexist because you didn't support Elizabeth Warren.

But there's this strain of people who like really hate Elizabeth Warren. Yeah, go ahead. I was going to say, I think it is true that there is a personality type that is far more accepted in men than in women. And so that you can like a woman, liking a woman politician who does not have that personality type. So I think that's what you're getting at. Yeah, that Klobuchar had a more stereotypical femininity about her, and it wasn't challenging. And she wasn't going to win, frankly.

She was never up in the polls. So no concern, no threat from Klobuchar. Whereas with Warren, she bucked a lot of traditional feminine rules. She was incredibly aggressive. She was loud at times. She has a haircut that's different. So, and again, I'm not saying that everyone who didn't support Elizabeth Warren is a sexist, not even close. What I'm saying is I really don't like the argument. I'm not a sexist because I liked Amy Klobuchar just fine. Like, no, I hear you. I hear you.

I yeah, it's it's a very complicated. It's extremely complicated cultural question. And I do think it's simplistic to say that Elizabeth Warren is a victim of sexism. I mean, it wasn't it is it wasn't sexism that made her really unappealing when she was dodging the Medicare for all financing. And and all the things I talked about, about anti-corruption that she should have done, all of those things. That's why we talked about those first. But you look at those numbers in Massachusetts where we have sort of the largest number of her voters, double digit gender gap. Yeah.

Interesting. Interesting. Yeah. Well, let's move on from Super Tuesday because we've got a lot. Let's do it. Yeah. A lot to cover. So yesterday, loyal advisory opinions listeners will remember that we had Liz Merle, the Solicitor General of Louisiana, on our program a week or so ago.

And she talked about preparing for the very oral argument that we're going to talk about now. And this was the Louisiana admitting privileges law was before the Supreme Court. this closely, the Louisiana admitting privileges law says that if you're a doctor performing abortions in an abortion clinic in the state of Louisiana, you have to have admitting privileges at a hospital that is located within 30 miles of the abortion clinic. This is a rule that's roughly equivalent to the rule that applies to ambulatory surgical centers that are not performing abortions, that you have to have admitting privileges at a hospital within 30 miles of the clinic. Now, why was this case in front of the Supreme Court? It was in front of the Supreme Court because the Fifth Circuit Court of

Appeals appeared to perhaps defy the Supreme Court by upholding Louisiana's law. When I say appears to have defied... It was a little, it was a little Ninth Circuit-y, if you will. Yeah, it was, yeah, it was maybe, perhaps a little bit of hashtag resistance in the judiciary, maybe. So in 2016, by a 5-3 decision in Whole Women's Health versus Hellerstedt, the Supreme Court struck down a Texas statute that said that doctors performing abortions in abortion clinics had to have admitting privileges at a hospital within 30 miles. Up comes the Louisiana law. Very, very similar. Fifth Circuit says, nope, this one passes muster because the Supreme Court in Whole Women's Health was not saying that any admitting privileges law with similar language was unconstitutional. And violating Casey is imposing an undue burden on a right to an abortion. What it was really saying was under the specific facts in the state of Texas that it imposed an undue burden. And

under the specific facts in the state of Louisiana, it does not impose an undue burden. And so the Supreme Court took the case, which I think everybody expected them to do with a decision that at least on its face appeared to clash with Hellerstedt or Whole Women's Health. And oral arguments were yesterday. And I kind of laid out options, the three most likely outcomes in our previous podcast, but I'll lay them out again. And then Sarah, I want to hear your thoughts on the oral argument. But here are the three outcomes sort of from most, from the outcomes that would make pro-life voters least happy to most happy. So here's least happy. Least happy, bitterly disappointed would be that the Supreme Court upholds whole women's health and applies it to the Louisiana admitting privileges law and Louisiana loses. That would be least happy. Then there's a very limited ruling that would uphold

whole women's health, but say under the facts in Louisiana, whole women's health does not foreclose the admitting privileges law because the Louisiana law does not impose an undue burden on the right to an abortion, and it is a de minimis influence. And then the third would be that most that would be the outcome, possible outcome that would make pro-life voters the happiest would be that whole women's health is reversed. You've looked at the argument analysis. What, Sarah, is your most likely outcome after reading that argument? Well, and we're going to put an asterisk next to what I'm about to say, because we should talk about what Chuck Schumer did as well. Okay, we will.

