Advisory Opinions - The Curious Case of Roxanne Torres

Episode Date: March 29, 2021

On today’s podcast, our hosts discuss the Supreme Court’s March 25 ruling in Torres v. Madrid, a Fourth Amendment case involving a failed attempt by police officers to restrain suspect Roxanne Torres using physical force. “She’s claiming that they violated her Fourth Amendment rights by unreasonably seizing her,” Sarah explains. “And the question becomes: Can you seize someone if they got away?” After a deep dive into Fourth Amendment jurisprudence, Sarah and David talk about the legal history surrounding hate crimes and the constitutionality of D.C. statehood. They end the episode with some career advice for their aspiring lawyer listeners. Show Notes: -Caniglia v. Strom, Torres v. Madrid, Terry v. Ohio, R.A.V. v. City of St. Paul, Wisconsin v. Mitchell -“Supreme Court agrees to hear first abortion case with 6-3 conservative majority” by Alice Miranda Ollstein in Politico. Learn more about your ad choices. Visit megaphone.fm/adchoices

This episode is brought to you by Peloton. Spring is a great time to start a new workout routine. With the weather warming up, it feels easier to get into the rhythm of things. Whether you have 20 minutes or an hour for a Pilates class or an outdoor guided walk, Peloton has everything you need to help you get going. Get a head start on summer with Peloton at onepeloton.ca Nothing moves you like VIA. VIA Real Canada. Love the way. You ready? I was born ready. Welcome to the Advisory Opinions Podcast.

This is David French with Sarah Isker. We've got Supreme Court stuff to talk about today. We have a discussion of hate crimes and hate speech that we've kind of punted for a few podcast episodes, but the time has come. The time has come to deal with it. We keep getting questions about this. We're going to talk about it. We're going to spend between 17 and 19 seconds more on D.C. statehood, but it's going to be a really good 17 to 19 seconds. And we're going to talk about a little bit of legal career advice at the end for all

of our aspiring lawyer listeners and all those who are law curious. our aspiring lawyer listeners and all those who are law curious. But Sarah, let's start with the Supreme Court of the United States. We have an opinion in a case that we have talked about before, and we also have a really interesting other case. The case is called Coniglia. I unfortunately was calling it Caligula behind its back, but now that we're going to talk about the case to its face, I think I have to say it correctly, which appears to be Coniglia versus Straub. Yes, yes. But let's start with Torres. This was a case we've talked about before. It's a really interesting case about unreasonable search and seizure involving a wild fact pattern, which I want to spend a little bit of time on. Sarah, this case, every now and then, what was it? Didn't we have a case recently that involved, it was the most boring fact pattern in criminal law history?

Yeah, and this ain't that case for sure. No. The previous case, I think, as I recall, it was a police officer pulled into a driveway and put his foot into a garage. That's right. That was. It was a slow, the slowest, shortest car chase ever.

Exactly. This one. Okay. Let me just go. No, do you get to read it? I want to read it. Okay.

Okay. I'll you, you go ahead. And I hope, I'm worried you're going to read from the majority's fact pattern, and frankly, the dissent's statement of fact is way better. Okay, well, there is a majority paragraph that you're then going to skip that I'm going to go back to.

Okay, fine. So you start. Two police officers in Albuquerque approach Ms. Torres on foot. They thought she was the subject of this one arrest warrant involving murder and drug trafficking, but she wasn't. She was the subject of a different arrest warrant. So as they walk toward her, she flips out, gets in her car, and hits the gas. At the time, Ms. Torres admits she was, quote, tripping out bad on methamphetamine. Fearing the oncoming car was about to hit them, the officers fired their duty weapons and two

bullets struck Ms. Torres while others hit her car. None of that stopped Ms. Torres. She continued driving over a curb across some landscaping and into a street, eventually colliding with another vehicle, abandoning her car. She promptly stole a different one parked nearby. She then drove over 75 miles to another city. When she eventually sought medical treatment, doctors decided she needed to be airlifted back to Albuquerque for more intensive care. At that point, of course, she's back in Albuquerque, and they find her and arrest her. I think I know exactly which part you're going to read. Tell us the good news and bad news for Ms. Torres. So Torres stole a Kia Soul that happened to be idling nearby and drove 75 miles to Grants, New Mexico. The good news for Torres was that the hospital in Grants was able to airlift her to another hospital where she could receive appropriate care the bad news was that the hospital was back in albuquerque where the

police arrested her the next day i mean this this case you know i i love how gorsuch from the descent quotes the tripping out part she must not have been lying about that because she shot twice, has the wherewithal, in spite of being temporarily paralyzed in one arm, to go ahead and steal another car and drive 75 miles. I'm confused about the 75 miles because surely any amount of adrenaline would wear off at mile 40, right? I mean, methadrenaline? I don't know. I'm not a medical expert on methadrenaline. So maybe it's just really keeps you going. But I don't know about you, Sarah, but if I'm shot twice and my left arm is paralyzed,

I'm calling it a day right there. Like, I'm punching out on the crime clock. She has more follow through than you do, David. So here's the issue for Miss Torres. Well, really for the Albuquerque police officers. She could have sued the officers under New Mexico state law for assault or battery. She also could sue the officers under the 14th Amendment for conduct that shocks the conscience. But I think that her attorneys were correct that this wasn't conduct that shocked the conscience to shoot a car that's coming towards you and is trying to hit you potentially.

the conscience to shoot a car that's coming towards you and is trying to hit you potentially. By the way, she says she did not know they were police officers, even though they were wearing vests that had the word police written across them. She blames the meth for that. Fair enough. So she sued under 1983, which is the statute that just lets you sue for any violation of your civil rights. We've talked about 1983 a ton because it's how you do all of these free speech cases, free exercise cases, all under 1983. So she's claiming that they violated her Fourth Amendment rights by unreasonably seizing her under the Fourth Amendment. And the question becomes, under the Fourth Amendment. And the question becomes, can you see someone if they got away? That's what Torres is. Was it a seizure if she got away? And David, this, I think, is another case of our 3-3-3 court with one caveat. It's actually a 3-2-3 court because Amy Coney Barrett did not participate

in the case. But me thinks it was a 3-3-3 example because you have Kavanaugh and Roberts siding with Breyer, Kagan, Sotomayor, and then you have quite the dissent from team Gorsuch, Alito, and Thomas. quite the dissent from team Gorsuch, Alito, and Thomas. I'm really curious after reading it, what your major takeaways were, but also who you thought had the better argument here and why the case came out the way that it did. So jump on in. Sure.

