Advisory Opinions - Ultimate Supreme Court Nerdery Part I

Episode Date: May 18, 2020

David and Sarah discuss the end of Rep. Justin Amash's short-lived presidential bid, preview a number of upcoming Supreme Court decisions from Little Sisters of the Poor to the Blaine Amendment case, and the New York Times column taking a closer look at Ronan Farrow. Show Notes: -The agonizing story of Tara Reade -A Guide To the 10 Biggest Supreme Court Cases of This Term -A Glossary of Important SCOTUS Terminology -Not Everyone Is Happy With the Supreme Court’s Live Broadcasts -Is Ronan Farrow Too Good to Be True? -ProPublica: Disaster in the Pacific Learn more about your ad choices. Visit megaphone.fm/adchoices

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Visit td.com slash tdmortgagedirect. $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast, where we pour one out for the presidential campaign of Justin Amash. Sarah, before we really preview the rest of this podcast, the rest of this podcast, here's the burning question. Did your tough questioning of Justin Amash in our podcast drive him out of the presidential race? So for those listeners who didn't know this, late last week, Justin Amash ended his, what, 18, 19-day exploratory exploration of a run for president shortly after appearing as a guest on this very podcast where Sarah just spent like half an hour throwing cold water on all of his

chances. Did you chase him from the race, Sarah? I know you're looking for someone to blame about this disappointing news for you, David. But I'm pretty sure that Justin Amash knew there was a 15% threshold for the presidential debates in the fall before I told him. If he didn't, he definitely should have dropped out of the race. Well, so why do you think he left? Well, I mean, it was a very short expiration for the presidency. Why is it that you think up with a discussion of Ronan Farrow, a giant, giant hit piece against him in the New York Times, and the problems of investigative narrative reporting. But before we get to all of that, so why do you think he left, Sarah? Where does that leave us? And just sort of like, what are your thoughts on the state of the race? Well, we have some key assumptions of why we think he got in. And so I guess what I'm looking

at is which of those key assumptions probably was not correct. One, I don't think he would have had an exploratory committee if he didn't already believe that he had a lock on getting the libertarian nomination right to uh his congressional seat we also assumed that he thought he would either lose or didn't want to stay in congress and that he was leaving congress one way or the other uh and three that there was enough upside to running for president on the libertarian ticket upping your name id for some future purpose aside from winning and this was maybe more mine than yours uh that made it a worthwhile effort and it does take effort i mean that's the thing everyone thinks this is like all fun and games but running for president's a lot of hard work and it can be very thankless and all the more thankless if you have no shot at winning. So one of those three

assumptions I think was probably incorrect. Now there's all these conspiracy theories on like, well, maybe there was something in the oppo that they were going to hit him with. Sure, maybe. But Occam's razor says something changed and he realized that getting the Libertarian nomination wasn't going to work somehow. He decided his congressional seat was winnable after all and decided he would like to stay in Congress. Or whatever upside he saw to getting his name ID up and running for president became less upsidey. Yeah. You know, I remember I had a conversation. This was back in May 2016 during my very brief flirtation with the idea of mounting the independent challenge. And I'll never forget this because at the time I'm writing for National Review and a friend called me and he said,

you know, if you run for president as a third party candidate, fewer people will hear your voice than if you stay at National Review and write. And at first when I heard that, I thought, that seems kind of crazy. I mean, if you're running for president, people are going to hear your voice. But then the more I thought about it, and the more you realize that all of a sudden, you go from a situation where you have a platform that people read, that National Review, millions of people read, to everything is either you're raising money to get your name out there, or you're hoping for earned media. And if you don't break through,

if you don't sort of break into the new cycle, which is not entirely under control, it's just like you're not even there. And part of me wonders if in this 18, 19, 20 days, however long it was, which he announces in the middle of a coronavirus pandemic, if he just found out that it's almost like he wasn't doing it. He's gearing up for all of this and he's not. It's such a good point. This was the most attention he was going to get, right? Like right when you announce. Right. And like, okay, he got some hits on cable news. Yeah. And the world kept turning. Yeah. Yeah. You know, it was really interesting because what the experience teaches you is that being known, like having where people just even know

your name and one fact about you, just one fact is not easy at all. You all. I remember back in May 2016 when my name leaked out there as the of Twitter trends, which is an accomplishment. I mean, I think that's a concrete sort of accomplishment. I sort of ended the Harambe Twitter run, maybe. Like, is it on your tombstone? Well, that's not yet chiseled, hopefully. We'll have to check the Back to the Future Polaroid. Yeah, exactly. And so for about, I would say, 24 to 48 hours, you had some Fox News discussion. You had some CNN discussion. You had some of these talking head panel hits.

Who's this guy? Is he worth even talking about, etc. Then after I said I wasn't going to do it, I made the rounds. I did Fox, I did CNN, I did a bunch of the cable hits. And at the end of it all, this was like 48, 72 hours of the most attention I'd ever received in my entire life. And honestly, I was not all that much more known at all. No, I wouldn't think so. And it was really interesting. And the extent to which you realize when you back up and you look at previous presidential campaigns, Mitt Romney, who had run in 08, who had been a governor, who had helped save the Salt Lake City Olympics, when he gets the nomination and clinches the nomination in 2012, he has

to spend millions upon millions upon millions upon millions of dollars just to try to define himself to the American public. Just to try to get the American public to know a few things about him in the terms he wanted to be known, in the way that he wanted to be known. I mean, in the Obama campaign is spending more money trying to define him in ways that the Obama campaign wants to define him. And it makes you realize the staggering advantage in some ways that Trump had when he walked into the presidential race. He didn't have to spend a dime to define himself. didn't have to defend he didn't have to spend a dime to define himself and the staggering accomplishment for someone like bernie sanders going from a backbench vermont senator to someone who does have very high name id right now uh in a relatively short amount of time to your point you know going on some cable news hits over 48 hours is never going to do it it's repetition