After, after. But John Roberts asked the same question to all three advocates. I would like to read it to you. He asked it slightly differently to each one, but I'm going to pick the one that he asked, the Louisiana SG. They all get to the same point. Do you agree that the benefits inquiry under the law is going to be the same in every case,

regardless of which state we're talking about? I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that's going to be the same in each state, isn't it? There is an assumption in the common wisdom that it's one, David, here's the spoiler, it's one. Like Roberts is upholding whole women's health and he's applying it to Louisiana. But what's what should be more concerning is that this almost appears to be a strict scrutiny test where he's saying if the state doesn't have any reasonable reason to put this burden. I'm using the word burden in the non-technical sense here, but to insist on admitting privileges that there's no benefit to women's

health. Therefore, it's gone regardless of the potential impact. It's the worst case scenario for your team. I think it's pretty predictable. And I'm going to go so far as to say a reasonable outcome, because otherwise Hellerstadt would be so cabined to its facts. And wait, David, there was no record in Hellerstadt. Texas didn't ever have a record. Right. So it would be cabined to no facts. Right. Right.

Well, I think you really drilled down to the key. So you had it was interesting. Alito was very aggressive during the oral argument and he was very aggressive, mainly on the issue of standing. And we haven't really dealt with and we can talk about that briefly, but nobody else really talked about standing. But nobody else really talked about standing. No. And I think that the way that the advocate for the abortion doctors answered that was nearly perfect, which is maybe you have a point, but it doesn't apply here. Right. Right. Because the advocate for the plaintiffs was saying, wait a minute, this regulation directly impacts us. was saying, wait a minute, this regulation directly impacts us. And so we have an ability to challenge a regulation that directly impacts us, which is a pretty compelling standing argument under the precedent. And even the third party standing argument is well within the bounds of third party standing argument. Alito maybe tried to make the point, what if there was a world in

which the women's interest in having better health care by having these admitting privileges was at odds with the doctors who didn't want to go through the rigmarole of getting the admitting privileges? And that's where I think the answer of, yep, but here under Hellerstadt, we've already agreed there is no benefits. So it doesn't, that could be a question down the road. It ain't one here. Right. So just sort of walking through the justices, the four more progressive justices were to varying degrees, pretty aggressive in making their perspective known. Alito was pretty aggressive. Gorsuch was completely silent. Alito was pretty aggressive. Gorsuch was completely silent. Thomas was, as is his custom,

completely silent. And so if you're looking at the sort of more conservative or the Republican appointed five, the two that were really key were Roberts and Kavanaugh. And Roberts' questions were exactly as I think you pinpointed the key issue there. And the key issue is he does seem to be saying that we don't even have to get to the undue burden analysis if there's no medical benefit, which would be actually an interesting sort of, and disturbing from my perspective, strengthening of the KC framework, that you're going to have a threshold that you're going to have to pass before you even get to the undue was like, what can we do to limit abortion? And they've come up with this theory of admitting privileges, ambulatory centers. There's a few others.

But it's always been about abortion. It's about limiting abortion, trying to overturn Casey and poking these little holes in the court's doctrine through legislative testing of the waters, basically. Like, what about this? What about this? I'm not touching you. I'm not touching you. removing wisdom teeth or performing a surgical abortion. Here's what applies to all doctors who are performing surgeries with anesthesia, for instance, instead of the law itself being written to only apply to abortion providers. Yeah, that's an interesting point. I think that's going to continue to be a losing strategy for the pro-life movement, legally speaking. Now, as has been pointed out to me, that would not apply to medical or medicinal abortions. Yep. Like, I don't know what to tell you. They're different. Yeah. You know, I think what you have. So if you're you know, I'm an I'm my cards have been on the table for years. I'm a I'm an originalist in my in my constitutional

approach, textualist originalist. And so as an originalist, you look at Roe and you look at Casey and you say. WTF, what are maybe WTH, what the heck? Like these the numbers and emanations, What the heck? Like these the numbers and emanations, David, numbers and emanations like there is not I've never read a credible originalist defense of Roe and Casey. And then I think what ends up happening, that's this this process occurs. One, abortion is the the abortion decisions themselves are illegitimate. The abortion decisions themselves are illegitimate. The abortion decisions themselves are constitutional atrocities. And so therefore, the states that are trying to regulate abortion are kind of liberated in a way from normal efforts, from treating the abortion industry in the way it would treat other industries because it's a constitutional

atrocity to begin with. And so therefore, targeting it with specific kinds of regulations that they would not target other businesses with and other industries with is going to be fine. And that's been sort of the philosophy of the legal attack on abortion from day one. And it has problems. You know what's happening? That exact same thing is happening on a different issue. Do you want to guess which one? Please tell me. The Second Amendment. Ah, yes. From the other side. Yes. It's exact same argument. This is different. Heller's a constitutional atrocity. So we're going to pass these little laws to try to poke holes in Heller to see how far we can get to before we get judicially smacked down. And it amazes me that neither side, the pro-life side and the anti-gun side, haven't seen in each other the mirror image. side haven't seen in each other the mirror image. Well, you know, and this is a lot of people got upset at me several months ago or gosh, almost a year ago when a bunch of these pro-life states in the South, unfortunately not Tennessee, but Georgia, Mississippi, Alabama, Kentucky,