So one thing about our 333 thing. I still think it was kind of 333 because who was Judge Justice Barrett's mentor? Justice Scalia. And what case did the majority rely most principally on a Scalia opinion? Well, actually dicta from a Scalia opinion. Although the best part is the shade that Gorsuch throws on that. Rather than follow these teachings, the majority disparages them

after highlighting parentheses multiple times that Justice Scalia authored Hodari. Okay, he's not that impressed with this Scalia name dropping. He's over the name dropping. I know. It was a slightly spicy dissent. So basically the question becomes, and this is continuing a trend that we're seeing in a lot of court cases, as you have this originalist majority at the court, or the majority of the court is at least on some spectrum of originalism, you're getting just so many cases diving deep into English common law, the common law at the time of the colonies. And which means two things. I mean, one, you've got, I mean, they're all historically fascinating. And number two,

you just have these really nice little historical anecdotes, and I'll touch on one. But essentially, the argument from the majority is that it's a seizure, not just if you actually succeed in seizing, but if you essentially, if you grab, in that the under common law, it was essentially deemed to be an arrest if you were able to reach out and grab, even if someone was able to sort of get away from you. Now, it was not an arrest if I said, I arrest thee, Sarah, and you just took off. But if I said, I arrest thee, Sarah, and I put, say, my hand on your shoulder, boom, arrest, even if you run away. My favorite little vignette. And then they said, okay, well, this is well established, but what if I don't physically touch you with my hands? Instead, I'm touching you with an object, like a bullet.

Well, there wasn't so much case law about that in common law because cops weren't running around armed. Cops weren't routinely armed until much later. So what are they having to do? They're having to see, are there other cases involving objects rather than arms, hands for seizing? I like how they go to 1605, Sarah. The closest decision seems to be Countess of Rutland's case, Star Chamber, 1605. Now, if that isn't a little ominous right there, you're citing not a court, but the Star Chamber. Yeah, yeah. Star Chamber, 1605. In that case,

our chamber 1605. In that case, sergeants at mace. Now that is a cool title. Yep. And I think this refers not to the mace that we spray on your face, but to the large things we wield on a chain that bash your skull in. And I want to be, if I'm not a senior editor, can I be the sergeant at mace for the dispatch? Okay. I'm going to request that. Steve Hayes will determine that. Yeah. I'll, I'll, okay. So in that case, sergeants at Mace tracked down Isabel Holcroft, Countess of Rutland,

to execute a writ for a judgment of debt. They quote, showed her the Mace and touching her body with it, said to her, we arrest you, madam. That was authority for the proposition that you are seizing someone if you shoot them from a distance. Yeah. Fascinating. And Robert says, we think that the case is best understood as an example of an arrest made by touching with an object

for the sergeants at Mace can announce the arrest at the time they touched the countess with the Mace. Okay. I'll go first on what I think about this. I think the bottom line is, if you're shooting someone and partially paralyzing them, it's a seizure. I think that's a seizure.

If at common law, if it's grabbing you and you escape and you evade, and that's considered a seizure, shooting someone, I'm convinced by the Blackstone quote that corporal seizing or touching the defendant's body can be as readily accomplished by a bullet as by the end of a finger. Three Blackstone, 288. So I'm persuaded, but Gorsuch does make a good case. I think this case.

So first of all, I'm laughing because I looked in my notes and I said 323 court dot dot dot, but really 333, the ghost of Scalia is the third who wrote the 1991 Hodari case, dicta. By the way, lots of fun stuff on what dicta is. And I think it is worth, I'll just read a little of Gorsuch's definition of dicta. Under the law of stare decisis, we normally afford prior holdings, like Hadari in this case, considerable respect. But in the course of issuing their holdings, judges sometimes include a, quote, witty opening paragraph, the background information on how the law developed, or digressions speculating on how similar hypothetical cases might be resolved. Such asides are dicta. The label is hardly an epithet. Quote, dicta may afford

litigants the benefit of a fuller understanding of the court's decisional path or related areas of concern. Dicta can also be a source of advice to successors, but whatever utility it may be, be a source of advice to successors. But whatever utility it may be, Dikta cannot bind future courts. And so you have the majority saying Hadari is applicable if needing of expansion. And you have the dissent saying Dikta. Dikta is a popular battle cry of dissents. Dicta is a popular battle cry of dissents. So I think this case shows, as I've argued in some of the others, the limits of originalism.

You have Chief Justice Roberts writing a very long majority opinion, most of which goes into things like the 1605 Star Chamber sergeants at Mace. And while I will mock some for saying that there is nothing in English common law that is applicable to the United States because, quote, that's why we fought a war, like, well, no, that's silliness. On the other hand, you do have to separate out,

we did fight a war because we didn't like some of the legal elements of what the British were doing, especially when it comes to Fourth Amendment stuff. And so this idea that you're relying entirely on 17th century British common law pre-Fourth Amendment to determine what the Fourth Amendment meant. Well, wait a second. They didn't like British search and seizure laws. And so you also have this very strained, as you said, fine, there's no examples of bullets, but at some point, the metaphor loses all meaning. So yes, they have these bankruptcy touch arrests in bankruptcy cases. yes, they have these bankruptcy touch arrest in bankruptcy cases.

So as Gorsuch says, fine, yes, the mere touch arrest was a feature of civil bankruptcy practice for an unfortunate period, but it ain't no more because we didn't think that was a good idea. These guys were reaching through windows. So there's this one case where like, literally as long as you could touch the guy

within their home, it was an arrest and then they had to come out or you could go in to get them at that point it just totally eviscerated any sort of castle doctrine about the house and so what officers were doing were getting ladders because people would hole up in their houses and they were trying to like reach them through windows and touch them. And lo and behold, they often did, which, I mean, I get that houses were small, but, I mean, dude, stay away from the windows if that's how they can arrest you. That is...

And by the way, it makes me really question this idea that using, for instance, a mace constituted a valid touch arrest because if these guys were up on ladders reaching through windows trying to touch these guys all the time, you'd think it would have been

very common to use a pole to reach further into the house to touch the guy. And in fact, there were no examples of that mentioned by the majority or the dissent that I saw. But what's weird about that, Sarah,

okay, so if I'm holed up in my house, right, and somebody reaches in with a pole and just touches me. I'm still in my house and he's still outside of it. No, but at that point they can come in because they've arrested you. They've affected the arrest. And so then the whole castle doctrine disappears and they can just walk on in. That's right. Which is why it's silly and why obviously it doesn't count. That's not what

the Fourth Amendment means. Are we saying that now that's a thing we can do because they used to do it with bankruptcy cases? No, obviously not. So the real limits of originalism, I thought, in the majority opinion. And Gorsuch, of course, little echoes of Bostock here, he's doing the textualist approach. A seizure requires the use of force with intent to restrain. Accidental force, sorry, this is the majority. A seizure requires the use of force with intent to restrain. Accidental force will not qualify, nor will force intentionally applied for some other purpose satisfy this rule. Okay, but that makes a lot less sense than simply seizure meaning what we all think the word seizure means, which is to

have control over, not the intent to restrain. That's not a seizure. I can, in fact, I took my nine-month-old son to a petting zoo this weekend. He intended to restrain all sorts of critters, but he did not seize any of them. Not under our definition of that word. He did not get control over the goat despite his intent. And I think there's some absurd outcomes that Gorsuch does a nice job showcasing. I'll read a few. So under the majority's logic, we are quite literally asked to believe the officers in this case, quote, seized Ms. Torres's person, but not her car, because the majority acknowledges that to