repetition repetition people have to be introduced to you or a concept so many times. And so Bernie Sanders, you know, really coming on the scene in advance of 2016 to now 2020 being a very well-known person in the United States is huge compared to so many who will never, who never get there. And you look at Joe Biden's vice presidential options right now, almost all of them have relatively low name ID compared to Joe Biden, Donald Trump, you know, some of these other folks who people are very familiar with. Well, you know, I was reading something really interesting. I think it, I think it was Tim Miller who said this, and who's been writing some really good stuff of late. He was talking about how if you look at, so for example, Bernie in 2016, if you look at Trump in 2016,

if you look at the way in which Biden routed the field, I mean, routed Bernie just with this sort of incredible wave in over about a 10-day span in February that there's really something about person, meeting moment, swamping everything, swamping organization, swamping money, just sort of a tidal wave that blows away a lot of the diligent, hard, practical, down-to-earth work that a lot of other campaigns do. And I think there's something to that. I mean, there are these individuals who've sort of met a moment and that and, you know, whether it was Bernie coming along at the right time with the right opponent with Hillary and sort of being the only person really standing against her was like man meeting moment. with towering name recognition at a time of anti-establishment foment, Biden being kind of like the last viable alternative when the Democrats are staring in the face of possibly nominating a socialist. And it just didn't strike me that that moment was in the offing for Amash. And I, you know, I'm just guessing Amash sensed that. I think that feels right. I also, you know, to go back to our interview with him,

and we talked about this a little after, but he was not taking opportunities to make news and to stand out or to say punchy things, to dig into questions and distinguish himself. He was going to have to do that if he wanted to break through at some point. That doesn't mean you have to do it on our podcast, I will acknowledge. But you can't speak in platitudes right now. Authenticity is everything, and a lot of how people judge authenticity is a certain rawness and a certain level of, well, what they call a gaffe in Washington, accidentally saying the truth. Right, right, exactly. Well, you know, you said, and I think

you used the comparison, it's almost, or something like this, that it's like people want someone to campaign like it's the WWE and then, you know, govern like you're, you know, a statesman. So you're supposed to campaign like Stone Cold Steve Austin and then govern like Abraham Lincoln. And that seemed kind of right to me that people to be known, you have to make a splash. And most of the way that you make a splash is by stoking controversy. But then once the drama lands in office, people are not as excited about the drama. I mean, outside of your core base anyway, which, you know, can't get enough of it. core base anyway, which I can't get enough of it. But as you said that, I thought, huh, that seems right. And that's really depressing.

And thus endeth the Amash campaign. Yes. Well, you know, you think about back to the Carly Fiorina campaign, her, one of her key moments. I try not to. the Carly Fiorina campaign, one of her key moments. I try not to. Hey, she had a moment. One of her key moments was that direct confrontation with Donald Trump. And that was sort of that WWE moment. So here you have a tech CEO getting into the squared circle. And that was the high watermark. For sure. For sure. It was that look at her face.

That'll never be the face of someone who's going to be president. Which, in fairness, was true. So let me ask you this. I've never asked you this. What was your thinking when that moment happened? Well, you have to back up a little. He had said it previously. Yeah.

And CNN, if you remember, was still saying Carly wasn't going to be on the debate stage. Then he said that that caused a huge controversy. I was making some sort of math points about why we earned our spot on the debate stage based on CNN's rules about how many polls you had to have and amortizing those polls over time, whatever. So a few days in advance, CNN says Carly is going to be on the debate stage. And not only that, she's going to have the podium next to his. You know, and at first, of course, the ego in me is like, oh, man, my memo really landed. But the truth is, you know, Jeff Zucker knows great TV when he sees it. And we had good reasons, you know, like you could use your current rules. We weren't bending anything.

So the debate was at the Reagan Library in front of Air Force One, as you may remember. And what they did was they set out little trailers right outside there for staff. And the trailers were split into two. So you were adjacent to someone else's trailer and the walls were pretty thin. This isn't a double wide, right? This isn't a nice trailer. This is a nice enough single wide. Uh, and so we're all stacked up next to each other staff and you, you know, walk in your candidate, like it's the first day of kindergarten

to air force one. Um, you have a pre walkthrough and stuff like that. And, you know, we all know each other who, who work in this business. So we're all seeing each other out in this trailer parking lot. But, you know, there's a lot of nerves and a lot of pent up feelings as you head into this. Also, there was a last minute kerfuffle because of the bathroom situation. All the other candidates were male and they were timing these breaks so that they knew how long it would take for a man to be able to get to the men's bathroom. But what were they going to do about Carly in heels, getting down a whole bunch of rickety stairs that they had built? You know, it was like scaffolding to get the stage up where Air Force One was like in the shot. So they built sort of a separate Carly bathroom right

beneath Air Force One. So we also did some, you know, practice for the bathroom, things like this, you know, the important stuff. She never ended up going. Very funny. And so there's all this build up all day, you know, day preceding it. And we know what the moment's going to be. We know that's going to be the opening. And as much as you prepare for so many other parts you don't want to over prepare for the moment either you don't want it to come off as stiff or stilted and so again as much as i would love to take credit for everything carly said that night that was so spot on um that was that was carly i'm gonna give her full full. And it was fantastic. It was pointed, short. It was her personality on display. And it threw off Trump and it created a nice little news cycle for us

that we desperately needed. So yeah, it's a fun little memory. But I did write in my diary basically what you just said. this is the high point. I think it was right around then where I wrote perhaps my worst political prediction of my life, which was, I believe I wrote something and I don't even want to Google it to bring it up to my memory precisely, but of the anti-establishment candidates, I think Carly's got a chance to be the last woman standing or the last person standing. Because, you know, I was thinking she's far more capable than Trump. She's far smarter than Trump. She's far more ready to be president of the United States than Trump. Yeah, so that worked out.

