Advisory Opinions - Supreme Court Hears Migrant Protection Protocols Case

Episode Date: May 3, 2022

David and Sarah talk about the Supreme Court as they discuss the fate of Trump's Migrant Protection Protocols, talk about yet another win for the First Amendment, and revisit Coach Kennedy's prayers. Then they move on to analyze one of the wildest and strangest qualified immunity cases yet and the prospects of Florida's social media censorship bill. Sarah ends with a potpourri of topics, including tales from the White House Correspondents Association dinner.   Show Notes: -Shurtleff v. Boston -Biden v. Texas -David in The Atlantic: “Let Coach Kennedy Pray” -Supreme Court bingo -SCOTUSblog: “In sequel to McGirt, justices will again review scope of state prosecutorial power in Indian country” -Washington Post: “The suspect told police ‘give me a lawyer dog.’ The court says he wasn’t asking for a lawyer.” -Eleventh Circuit oral arguments recordings Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And we've got lots to talk about today. And it's going to barely include the First Amendment case that just came out of the Supreme Court not 30 minutes ago. We're recording this on Monday morning, and the Supreme Court just decided Harold Shurtleff versus City of Boston. And you may have remembered listeners us talking about this before. This is the case involving whether or not it was viewpoint discrimination, unconstitutional viewpoint discrimination to not fly a Christian flag

outside of Boston City Hall. So that case just came out. We're going to talk about it a little bit. We're going to table most of the discussion for Thursday. So we'll dip our toe in that water. We're going to talk more extensively about the Remain in Mexico oral argument, the Migrant Protection Protocol oral argument from several days ago. Sarah wants to revisit the Coach Kennedy case. She says she has a hypo for me, and I'm intrigued. Then we have some craziness out of the circuits. Well, not craziness, interesting stuff out of the circuits. And then Sarah is going to bring a on-the-ground report from the White House Correspondents Association dinner, better known as Nerd Prom. I think that's enough, don't you, Sarah? It's a lot.

It's a ton. It's a ton. All right, let's just start briefly with the Boston case. Now, in this case, as you might remember, the facts here are pretty simple. I'll just kind of read a bit from the syllabus of the case. And it begins, just outside the entrance to Boston City Hall on City Hall Plaza stand three flagpoles. Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second. Boston usually flies the city's own flag from the third pole, but Boston has for years allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city's flag. Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 ceremonies.

Most of the flags were other countries, but some were associated with groups or causes such as the Pride flag, a banner honoring emergency medical service workers, and others. Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community. As part of that ceremony, he wished to raise what he described as the Christian flag. Boston says no, saying it might violate the establishment clause. Shurtleff sues, and here we are, Sarah. Shirtless sues. And here we are, Sarah. And what's funny about this, I'm reading the syllabus of the case. And for those who don't know, the syllabus is a summary of a Supreme Court ruling that begins every case. It's not the opinion of the court.

Nor is it written by the justices. Nor is it written by the justices. And that's important because if you have never read a Supreme Court opinion before, let me provide you a piece of advice. Skip the syllabus. Never read the syllabus if you are wanting to dive in for the first time. I don't even read the syllabus and not because it's not written by the justices or because it's like too summary. It's the opposite. They're incredibly dense and difficult to follow as opposed to the opinions, which are much, much easier to digest. So just always skip the summary. Syllabus. I feel like that's a subtle rebuke at the fact that I just began this podcast by reading the syllabus out loud.

That was a mistake. My deepest apologies. Yeah, be ashamed. I know I should be, but it was a nice little factual summary. To make a long story short, it's funny, I was reading the syllabus, which was denser than even the normal syllabus and more convoluted than even the normal syllabus. And I had this single thought in my mind, which was, I wonder if this is describing a Breyer opinion. And sure enough, it was. It was. But really pretty simple holding. Basically said that the flag, these ceremonial flag raisings were not government speech. This was the speech of the individual groups and citizens who were conducting the flag raisings. So since it was not government speech, this was discrimination

on the basis of viewpoint and therefore unconstitutional. And the city of Boston's establishment clause argument doesn't save it because it was discriminating. It's a pretty pure discrimination on the basis of religious viewpoints. So any immediate reactions to it? And like I said, we're going to table the longer discussion because this is just fresh, piping hot off the presses, and we need to dive in for more comprehensive discussion. But do you have a blink reaction, Sarah? Yeah, there's a few things worth noting here. One, the city had a hard time for a couple of reasons. If you remember back to the oral argument, you mentioned one of them, David,

which is they weren't just raising other countries' flags. Weirdly, they had almost exclusively raised other countries' flags, Ukrainian Pride Day, Russian Pride Day. But then they had veered off and done a few groups. Well, once you did that, you couldn't say it was limited to countries. So they really lost, I think, everything with those. I think it was like two flags. I think they've only raised two non-country flags, something very small, but it doesn't matter. If you did one, then you have

to do other things other than country flags. Two, the question of whether it was government speech, right? Like were government officials always there when they raised the flag? And I thought the advocate, it's not their fault, right? But like there was no good answer to no was the answer. right? But like there was no good answer to no was the answer. So Boston just didn't have the facts to win this case. Next bucket was establishment clause, right? This is actually the same problem as the Coach Kennedy case in the sense that a government institution says, oh, we can't do this because it would violate the establishment clause. We can't let Coach Kennedy pray. We can't raise a Christian flag because establishment clause. When in fact, the government entity doesn't want to. And I think this is what came

out a lot in the Coach Kennedy argument, which was their establishment clause jurisprudence is giving, has gotten so large and maybe got oversized compared to the free exercise side of the First Amendment, that it's given a lot of government entities this like, but establishment clause argument to do a lot of things. And that's why I think you're seeing so many cases that come up. And even though it doesn't turn on the establishment clause and oral argument, it is always worth noting that that's how the case got here in the first place. Because government entities just say they think establishment clause are the magic word test to get them out of doing the thing they don't want to do because it's religious. Last thing, and we'll get into this more on Thursday, but it's a unanimous opinion. However, it's 3-3-3 as well. So you have Alito writing, concurring only in the judgment with Thomas and Gorsuch, separating themselves from the reasoning of the opinion.