but Georgia, Mississippi, Alabama, Kentucky, moving it in the Midwest, Ohio, passed heartbeat bills. And I was like, good, because at least you're just being flat out. This is what we want. We want to confront Roe and Casey and we want to get rid of Roe and Casey and everything else nibbles around the edges. And look, I get it. I understand the reasoning for it. I understand the justification for it. But at some level, you just got to go to the Supreme Court or attempt to go to the Supreme Court and say, here's your chance for a do-over. And if you're not willing to do the do-over, if you're not willing to do it, then the pro-life movement really has to kind of take stock, I think, and really think hard about what do you do if you're not getting the do-over. Because it just reminded me, reading this

oral argument, how small ball it all was. I mean, think about this. A victory for the pro-life movement, which they will celebrate, is if, and this is, I think, the only realistic, reasonable possibility of victory after reading the oral argument. It's sort of the Justice Kavanaugh path that's basically saying, hey, look, whole women's health is still good law, but it's a fact-specific inquiry in each state, and Louisiana can only pass muster if it shows that there's no real effect on access to abortion. Yay? I mean, is that a win? I mean, from the standpoint of a litigant, from Liz's standpoint, her law wins. So she could say that's a win. But from the standpoint of if you're trying to limit the right to an abortion, that's not a win. That's not a win.

Well, and and if I'm right and Roberts is the fifth vote to hold up Hellerstadt, be careful what you wish for, because you might have just gotten a strict scrutiny slash disparate impact effects test um or a purpose test um on your abortion cases which would as you said be worse for the pro-life movement i okay let's get to what schumer said outside okay okay so while this argument is going on chuck schumer is speaking at a rally on the steps outside the court. And in his comments, he says, by the way, it's worth just noting again, Justice Gorsuch did not speak during this argument. He got a little spicy during the CFPB argument earlier in the week where he chided former Solicitor General Paul Clement for being disparaging to the current Solicitor General. I'm really looking forward to the audio coming out tomorrow to be able to actually hear some tone and snark on that. But anyway, so Gorsuch did not ask anything, say anything during

June, this Louisiana abortion case. Here's what Chuck Schumer is saying outside in the meantime while it's going on. I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions. Fast forward a couple hours and the Chief Justice puts out a statement. This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two members of the court by name and said he wanted to tell them that, quote, you have released the whirlwind and you will pay the price. You will not know what hit you if you go forward with these awful decisions.

Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. Okay. Then Chuck Schumer's spokesperson put out a statement that said, White Wing's deliberate misinterpretation of what Senator Schumer said while remaining silent when President Trump attacks Justices Sotomayor and Ginsburg last week shows Justice Roberts does not just call balls and strikes. And then today, Schumer basically said, I shouldn't have said that. Not a full, like, let's put it this way. It wasn't the kind of apology that in an ideal world you'd want to see, but make no mistake, it was a backtrack. Yeah. He said, I shouldn't have used those words. Yeah. Yeah. That's pretty close. Yeah. So the question is like, did, I don't think this would be the case, but Schumer is saying this. I think Roberts is the fifth vote to strike down the Louisiana abortion law, unless you sit there and piss him off.

Which is, I mean, Schumer would have been so much better off staying at home than what he potentially opened up. Yeah. I mean, you know, the first rule, back when I was litigating, one of the first things I told clients is, Back when I was litigating, one of the first things I told clients is do not ever, ever give the judge or the jury a reason outside of the facts and the law to rule against you. Now, you want to trust a judge and a jury that all they're doing is looking at the law and the facts, that that's all they do. But they're human. But they're human beings.

They're human freaking beings. If you if you're representing an employee in an employment discrimination lawsuit where you're alleging that that person was fired for unlawful reasons, one of the first things you want your employee, your former employee to be is to come across as a model citizen that you could never imagine anyone firing them except for a discriminatory purpose. If you're representing the employer in that case, the first thing you want to do is show that they're so tolerant and forgiving of even, you know, marginal employees. And this employee was just so bad they had to go. I mean, this is like it really is astonishing to me. Astonishing to me.