Yeah, for all of us. Here we are. Well, one last thing before we move on to the Supreme Court. So there's been, for those folks who follow the president's Twitter feed or the sort of the rhetoric of his sons, there's been a pretty dramatic escalation in the attacks on Joe Biden. Some reporting that Trump is feeling like he's falling behind on attacks on Joe Biden. Some reporting that Trump is feeling like he's falling behind on attacks against Joe Biden. Senility has been brought up. Donald Trump Jr. tweeted what he called a joke that referenced Biden as a pedophile. Biden is a pedophile. It struck me that it was, Trump was on a tear even for him.

He retweeted some America First. He retweeted some content from folks who are just grotesque anti-Semites and Holocaust deniers. It was quite a tear over the last few days. And, you know, the question I have, does this mean anything at all? Is this a preview of how nasty it's going to get as the weeks march by? Is it something that's even worth remarking on at all anymore? I mean, one of the things I keep trying to tell myself is I don't want to get used to this out of the President of the United States, but it feels like we're all getting used to this out of the President of the United States. I mean, does this mean anything anymore, Sarah? I don't think things like that really penetrate into even the vast, vast majority of people. I think we're talking about a Twitterverse thing. And Twitter, as we know, is particularly

unrepresentative of the United States on almost any demographic you put. Not to mention it's just a very small group of people who are engaging on political Twitter compared to even voters in the United States. So it doesn't matter in that sense at all. Does it matter in terms of a preview of what's to come? If you were confused about whether this was going to be, you know, a game of patty cakes heading into the fall, then yeah, I guess, I guess this weekend's Twitter might help you see that the error of your ways. But, you know, the RNC has a email list that it distributes to like surrogates and reporters and stuff like that. And they've been pushing, you know, video content for weeks of, for weeks of Joe Biden stumbles over this,

Joe Biden forgets this. So certainly they have highlighted what their theme is going to be. On the flip side, arguably Joe Biden had a pretty good week. He has continued his front porch campaign, as Jonah calls it, but it's really like a basement front porch campaign. Right. You know, he did a lot of town halls or Zooms and public stuff with a bunch of his sort of VP shortlist folks or VP longlist folks, I'll call it. The people who I actually don't think will be on any shortlist, but are on a list enough that they have some following.

Stacey Abrams onsnbc with him comes to mind and several damaging stories on tara reed's credibility yep which i think you know we were already at the denouement of the tara reed saga but this felt like the to mix a whole bunch of metaphors the nail in the french denouement coffin right so that might be worth like very quickly kind of going over some of the damaging elements i mean i think one of the more one so from the beginning one thing that has always been um a little bit interesting about her story is how in her first telling of her experience with the Biden team, what she described was conduct that wasn't different than what anyone else had described about Joe Biden. And it even gone on the record to say the real issue on the

office wasn't Biden himself. It was others in the office. And then later, she says, he actually sexually assaulted her. And what was interesting was seeing that she's actually exhibited that pattern before with her ex-husband, who had mistreated her. I believe he admitted to even hitting her once. So he had done terrible things. But then years later, she described him in terms so dramatically different and worse than any of the allegations previous to any previous allegations, any previous court claims that started to exhibit a pattern of, wait a minute, is this a pattern of sort of magnifying wrongdoing over time? Also some indications that she had been charged with check fraud, which any kind of fraud claim goes to credibility. And then there was this really very well done. Did you read the,

I believe it was Laura McGann piece in Vox about her, Sarah? Is this the wake of acquaintances piece? No, that's Politico. Okay. Then no. Okay. So leaving the Politico piece aside for a minute, I would really recommend that everyone read this piece in Vox, which is obviously written from a sympathetic point of view of somebody who's been trying to get her to tell her story for a long time and why she felt deeply uncomfortable with it. And so I think there were elements here that just sort of started to kind of chip away. elements here that just sort of started to kind of chip away and then of course here comes politico with a piece that how did you feel about it mixed so this piece was about basically all the people over tara reed's life who don't like her right

and you know maybe that's being a little uncharitable to the piece. Some of them do go to her character, you know, former landlords, people who say that she would, you know, say one thing or wear out her welcome and all of that. However, whenever you're reading pieces like that, I don't know about you, but for me, I'm always like, wow, what happens if a group, you know, sort of the people who like me the least on this planet all got together and were quoted in a single news story and how would that make me look? Yeah. And it's just sort of a terrible feeling you get because, you know, let's say I know a hundred people and, you know, I really dedicate a lot of my time to trying to be a good friend to 75 of those people. Yeah.

But 25 of them kind of think I'm a jerk. That's plenty to make a really, you know, a version of me that I wouldn't want to see in print. On the flip side, it doesn't mean it's wrong. Right. Right. mean it's wrong right right yeah i mean i i went from believing that the case against shake biden was shaky to not knowing what to think to now believing the case against biden is shaky um more than shaky uh and and part of it is that as additional details have come out and even just leaving the politico piece aside because i had much the same thought as you.

If you want to interview critics of a person, you can find critics of a person to interview. But that, you know, the the some of the changing stories from her own witnesses was something that I that was really quite telling to me. um was something that i that was really quite telling to me in addition to her own changing story it just started it just started to feel like the wheels came off of it last week um well and you know what regardless of the truth of the matter asserted as we say in law right the atmospherics but you know this was never a court case this was always a question of public opinion. The atmospherics around the media and public opinion is, you know, okay, we're done with this. Yeah, right. Exactly. And that is the verdict. Exactly. Yeah. Yeah. That's the jury. That's the jury. All right. Well, we have delayed the Supreme Court conversation long enough, Sarah.

You have a, how long is it? How long is the piece today? We shouldn't discuss that. I don't want to scare people. So I published my top 10 Supreme Court cases that were waiting for this term. Separately, I also published a glossary of terms that I had a lot of fun with. You know, my husband and I sat down with the Supreme Court practice textbook that, you know, I could kill him with if he ever did anything wrong. And, you know, we dove right in. So I recommend both, obviously. But here's what's going to happen from here on out. So the Supreme Court calendar has the Mondays between now and the end of June listed out as opinion hand down days, except obviously for this coming Monday, which is Memorial Day.