So Breyer, of course, does a very Breyer-y opinion about history and balancing. And the three non-institutionalists are like, that's not a test. That's not even guidance. This turns on government speech. So that's what I think we should dive into a little bit more on Thursday. Well, and there's a couple of other things. One, I want to go ahead and apologize to Justice Breyer for my assessments based on reading the syllabus. And when you actually read the opinion, his opinion's quite straightforward and actually pretty short. Yes. The syllabus was sort of betraying this idea that what was about to await the reader was this extremely sort of lengthy, wordy, convoluted kind of balancing test. And the reality was pretty darn straightforward

piece of legal writing. So my apologies to Justice Breyer. How dare you, sir? Yes. My apologies, Justice Breyer, for presuming something about your prose that was not correct. The other thing was that is funny as he begins his opinion, which when he's talking about the facts, with a few shots or at least noting that the Boston City Hall is one ugly building.

Have you checked page 18? It has the picture. It has the picture. So if you've ever been to Boston and seen City Hall, then you already know pretty much what the Houston federal courthouse looks like and vice versa. the Houston federal courthouse looks like and vice versa. So for those who've been to any of those two cities and the real bummer about Boston city hall, unlike Houston, I will add is that, and the picture shows this so perfectly. And I don't know if they picked this one on purpose, but right off the side of Boston city hall, this horrible, horrible brutalist building is Faneuil hall, historical, colonial architecture filled with so

much bright history. And then this, I mean, it's literally, it's brutalist architecture and boy, is it brutal. It is awful. And you're so right. The picture of having Faneuil Hall over there in the corner, that's just lovely. And then this- Page 18, folks. Go check it out. It's really worth a look. Yep. On the brutalist scale, this is like an 11. It really is. Because they also, at least the Houston federal courthouse, is just one box of cement with a bunch of windows. The rumor was that it was made to withstand nuclear fallout one mile away. So if you drop the nuke on the building, it's not going to make it,

but if you drop it a mile away, you're safe, which would explain why the windows are like one foot squares and it's a box. But this, this building looks like it was trying to be artistic. Lego buildings are prettier and it looks a little like there's a page that does the ugliest federal buildings are prettier. And it looks a little like there's a page that does the ugliest federal buildings in DC.

I think this rivals Department of Energy for sure. Oh my gosh. It's in a class by itself. But anyway, more coming on this case on Thursday. Sarah, do you want to guide us through the migrant protection protocols? Yeah. So as we discussed last week was the last week of oral argument for this term.

Bang, boom. So we talked about the Coach Kennedy case. That's not a terribly intimidating sounding explosion. I've got to say. Maybe I've been making explosions for a two-year-old who knows um so there was coach kennedy and then the other two cases that i think have gotten the most attention are biden versus texas this is about the return to mexico policy mpp um and and the McGirt revisited. So we'll start with MPP. The oral argument was, speaking of brutalist,

it was really tough on both sides. Yeah. In the end, I think most people think that Texas had the harder uphill climb. But I will say, David, it was sort of interesting. The chief works pretty hard to make sure that everyone gets equal time, even with this new format. Before it was like 30 minutes and there was just a timer with little lights that flash on your thing and maybe you'd get an extra 30 seconds to wrap up your point, but that's about it. But now you get the time,

plus you go the seriatim questions. And anyway, there's just no particular way to make it even. For a case that I thought Texas was going to have a really hard time, the Solicitor General actually got more time, and not in the good way. You do not want the questions to keep going on and on. and not in the good way. You do not want the questions to keep going on and on. It shows a lot of, I think, skepticism for your point. So let's run through a little of this. First, this turns on what the government, what the Department of Homeland Security in particular, has to do with someone who is found on the U.S. side of the border who has come between a port of entry, what we would normally just refer to as illegal immigration, right?

Now, the statute says DHS, quote, shall detain non-citizens. Here's the problem, David. They can't. So as the Solicitor General walked through some of the numbers, in March, they had 220,000 people cross in between a port of entry. They have 30,000 beds. So you can't detain them all, which means that by definition, so you can't detain them all, which means that by definition, since this was passed into law, basically Congress has, or sorry, the executive branch has always been in violation of a congressional statute. And that's Texas's argument, right? That it's not to comply or not to comply, but how much they can comply. And Texas's argument in short is they could comply more, And Texas's argument in short is they could comply more even if they can't comply fully. How can they comply more? Ah, because they can send people to Mexico or Canada to wait there. If they traveled by land, there's some other like technicalities of who they can send to Mexico. And that becomes relatively important because as the Solicitor General said, we're only talking about 6.5%. So not a huge number actually can be fixed. I'm going to use that term, I guess, can be fixed by just using the Remain in Mexico policy. So you've got

30,000 beds. You can send some to Mexico if you want to. And otherwise, the rest are going to get paroled into the United States or, you know, some are expedited removal because they don't claim asylum. Like there are other things that happen. But for our purposes, if there's not something else to do, then you have to parole them. Now, the government's arguing that they have discretion. Like that shall detain language was never intended to be shall detain. It's shall detain up to the maximum number of beds that you can detain, give or take. Right. But they have this valve. And first of all, two things in the valve, David. One, it says may.

So there's shall detain, but then after the shall detain, it's like, you may send them back to Mexico or Canada, contiguous country to wait there. And two, that you can parole someone. You may parole someone to the United States. Congress provided that the secretary may parole into the United States.