seize an object would still mean to possess, have control over Ms. Torres This person, but not her car, when they shot both and both continued speeding down the highway. The majority's need to resort to such a schizophrenic reading of the word seizure should be a signal that something has gone seriously wrong. Also, they use the Terry case. This is where Terry stops come from. And we're going to talk a little bit more in our next argument conversation about the different levels. But you have reasonable suspicion to stop someone where you don't need a warrant and you don't need probable cause. And that comes from this case called Terry versus Ohio from 1968. So Gorsuch is using the Terry case to talk about what a seizure really is. about what a seizure really is. The court explained that only when the officer by means of physical force or show of authority has in some way restrained the liberty of a citizen, may we

conclude that a quote seizure has occurred. The restraint of liberty Terry referred to was interference with a person's freedom of movement. This becomes really important when we talk about whether the police have detained someone for fourth Amendment purposes. Did you feel free to leave their custody? That implicates your right to counsel, for instance, whether you need to be Mirandized. So this case isn't just about shooting, fleeing suspects. Okay, so then he's like, well, then... I think, Sarah, if I'm shot twice and I'm partially paralyzed,

I don't feel free to leave that. Well, you did leave. I know, but that's where the dissent loses me a little bit. Look, if it was a placing of a mace on someone's shoulder followed by, I arrest thee and I just walk away or run away, I would have a problem with the reasoning. I think that, though, what you have here is not just a, you have an exertion of extreme force, the most extreme kind of force, deadly force. But that wasn't necessary for their, under their new definition, that's not necessary. It happens to be facts in this case. But Gorsuch points this out in the dissent. Now, here's the result.

A fleeing suspect briefly touched by a pursuing officer can now sue that officer. touched by a pursuing officer can now sue that officer, but a suspect who evades a hail of bullets unscathed or one who endures a series of flashbang grenades untouched is out of luck. That distinction is no less artificial than the one the law has recognized for centuries. And he has some good news, which is that this folding is incredibly narrow because here are the six things you have to establish before you can bring another case like this. One, lack of a state law remedy. Two, evades custody. Three, after some physical contact by police. Four, where the contact was sufficient to show an objective intent to restrain. Five, where the police acted unreasonably in light of

clearly established law. Six, but the police conduct was not conscience shocking. With qualification heaped on qualification, that can describe only a vanishingly small number of cases. Like Torres's. Like Torres's. So, but then, and this is what I think is really interesting, because you don't see this often, I think, in Supreme Court opinions,

where a dissenting justice questions the motives of the majority. Oh, boy. So he's, and by the way, whether it's Alito or Gorsuch, I mean, Thomas is long past this point. He's like in the stages of grief, he's in some other, reached a higher level of consciousness. But Alito and Gorsuch, I think at this point are still incredibly frustrated with the chief justice and who he has turned out to be jurisprudentially. And so the chief can really get under their skin still. And I think this was kind of example of just utter frustration with the chief. So what can explain the majority? Ask Gorsuch. If text history and precedent cannot explain today's result, what can? The majority seems to offer a clue when it promises its new rule will

help us, quote, avoid line drawing problems, any different standard, the majority worries, would, quote, be difficult to apply. But if efficiency and judicial administration is the explanation, it is a troubling one. Surely our role as interpreters of the Constitution isn't to make life easier for ourselves. And then he says, but maybe it is in fact an impulse that individuals like Ms. Torres should be able to sue for damages and this I think speaks to you David sometimes police shootings are justified but other times they cry out for a remedy the majority seems to give voice to the sentiment when it disparages the traditional possession rule as artificial and promotes its alternative as more

sensitive to personal security and new policing realities. They basically accuse Roberts of having these emanations and penumbras from the Fourth Amendment because of a police shooting distortion. And they don't say it, but they clearly are pointing to the last year of public frustration, I don't know what the right word would be, with police shootings and are accusing Roberts of thinking that the court needs to step in here in order to meet a public demand for remedy. Okay, so it's going to be interesting to me to see when the Gorsuch-Alito-Thomas III are interested in Scalia-Dicta and when they're not. that I think that the Gorsuch, Alito, Thomas three are going to find pretty fascinating. And that is when Scalia in Heller talks about that the Second Amendment doesn't protect

what quote dangerous and unusual weapons. Dangerous and unusual. I promise you that if they do want to quote that, they're not going to call it dicta. Exactly, exactly. They do want to quote that. They're not going to call it dicta. Exactly. Exactly. So the point that I, when I read that about Gorsuch, you can't say that about the Scalia dicta that they scorn. I mean, this is early 90s Scalia.

I mean, this is early 90s Scalia. This is not post-George Floyd Scalia, because Scalia sadly passed away before all of this occurred. So, you know, what I say, what you say are limits of originalism, I think is sort of limits of originalism in the sense, if you have an idea of originalism, which I think a lot of people unfortunately do, which is that, wait a minute, originalism is supposed to make these kinds of decisions easier. Originalism is often debatable. It's often debatable. And I think it's debatable on exactly the kind of grounds we've seen here. And, you know, when you go back to English common law, and it wasn't just English common law, the majority talks about colonial common law, that colonial common law picked up on the principles of English common law and early American common law picked up on the principles

of English common law. The argument is not that this is the kind of thing that the colonists were trying to escape. The argument is that these were legal principles that we inherited from England that we continued. And that's one of the more potent forms of originalist argumentation. And so I think what you have are some schools of thoughts, schools of thought here, competing schools of thought.

One that says, okay, the words unreasonable, search, and seizure are less self-evidently defining than Gorsuch says they are. And so how do we know they're less self-evidently defining? Because at common law, even in early American common law, they were interpreted in a way different than Gorsuch suggests. Now, as we've talked about a million times, the fact that people in early American history interpreted the Constitution one way is not definitive. It's not the case that it was sort of impossible for early American courts or early American legislatures to violate the Constitution because whatever they said was a valid interpretation of it. But it is an argument. It's an argument worth having.

And so I don't find it surprising at all that we had it break down on these terms. Now, I also think that if this had been written by, say, Breyer, the argument wouldn't be. If the majority was written by Breyer, it would not be like this. It would not be the same. Indeed. So, last week there was, are we good on, shall we leave Torres? Yeah, one quick thing about Gorsuch and motives. It's interesting that he did that because a lot of people flipped that around

on Gorsuch during Bostock. They tried to argue that his reasoning in Bostock was motivated reasoning, that he wanted to get to a result on Title VII and he sort of retconned textualism into it. So I would, you know, it's interesting. When justices make motive arguments. And so, yeah, it's really fascinating to see that little interplay. you ask about Rebelsis? Actually, I'm seeing my doctor later today. Did you say Rebelsis?