is astonishing to me. Astonishing to me. That being said, I think there is, I think there's a way to read Justice Roberts's statement as basically confirming that he is going to be the fifth vote to overturn the Louisiana abortion law. Yeah, that is, that is true. That is true. He's chiding Schumer so that it's very clear that he doesn't approve of that, that had no influence on what he's about to do. But also I'm I'm striking down Louisiana's abortion law. So I am. So and of course, we need to wait. The opinion will probably come out in June in this case. So we need to we need to wait and read it very carefully. very carefully. But one of the reasons why I said from the beginning that this case is one is, I think, more important in some ways than whole women's health from evaluating what the pro-life movement needs to do from here is that this is the new court. This is the court that does not

have Kennedy. This is the court with two nominees from Trump's list. And if I had to guess, if I had to guess, not only do I think there's a 5-4 for upholding whole women's health, I think there might be a 6-3 and maybe a 7-2 for Casey. a 7-2 for Casey. That I'm not, I don't know that there's a 5-4 here. I mean, I I feel like we're going to emerge from June after June. And I could be wrong, but I feel like we're going to emerge after June with a realization and an understanding that there is no imminent threat to Casey in the Supreme Court of the United States. And if there is no imminent threat to Casey in the Supreme Court of the United States, what does the legal side of the pro-life movement do? What is the what is the tactical and strategic response to that? And we should bookmark that in particular.

So in June, we're going to obviously talk about this opinion. If you're right, we also need to talk about the political implications for the we've been calling them but Gorsuch voters. What happens when the the analysis over appointing judges shifts? the analysis over appointing judges shifts. Right. Right. You know, what if what if the judicial revolution actually turns out to be something more along the lines of what I think Roberts wants it to be, which is the Supreme Court is just less important. That that that we just don't want you to think about us as much. We just don't want you to think about us as much. Yeah, and he's I actually credit him.

He is an institutionalist and he has been very good at protecting and building the institution of the Supreme Court against a lot of waves and rocks and whatever metaphor you want to say of trying to drag the Supreme Court into these political fights and drag its credibility down. And Roberts has been there standing a thwart yelling, stop, if you will. I mean, Sarah, there is a non-zero chance, a non-zero chance. I'm not going to say it's probable, but it's certainly out. It's certainly not something that you would say is wildly implausible that at the end of this term you could have cases that a reaffirm and potentially strengthen casey b apply title 7 to sexual orientation and gender identity and also c strengthen religious liberty protections for religious institutions. All at the same time. By the way, this is where originalists and textualists, I think, have been disingenuous.

They did care about outcome. And so if they complain about these cases, they put their judges in. These are the people that they were cheering because these people would apply the text and the original meaning of the law to the facts. And then these same judges are saying, and here's our decision. And they're like, but I don't like that outcome. Right. So I think it really undermines the movement if there's a lot of complaining about it, frankly.

Yeah, it's going to be very interesting. I just am feeling like there's going to be some unpredictable outcomes in June that are going to cause people who are really honest about where they stand on, you know, as you said, this sort of the But Gorsuch analysis, who are really honest about sort of the judges are the reason why I'm willing to swallow almost anything and everything. It's going to it may well present some interesting challenges. Again, I'm not predicting that for certain, but I'm saying there are lots of signs that say that what I'm just saying is not implausible. As you say, you can't always predict the outcomes of cases from oral arguments. You just usually can. Not always, but usually. And again, I will be waving the banner that conservatives have been lying if now they complain about simply the outcome of cases. Yeah. Well, we're going to have so much to talk about. We might have to do like once the June, once these opinions start coming down, we just

might have to have like a podcast per opinion. There's going to be, by the way, this confusion because the case is called June and the opinion will likely come out in June. So June, June, should we call it our June, June coming? You know, we may have to have like back one of my favorite websites, The Ringer, and favorite podcast networks is The Ringer Podcast Network. And on big days like the trade deadline, they will often have live emergency podcasts for hours. So on the last couple of days when decisions are announced, you and I might just have to have like a four hour emergency podcast. I think. Caleb, our producer is making like, oh, God.

I think that's what the people are going to want. But we'll see. No decisions. OK, so we don't I don't know that we have enough time to dive into everything. But let's before we deal with qualified immunity and six year olds in handcuffs, let's look at FISA reform. We can make this really quick. I just think that this is what's going on this week. March 15th, FISA expires so they can do a clean reauthorization bill. There was some talk of attaching it to the coronavirus funding. They decided not to, so as not to delay coronavirus funding. And then, you know, there's the IG report, which found 17 errors in the Russia investigation's FISA process. The FISA court weighed in and was

pretty cranky about the whole thing. Understandably, they were lied to several times, it appears, according to the IG. Misled, I think is the term. But what's interesting about this is the bedfellows that have emerged and the different beds that they're lying in. So Bill Barr has split with Trump. Nunes is somewhere in the middle. We're not sure. Rand Paul, of course, is against a clean FISA bill. And so where this will all end up, we can save it for another podcast. But watch it because March 15th is quickly approaching and the Department of Justice is going to be very, very clear that they need something reauthorized before March 15th. Can I give you my brief TED talk on this? I'm concerned. It's brief. It's briefer than my TED Talk at the end of our flagship Dispatch podcast where, listeners, you should know I was ranting about the Taliban deal,

the administration's Taliban deal. And I do mean ranting. And I sometimes when I'm on a full on rant, I'm not even looking at the screen where I can see Sarah, like just gesturing wildly, looking to the heavens. And I glance down in the middle of it and I see Sarah with this look on her face like, will you stop? Followed by this hand signal of rap. Rap. Please rap. And I did. I followed my host's instructions. But this will be a short rant. And it's very simple. When it comes to national security, you cannot have it all.