So it'll actually be Tuesday. That happens at 10 a.m. As long as the pandemic is still happening, they will simply post them on the website in what they've said are going to be about five-minute intervals. As we get closer to the end of the term, the Justice in previous years would announce from the bench, and we're adding another day this week on Thursday because they generally sit for conferences on Thursday. How that will get announced, we don't yet know. How we'll add additional hand-down days. But somehow we will know, and that will probably start in mid-June when we start adding additional hand-down days. So some other notes.

Another thing we'll put in our liner notes, I think, for this podcast is just the charmingly delightful get off my lawn tweet and a couple follow up pieces from Lyle Denniston. He's a retired Supreme Court reporter. He has been attending Supreme Court arguments for, I believe, 62 years. And what he thought about the telephonic arguments from the May sitting, I have to say, David, I think he's almost persuaded me that they were bad. I really liked them as a listener. But Lyle, I mean, he just is having none of it. It ends with to call this quote argument is to impoverish the word. I love that. It was so cranky, so cranky and, but cranky, but well argued. And so, um,

Frankie, but well argued. And so a little bit on telephonic arguments as well. On a substantive level, here's my thesis for OT19. Okay. David, we'll see what you think of this. We'll do, you know, we'll start from number 10 today. We'll wrap up with number one on Thursday. And at the end, I want you to come back to this thesis and see if you think I'm onto something.

All right. My thesis is that this term will be defined and perhaps moving forward, a sort of new era of the Roberts court defined by the struggle on judicial non-entanglement. And what I mean by that is when do the courts step in to resolve thorny problems that are kind of close calls, whether they're political close calls or religious close calls and all of these cases? And when do they defer to the branches or the parties before them? Because I think for a lot of people who think that now the Supreme Court is deciding all of these issues for the country and not Congress and not the president and not elected representatives, that the court has inserted itself in parts of American life that certainly 100 years ago, but even 50 years ago, even 30 years ago, wasn't really the case. and it has been to the detriment of the court.

And the chief judge is an institutionalist, we have certainly seen. And so will this, now that he has Gorsuch, who certainly is, I think, on the non-entanglement side, will they sort of be able to team up for an era of judicial non-entanglement? I would put it like this. So I like that a lot. And as I look at these two, this term, and then some of the cert grants coming up for the next term, and also the fact that they've got a bunch of Second Amendment cases that they're considering right now.

Mine is, my theme has been, as I've looked at this, and I look at the sheer number of really contentious cases that they have pulled up, and this is going to be a little counterintuitive considering that they've pulled up some really contentious cases. My thought is they're essentially saying after this term and maybe the next term, get us the F out of your political and culture war. And by doing two things at once, one is saying, hey, a bunch of this stuff that you're trying to pull us into, we don't belong in and we're going to tell you why. And some other stuff they're going to say, some of this stuff that we're pulling into, we're just going to settle some key issues. We're just settling it and sending that on back down. And I've kind of interpreted a lot of these big controversial cert grants as we're going to try to settle what we need to settle, disentangle ourselves from what we need to disentangle ourselves, and try to go back to being what, you know, what's the phrase, the least dangerous branch. Indeed, indeed. A great quote.

So do you want to start with number 10? Yeah. Number 10 drum roll. Okay. This one's cheating. First of all, it's not even from this term. This is the individual mandate case, whether the individual mandate part of the Affordable Care Act, which if you remember, Congress zeroed out the tax penalty in 2017 when Trump came into office, when Republicans controlled the House and Senate, whether because that's now a zero tax penalty for noncompliance, is it now unconstitutional? Because if you remember back in NFIB versus Sebelius, the chief judge wrote that they did have the power to have the individual mandate,

not to impose a command to purchase health insurance under the Commerce Clause, but as an exercise of taxing power. Well, so what does it mean when there's no more tax? This is just such a huge political issue. I actually do think it's the number 10 biggest case of this term because it has been hanging over the court. They granted certain March. They'll hear the case in the fall. It will not get decided before the election, which makes it a huge election issue and drags the Supreme Court back into the spotlight for the 2020 election.

Yeah, I think that, I mean, this case again is one of these that it seems to me, not to project too many outcomes, but if you have an institutionalist like Roberts, It might be the cri de corps, the cry of the heart to, can you please, for the love of all that is holy, stop sending us Obamacare cases. Yes. The good news on this one for him is that there is a standing question whether the states and individuals have suffered like a discreet enough injury. There's also a declaratory action side issue. So he has some ways to kick this procedurally. But I think there's going to be some votes on the court to not do that. Right. No, I think you're right. I think you're right. No, I think this... And it also allows Justice Thomas, by the way, to, you know, he has his whole line of severability doctrine that he has suggested he might want to explore in previous recent cases.

So another good opportunity for Thomas to build upon his jurisprudential legacy on severability. All right, so number nine. Number nine, this is the Blaine Amendment case, which we've talked about a little, but it's so hard to wrap your head around what this case is actually about. It's worth a couple more minutes. So this is not about whether a state scholarship can go to parents who want to send their kids to a religious school. That's what you'll see it described as a lot in press reports, but that's actually not the legal question here at all. So what happens is that the Montana legislature creates a scholarship with no particular

limitations on it. Then the department of revenue in order to comply with a provision of the Montana Supreme court says, okay, but you can't use it to go to a religious school that has some problems under Trinity Lutheran, David, as I'm sure you would attest. Correct. So then the Montana Supreme Court says, okay, you can't have the scholarship and let it go to religious schools because that violates the Montana Constitution. So here's the solution. We're getting rid of the whole scholarship program. Right. So now nobody gets the scholarship. And so the question actually is whether the First Amendment prevents Montana from getting rid of a state scholarship that allowed funds to go to a religious organization, which is a it's like the mirror image of Trinity Lutheran.