My dad's been talking about Rebelsis. Rebelsis? Really? Yeah, he says it's a pill that... Well, I'll definitely be asking my doctor if Rebelsis is right for me. Rebelsis. Ask your doctor or visit Rebelsis.ca. Order up for Rebelses. So there was another case that was argued last week that is also on the Fourth Amendment. Little different though. This case involves, well, a bit of a domestic dispute. So this guy and his wife have a bit of a tiff. The tiff goes on quite a while. He's 68 years old,

no criminal history, no record of violence, et cetera. They've been married for 27 years. They're arguing inside their Rhode Island home. The argument escalates. He goes and gets what he says is an unloaded handgun. He comes downstairs. He puts the gun on the table and says to her, why don't you just shoot me and get me out of my misery? Sounds like a fun 27 years of marriage, I'll tell you. Oh, man. You're only a 25, David. Those next two years are a doozy.

Well, as Nancy says, I've been married 25 years, including seven of the best years of my life. years, including seven of the best years of my life. So the wife threatens to call the police. He leaves. She didn't call the police. He comes home. They keep fighting. She leaves. The next day she calls. He says he's in the bathroom now, but he doesn't answer the phone. So then she calls the police and says she's worried that he's going to commit suicide. So the police show up. Long story short, they enter the house under something that's called a health and safety check.

It's a community caretaking exception to the Fourth Amendment. Now, think about the Fourth Amendment. Normally, when police are entering your home, it's a question of what level that they need for a criminal entrance to your home. Do they need a warrant, which is they have to go to a neutral magistrate and show they have probable cause to believe a search is justified. They could also just have probable cause without a warrant. They're sitting out there, but they know they have probable cause and they go in. Or they can have reasonable suspicion, specific reasonable inferences, which entitle the officer to draw from the facts in light of his or her experience. That's the Terry stop thing. A guy's walking down the sidewalk, you see a bulge where a gun normally is kept. And so you ask him to stop and you frisk him.

Um, but this is different. There is also emergency aid and exigent circumstances. So right. Exigent circumstances are a child's been kidnapped and you hear a child screaming from apartment three B. Okay. Well that's exigent circumstances. You can go in to look for the child without a warrant. Now there might be some limits though, on what you can get once you're in there. You know, the child's not in there, but you found an illegal weapon. Um, you may or may not be able to use that because of the way you entered. You might. There's also emergency aid.

You know, if you see through the window that there's someone passed out on the floor, no, you don't have to wait for a warrant. You can go in and start CPR if you're the officer. But again, might limit what you can seize for a criminal purpose. Okay, but the community caretaking exception is sort of a lesser doctrine. And this is the idea that police officers also have this other public safety thing. And so we had this argument and, um, David, the argument, I do not think went well for the guy, the guy who's claiming that the police had no right to enter his home. They needed to go and get a warrant.

I mean, it starts off bad and it seemed, I like rooting for people. I'm not here to sit in the bleachers and criticize, but I'm not quite sure whether perhaps his client told him that he wanted a very extreme version of this argument or whether perhaps the moot, like maybe a moot had been canceled because of COVID. I don't know. This is a very skilled, talented lawyer who argued it. Lots of experience. But he got really tripped up, I thought, in this oral argument. So you have Justice Roberts starting with this example, and he never really gets off of it. I mean, like all of the justices pick up this example. So here's the example. It's literally like Chief Justice Roberts, colon,

example, it's literally like Chief Justice Roberts colon Mr. Attorney. Let's say the police get a call. It's eight at night. The person says their elderly neighbor, they invited her to dinner at six. It's eight. She's never late for anything. She's not answering her phone. They haven't seen her leave her house. They're worried. They asked the police if they can come over and check it out. The police do that. They go on the property, but they can't see through the windows, but the back door is open. They go in. She's not there, but she comes back and says, what are you doing here? And she sues them under 1983 for violating her Fourth Amendment rights. Does she win?

He says, yes. And basically, in all of these examples, they get sort of crazier and crazier. And the guy each time is like, nope, you can't go in the house. And Kavanaugh, when we finally get down to him is like, I was shocked by your answer and I want to return to it. But they kind of always keep returning to it. And it's this idea that like, really?

And he's like, well, if it doesn't meet the emergency example and Robert's like, okay, fine. But does, do you think that meets the emergency example? Um, you have a credible neighbor. Um, they say she's never late. She was coming to dinner. They never saw her leave the house. They've called all this stuff. Is that an emergency? And he's like, no, they're like, okay, how about 24 hours later? So it's 8 p.m. the next night. They still haven't heard from her. They've been knocking, they've been calling, et cetera, nothing. And he says, no, you still can't enter the house under the fourth amendment. And you have Kavanaugh then asking the question, do you know how many suicides by gun there are a year or a day?

And the lawyer says no. And I find that surprising because that's a question that I think you would either think is coming or know is coming. So either you do know the answer, in which case you sort of said you didn't when you do. You don't want to give the answer because it's actually 65 a day. Or you didn't know that that's where this could go. I mean, this idea that the police just have to sort of let suicides happen because of the Fourth Amendment, I think really bothered most, if not all, of the justices. So it was an interesting case. I think, again, justices. So it was an interesting case. I think, again, I think we know how this is going to turn out. I do have this, a dark look into Justice Breyer, who's normally a pretty peppy guy at argument. Let me read to you what Justice Breyer says. Okay, well, you know, a baby's been crying for five hours. Nobody seems to be around.

A rats come out of the house at a time when rats carry serious disease and have to be stopped. I know he meant those to be two separate examples, but in the moment I was like, wait, is that all one hypo? Because if so, what, like what dark recesses are in Stephen Breyer's mind. So then the attorney answers, just to take a couple of your examples, a baby crying. I think that would be a true emergency. But rats, that was what was at issue in the Franks case,

which this court overruled in camera and said, Justice Breyer interrupts, that was the wrong rats. Try reading The Plague. Try reading something where a rat coming out of a house could give people bubonic plague. Whoa, this escalated quickly. Wow.

So, it was not a good argument. Well, one of the things I think is interesting about search and seizure law is the actual text itself implies lots of judicial judgment in it. Exactly. Because it says unreasonable search and seizure. Unreasonable. There's going to be a rule of reason applied.

And that rule of reason is going to be inherently, you're going to get guidance as we were talking about from in the previous case when it comes to what did these words mean? I mean, for example, seizure, what did the word seizure mean? What was the original public meaning of seizure, which is what a lot of the fight turned around turned on in the Torres case. Unreasonable is even more malleable than seizure. It's pretty darn malleable. And it's one that it's, there are circumstances in which you cannot look at,

it is simply impossible to create a situation where someone is like, a judge is like a jurisprudence bot that you plug in the text of the law and there's a completely objective, discernible meaning of the text of the law and out spits the ruling. And it is absolutely the case that when you're dealing with a word like unreasonable, you're going to get a lot of judgment calls there.