OK, you cannot have protection from international terrorism and maximum civil liberties at home and minimal military intervention abroad. You cannot have all of that. And when I hear people say we can be safe without military intervention abroad and without surveillance at home, I think, and do you also want a unicorn with that? Or do you want a pot of gold at the end of the rainbow with that? So my general philosophy is I would rather see our protection, our aggression abroad at terrorist safe havens and at terrorists where they live and work and operate, then I would like to see the erosion of civil liberties at home. So in that bargain, I choose civil liberties, but I recognize I can't have both. So in my view, we should stay in Afghanistan and have FISA reform. That's how I deal with that conundrum. But what I do not believe,

and I do not think Americans should believe, is that we should believe that we can be safe leaving Afghanistan and rolling back surveillance authority. That is, I think, a fault. I think that is not a real world option. So my view is FISA reform. Yes. Stay in Afghanistan. Yes. And I don't think you can divorce those two things from each other in the grand strategy. So that's my TED talk. I like the TED talk. OK, qualified immunity. Now we get to the real Ted Talk. Oh, man.

Sarah. Sarah. Take it away, David. I'm going to, well, I'm going to be the one poking holes in your little qualified immunity rant. So go for it. And then I'm going to do stabby stabs. Poke holes ye shall not. Okay.

Let me, a lot of listeners, because we do have a heavy law student, lawyer audience. So a lot of you guys know what qualified immunity is, but I'm not going to assume that everyone does. And let's start with the relevant statute. There is a statute, 42 SC section 1983, that has existed since, well, basically since 1871, federal laws permitted Americans to file lawsuits against public officials who violate their constitutional rights. So if you're a state government, if you're a representative of a state government, you're a cop, you violate my rights, I have the right to sue you. And here's the language. Every person who under color of any statute, ordinance, regulation, custom, or usage of any state or territory where the District of Columbia subjects or causes to be subjective, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit inequity, or other proper proceeding for redress. That's the language. So Sarah, you and I as good textualists just saw the words shall be liable. So the Supreme Court a few years ago in 1982.

But wait, wait, I don't want you to skip over the Warren Court because I think this is very relevant to the history. What happens in between 1871 and the 1980s is a massive expansion of the Fourth and Fifth Amendments. Massive. True. Just huge. True. They just, they gobble up everything around them. They grow to fat, fat amendments. Well, between 1871 and 1982, you had incorporation of the Bill of Rights to the state. So it's an expansion of the First Amendment, its Second Amendment, Fourth, Fifth, Sixth, Eighth, all of them.

But Fourth is going to become very relevant to what's about to happen to qualified immunity. Please continue. OK, so in 1982, in a case called Harlow Fitzgerald, the Supreme Court read shall be liable to mean usually shall not be liable. By believing that I'm not agreeing with this, I'm just chuckling. No, I take your chuckle as agreement that to protect the, quote, vigorous exercise of official authority, which is exactly the thing I'm most suspicious of, by the way, vigorous exercise of official authority. To encourage the vigorous exercise of official authority, the Supreme Court said that you're going to enjoy qualified immunity. It's not absolute. In other words, if you're a cop and you beat somebody, if you're a university administrator and you impose a speech code,

you're not absolutely immune. There's a circumstance where you're likely immune so long as your conduct does not violate clearly established statutory or constitutional rights, which a reasonable person should have known. No problem, right, Sarah? Because you know what's clearly established? The first freaking amendment of the United States Constitution or the fourth or the fifth. But no, but no, what they really mean, and I'm about to end my rant, is if I sue somebody for, if I sue a cop or a university administrator for violating my rights, that I have to find in my jurisdiction controlling authority that says that cops in previous cases have done the

same thing to somebody else. It has been held unlawful. And so therefore that they have to know or should know that what they're doing to me or what they did to me is also unlawful. So this gets absurd sometimes. It just gets absurd where you go hunting for previous cases, where you go hunting for previous cases that are exactly like your case, because if you can't find one exactly like your case, you're out of luck and you're not going to get any financial compensation, sometimes for horrific events. And I'm going to finish with this quote from Judge Don Willett. Shout out to Judge Willett. I'm sure you're listening to this pod. And he said, oh, I was emailing with him yesterday and he's just living his best life down in Austin. I have to tell you.