And I just have to read this one line from Justice Kagan, who had joined in Trinity Lutheran, if you remember. Yes. This is from the argument. I've always understood in these kinds of cases that the harm is the perceived or alleged or actual, whatever you want to call it, discrimination. But there is no discrimination at this point going on, is there? Because in her view, right, everyone lost the scholarship program. Yeah, this was a really fascinating response to Blaine Amendment. It's as if the Montana Supreme Court, and again, this Blaine Amendment, for those who don't know, is a

legacy of anti-Catholic bigotry from the 19th century. And a lot of states have these amendments named after James Blaine from Maine that prohibit any state funds going directly and often indirectly to a sectarian institution. And sectarian was a code word for Catholic. It now means sort of any religious institution. And it's like the Montana Supreme Court realized, wait a minute, if we carve out, if we say that all of this money is available to all private schools except religious schools, that's going to violate Trinity Lutheran along with a host of other Supreme Court precedents. So the proper remedy that upholds the Blaine Amendment without engaging in sort of viewpoint discrimination is just to deprive everybody of the money. Right. And the question is, is that okay? Can you just deprive everyone if your motive for depriving them is to make sure you also deprive these religious institutions?

Justice Breyer was very upset that this, or upset's maybe the wrong term, very interested in how this could be applied to just all public schools. Right. He has concerns around that. And then you have the Chief Justice. Here's a line from one of his questions. The legislature may say they built parks and pools, but if a higher percentage of African Americans come and use the pools, then we're going to shut down the whole program. How is that different than religion here? Yeah, I see the court, certainly not by the 7-2 of Trinity Lutheran. I see this as much more heading towards a 5-4 that doesn't necessarily

get rid of Blaine amendments entirely. I think the court will still sort of take Blaine amendment cases on a case-by-case basis, But what it's turning the Blaine Amendment into essentially is a legless zombie. It might have a little bit of bite here and there, but it's not mobile anymore. It's essentially, functionally, for all practical purposes, a dead letter. But the Supreme Court is still leaving enough of it functional for some possible scenario that would be maybe perhaps pushing the establishment clause too far. I don't know. I have a hard time seeing them getting rid of, sort of saying all of these Blaine amendments are unconstitutional, But I easily can see them saying that, to take Robert's analogy, eliminating all funding for all private schools because some of it might

go to religious institutions is still a form of discrimination that is not permitted under the First Amendment. So I could see a 5-4 case here. So David, are you familiar with Supreme Court bingo, what I call the Supreme Court bingo? Yes, indeed. Okay, so we're getting, we have an interesting Supreme Court bingo card right now. Espinoza is the name of the case, and it was argued in January. You can go check out the glossary on our website for what Supreme Court bingo is and how you can play at home. But, uh, there are, um, four justices who have not written their January opinion. roberts thomas kavanaugh which i think goes to year five four but then briar right so i'll be watching pretty closely because we obviously have a few other january opinions that have yet to come out to see who you know if if Breyer writes G, energy, or Thole, or something like that, and he gets knocked

out of bingo for Espinoza, then I think you've got another piece of evidence for your side. If Breyer is the one writing this majority opinion, boy, is it heading the other way, David. Oh, that is true. That is true. And I think Roberts could have a pretty narrow win on your 5-4 as well. That's my Blaine amendments are not destroyed theory, but they're decreasingly important. So the next one we've not really talked about at all. This is a great non-entanglement one, by the way. Oh, Little Sisters of the Poor or Blaine? by the way. Oh, Little Sisters of the Poor

or Blaine? I think so. No, Little Sisters of the Poor, yeah. Little Sisters of the Poor 2, The Sistering. The Sistering. So give the people what they want, a summary of Little Sisters of the Poor. Oh, man. When I was sitting down to write this, I just sat back in my chair because the first header that I do is how we got here. And I'm like, oh write this, I just sat back in my chair because the first header that I do is how we got here. And I'm like, oh man, how do you even describe how we got here? So when the ACA was passed, it then went to the Health Resources and Services Administration to build out some of the regulations.

Initially, they had an exemption on the contraceptive mandate for churches. Initially, they had an exemption on the contraceptive mandate for churches. They then created an accommodation for groups like the Little Sisters, basically charities, colleges, sort of religiously affiliated non-church groups. The accommodation required insurers to provide contraceptives through the plan, but technically the Little Sisters weren't paying for it, but it's sort of all money is fungible type idea, and they didn't like the accommodation. So this first goes up to the Supreme Court in 2016. They issue a PC opinion. Again, check the glossary on that one. Directing the parties to try to resolve the dispute, which is, I mean, talk about non-entanglement at

its peak. Like, I don't want to do this. Try to work it out. So, spoiler alert, they very much did not work it out. So then Donald Trump wins the White House, and then the HRSA, the original creators of the contraceptive mandate accommodation and exemption, expand the original exemption. So now you don't need the accommodation. Now the Little Sisters are in the exemption, which is what they wanted. Right. But now Pennsylvania and New Jersey sue and say that you can't do that, basically. And so the first question is whether the Trump administration was allowed to expand the number of groups included in the exemption to include these conscientious objector groups. But the second one, which is super fun,

the district court and the appellate court upheld a nationwide injunction that has prevented the exemption from being expanded and from the trump administration from implementing this in the first place and of course we're three and a half years into the administration uh so the second issue that the supreme court has said they will consider is the nationwide injunction issue yeah this is this man Man, there's a lot going on here. Number one, this hits a theme that we've talked a lot about in our podcast, which is Congress not doing its job.

So when the Affordable Care Act was written, it did not define the kinds of coverages that employers would be required to offer their employees. It left it to- Let alone the exemptions. Yes. They didn't even define the coverage. No, no.

So they left it to the executive branch to flesh out. So when Nancy Pelosi, you remember her oft derided comment, we have to pass the law to see what's in it. She was actually correct. Correct. Because the law had to be passed and then the regulations promulgated before we knew what Obamacare actually was. And so here's where you have the court looking at a regulation promulgated under a pretty vague statute trying to determine what kind of discretion does each administration have to draft different regulations under this statute.