All right, last Supreme Court news and we'll move on. You're going to see a lot of judgment calls there. All right, last Supreme Court news, and we'll move on. You're going to see a lot of headlines about how the Supreme Court, quote unquote, agrees to hear first abortion case with 6-3 conservative majority. I am literally reading the Politico headline. All right. Stop getting excited or depressed or whatever other feelings you may have about that headline because the facts are far less interesting. So yes, this is a case where the underlying facts are about a Kentucky law that limits abortion. That law was then blocked by a lower court. And then the governor's office, the new Democratic governor's office, refused to defend the law. So the Republican attorney general tried to intervene to defend the law. So the Republican attorney general tried to intervene

to defend the law. The Sixth Circuit denied the Republican attorney general's request to intervene. The Supreme Court is going to decide that question, whether the Sixth Circuit erred by denying the Republican attorney general's request for intervention. This will have nothing, nothing to do with abortion. And if we spend 39 minutes as we have so far on that case, y'all will be turning it off. So in other words, it might be the most boring possible case that includes the word abortion in the pleadings. I think that's true. Gotcha. Okay. Shall we talk a little bit about hate crimes?

Yes, I do. I really want to. Yeah, this is going to be, okay, this is going to be a little bit of a legal history lesson combined with some sort of just general sort of what's good public policy. So a lot of people ask about hate crimes from the standpoint of what is a hate crime and how are they constitutional, which is an interesting question. Because if you go back to 1992, let's go all the way back to 1992, Sarah.

I was but a young lad in law school at the time. There was a case decided called R.A.V. versus City of St. Paul. And this was a case that really was mainly about hate speech. St. Paul, Minnesota had a bias-motivated crime ordinance, which, among other things, prohibited the display of a symbol which one knows or has reason to know, quote, arouses anger, alarm, or resentment, and others on the basis of race, color, creed, religion, or gender.

Court struck this case down, or struck that ordinance down as facially invalid, and it was not close. This was a unanimous opinion. So, and essentially that the words, hateful words, just you couldn't prohibit hateful words just as sort of as a category. There are very few limited categories of speech, obscenity, defamation, fighting words, although that category is almost vanishingly to nothing, that can be regulated, quote, because of their

constitutionally prescribable content. Hateful words are not in that. And they're not in one of those categories. And what's interesting about this case, it's decided in 1992 after a load of colleges had passed speech codes that had language in them very similar to the St. Paul, Minnesota ordinance. But did the colleges get busy repealing their speech codes? No, they did not. So they had to be sued into oblivion over years. No, they did not. So they had to be sued into oblivion over years. But then the next year,

93, you get Wisconsin versus Mitchell. And Wisconsin versus Mitchell was something else. It was if there's already a crime, in this case it was aggravated battery, could the sentence be enhanced because he selected his victim on account of race? And in this circumstance, the court said, yes, that frequently we consider motive when determining, for example, the severity of a crime or the nature of a crime. And so essentially what that then created is a formula for a hate crime conviction. It would be existing crime plus hate motive equals, and typically, higher penalty. So the hateful motive could not be the crime itself, or the hateful speech or hateful idea could not be the crime itself.

hateful idea could not be the crime itself. But if you have an existing crime and you tie it to a hate motive, penalty enhanced. And that's sort of where we are in the law right now. And we had a great email from a prosecutor. Oh, man, I was just going to do it. Do it. Do it, Sarah. So he makes an excellent point that in the case of murder, he doesn't understand why you would ever bring the additional hate crime charge because that's just a whole nother element that you have to prove mens rea on. So I'll read here. That being said, on a purely practical basis, I can't imagine why a trial prosecutor would want to charge hate crimes in cases of murder, let alone multiple murders. In just

about every jurisdiction that I'm aware of, being convicted of killing multiple people will get you either a life sentence or death. It seems a little like the scene in Die Hard where Bruce Willis just used the explosives to kill the bad guys firing rockets at the SWAT vehicle, only to be chastised by the deputy chief, Dwayne Johnson, for causing people to be covered in glass. You're looking at either life behind bars or death, but it could be worse. You could be looking at a hate crime. Right. Right. Right. I bring this up to emphasize my point that bringing a hate crime in such a case brings the prosecutor no tangible benefit, but instead adds a specific intent mens rea element that he'd have to prove beyond a reasonable doubt. No thanks. class, I'd still be able to get that into evidence as motive evidence under Rule 404B and would, again, not have to worry about proving motive beyond a reasonable doubt.

Excellent point on the murder specifically. But put that in plain English because that was a lot. Okay. His point is if I bring a multiple murder case against someone at trial, all I have to do are prove the elements of murder, which is that the defendant, one, two, brought about the death of the victims, two, three, intentionally, three. And without legal justification. And without, fine. Okay, fine. I'm doing this off the top of my head. If you add in hate crimes, you have to prove a fourth

that he did so because of the victim's protected class status. And so you have to prove each element beyond a reasonable doubt. So all you've done, when you already have a case where the punishment is life sentence or death, is added a fourth element that you now have to prove beyond a reasonable doubt. So all you've done when you already have a case where the punishment is life sentence or death is added a fourth element

that you now have to prove beyond a reasonable doubt, which is a tough one to prove beyond a reasonable doubt. Someone's subjective intent that they wanted specifically to target someone because of their race. So he's like, look, I'm never going to add a fourth element that I have to prove beyond a reasonable doubt

for funsies when the punishment is already as high as it can get. And even if I wanted to use it to sort of piss off the jury more into voting to convict, I can still get that evidence in under the rule of evidence that allows him to bring in motive-based evidence. Even though, by the way, you'll notice motive,

except in hate crimes, is not actually an element of murder. Right. Well, you know, the interesting thing about that is, I think as a matter of legal tactics, I think he's 100% right. I mean, if you're looking at potentially securing the death penalty or life in prison, and someone is wanting you to add an element that complicates your prosecution, when the result will be the same, regardless of whether the element is there or not. No.

But then what happens is if you don't charge hate crime, then a lot of people who don't understand and really, you know, they're not zeroing in on, wait a minute, it's death or death or it's life or life. I mean, there's no distinction here on the penalty. They think you're soft peddling the prosecution by not charging hate crime. And I think he raises a really good point as a matter of legal tactics. But unfortunately, a lot of prosecutors get boxed in because it looks to people who don't understand this that they're soft peddling or they're in denial or denigrating the true magnitude of the crime or maybe even marginalizing the marginalized community that was further marginalizing the marginalized community that was attacked when the reality is they're trying to secure a conviction in the most legally efficient and effective way possible. in the most legally efficient and effective way possible.

Now, and I'm completely with him on that. I thought that was a great email. I thought that was a great point. Now, here's where hate crimes, I think, have a real value, okay? Because a lot of people will say, you know, hate crime, it's interesting. There's sort of a school of thought that says we need to really

charge hate crimes aggressively. There's another school of thought that says crime is crime. You know, if you steal my car- We shouldn't punish someone for what they were thinking. I don't want thought crimes. Right, exactly. But let me put it in circumstances where I think that it might be somewhat more understandable. it might be somewhat more understandable. If you have a school that, let's say it's a school in Brooklyn, public school in Brooklyn, maybe significant population of Jewish children in the school, and somebody walks up to it and they graffiti on there, release the Snyder Cut. graffiti on their, you know, release the Snyder cut. Okay. It's vandalism. It's vandalism. There is a, they should be punished for that. Okay. That's vandalism. Then there's somebody. I can't believe you would punish someone for graffiti and release the Snyder cut.