Oh, Judge Willett is a prince among men. I love Judge Willett. I have to tell you. Oh, Judge Willett is a prince among men. I love Judge Willett. And for many reasons, not least this, Sarah, which you must bow to his wisdom. To some observers, qualified immunity smacks of unqualified impunity, letting public officials deduct consequences for bad behavior no matter how palpably unreasonable, as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn't cut it. Plaintiffs must cite functionally identical precedent that places the legal question beyond debate to every reasonable officer. Put differently, it's immaterial that someone acts unconstitutionally

if no prior case held such misconduct unlawful. Now defend yourself. First of all, the Fifth Circuit, if you are interested in qualified immunity, just tune in to the judicial rap battles going on in the Fifth Circuit right now. Oh, yeah. Justice Willett is this incredible writer. I think that paragraph that you just read tune in to the judicial rap battles going on in the fifth circuit right now yeah justice willett is this incredible writer i think that paragraph that you just read is so great uh just a summary of your side of the argument actually like there's a reason you quoted that on the flip side go check

out uh jim ho's opinion andy oldham's opinion like there's a full on. I mean, I clerked for Edith Jones, who she pro qualified. Yes. Yes, she is. So anyway, the Fifth Circuit is like this little laboratory going on on qualified immunity. I think it is worth noting this is timely because the Supreme Court has been pushing conference to conference to conference this year. Baxter versus Bracey. And forgive me if I'm pronouncing Bracey's name wrong. But this is a case about officers. I think it goes to your point.

I actually do think it helps you a little, David. Two officers deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up the prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his side and the question is whether it is clearly established enough basically whether there is a difference between if it's not OK when you're laying on the ground with your arms at your side. Maybe it wasn't clearly established that it's not OK if you're sitting on the ground with your hands in the air. And the Supreme Court has been punting that and punting that to decide whether to take this cert petition yet to be seen.

So this is very much a hot topic. I agree with you. Here's my question to you, though. Given that the Fourth Amendment seems to keep expanding, a la the universe is expanding, what is your limiting factor? What is your new qualified immunity? What is your limiting factor? What is your new qualified immunity?

Or if there is no nothing and you just want to hold all of these police officers liable, why in the world would anyone go become a police officer if every time they have to choose between their own protection or paying out their 401k? Well, see, so for example, let's contrast a police officer with a security guard at a mall, okay, or a private security. So if private security, if I'm, you know, if I'm looking in Foot Locker and I see the shoes that Ja Morant wore when he beat the Grizzlies 39-point win over the Nets. And I just... This is getting real specific.

Yes, because they're cool shoes and I like Ja Morant. I'm sure they are. And I decided to just take off with him. And a mall security guard grabs me, tackles me, and beats me. If I sue, is the mall security guard going to pay out that judgment or is the mall going to pay out that judgment the mall is going to pay out that judgment if I so what I don't understand is why if I sue a cop if he does the exact same thing why the city isn't paying out that judgment, and then deciding what to do with the cop as a matter of personnel policy. And because, let's just be clear, when it's qualified immunity,

everyone says, but you don't want to bankrupt these cops. Well, is it going to be bankrupting the cop or is it going to be pulling the money from the public fisc? In practicality, it would be pulling the money from the public fisc and then the police department would decide what to do with the cop. So what happens now is if I sue, let's say, you know, I'm in the Baxter v. Basie case, which I believe happened in Nashville. If I sue, not only that, what happens to the cop or doesn't happen to the cop is going to be a matter of personnel for the for the police department. And often the cops are punished for this. But I get nothing. Regardless of qualified immunity, often these cops are. Yeah. Yeah. Fired, put on leave. There's administrative penalties.

Yes, exactly. But I get nothing, not from the cop, not from the city, from nobody. And I'll give you a story where this kind of starts to reach absurd results. This is a case I talk about a lot. And this is July 15, 2012. A guy named Andrew Scott was up late. He was home with his girlfriend. He was playing video games. He hears a really loud pounding at the door. I mean, just the door. They're just pounding the heck out of his door. There's no police lights. No one calls out and says they're a cop.

In fact, the cops who had been chasing somebody who they thought could be dangerous were at the wrong house. They had not turned on their blue lights. They did not identify themselves as police officers. And so Andrew Scott does what a lot of people would do, which is he grabs a pistol. He has it pointing at the ground, according to the account of his girlfriend in the lawsuit that resulted, that had to be taken as true for purposes of motion practice. He opens the door to look outside with his pistol pointing at the ground. There's the cops right out there. They shoot him dead instantly, instantly dead. He had done nothing wrong. The cops had done everything wrong. So not only were the cops not

prosecuted, that when Andrew Scott's estate sued for compensation, these police were held to be qualified to be protected by qualified immunity. Stunning, stunning. And I, you know, it's like. And there's you know what? I will grant you there's a lot of cases like that and they're awful and they make the argument for qualified immunity very difficult. Yes. And I will grant you all. And I'm all out of can evens with that case. And look, you know, and again, I keep going back to the statute itself.