Any alien applying for admission on a case-by-case basis for urgent humanitarian reasons or significant public interest and so the solicitor general points to this and says full prosecutorial discretion we can let anyone in we want uh and they're saying that the significant public interest is that and by the way, David, at the first, you might find this silly, but if you think about it more, you're like, Ooh, that argument has some merit. Okay. Um, the significant public interest is that they only have 30,000 beds. And so they need to save those 30,000 beds for the people who pose the greatest risk

if they parole them in the United States. So they basically turn the whole thing on its head. If we have to parole everyone, basically, who's not a risk, then the significant public benefit of paroling people instead of in a first come first serve basis is that we need to leave enough beds open so that if we find someone who's a sex predator, we've got a bed for that person and we're not paroling them. Okay. The pushback to that is right, but you can send 6.5% or probably more to Mexico or Canada. to Mexico or Canada. So that would also lower the pressing need for beds. It would maybe allow you more wiggle room. I think it's actually that they have 32,000 beds and they fill 30,000 at any given

moment because they want to leave 2,000 open just in case. And so David, around and around the argument went. But the United States, well, Texas, as I said and around the argument went. But the United States, well, Texas, as I said, their main argument is the executive branch, even if they can't comply fully, needs to comply as much as possible. And they are intentionally choosing not to comply as much as they can, even if they're going to be in violation no matter what. I find that pretty persuasive. The Solicitor General, on the other hand, she had four arguments, some of which you're going to find more persuasive than others, but one in particular is just like a, it's a rifle shot. But first, textual problem, says the Solicitor General. Congress said may return. That applies to the Mexico part. We can argue

about the shall detain and the paroling problem, but that's not what we're here about. We're here just about the remain in Mexico thing. And it says may. Hard to get around that. Number two, foreign policy. They don't get to just put people on a truck to Mexico. They have to have the agreement of the Mexican government. And as Justice Kagan, I thought, very persuasively made the point in her questions to the Texas Solicitor General, if we as a court hold that they have to do some version of a remain in Mexico policy, doesn't that give Mexico an enormous amount of leverage in negotiating what they want in exchange for continuing the remain in Mexico policy? The U.S.

Solicitor General, you know, talking about how this is a foreign policy question. And while Congress has some foreign policy role like this ain't it, y'all, this is like day to day negotiations with a foreign country. And that's why it's May 3rd. Right. She says history. No one at any point in time during the legislative drafting acknowledged that the provision would have the kind of effect they're attributing to it. The history is clear that this was just responding to the Board of Immigration Appeals and overturning the conclusion that the executives blah, blah, blah, doesn't

matter. Fourth and finally, consistent executive interpretation. Since this has ever existed, they've always thought it was a may purely discretionary authority. David, I just think the foreign policy part of this is a killer to Texas's argument. Yeah. Yeah. This is the part that is, to me, was the most compelling, which is, how can a federal judge order the implementation of a policy that requires the consent of a foreign country to execute? That's a difficult thing, and that's when you're talking about, you know, you've got some separation of powers type issues here, because foreign policy, core executive function, and it just struck me that that's the element here where the states just have a tremendous problem, just a tremendous problem. Just a tremendous problem.

One thing I do want to note that is interesting is this kind of funny part of the SCOTUS blog summary of the case. Stone responded, this was talking about how many administrations, Republican or Democratic, had complied with the statutory scheme requiring that DHS choose between three options for asylum seekers. When Stone responded that none had complied, Thomas suggested that it would be, quote, odd for Congress to leave in place a statute that would appear to be impossible to comply with. It would not be odd. It would not be odd. It would especially not be odd in the immigration context where there has been an absolute ludicrous stalemate for years, for years, which is one of the reasons why these kinds of cases are working their way up to the Supreme Court. reasons why these kinds of cases are working their way up to the Supreme Court. It's that we have in place a statutory scheme that on its face can appear clear in some ways, in some respects, but on the ground proves to be essentially just impossible to comply with. And here we are.

Here we are, Sarah. So I think that's exactly right. And philosophically, this case has two things that are pointing against one another that the court has been trying to grapple with this term in particular. By the way, let me just read to tee this up. Here's Chief Justice Roberts to the U.S. Solicitor General. If you have a situation where you're stuck because there's no way you can comply with the law and deal with the problem there, I guess I'm just wondering, why is that our problem? Our problem is to say what the law is. And if you're in a position where you say, well, we can't do anything about it, what do we do? Exactly so, David. That's

exactly the point that you're making, which is for a long time, the court has been bending over backwards to fit the law to the reality. And that has caused the court to then be entangled into all of these major public policy disputes because they've shown a willingness to make the law and reality jive together, even where they may not obviously work together. McGirt being, which we'll get to next, being a really good example of this. In the past, the Supreme Court would have said, well, look, the treaty says what it says, but we can't just like hand half of Oklahoma over to Indian territory. So we'll figure out a way to interpret this in a little bit of a strained.

And it's it's a totally backwards method of judicial interpretation where you have to reach a specific outcome that works from a public policy standpoint and make the law do that. So obviously, the chief is worried about that. That's the U.S.'s biggest problem right now. On the other hand, David, and again, this is what goes the opposite direction, and it was mentioned, but only really by the U.S. Solicitor General, and the justices didn't seem that eager to fit this into major question doctrine. eager to fit this into major question doctrine. If Congress meant to have this impossible task, why weren't they more clear? Why can't we just say, Congress, we don't know quite what you meant here because they can't comply with the shall detain language. We don't know if you meant for the significant public benefit to be this sort of flipped on its head. We leave some beds

available in case really bad guys come. So we're paroling hundreds of thousands of people into the country, you know, all the time. Why don't you fix that, Congress? And the court in some of these past cases, David, has been very keen on saying it's Congress's job, not ours. We're going to stay out of it. So on the one hand, you have clear language on the shall detain, which is sort of technically not teed up in this case, except to the extent that it implicates whether they have to then use this other valve that's not the paroling in the U.S. valve, this remain in Mexico valve. But also, if your choices are shall detain, may send to Mexico, or parole into the United States for humanitarian reasons or significant public benefit, and they're saying we're detaining

everyone we can except for that little wiggle room we need for extra beds. And we don't think the Mexico thing is really that viable because for the amount of effort and money it takes to deal with Mexico, it's not that many people. We're better off just using our shall detain to the extent Congress appropriated money for it, and then the paroling into the country. It's like major questions, doctrine versus shall detain textual. We don't need to make this work with reality. And I think in the end, the U.S. wins, but I think there's going to be a sternly worded opinion from somebody. Right. Do your job. Might be a good three-word opinion. But it's funny, Sarah, I think I've

referenced this case before, but this is not an unprecedented thing for judges to wrestle with statutes that are either incomprehensible or impossible to comply with, or both impossible to comply with because they're incomprehensible. One of my first cases, appellate cases of my career, I was second chair in a case involving a very complicated pension fund case where how much money should go into a pension fund for firefighters and police officers. This is back in my commercial litigation days. And the underlying statute, when you did a close read of it, was literally incomprehensible. It was such a grammatical mess that you couldn't actually figure out what it said. And so what do you do? What do you do when the statute literally is not susceptible

to a conventional understanding and reading in accordance with the rules of the English language? Now, that's a different situation from this one, which is what do you do when the statute is impossible to comply with? But this is a kind of wrestling with a kind of statutorily created impossibility is sadly not terribly uncommon in American life and a symbol of legislative failure at multiple levels, a theme of this podcast. And David, can we just have a little language footnote cul-de-sac

on this argument? Yes, of course. So there was an article about a topic that I care a lot about. We've talked about it, I think, on this podcast or on the Dispatch podcast, black maternal death in the United States and how much higher that is. And so there were new statistics released out of D.C. that showed that during COVID that it even the disparity had grown even more, except the headline was about birthing people. So it said death of black birthing people has gone up and then talked about maternal death. And it was it was difficult to follow. And a lot of women I know were like, what? This obscures a problem that is affecting women.