I think on any jury you'd nullify that, but, but I, I am so impressed that you would put aside your own personal feelings and bring that case. Okay. Well, you know, civil disobedience, you're supposed to accept the penalty. Okay. But here's something much worse. Let's say somebody walks up and it's the same school. They've just cleaned the wall and they put a swat stick up there. Which of those two things, they're both vandalism, but reasonable people would say one of them is objectively more ominous, more dangerous, more threatening than the other, even though both of them are just, they're paint on a wall. And that's where you get into this notion that says, wait a minute, there is a particular motive that does in fact magnify the underlying offense. And that's in a circumstance,

not like the prosecutor's talking about. I mean, what's the penalty for basic vandalism. I have no idea. But that's a circumstance in which you would say, okay, wait a minute, I can totally see why a crime in this circumstance is objectively more severe than this other circumstance. And where you get into a gray area is when you start to get into the much more substantial crimes when you're talking about say um when you're talking about like aggravated assault or you're talking about murder or you're talking about crimes that would in any other circumstance result in a very long sentence anyway that's where you know i think a lot of the strength of the argument is wait a minute if somebody's holding me up at gunpoint,

that's really bad no matter what's in their head. Yeah. I mean, what's funny is most people think hate crime legislation is for those most serious crimes and hate crime legislation tends to be passed after some of the most heinous crimes. And yet the times where it's going to be most impactful are on the least serious crimes because it will add such a longer punishment potential. I think that there's something else that's worth mentioning because I am very sympathetic to this idea that we should prosecute outcomes, not motives. I understand why people think that way. One listener emailed, if someone murders a Black or Asian or lesbian for no personal reason, the victim is no less dead and no more dead than if the victim was

a targeted individual. I understand why that is an attractive way of thinking about it, I guess. You know, if I'm assaulted by a complete stranger while walking alone in the city at night, is that a hate crime against women or is it just a crime against me? And here's what I think is the easiest way for people, no matter what group you may belong to, whether anyone who commits a crime against you could ever commit a hate crime, for instance, is 9-11. Why was that a traumatic event for our country? It wasn't because 3,000 people died that day. By the way, I looked this up. Roughly 7,000 or so people die in the United States every day

from whatever, a variety of causes. So why was it that that day was so traumatic when, you know, 3,000 people died? That's not good, but lots of people die every day. It's because they weren't attacking those specific people by name. They weren't interested in that. Who were they attacking? They were trying to kill Americans. And the purpose of that was to terrorize Americans. And so I think that's a way to understand hate crimes, is that when a hate crime happens, that you can prove beyond a reasonable doubt that element of the crime, the purpose of graffiting that swastika on the school is to terrorize those children in the school and their parents. It is not to simply deface the

school. And that's why some states have decided that's just going to be punishable by more, that there is something worse about that. And that's up to the states to do so. And, you know, for federal crimes, the federal government. I think it also, though, David, takes us to the domestic terrorism conversation as well. Because domestic terrorism, in a way, what we're talking about is making hate crimes for being an American by an American

carry a stiffer penalty. Because right now there is a definition of domestic terrorism in the U.S. Code, but it is not a crime to commit domestic terrorism. Right. So there's a couple of things going on here. I think that hate crime analysis applied to terrorism is very

interesting in the sense that it makes sense of why people would say hey even though you know murder is punishable by death um there are long prison sentences for um gosh i mean after the oklahoma city bombing and there was the uhive Death Penalty and Anti-Terrorism Act passed, that there were major penalty enhancers for certain types of crimes, even whether or not that they were terrorist in intent. example of a rancher out west who let a burn get out of control and it burned some federal lands prosecuted under this effective death penalty anti-terrorism act sentenced to an extremely long prison sentence without any sort of motive at all of any any real intent to terrorize anybody to actually even minimal evidence that he intended to destroy federal or burn federal lands. So what a lot of people are worried about is when you bring in the anti-terror apparatus

into domestic law, in which the way we have overseas, you are opening Pandora's box on civil liberties. And so then you get the response that says, look, I understand terrorism is horrible, terrible. We have, and this is basically my position, we have hugely expansive tools to deal with crime in the US.

We don't need additional tools provided to law enforcement. We have broad conspiracy statutes. We have extraordinary power on the part of federal law enforcement. If you're going to bring in anti-terror statutes overseas, in large part, that was because we just didn't have the tools to deal with international terrorism and the magnitude and at the nature of the threat that they were facing and we've got all the tools domestically and while we understand that maybe a a murder or a terrorist act undertaken for the purpose of terrorizing is worse than say for the purpose of of of you of basic robbery or the conventional malice of forethought of a murder, that there is a downside to opening up American law enforcement to sort of that full anti-terror apparatus. And that's, I would say, largely the contours of the debate. Let me run this by you.

What if it were only a sentencing enhancement? Only a sentencing enhancement. I would, I think I could be okay with that in the lower level of crimes. I think an enhancement, say, between giving somebody 50 years versus 55 years or 50 years versus 60 years or death versus double death. I think, as I said in my example with hate crimes, I think at low level, what would be otherwise low level crimes, when engaged in for the purpose of, for example, terrorizing a community, I see a real logic in the penalty enhancements there.

Let's take a moment and talk about an outfit called thedispatch.com. David, do you ever finish taping this podcast and really want to keep talking about it with someone? Because not everyone like me is married to the former Solicitor General of Texas and can just walk upstairs and keep complaining about whatever the spicy Alito dissent was. But you can keep talking about it by going over to the website and getting in the comments section where so many of our listeners are hanging out and chit-chatting. You can join the conversation by becoming a member of the dispatch, typing in advisoryopinionspodcast.com to your internet browser. It's easy to remember, advisoryopinionspodcast.com. And I have to say, Sarah, it is rapidly becoming known as the best comment section in the internet.

Now, that's a low bar. I'm going to admit it's a low bar, but it has surpassed it. I think we have one of the best comment sections on the internet. And now is the great time to give a dispatch membership because we're offering a 30-day free trial on a dispatch membership. You can get more from me, David French, in my newsletter called The French Press. And more from me, Sarah, in my weekly campaign-focused newsletter, The Sweep. So go to advisoryopinionspodcast.com and try the 30-day free membership. Join the conversation.