So that's one thing. The other thing is this nationwide injunction point that you're talking about, which is really, really important because I guarantee you that if Joe Biden wins the White House and there are a series of new regulations that are promulgated, it's not like conservatives are going to say, you know what? We didn't like the nationwide injunction against the Trump regulations. So here's what we're going to do. We're not even going to seek them anymore. No, I can't tell you how true that is. Just like litigants lined up in the Northern District of California to try to and other favorable progressive judicial districts to try to shut down Obama. I mean, Trump regulations,

conservatives will go stampeding to Western District of Texas. I mean, you name it, to seek their own nationwide injunctions. And by the way, the nationwide injunction trends started before the Trump administration. There were nationwide injunctions in the Obama administration. And I don't like them. I don't like them. A district court judge, he or she decides the cases in front of him involving the litigants in front of him or her. That's what the judge does. And if the judge issues a decision that protects the, as the judge believes the law requires, protects the interests of the litigants before the judge,

that's who the judge should be concerned about, in my view. Yeah, but that's, okay. First of all, Justice Thomas, an argument, seemed to agree with you. Here's his quote. It seems to be somewhat problematic and to suggest that there's a problem with both standing and nationwide injunctions if they are this easy to get. That is not phrased as a question. It is not. But, David, to your point, like you don't mean exactly what you're saying, I don't think, which would mean that, you know, every single person affected would need to have their day in court. Every single person affected would need to have their day in court.

For instance, if you are, you know, barred from attending a school because of your race, we don't need every child to come in to sue to vindicate that they also get to attend the school and you can't bar them because of their race. But I think a lot of people would say that in this case, what would have been more appropriate is for the injunction to apply only to citizens of Pennsylvania and New Jersey, who were the two states who had sued, rather than a nationwide injunction. There's arguments on both sides. I think you'll see a lot of conservatives if Joe Biden wins making the alternative argument soon enough. But on the non-engagement front, by the way, this was a line from the chief justice at argument, which I thought was hilarious. So with per curiam opinions, we don't know who wrote them, but wait till you hear this quote. And I think we know who wrote the Little Sisters PC from the Chief Justice. I didn't understand the Little Sisters problem at the time of the 2016 PC opinion, and I'm not sure I understand it now.

The problem is that neither side in this debate wants the accommodation to work. The one side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want it to work because they want to impose the mandate. Is it really the case that there is no way to resolve those differences? Can't we all just get along, David? Yeah, when I saw the PC opinion in 2016, it reminded me of any number of cases I had in front of district court judges where the district court basically said, work it out. Yep. It's very common at the district court. It's very uncommon at the Supreme Court. Very uncommon. And I thought, this is my silly naivete,

that when the Supreme Court goes to the extraordinary lengths to demand that you work it out, that it might could actually happen. How wrong I was. I was as wrong about that as I was about Carly Fiorina's presidential chances. Okay, number seven. You ready? Yes. And we talked about this at pretty good length a couple of podcasts ago.

It's true. So we'll skip over some things here, but this is the ministerial exception. What types of employees at religious schools and institutions are exempted from employment discrimination laws? This is the two teachers at the two Catholic schools who were fired and the school saying you can't look behind the curtain. They were leaders of our faith and we can fire them for whatever reason we want. The end.

There were some fun things at argument. I've pulled out some quotes in the piece, of course. You know, when we look at Hosanna Tabor, which we talked about, which was the unanimous 2012 opinion that created or, you know, when we look at Hosanna Tabor, which we talked about, which was the unanimous 2012 opinion that created or, you know, verified the ministerial exception. We're now looking to see who's going to peel off from Hosanna Tabor, basically. Yeah. And Justice Kagan, here's a nice quote from her at argument. Here's a nice quote from her at argument. If a position can be filled by any old person, not by a member of a faith, isn't not a Catholic at all, but neither school required

that the teachers be Catholic in the sort of advertisement for employment. Yeah, you know, there's one thing about this that I didn't fully explain, I realized when I went back and I listened to our original podcast. I said, this really shows how much First Amendment advocates have already won on religious liberty. Because what was interesting to me was as the justices were sort of walking through it, they're reminding the litigants that there's a series of protections that exist for religious liberty under constitutional law and statutory law. So, for example, there's the ministerial exemption, which exemption was decided 9-0,

which for people who carry the title and function of minister, there's a total hands-off, total hands-off. But there's also what's called the BFOQ under Title VII, the bona fide occupational qualification, that if you can articulate that it's a bona fide occupational qualification, that if you can articulate that it's a bona fide occupational qualification that a person have a particular kind of religious training, et cetera, then there's going to be some protections under Title VII already existing. And so what we're talking about here is moving into a zone where the ministerial exemption is applied beyond people who have

title plus function and beyond title seven. And so it's sort of a, there's already a strong protection. This is sort of like, is there Avengers level protection? Is there sort of like superhero protection in these religious institutions? And now, that doesn't mean it's total hands-off because even if there's just a functional test, then it's still a test. There's still a judicial inquiry. a lot of doom and gloom about religious liberty in this country. And I have the sort of opposite view of that, that if you look at the last 25 years of litigation on religious liberty, it's a pretty stinking good 25-year run. And this case is part of the evidence of that. This is sort of like, do we take already existing robust religious liberty protections and expand them a little bit more? And I think the proper answer is yes, you do. But even if the Supreme Court says no, you don't, there's still very robust protections there.

Let's move to number six, our last one for today. We'll do the top five on Thursday. Number six is the faithless electors case for me. And we have talked about the merits of this. This is whether an elector appointed by a state to represent the state in the electoral college has to vote the way the state tells them to or whether they have discretion. We've talked about the merits of it, but I really want to dig into the procedural issues today because it's fun and it's weird. And I think, I think folks, you know, hopefully it'll be like a neat little way to learn things. So there's the Washington case where the electors are fined a thousand dollars for voting the wrong way, but their votes are counted. So they voted for Colin Powell for president. So Colin Powell has three electoral votes from the state of Washington, and they now owe $1,000 apiece to the state of Washington. In Colorado,

when that elector, Mr. Baca, tried to vote for John Kasich, they removed him. His vote was not counted, and he was replaced with an alternate elector who voted for Hillary Clinton. Okay. On the Colorado case, first interesting item, Justice Sotomayor is recused. So there's the possibility of a 4-4 split if the justices see a distinction between finding an elector and removing an elector. And if there's a 4-4 split, listeners wondering, what happens then? The judgment is affirmed by an equally divided court. There's no opinion.