And for the number of people that we're trying to be inclusive of, first of all, it's very, very small nationally. first of all, it's very, very small nationally, but also in DC, there's no evidence that any of the maternal deaths that we were talking about involved anything other than women. Okay. So because of that, I'm a little teed up on language right now. And I thought this was an interesting argument because there is a language divide between the progressive left and the far right about how you talk about these issues. So I went through, David, and I just did a little perusal of who used the word alien. Okay. Illegal immigrant.

Uh-huh. And it was sort of fascinating, David. So Sotomayor used the term only justice to use the term illegal immigrant. And Sotomayor and Breyer and Alito were the ones who use the term alien when not just using quotations, because obviously the statute uses the statutory term alien. But then. So, like, that's great. I, you know, we're lots of people use the term migrant, which is fine. But here's a quote from the solicitor,. Solicitor General, Prelogar. I think that the Secretary of Homeland Security is well justified in thinking that in light of the tremendous cost that he identified with the program, and in light of his determination

that it actually detracted from other strategies and programs he thought would be more effective in stemming the tide of irregular migration migration that he was well justified in making that policy determination to rescind the remain in Mexico policy from the previous administration stemming the tide of irregular migration. It's quite regular, David. It's very regular. Oh, gosh. oh gosh that to me again if the point of language i actually don't like euphemisms and that counts on all sides of everything but when you obscure what's actually happening you can end up with what i think the progressive left would think were really bad outcomes when you obscure language, you take out the humanness of it. And oftentimes, we've taken out sort of the violence of language of like what we're describing, I mean, to like

make it, you know, less traumatic for people hearing it. Well, no, sometimes we need people to hear the violence that is being described. And in the case of irregular migration, that makes it sound quite lovely. And instead, we have a woman who, not last week, but the week before, was trying to climb over the wall. She was wearing a backpack, maybe with some sort of chute or something on the back of it. It got caught. She slipped, fell upside down. They didn't find her in time. She died because she was hanging upside down for too long, trying to cross the border. The number of children who are left to wander in really inhospitable terrain, and we just hope that someone finds them in time, the person who owns the property or border patrol. Irregular migration obscures the humanitarian

crisis that is happening at the border. It is dangerous. And by saying that we're going to parole most of the people into the United States, the problem is that you are funding the cartels. And by the way, the cartels are not good guys. All of this creates bad stuff. And so just saying like, well, we should have open borders and let everyone in. I am happy to have that policy discussion, but do not pretend like that's the kind thing to do. What we are seeing on the border right now is that it's not. So anyway, I didn't like the term irregular migration. That was my cul-de-sac. Well, so that's a cul-de-sac that's going to lead me to a question. Completely agree. I mean, irregular migration is watering down

what's occurring so much as to be, is obscurantive a word? It is now. Okay. It obscures meaning. It deceives. It's deceptive. That's simpler.

It's a deceptive phrase. And what's wrong with saying illegal when something's actually illegal? But here's my question, Sarah. It appears, mercifully, that the phrase Latinx is about to disappear from the lexicon because everyone has realized, you know who doesn't like Latinx? Actual Hispanic Americans think it is weird and strange and they're not incorrect to say kind of an assault on their language. It's a kind of an assault on the Spanish language. All Romance languages and many Indo-European languages. Yes. So I think Latinx is going to die a merciful, die a death too late. It should have died a long time ago, but it looks like it's going away

because it seems to be really politically disadvantageous. Is birthing persons going to go away? I really hope so. But I fear that the feminist revolution where women said they wanted to be treated equally, regardless of their childbearing status has gotten turned on its head. Where now we're going to deny the distinction and difference of the childbirthing status of women, which is disgusting to me because again, like just living this life, it is so different. There are differences. And again, I understand that there are some people who that, who feel like that's not inclusive of them. But I guess my pushback is that language is supposed to capture the vast majority of circumstances. And I would actually be more comfortable if we

said women and other birthing people than just saying birthing people, because birthing people obscures and takes out women. It erases women's experiences. So add it in if you want to afterward. I can't be offended by that. I won't be offended by that. But to erase women from the equation, that is offensive to me. I think birthing persons is going to go the way of Latinx for the same reason why Latinx is going the way of Latinx, which is it is such highly ideological niche speak, niche speak. and it's completely alienating and apart from the experiences of not 99 out of 100, like maybe 999 out of 1,000.

I think it's far less than that. Oh yeah, 19,999 out of 20,000. I mean- It's really, it's quite small. And again, I think the reason I was so offended this time is because we're talking about an issue that is literally killing women. The, the, the difference between black maternal death and white maternal death cannot be explained away by all of the things that you would think are obvious. Um, education,

that you would think are obvious. Education, income, genetics. They've even tested genetics, David. Yeah. Your twin sister who stays behind in a majority black country has a lower maternal death chance than you in the United States as a black woman. That's an emergency. And instead, birthing people is this distraction, which again, takes the women out of it. Anyway, okay, we're way off topic. I'm going to be optimistic. I'm going to be optimistic and say birthing person is going to go the way of Latinx and maybe faster. But again, we'll see.