And, you know, David and I hop in there from time to time because this is the flagship podcast. Okay. Do I get my 17 to 19 seconds on DC statehood? Yes. Okay. We do like micro machine guy. I got to talk really fast. Okay. Several of you wrote in after last week and said that you were very upset that in talking about the constitutionality of turning DC into a state, I didn't mention the 23rd amendment. Let me quickly read you the 23rd amendment. This doesn't count against my time, David, because I'm going to read it slower. The district constituting the seat of government of the United States shall appoint in such manner as the Congress may direct a number of electors of president and vice president equal to the whole

number of senators and representatives in Congress to which the district would be entitled if it were a state, but in no event more than the least populous state. Okay, back to my time. This doesn't affect the constitutionality at all, which several of you acknowledged. However, yes, it is a weird thing that all of a sudden maybe just the president and his family, whoever lived at 1600 Pennsylvania Avenue, would suddenly get three electors in the electoral college because of the 23rd Amendment. So yes, if you're turning D.C. into a state, you might want to repeal the 23rd Amendment. Or in the alternative to fix all of this, you could simply put the parts of D.C. that you want to turn into a state, turn it back to Maryland and Virginia. They might like their land

back, but that still wouldn't fix your 23rd Amendment problem. So sorry, folks. Yeah, it's a weird one. Slightly over 19 seconds, but not excessively. Not excessively. Shall we turn to our legal career advice section? we turn to our legal career advice section. Yes. So I had a nice long phone call with a 1L last week about whether he should clerk. And here are the relevant facts. He doesn't think he'd enjoy clerking. That's not why he'd be doing it. Obviously, if you just think you'd love to clerk, then you should clerk. And clarify what clerking is. Oh, good point. So after you finish three years of law school, you can go spend an additional year,

sometimes two years if it's at a district court or a bankruptcy court, working for a judge. And what you do for that judge is you sometimes draft opinions, bench memos. By the way, I did not know what a bench memo was on my first day of my clerkship. And we got assigned to bench memos. And I was like, I don't, is someone going to tell me what that is? So bench memos are where

when a case comes in for the first time, you write sort of a summary, like a, what's this case about? What are we sort of thinking? What are the issues before oral argument? It reads kind of like a brief that the parties turn in, but it's a brief from the clerk themselves that takes out some of the vitriol and feelings. And it's a guidepost for oral argument a lot of the time. So, and it's, you know, you, in my clerkship, there were three clerks. There's oftentimes four for those year-long appellate clerkships. Yes, you generally need an appellate clerkship to then clerk at the Supreme Court. These tend to run summer to summer. Mine, I happen to remember, was August 11th to August

11th at the Supreme Court. They tend to run July to July. So we had this long conversation about whether that was worth a year or two of your life. Is it worth putting off your career? And so I had some thoughts. I wanted to get your thoughts, David. First of all, I find it very frustrating, a trend that's happening in clerking, which is that the Supreme Court justices, some of them are really encouraging their clerks to do two appellate clerkships. So you might do one out on a circuit and then one at the DC circuit and then clerk at the Supreme Court. For those Supreme Court justices who may or may not be listening to this podcast, I want to make the case to you that that unintentionally, disproportionately impacts women. The amount of time that women have to start a family is not up to them

and runs into all sorts of problems when you're trying to have a legal career. Unless you can have your child during law school, which in some ways might be ideal, in other ways not that ideal, you're then looking at a clerkship where taking maternity leave would be pretty hard. It's only a year long. Even if the judge were totally fine with it, you'd be missing out on most of the experience of the clerkship itself. Then you start as an associate at a law firm where you're expected to bill wild amounts of time. I mean, wild. Some of these folks are billing, mean wild. Some of these folks are billing 2,500 hours a year would be a pretty normal associate number of hours to bill. It would not be unheard of to bill over 3,000 hours in some years. Feel free to do the math at home, folks, but that's all of your waking hours and you're

trying to bill time while showering when and if you get the opportunity. And if you take maternity leave during that time, most of the firms will simply tack it back on to the time needed to make partner. So a lot of women wait to make partner to have children. By adding another year onto the clerkship route to get a Supreme Court clerkship, a lot of women are having to really decide the marginal value of that additional year of putting off having children compared to the value of having a Supreme Court clerkship. We already have so few women clerking at the court for any number of reasons that I'm happy to complain about. But surely this trend is not one we need to embrace. It is not so helpful to the Supreme Court justice to have that clerk have an additional year of an

appellate clerkship. It hadn't been the practice before for decades. They don't need to start it now. Please, please, please, let's ditch that. It's not going in a good direction. I know too many women who are calling me saying they just can't fit that into their lives. And so they're not going to apply to the Supreme Court. Don't do it. Don't. These are smart, capable, talented women. You want clerking for you.

Rant over. So I would say a minority of our listenership is going to be clerking at the Supreme Court. A much larger number. And we have a lot of people who are in law school or pondering law school who listen to this podcast. Let me tell you my situation and why I made a mistake. So, I go to law school. I don't know anything. Sarah, I knew nothing about the practice of law.

I knew nothing. As I've explained before, I went to law school because I didn't know what else to do with my life. And I thought it was an option expanding choice. And I had a great opportunity to go to a good school. So why not? I went. The first thing I noticed is that all of the money that my parents had saved for my education

was gone in one semester. Gone. So then I start taking out these loans, just like hand, I mean, just loan after loan after loan. And I'm starting to get worried about money. just loan after loan after loan. And I'm starting to get worried about money. And nobody really took me under their wing and sort of said, you know, no faculty member or whatever, and took me under their wing and said, hey, here, let's plan your career out. Let's plan your career out. For me, I had one thought and one thought dominating my mind. I need to get out

and make money quickly, as quickly as possible. I don't know how I can live on a clerk's salary. Forget clerking, bye. That was my whole thing. And nobody sat me down and said, this is a real, if you like option expanding choices, this is continuing that trend. This is an option expanding choice. It makes you have better options in your

legal career if you clerk it, not just as an additional sort of credential. It also is a great entry point into the practice of law. You're going to see the practice of law up close and personal in a very interesting way. You're going to understand the way judges work. You're going to understand the way judges make decisions. You're going to just, it's just a tremendous one-year intensive training process that's unlike anything you get anywhere else. Nobody sat me down and explained that to me. So I just thought, hey, look, starting salary. Yes.

Clerk salary. No. And boom, I went straight into it. And three, four, five years later, you're realizing, I could have just had ramen for that year and had a great experience. And I really regret that I didn't do it. And I wish somebody had sat me down and said, what are you doing? But my friend group at

the law school was a bunch of people kind of like me who, we came into law school, we didn't really know much about it. And so we took a whole bunch of different career paths, but nobody, there was not this consensus that clerking is really, really important. And I would say this, unless you have a compelling reason not to, your default should be to pursue that if you can. And what could be a compelling reason not to? There's many different things. I mean, I want to go and practice with my mom or my dad. That's what I want to do, and they need my help now. Sure, Fine. This is the particular career path that I want, and it has nothing to do with the practice of law. I'm going to go be a consultant. Fine. Sure. But I think the default is if you can clerk, I think it's a super valuable experience.