It's just that one line happens. You don't know who's on the four of what side. And the lower appellate court, in this case, the 10th Circuit opinion would stand, and they sided with the elector. So A, that's fun if it happens, little, you know, unusual thing. It happened a few times after Justice Scalia passed away, that there were some 404 cases like that. But it gets even weirder, funner, David. So at argument, Breyer and Gorsuch were very concerned about what amounts to a jurisdictional issue with the case. So it turns out that Mr. Baca sued under a statute called Section 1983.

sued under a statute called Section 1983. This allows suits against persons, but it does not permit suits against states. Right. So he sued under the wrong statute. But Colorado decided to waive the argument because I guess they thought this would be fun times at the U.S. Supreme Court. the argument because I guess they thought this would be fun times at the U.S. Supreme Court. But Breyer and Gorsuch are not amused by Colorado's waiver and think that this could amount to an advisory opinion. And certainly, if you read a lot of their questions, could lead one to believe that they might vote to dig the case. D-I-G. Also in our glossary. This stands as dismissed as improvidently granted. And they basically kick the case, not decided, and that's the end of your case at the Supreme Court after all of this work. Usually it's about something just like this. usually it's about something just like this. They find out something after they granted cert and realize it's a poor

vehicle for deciding the legal issue. Now here's a fun fact, David, the court has never officially said how many justices are required to dig a case. And if you remember, it takes four justices to grant cert in the first place. So if it only takes five justices to dig a case, then the majority could always dig cases that they don't like that the minority granted cert on, which seems a little bit not great.

At the same time, there are at least two examples just this decade in which four justices dissented from a five justice dig. So we do know that it is possible to dig a case with five justices. What we don't know is whether one of those five who voted to dig the case were one of the original four who moved to grant cert on the case, in which case that would sort of be okay. So, Sarah, we've got. You following this? We've done it. Yeah.

Yeah. Ultimate Supreme Court nerdery. Yeah. I mean to tell you. That. I know. Listeners. I know, but it's so fun.

Listeners, that. Bring up digging at that level of detail at your next cocktail party. Yes, do. And the people who will swarm around you. Watch the people flee as they do from me. Okay, so what happens if a case is digged? The case is treated as if the court had never granted cert in the first place. So unlike the judgment being affirmed

by an equally divided court, where technically the Supreme Court is affirming the lower court's opinion, in a digged case, the Supreme Court never took it. So it's just that in this case, the Tenth Circuit opinion would stand, and it's like nothing ever happened. Right. It's, as you said, a gigantic, gigantic waste of time. For everyone involved. highlight. It is the ultimate moment for a litigator. And then to gear yourself up, to then argue the case, and then potentially get a dig, oh my goodness. I don't know. It's probably, if you're on the losing side at the circuit court level, it could be the worst gut punch possible. at the circuit court level, it could be the worst gut punch possible.

I think it would feel very gut punchy. Like it really like, you're just like, oh no, because it means in this case, for instance, they could have sued under the right statute. They could have got, you know, like there were, they had options and they got all this way. Colorado waved it. Everything was, you know, coming roses. And then Gorsuch and Breyer were just having none of it. Oh, my goodness. Yeah. I'm glad you highlighted that because we had spent all this time talking about the substance of the case last time. And so this was sort of, if it's digged, it's kind of like a podcast gut punch. Well, we still have our Washington case. That's true. We still have the $1,000 fine. That's true.

So, Sarah, quite the story in the New York Times about Ronan Farrow coming from Ben Smith. Ben, as some listeners may know, is late of BuzzFeed and has gone to New York Times and has written some pretty tough stuff. He had a really interesting interview of New York Times, I believe, executive editor. How do you pronounce it? Dean Baquet? Dean Banquet? Yes. I don't know. Yes, it's one of those about the different coverage of Tara Reid and Christine Blasey Ford.

That was a really good interview and worth reading. And now he's got something that's called, Is Ronan Farrow Too Good to be True? And it's, I think, worth talking about this article, but also talking about the larger media enterprise of investigative reporting. And first, I'm just really interested in your thoughts after you read this piece. First of all, Ben Smith is quickly becoming my must-read column or article anytime he publishes. I would not have guessed that when the New York times hired him. I knew him as the, you know,

editor in chief of Buzzfeed. And, um, uh, he has mentored and given rise to some of the really good journalists today. Zeke Miller, McKay Coppins,

all sort of came up under the Ben Smith, um, initial 2012 Buzzfeed is going to do politics model. But to see it translate so, I mean, wow. He's, first of all, just a wonderful writer. Like I just, his writing is good and clear and interesting. He's picking great topics and there are no sacred goats. Sacred goats, sacred cows. I don't know. I'm not familiar with the sacred goat, but you know, yeah, you're right. Other than LeBron James.

Maybe that we were talking about that earlier. And so to tackle, you know, when you're a media critic, it's awkward. You're talking about your colleagues and your coworkers and criticizing them oftentimes. And Ben seems to hit that perfect note, not relishing it, but not shying away from it. Right. Very fact-based. So anyway, that takes us to, is Ronan Farrow too good to be true?