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you said you have a kennedy hypo for me before we move on to our circuit courts well wait david we have a few more things to do here oh gosh okay we have. We have McGirt. Uh, so, and I've talked about it a little just now, but, uh, this is the case where, um, it was determined that for criminal purposes, uh, a lot of Oklahoma, a lot of Eastern Oklahoma was actually Indian territory and it's been pretty unworkable. And the state of Oklahoma keeps putting in cert petitions. I think they put in like 20 or something in the last year and a half or so. 235 Oklahoma prisoners have won relief from Oklahoma court since the decision, though only a couple dozen mostly nonviolent offenders have been released, still quite a bit. Thousands of criminal suspects are affected.

So we're back at the court on this. And it's the very, very niche question. Whether states, Oklahoma, are preempted from prosecuting non-Indian on Indian crimes in Indian country. That's all this case is going to decide, but it would potentially chip away at McGirt. We'll get to it when the opinion comes out because why are they revisiting this so quickly? Amy Barrett is on the court and she replaced one of the justices who was in the majority. Oh, and last thing, it's time to talk about bingo, just to introduce the topic again, David. Okay. So now that we're done with oral argument, we start looking at which decisions we have outstanding. And generally speaking, every justice will write an opinion for every sitting. So in the October term, for instance,

So in the October term, for instance, every justice wrote one opinion. In November, David, we only have one case outstanding. That's when bingo gets the end of June. And so we can look at our little bingo card and see which justices are left. Interestingly, Justice Gorsuch wrote two of the November opinions, which leaves both Barrett and Thomas without an opinion for the month of November. No question in my mind, David, that means that Justice Thomas, as the far more senior of those two justices, is writing the New York gun case. Wow. Well, if Justice Thomas is writing the New York gun case— And we kind of know. that would mean that our thesis going after the oral argument of, well, this is probably a very incremental push in the law,

could be flawed. It could be more than incremental. It could try to settle a lot of open questions, potentially. So this could be interesting. Again, all this is speculation. This is bingo, not science. But this is bingo. And just to be clear, December is where Dobbs is, and only two of the December cases have even been decided. So we can't play bingo with Dobbs.

We're not even close. And really none of the other ones. But November bingo, teed up. All right, David, now my Kennedy hypo for you. So this is on the coach Kennedy case, the football coach, who's giving a prayer by himself in quotation marks at the 50 yard line. And the question turns on like, so you're a government employee. You're on duty, but you're allowed some personal time.

So when is it government speech? When is it not government speech? When is it coercive? Things like that. So David, here's my hypothetical to you. A public school teacher, she teaches history and it's before class. Class has not started the bell has not rung and she is going to be listening to out loud to podcasts about climate change in this history class and she sends out a an email to all the students saying hey when you walk into class um from now on you're going to hear a podcast about climate change you don't have to come listen to it you can go sit at your desk if you want. Um, it's just that this is a case, this is a topic that's really important to me. And I just think that good students who, you know, are gonna go on to good colleges and really change the world, um, would want to listen

to a podcast like this. You do what you want. And so then for five minutes before class, that podcast is playing quietly at her desk. Allowed or not allowed? Ooh, interesting. Good students who want to change the world will listen to me, which is not exactly the Kennedy hypo. It's pretty close. It's close, but if Kennedy said, I'm going to go to the 50 yard line and pray and in anyone who loves jesus can join me um that that changes the facts of the case a little bit but but he said he

did in his press conference he said um uh what i have found is that this is important to make i'm going to get the quote a little wrong so i apologize because I don't have it in front of me. Being a Christian is what makes good men or whatever he said. Gotcha. But he said that not on school, not using school communication, school email, etc. So anyway, I'm fine with it. I don't care. My bottom line is tinker. Teachers and students do not shed their rights at the schoolhouse gate. And that the issue is not just the fact that a

teacher expresses a personal belief influence students. That's not material disruption. The question is, does the private speech of the teacher constitute a material disruption of the educational environment? And if the answer to that is no, then I'm with Tinker all the way on this, Sarah. So to me, that's not a tough hypo because I don't think it's a problem if teachers express personal points of view on the job so long as the Tinker framework is complied with. So go for it. Now, the other thing I want to answer, which was a really good question from the comments, and this was, so in the comments, someone said, well, wait a minute, David, you're substantially material disruption wrong.

If you're saying that the rushing of the field could have been an argument for the school, that's a material disruption. Isn't that the heckler's veto? Sort of, in other words, isn't the reaction of the crowd determining the speech? the crowd determining the speech. Now, that's a very interesting and good point because one of the issues that's actually come up in the Tinker context is that schools have tried to stop students' speech because it has created, rather than dealing with the violent reaction of people, they have tried to deal with the speech. And that's a situation where you're allowing the opponents of the speech to end the speech just so long as they're disruptive enough. And that's a real problem.

If you have opponents of the speech who can end my speech just by being violent, the state's responsibility is to maintain order so that I can exercise my constitutional rights. Now, here's the interesting twist on this hypo, though, or on this reality. It wasn't Coach Kennedy's opponents who were causing the disruption. Arguably, what was happening with the rush to the field, and this would be the best version of the state's argument, would be an entirely intended result of the speech. In other words, this isn't the heckler's veto.

This is Coach Kennedy perceiving the reaction he's seeking. Again, that's their best argument, I would say, is that he's intentionally attempting to create the exact disruption that occurred. And that's not a heckler's veto. That's much more along the lines of an actual disruption. And I think Nate fully agrees with me as I can hear. He does. He does. There's a basketball hoop that's about seven feet high and he's going to try to so that'll keep him busy. Look, I agree with you, I think, but let's just bring up the t-shirt hypotheticals, right? They're not hypotheticals. They've really happened. A kid wears a t-shirt to school that says homosexuality is a sin and it causes like a riot among the other students. Should that student get to wear a shirt that is disruptive

and clearly going to be disruptive? Okay, so yeah, that's an actual case, as I recall. I think it was in the Poway School District. And I believe the student ultimately lost that case. He did. He did, yeah.

I don't remember. And I remember being, I remember that case because ADF was working on the case, as I recall at the time. We're going back like 15 years at this point, if I recall. So yeah, here's the interesting question to me about that case. And I don't remember the facts super well.

If other people wore provocative t-shirts, but they just didn't provoke the response, I'm deeply uncomfortable with a legal system that says, you guys, that you get to wear provocative t-shirts until the moment they provoke a response, and then therefore, which incentivizes a provocative response. I think it's the responsibility of the government to say, hey, look, if we're going to permit t-shirts with messages, you have to keep the peace if you see a t-shirt with a message you don't like. Or vice versa. Don't allow kids to wear t-shirts with messages. Bingo. That was the other thing I was going to say.