I do think that an intelligent legislature who's trying to do two things at once, which is compensate victims of civil rights violations, which is compensate victims of civil rights violations, which I believe victims of civil rights violations should be compensated. At the same time, not wanting to inhibit cops from doing their, provide excessive deterrence from cops from doing their job, should fashion a legislative solution here. But what the judges have done is they've fashioned their own solution that contradicts this text of the statute and then has then been construed in such a way that I think is beyond even the Harlow v. Fitzgerald framework. So we don't need to spend too much time on this. Yeah, and I guess my, and we should wrap, but my pushback is, you know, maybe we're talking a little past each other.

My pushback is the reason that qualified immunity has taken on this beastly life of its own is because of the massive expansions during the Warren court. So that it was not reasonable for a police officer to know what the next thing that's protected by the Fourth Amendment was. Therefore, they had to come up with some way to do this. And that if basically you're mad at qualified immunity and you should be mad at the Warren Court. No, I think that that's I think your discussion, the Warren Court is fair in the sense there was a period of time in which there was, you know, for example, Miranda warnings, which are we take for granted now as being an absolute necessity. That was a that comes from a case, a court case. It's not in the text of, you know, the Fifth Amendment.

It comes from a court or Sixth Amendment. It comes from a court case. And so there was a period of time in which court cases were expanding police officer obligations at a really pretty tremendous pace. But that time has passed and it's passed for decades. So anyway, look, here's the good news, David. Here's the good news. You and I. yesterday on wednesday florida passed a bill called the kaya roley act to require law enforcement to put in place procedures for arresting children under 10 oh my gosh yeah you want to talk about legislative solutions to actual problems that we're having i think this is a great bipartisan good thing that we can all agree on so this stems from a case actually last september

but it it burst into the news more recently when the body cam footage was released six-year-old kaya was having a lot of trouble at school one morning. She kicked and punched a staff member. She's six, let me remind you. And there was a resource officer on campus that's required at all Florida public schools. And, you know, so she gets sent to the principal's office, etc. And the resource officer says that he's having trouble calming her down. He's telling her to sit.

She won't sit. He's telling her to sit. She won't sit. He's telling her to, you know, calm down. She won't calm down. And the police get called on a six-year-old who's having, you know, I think it's generous to call it a temper tantrum. I think that's clearly a term that we use for children. They want to use the term assault. I'm going to not use either term.

I'm just going to describe what she did, and we can go from there. The body cam footage starts rolling as they take out. So she's sitting quietly in the principal's office, by the way, when the body cam footage starts rolling. She's sitting. There's no crying. There's no screaming. Just sitting. The police officer takes out zip ties because, spoiler alert,

handcuffs are not going to fit on a six-year-old. Oh, my. And, yeah, I mean, it does get pretty heartbreaking here. So he takes the twisty ties or the zip ties, and she says, what are those for? Very calmly. And he's like, they're for you, sweetheart. Like, they're talking to her like she's a six-year-old.

She has no understanding of what's going on. The is like go with them sweetheart your grandmother will come get you soon it it's it's a little weird so the temper tantrum is not actually unfolding at the moment no no it's not no they're arresting her for assault this this is what the assault that occurred earlier that morning. This is when you sort of say, does anyone have any common sense? You know? Right. She's crying.

She's saying, please help me. Then she gets led out to the police car. She says, I don't want to go in the police car. No, please, please. And then at one point, in maybe the most heartbreaking part of the video, she says, can't I just have a second chance? Oh. I mean... I mean, you have a daughter. Yeah, I have two daughters. Like, yeah. So look, you spend time in schools and temper tantrums, even violent outbursts by young children are not unheard of. Like they happen.