So David and I are, in a rare moment, mostly agreeing on this. So I would compare clerking, I often call it the fourth year of law school to law students who I speak to. Clerking is to law school what working on a campaign is to voting. Sure, you're participating in the process and you maybe did some research, but unless you've worked on a campaign, you just don't really know what a presidential candidate can be all about. Same with clerking. It's just wildly, wildly informative to the practice of law. But I would say that another trend that is very harmful to getting sort of encouraging people to clerk, we had the plan. It literally was called the plan. When I was in law school, it didn't last for very long because, well, you'll see why. So basically,

all of the judges voluntarily agreed that there would be a day basically on which they would accept clerkship applications and no sooner. And that happened your 2L year, 3L year, 3L. No, I'd forget. But regardless, it meant that you couldn't like scoop up. There wasn't a first mover advantage for the judges to get the best clerks first and lock them down. Now, of course, what happened is that judges one by one were like, well, I'm just going to take this clerk early. And it happened slowly and fell apart all at once. So the result now is that the law student who called me is in his second semester of 1L year, and he's in a crunch and needs to decide now whether he is

clerking two and a half years from now. Yeah, it's crazy. And so you don't know whether you even like studying law. And so, yeah, he's like, oh, I don't think I would enjoy clerking. I'd be doing it for all these other reasons. Well, I'm not sure you know that yet, but I don't know what else you can do. He doesn't think he'll like it. And so I just sort of have to take his word for it. And I can't really, you know, who am I to say like, no, no, you'll love it. Some people don't. It's very monastic. You pretty much sit in your office for, you know, minimum eight hours a day, but more likely 12 plus hours a day reading and writing.

And if that's not for you for a year, uh, you know, that's not going to be for you. Yep. You're going to have lunch with your co-clerks. You're not really allowed to hang out with anyone else. It's pretty discouraged to be spending a lot of time because you can't talk about any of the cases. You can't even talk about where you're going because for instance, which judge is on which panel for which sitting has to be secret. And so I clerked in Houston, but we sat in New Orleans. Well, I couldn't make dinner plans because if I tipped off some of my new associate friends that I was going to be in New Orleans next week, then they would know that my judge was going to be sitting on those cases.

I can understand why people don't find that attractive. Plus, moving across the country, if you have a family already for a year and uprooting them and your spouse's career or your kid's school, yeah, that's tough. But I met so many people, not just the clerks. For mine, there was a clerk instant messenger at that point that existed on Lotus Notes. I met clerks in a whole bunch of other chambers. I made some amazing friends. It absolutely

impressed upon me a lot about what judges look for in oral argument, how to write a good brief, how good opinions are formed. It massively improved my writing. Lots of reasons to do it. So all in all, highly encourage it. But judges, a lot of this is in your hands. Some of these trends are really bad for law students. And the reason that judges take non-professional clerks, they could just hire someone and put them on salary, but they don't. They take law students because they want those ambassadors into legal practice is how it's often described. You spend a year with a judge and then you go out and practice law and you speak for what happens in the judiciary at that point. If they want to continue that and for it

to be meritocratic and representative and fair for these law students who they care about deeply, their judges consider their clerks part of their family, then think about the incentives that you're setting up when you make some of these changes, like only hiring one else or really encouraging that second appellate clerkship before clerking at the court. So can I tell you, maybe I'm universalizing from personal experience, but lawyers in an appellate advocate or if you're making a motion for summary judgment argument in a trial court, few people are more paranoid about trying to read outcomes than litigators. And there's sort of two way you're focused in on the judge and you're trying to read from the judge's questions. And often they're not subtle.

And, you know, oftentimes they're just sort of broadcasting where they are, but sometimes they sit there like a statue. You can't interpret from their questions. They're equally rigorous on both sides. And so what do you end up doing? Sometimes you end up like lasering in, having one eye on the judge and one eye on their clerk. And sometimes the clerks are not as stone-faced. And I'll never forget this one case that I had where the judge was, I mean, about as rigorously fair as you could imagine in the questioning. I would defy anyone to watch that oral argument and try to discern where the judge was heading. But I got a spark of optimism, Sarah, when opposing counsel made an argument and sitting there in the jury box

was one of the judge's clerks. And she snorted in derision, involuntarily at the opposing counsel's argument, which earned her a sharp glance from the judge. And I thought, I think we're winning this case. And we did. We did. But I hung on that. When I was reporting back to the partner of the firm, I was a younger associate. I said, I couldn't tell from the judge, but his clerk mocked opposing counsel with her laughter. So that's all I got.

I just want to point out that on the fifth circuit, and obviously I'm not talking about myself or anyone I know, but you end up with a per diem in New Orleans and you stay pretty close to Bourbon Street. So oftentimes your clerk who sits as like to this, there's one clerk who will sit to the side of the judges during each oral argument. Often that clerk is incredibly hungover. So just bear that in mind as you're judging the clerk. Well, I like it said, Sarah. You're just desperate. You're looking for anything. Yeah. Yeah. Fair. Yeah. And I'm sure that's not you. You were. No. No. Oh, my God. No. Yeah. Absolutely. Those 25-cent martinis. I don't even know where you would get one other than next to my hotel. That would be outrageous. 25 cents? Yeah, isn't that

and that's at lunch. That's insane. My judge actually insisted we could stay in any hotel we wanted that fit the per diem, but we couldn't stay at the hotel she was staying at because she didn't want to see us stumbling in late at night. Wow. Well, one other thing, and I mentioned this earlier, but just watching other lawyers argue before a judge is a valuable experience. Now, I imagine double valuable because you then get to hear the judge talk about the argument. But even if you're not going to clerk, if you want to be a lawyer, there's some real value in just watching it. I remember, and it was actually kind of encouraging

because if you watch a bunch of arguments, you realize a lot of people can become lawyers. I really regret, speaking of regrets, there was a murder trial going on in the building when I was clerking at the appellate level. And so some of the clerks were going to listen to sort of a great prosecutor against a great defense attorney in, you know, the highest stakes criminal case that there can be. And I was like, oh my God, I have to write this opinion about, you know, ERISA. And I didn't go. Like I,

yeah. To your point, yes, you learn a lot from appellate oral arguments, but you also learn a ton from watching trial lawyers talk to jurors. And I should have taken advantage of that when I worked in the building. Yeah, yeah. It's a great, it's just a general great practice.

If you want to be a trial lawyer, go see a trial. If you want to be an appellate lawyer, watch appellate arguments. You're going to learn just a ton, just a ton. And I remember some of the things that arguments that I watched when I was a young associate or even a summer associate, I took lessons from that that I remembered for the whole rest of my career.

But thus endeth advisory opinions, career counseling hour, Well, half hour or whatever it was. And by the way, if you want to watch realistic courtroom drama, I would say do not watch Broadchurch Season 2. Good to know. But it's still great television. It's still great television. but as far as the courtroom drama anyway all right i think that's it sarah and we've already we're i'm not going to tease it yet but we've already got stuff lined up for thursday so there's just a lot going on even though we've not

had a deluge of supreme court cases there is just a lot going on. So we'll be back. Already action-packed pod for Thursday. Until then, please go rate us on Apple Podcasts. Please subscribe and check out thedispatch.com. 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.

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