Absolutely allowed in a public school, as we know. Completely. school as we know completely that's why school uniforms have gained some popularity rather than deal with all of this school say look just you know wear white button down and and khaki pants you know so that's the other the the easy way to deal with it i actually prefer um a world in which you don't have to wear school uniforms to keep the peace. I do think that school uniforms have some virtues that are unattached to sort of the Poe type situation. But yeah, the responsibility of the state is to maintain order when people are exposed to ideas that they don't like. Honestly, I would just like uniforms because then you don't have to think about what you're going to wear in the morning. Well, and from a parental standpoint of kids who've had school uniforms, it is so glorious.

Yeah. I am all in on school uniforms just from a parental standpoint. All right. We got some Sixth Circuit, Eleventh Circuit, and a dinner party. Let's keep going. So, Sarah, let's go from the Supreme Court to the Sixth Circuit and a wild case, crazy case. Well, I mean, I don't want to overhype it, but it is pretty interesting. This case is called Anthony Novak v. City of Parma, and it's a qualified immunity case. And I

can't wait as the, I would say the most sympathetic between the two of us to qualified immunity. I can't wait to get your take on this. So here's what happened. A dude named Anthony Novak creates a Facebook account called the City of Parma Police Department, a complete knockoff of the department's real page. I'm reading and paraphrasing from the opinion. So he creates it to exercise his, quote, fundamental American right of mocking our

government officials. And as the Thapar opinion says, and mock them he did. In less than a day, he published half a dozen posts advertising the department's efforts, including free abortions in a police van and a pedophile reform event featuring a no-means-no learning station. The page spread around Facebook. Some people thought it was funny. Other people called it out as fake. He deleted the comments calling it out as fake,

and almost a dozen called the cops. Some, and this is what, as the opinion says, a few asked if it was real. The rest expressed confusion or were just telling the police that there was a fake page out there. So the police department first verified that their page hadn't been hacked. Then they posted a notice on, and this part is, they posted a notice on the department's actual page confirming that it was the official count and warning that the fake page was being investigated. So then Novak copies that post and puts it on his knockoff page, allegedly to, quote, deepen his satire. So at this point, a Lieutenant Kevin Riley and a Detective Thomas Connor start trying to figure out who's running the page. They sent a letter to Facebook asking the company to preserve records.

They issued a press release, appeared on the nightly news. Eventually, they get a search warrant for Facebook, discover that Novak is the page's author. They then go to the law director, a dude named Timothy Doback. Doback says they have probable cause and could seek more warrants, an arrest warrant from a magistrate judge and a search warrant from a different judge, on the grounds that Ohio law makes it illegal to use a computer to, quote, disrupt or impair police functions. Both judges found probable cause and issued the warrants. They go, search his apartment, seize his phone and laptop. Novak

spends four days in jail. They present the case to the grand jury. The grand jury indicts him, Sarah, for disrupting police functions, but then the jury acquits him. After his acquittal, this is the quote from the opinion, Novak brought dozens of claims against Riley Connor in the city of Parma. Now, in a prior appeal, the court granted qualified immunity to the officers on some claims. Now, he appeals the district court's grant of summary judgment. And then Sixth Circuit says qualified immunity. Qualified immunity.

What say you? So first, from a legal and policy perspective, I think satire needs to be so much better protected than we have it right now. That being said, look, if it's causing a danger to the community, if there's confusion over, for instance, if he had a number to call that wasn't 911 or something like that,

I do think there are limits within satire where you're dealing with public safety. It doesn't sound like he reached any of those limits. I'm just noting that there are limits. Sure. Don't call 911 anymore. Call. Yeah, that would be a big problem, even if it's meant as satire. Unfortunately, there have to be some things that trump. There's a compelling government interest in that case, even under strict scrutiny. On the qualified immunity side, though, I thought that the officers had a pretty good pushback, which is that this clearly wasn't clearly established under current law or an obvious

violation or even a bad faith violation of his rights because they got a judge to sign off, a prosecutor to sign off. There were a lot of other officers of the court who signed off on the search warrant, the arrest warrant, the trial. So unfortunately, I think under both current qualified immunity law, clearly qualified immunity applies. I think even under the husband of the pod 1871 qualified immunity law, it probably applies. Interesting. So I thought. Adheres is maybe a better term than applies. Yeah. So what I thought about this was, on the one hand, the prosecution was outrageous. Okay. The prosecution here was outrageous. And so there's sort of two issues here. One is the individual liability, and one is the municipal liability, what's called Manel Doctrine.

This seems like a case that would be really tailor-made for municipal liability. But the prosecution was outrageous. But I agree with you that under current law, so Thapar has gotten some grief for this. I don't see how he's wrong under current law. he's wrong under current law, right? So the police officers went to and got actual, unlike the vast majority of qualified immunity cases, they went and got an actual legal opinion here. So they didn't know- They have to be able to rely on that

for qualified immunity purposes, for any purpose, really, honestly, no matter what qualified immunity looks like, I just think. And if you as an officer go out and get an illegal opinion, you can no longer be held personally liable. I agree with that. I think if you're telling in any situation where you're saying, okay, am I considering personal liability? If a police officer is doing such due diligence that they go and consult legal counsel, then

that's why I was talking about the municipal liability here seems like a much better instrument of doing justice. And justice should be done here. I do think that the plaintiff should get relief here. He doesn't because the state of the law is such a mess. But I don't find fault, because remember, this is a court of appeals here. This is not the Supreme Court. I can't find fault with what Thapar is saying about the state of qualified immunity here

because, look, these guys went to a lawyer to get advice before they acted. At that point, it's an outrageous case where in many ways the police, the people at the point of the spear, by seeking that legal advice, seem to operate with a greater degree of reasonableness than the people above them in the chain, the actual lawyers and judges who said this was okay and issued the warrants and then continued the prosecution. You know, the police didn't prosecute these attorneys. These DAs prosecuted the case. That's what's unbelievable is they tried him. They tried him for this Facebook site. So,

yeah, I thought you might find this interesting. And this is one of those issues where personal liability and who receives personal liability is sometimes when there's an actual civil rights violation, sometimes difficult to discern. but I think that on that scale, the lowest level of responsibility on this particular totem pole are the police officers who sought legal advice. All right, 11th Circuit. Okay, Sarah, oral argument in the 11th Circuit on the Florida social media law. Very interesting. I listened to the oral arguments off and on over the last few days. And really, I would say, best way to put it is I would not want to be in Florida's shoes.