are not unheard of. Like, they happen. I'm not going to say which one of my three kids, so the guilty shall remain nameless. But there was a moment early elementary school when one of my kids really kind of lost it at school. And it was dealt with by the principal coming to the classroom and literally hugging, hugging, tightly hugging my kid until that kid, one of three, unknown which one, calmed down and then contacted us and said this was unacceptable behavior. And we appreciated the notification. We appreciated the way it was handled and we dealt with it. And, you know, I get it. Do you know it's a big difference between, actually, I guess I can't say this in your family, but there is a big difference between your family and Kaya's family. kaya's black yeah yeah well not difference with all all three of my kids yeah i know i i know you have a beautiful african-american daughter your youngest um so maybe we're gonna out her as the not guilty party here but

um but you're not black right and um and And there's just no question in my mind that race plays a role here of how we treat a black six-year-old throwing a temper tantrum and call that assault. And color me not surprised at all that your children throwing a temper tantrum from this, you know,

wonderful upper class, you know, white family is, you know, needs a help. Well, and also this occurred in a private school. No school resource officer. In fact, I was on the school board when in the aftermath of some of these school shootings from a few years ago, the county very generously, and I appreciate the county doing this, offered to provide a school resource officer to our campus at no cost to us. And so we had a serious discussion about do you bring in a school resource officer? And one of the things that sort of tipped the balance to know was that we did not want criminal law ultimately enforcing school policy. Because a police, you know, it's the old saying, when you have a hammer, everything's a nail. When you have a cop,

everything's about the law. Now, some cops have a real light touch and they have this real ability to persuade and they have a lot of moral authority. They're not always wielding, you know, criminal legal authority. So I'm not going to paint with too broad a brush. I've known cops who can, who have made a difference in schools and neighborhoods without handcuffs, right? That happens. But when the handcuffs are hanging there or the handcuffs are on the belt, the handcuffs are on the belt. And, you know, there are there's been a lot of talk. You know, there's been a lot of popularity for putting more police in schools. There's a double edged sword there, y'all. And what ends up happening is you end up criminalizing a lot of activity that was, and I grew up in public schools K through 12,

and there was no school resource officer to be found except one point in time when we had a really, really, really bad incident my senior year. But as a general rule, cops were not around, and all of the disciplinary problems were matters of school discipline, not criminal justice. And I think that's your general preference. Well, there's a problem here, too. We're not letting schools, police obviously is the wrong word here, but we're not letting teachers and schools discipline children as much as we used to. They're afraid to discipline children. And then you see you end up with this. Yeah, this, well, I'm not going to touch this because I don't want to get sued. So I'm just going to call the police.

I'm glad that Florida passed this law. I think we might want to raise the age from 10 to 12, but fine. You know, Kaya, from what we're told by her grandmother now, could not go back to school with, you know, uniformed officers there. She would start crying and think that they were there to arrest her they've raised enough money for her to go to a private school now that does not have a resource officer because as i said florida public schools require that so you know it's a tragic story this will affect kaya's life um for a long time thank goodness the prosecutors dropped the charges. I mean,

again, this was made into a big deal, but I assure you there's other six, seven, eight-year-olds who end up with records. Yeah. Yeah. Right. Juvenile records that are hopefully expunged. So, They're hopefully expunged. But so, question. So you're a tiny bit younger than me. I'm assuming you went to elementary and middle school in the post-paddling era. Yes. Okay, so I was definitely in the paddling era. I was definitely in the paddling era.

I was also, though, an argumentative, snarky child. I was not a particularly physical child. Gotcha. Well, I grew up in the era when paddling was the go-to recourse for snark and for violence. was the go-to recourse for snark and for violence. In fact, my last paddling I received in my school career, I was eighth grade. So yeah, eighth grade. So what is that? Like 14 years old, 13. And too old to be paddled. And I was paddled for, get this Sarah, chewing gum in class. Paddled for, get this, Sarah, chewing gum in class. Yes. Chewing gum in class.

And my parents were all for it. I came home angry at the injustice of the assistant football coach who was built like a concrete block paddling me. And my parents were like, what did you do to deserve it? And I said, all I did was chew gum. And they said, was there a rule against chewing gum? And I said, yes. And they said, well, good. I'm glad you got paddled. How very Singaporean. On the flip side, I had detention most days in junior high because there was a rule that you had to wear a belt every day. Ah. And I thought that was a stupid rule because my parents weren't falling down. So I just refused to wear a belt to prove some point to someone like to say that I did not learn how to pick battles until my mid to late 30s, which is my current age, is an understatement.

I've been getting detention for things that don't matter my whole life. I understand. I understand. For many, well, maybe even till to this day, when asked the question, should I pick this battle? The answer tends often to be, too often to be, yes. Always. And that's why we're lawyers. Exactly. All right, David, there's one coronavirus case in Tennessee. I'm hoping it's not you. It is not me, but it is in Williamson County, Tennessee. And I'm recording this podcast from, drumroll please, Williamson County, Tennessee. You better stay in that closet where you're currently recording.

By closet, you mean custom-built podcast studio. Right where I see hangers. All part of the sound dampening effect, Sarah. Have a great week, David. I'll see you Monday. See you Monday. And thank you, listeners, for tuning in. And please, again, subscribe on Apple Podcasts and rate us.

This has been Advisory Opinions with David French and Sarah Isker.