So if you remember, Sarah and I talked about this law. We also talked about a similar Texas law that put real constraints on the ability of social media platforms to, in particular, moderate journalists and candidates for office. So among other things, the law fines social media companies for every day that they banned a candidate for statewide office. They fine a lesser amount for when they ban candidates for lower offices. They prohibited shadow banning or hiding or suppressing, for example, any content that's by or about a candidate.

Originally, the law applied to social media companies that did business in Florida with an interesting exception, excluding platforms owned by a company that also owned a theme park. I wonder who that was. Who knows? Hard to say. Social media,

except for Disney. Now Florida is revising it to include Disney, but essentially what they're saying is that it was called the stop social media censorship act. So they're trying to protect the ability of candidates to stay on platforms essentially no matter what they say. So essentially the underlying rules regulating speech on the platforms couldn't apply in many material respects to candidates for statewide office. The case was the law was blocked by the trial court, and then it was up on appeal to the

11th Circuit. And the interesting thing to me about the oral argument, Sarah, was the way in which the judges kind of expressed, in some ways, bafflement at much of florida's argument this sort of notion that wait a minute uh there were a couple of points of in a couple of points where there was a particular amount of uh shall we say skeptical curiosity is that a synonym for bafflement one was on the idea that these corporations, merely by the fact that they didn't pre-approve content, that by pre-approving that content, the fact that they didn't pre-approve content but then responded to complaints, meant that they had essentially abandoned any sort of First Amendment right in regulating the content on their platform. And the other thing was this kind of bafflement at the idea that, wait a minute, Florida was saying that legislative motivation mattered in a free exercise content, but could not be analyzed at all in a free expression content when analyzing free exercise regulation,

but not considered at all when analyzing free speech regulation. Really interesting discussion on those grounds, which echoes directly to the most recent moves that Florida has made against Disney. So Florida is trying to draw a line in the sand that says, sure, it's totally fine for you to analyze motives, legislative motives when it's free exercise, but not when it's free expression. And it seemed like the court wasn't buying that.

Again, you don't want to say that you can absolutely predict outcomes based on oral argument, but after the oral argument, I wouldn't want to be in Florida's position here. So, David, in one week, I will tell you we're going to have a whole nother conversation about this. OK, because sorry, not one week, one week and one more episode. Okay. uh, husband of the pod is doing the fifth circuit one. Yep. So we, uh, he just got the panel today that he's getting into the fifth circuit and it will be husband of the pod being questioned by judge of the pod. Uh, the judge that I clerked for Edith Jones on the panel. Wow.

Um, as well as judge Southwick and judge, uh, Oldham, I believe as well. So a star studded event. It will be the second time on this podcast that we will take apart a husband of the pod oral argument. So I think that's a good intro to the 11th Circuit.

And why don't we just table it? And then we'll do some compare and contrast in a week. Absolutely. Which I think will be really fun. And by the way, Paul Clement gets some sleep. I know. Seriously, you have no idea. He just argued the Kennedy case at the Supreme Court and then argued this huge case at the 11th Circuit.

Get some rest, Paul. I know you're listening. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos.

So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day.

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the presentation of colors. That being said, in general, a Saturday night in a ball gown, when you've just gotten off a plane, it's like, it's not my favorite uh it also took me like an hour to get a cab home um but importantly david i ran into our friends at strict scrutiny the other legal podcast and did you we did we talked about a crossover episode amazing are they open are they open to it they're very open to it and they were? Are they open to it? They're very open to it. And they were curious. They hadn't yet listened to our Kennedy one. So we were we were chit chatting about the Kennedy case. Fun times. Let's see. I was at Governor Glenn Youngkin's table, which was fun. And I am both a fan and a constituent. So that was neat. His wife is from Texas. We grew up not that far from one another. So we had long discussion about barbecue, which was important. And I was like one table away from Keet, I guess they're called. Kim and Pete. Kim Kardashian and Pete Davidson. David's making a look like he has no idea. Okay. No, I know. Okay. I did not know they were called Keat. Yeah, I guess. I didn't know that either, to be honest.

Wow. It was, if you watch that go on and just imagine if that were your life, like you can't stand up, you can't talk to someone, you can't take a bite of food without, it's not just the clicking of the cameras or even like the overwhelming surroundingness of cameras. It's that the layer, it's like 10 layers of camera back as people are falling over chairs to take more pictures of you. And some of those people are on TV themselves. I saw White House correspondents standing on chairs. Yeah. Insane. It was insane. Okay. Next potpourri, David. There was a case. One quick thing about that. It's a constant reminder that there's celebrity,

there's celebrity, and there's celebrity. Yeah, I mean, Caitlyn Jenner was like right next to me and nobody cared. It was amazing. Nobody cared. So I could also see why it's difficult being a former celebrity. Like to have all of that attention

and then all of a sudden, not only, I mean, in this case, do you not have any attention, but it's difficult being a former celebrity. Like to have all of that attention and then all of a sudden, not only I mean in this case, do you not have any attention but it's going to your stepdaughter. Oof. I could see that being weird and rough. Like a hard adjustment. Yeah. Well, you know, some of the, in particular athletes, there are

athletes who really stand out physically and there are athletes who don't. So one of the interesting things about baseball players is a lot of baseball players out in the world don't look that hugely different from a, just a fit, normal human being. But some of these basketball players, you know, they're towering over everybody and they are absolutely instantly and immediately identifiable. Plus they're some of the most famous people on the planet. absolutely instantly and immediately identifiable plus some of the most famous people on the planet i can't even imagine just the the the stirrer the energy that is just constantly surrounding

you no matter where you are yeah all right so next david there was a story making the rounds on the twitters and a whole bunch of people were tagging us in it. And I have beef with the story. Okay. And so I would like to. Oh, I know what this is. Yes, you do. Here's the headline. The suspect told police, give me a lawyer, dog.

The court says he wasn't asking for a lawyer. Okay. Both of those statements are technically true. But it is a wildly misleading headline. Also, it's worth noting that this was from 2017. So people on Twitter not noticing that this was a very old story. So here's what the guy actually said in interrogation, that he had been Mirandized. If y'all, this is how I feel. If y'all think I did it,

I know that I didn't do it. So why don't you just give me a lawyer? Cause this is not what's up. Okay. That's actually not what he said. As you may remember, David, he said, why don't you just give me a lawyer dog? Because this is not what's up. Now, the opinion that came out of the Louisiana Supreme Court, it was unanimous, but it didn't have any written opinions except one. And this is the only sentence. It's a two paragraph opinion concurrence. And he said, in my view, so this is one just justice on the Louisiana Supreme Court in a concurrence.

In my view, the defendant's ambiguous and equivocal reference to a lawyer dog does not constitute an invocation of counsel that warrants termination of the interview and does not violate a U.S. Supreme Court case. a little unclear of whether he means because the word dog is included, D-O-G, that somehow that, like, he means a canine and therefore that's not a lawyer. That's obviously how Twitter took it. That's obviously how the Washington Post intended people to take it. That is not why he didn't get a lawyer, y'all. It's because of the word if, not the word dog. So after you've been Mirandized and you're in a custodial setting, if you invoke a right to counsel, the interrogation has to stop and you have to either get your counsel of choice or a counsel is provided for you, as you all know from Miranda. So what we've talked a lot about, like what is custodial? But there's also what is an invocation of counsel?

but there's also what is an invocation of counsel. And in this case, our legal system has decided that a might may conditional if is not an invocation of counsel. And in this case, if y'all think I did it, I know I didn't. So why don't you just give me a lawyer dog? Cause this is not what's up. They considered conditional. You don't get just give me a lawyer dog because this is not what's up they considered conditional you don't get a counsel nobody like this isn't even a close one david and i thought that the washington post did a real disservice to people understanding the law by writing this up as if it were the word dog when in fact even if you took out the word dog, he still wouldn't have gotten a lawyer. Yeah. Yeah. That was, when I first saw the tweet, I thought, that cannot be a correct summary of the ruling from that tweet. And in fact, it was not.

It was not. It was the conditional nature of the request. It was not the addition of dog. And look, the law is dumb and sometimes old people can be obtuse, but everyone knows D-A-W-G means friend. And what I think really upset me, David, is what happened from the Washington Post piece and on Twitter and the comments on the Washington Post piece were like, this is racism. This is dog whistle. You know, a white guy who didn't put in D-A-W-G would have gotten a lawyer, but because he's black and said dog, he doesn't get a lawyer.

No. And I think the Washington Post owed its readers a lot more. I will say as a side note, the next day they did publish an op-ed by Oren Kerr making all of these points. Professor Kerr is amazing and hopefully will be on this podcast at some point. He's a contributor on the Vala conspiracy. And again, this is November, 2017, but still again, so applaud the Washington post for publishing that the next day, but it didn't get nearly the attention because it just explained the law, which wasn't as sexy as saying that, um, you know, lawyer dog is like a thing we should all make fun of because, you know, the black guy didn't get a lawyer because he used the word dog. That is dividing people intentionally, inflaming people in a really dumb, unfortunate way.

It's the clock is ticking on the next time on when we'll see an op-ed or some sort of essay somewhere referring to that incident in a list of examples as part of a list of examples of injustices. And because, as you said, the Oren Kerr, or maybe the Advisory Opinions podcast will be the tipping point on this, but it went everywhere. I had so many people ask me about that

over the last couple of days. Yes, it really upset me. Okay, last thing, David. There is a problem in D.C. Now, normally I would save this for the Dispatch podcast, but I feel like I've lost some credibility on the Dispatch podcast. So, near the Anacostia River, there's a park, and walkers and bikers say they are afraid of the path through the woods after a

series of recent attacks the suspect a male heavy set three and a half feet tall with a blue head and neck pink flaps on his chin that turn red when he struts shiny black and fluorescent breast feathers and a large fanned bronze tail that's right a male turkey is on the loose and he's actually attacking people with his sharp beaks and talons used to slash passers-by in the legs and thighs more than a dozen walkers and bikers including several who have required okay they say urgent medical care but tetanus shots and antibiotics. That's something less than urgent in my mind. Quote, there's an element of humor to it. A DC Department of Energy and Environment wildlife biologist said,

there is a terror turkey stalking a river trail. If I hadn't seen the videos myself, I would have thought it was an urban myth. So now there are a number of government agencies trying to catch this turkey. And again, I'll say the same thing that I said with the foxes. I hope that they find a nice home for this turkey. I would hate to see anything happen to them. Here's my question. Do turkeys not get rabies? Wouldn't surprise me if they don't. I don't think, I don't know of any birds that get rabies. Bats get rabies, right?

Well, that's a good point point but bats aren't birds they're not birds true uh bats aren't birds the fugitive is slick ranger joe says he takes flight when he sees nets um so i will tell you i had a male turkey in my backyard just a few days ago david and i'm kind of wondering if it's this dude it was a surprise i'd not seen a male turkey in my backyard um He fattened up over the summer on the brood X cicadas. Anyway, if you're in the area, don't mess with the turkey. They're trying. They're trying to get them. I'm just going to, I'm remembering my friendship responsibilities. And if I see anything on Twitter about the demise of that turkey, I need to remember to text you immediately my condolences. Yes.

Oh yeah. Because last time you didn't. And I did not about the Fox. And that was unacceptable friendship behavior. Completely unacceptable. All right. Well that, I think we might have hit a record number of topics in this podcast.

And we're still under a record amount of time, although we are closing in on it pretty quickly. We're closing in on it. We're closing in. Well, thanks for hanging with us. We'll be back on Thursday. We'll be talking the flag case more. We've got other topics to talk about.

One day we might have to dive into the Johnny Depp Amber Heard tribe. I know. We've gotten some requests for that. Yeah. I need to study up on that. Until then, please rate us on wherever you get your podcasts. Please subscribe where you get your podcasts.

And please check out thedispatch.com. Off we go, he says. Off we go.