It's very fact-based. So anyway, that takes us to, is Ronan Farrow too good to be true? I saw this headline in my inbox this morning, and I thought, is this going to be some weird ode to Ronan Farrow, who I think has also charted a new path in investigative journalism, sort of the next era of investigative journalism, is probably, you know, you think Ronan Farrow. And then you open it and boy, did that not meet the expectations that I had as the Ronan Farrow puff piece. Wow. Hard hitting, many examples, reached out for quotes from people.

many examples, reached out for quotes from people. I mean, it is an investigative piece on Ronan Farrow, the investigative journalist. Yeah, and the short version of it is not that Ronan Farrow is a fabulist. It's that Ronan Farrow is not as rigorous as his pieces create the impression of an authoritative account without all of the foundation necessary to be as authoritative as they purport to be. In other words, there's less corroborating evidence often than is prudent. often than is prudent. Some of the corroborating witnesses or corroborating sources are not as quite as definitive as they appear to be in Farrow's reporting. And essentially, the central guts of Ben's argument is that he places storytelling over reporting. And- Yeah, I think how Ben would define it is that Ronan Farrow is not an investigative reporter the way that we were used to. He is a narrative reporter. Right. And Ben makes this really good point that when you're reading traditional investigative reporting, you

constantly have these sort of narrative breaks where there's this, you know, the story is being told and then you'll have this sort of abrupt break where you say, and I spoke to this person and this person and this person and they, and it disrupts the storytelling, but it provides you with the necessary comfort that, okay, I'm listening, I'm reading something that's quite well substantiated. And Ben also makes, I think, the great point that if you're reading an investigative piece, a long, detailed, well-done investigative piece, and there are such clear-cut good guys and bad guys, there's probably something not quite right with the piece,

because very little in our world, you know, are the black hats all wearing black and the white hats all wearing white. Right, right, exactly. And Ronan Farrow's name, you know, are the black hats all wearing black and the white hats all wearing white? Right, right. Exactly. And Ronan Farrow's name, you know, and one thing that I thought was interesting is that Ronan Farrow became the star that he is by taking what a lot of people would say is a step backwards in his career, going from sort of the TV line, the bright lights of TV hosting into what Ben called in vivid language, the coal face of investigative reporting, the nitty gritty of digging into stories. And sometimes a good investigative reporter will disappear for weeks and months at a time, not literally disappear, but you don't see them on the media. You don't hear from them.

They're not a constant presence. And then boom, here comes their big story. And so, Pharaoh did something that's really sort of counterintuitive in our media environment, which was to go from the TV host to just digging into these really difficult, intricate stories about these sex scandals that are often among the most difficult things to determine the truth. This is very hard to know what's happened, especially when you're talking about encounters that sometimes occurred years and years ago. And I thought a couple of things about it. One is, that's a gutsy piece to publish. Farrow is Pulitzer Prize winning. In conservative circles, he's less, how shall I say this, less respected because of his Brett Kavanaugh story, which was very, very, very thin.

Should I believe should not have been published. But so a lot of conservatives don't like Farrow because of his Kavanaugh reporting. But outside of sort of the sort of hardcore conservative media world, he's in some quarters revered for his work. A lot of the work still does stand up. So it is a gutsy thing to publish. And the other thing that I think it does is it illustrates how hard it is to do that job well. And if there's one thing that I could say to conservative media critics, especially people who really don't know much about the media other than what they read conservative media critics saying about the media, it is so hard to find out what happened

from people who don't want you to know what happened. That is really, really hard. And there is a temptation. There's always going to be a temptation when you feel like you figured it out, when you feel like you know what really occurred, to write what you think you know occurred without dotting all the I's and crossing all the T's. And that's what it seems like Ben is describing here. And so I think what we have is sort of a diverging path in the wood. You have the Ronan Farrow narrative investigative reporting, which has become, I think, popular as long forms in general become popular. And some of these like true crime stories and stuff like that take off and become documentaries, serial, things like that, where the narrative is the story. Right. On the other side, I think you have some really old school investigative

reporting that is, you know, enlightening and difficult. And as you said, like takes months, if not years to put together from places like propublica and mother jones who are still digging into a lot of the untold interesting stories out there but in the sort of non-narrative here's what we found but look there's also this this person contradicted what they said earlier but here's another reason to believe them. And yeah, it maybe makes not for a great podcast serial, but it's great journalism. And so where do we think the future of investigative journalism lies? I think you'd be hard pressed to argue that we're not headed in the Pharaoh direction, in the narrative journalism direction. And there are going to be some good things to that. People are going to tune in more. They're going to find it more interesting.

But on the other hand, they're going to lose a lot of that nuance that very few stories, as you said, when you're not there and when you're relying on parties who don't really want to tell you what happened, it can be very hard to come up with the, quote, true narrative. Yeah, you know, I'm glad you brought up ProPublica because one of the best examples of long-form journalism that I've seen in a long, long, long time is the ProPublica series on the Pacific Fleet, the U.S. Pacific Fleet. And we referenced it when we talked about Captain Crozier, the Navy captain who... And what's fascinating about that is it combines the elements of narrative and show your work. And you can kind of have this, there's sort of this pattern,

there's this rhythm that you get when you're combining narrative with show your work. And the rhythm is often like this. I'm going to tease you with almost like a novel style, dip your toe into the water as to what I believe has happened. And then break. And here we're going to go into this whole part that's not continuing the next part of the story, but it's sort of showing how I got there and showing what we did. And, okay, we read this investigative file and we talked to this person and this person. And part of you is saying, get back to the story. I want to get back to the story. get back to the story. But what all of that is doing is giving you confidence when you get back to the story that you're getting to the story. And there's a reason why you see a lot of long-form journalism written in that way, is it's trying to combine both narrative and sort of like the show your work of like a legal brief. I think of good long form journalism in some ways almost like the way I look at a – as the – like the factual statement in a legal brief where if it's done right, there is no such thing as an unsupported factual assertion. citation to the record. You've got a citation to deposition transcript. You've got, you know, you have, there's just no such thing as an unsupported assertion. And the best journalism has that element to it, I think. Fun times. Good discussion. Highly recommend the Ben Smith piece

and highly recommend just following Ben Smith and seeing everything he writes. I think there's more to come. Yes, indeed. And also, I recommend the ProPublica series on the Pacific Fleet. Again, I've done it before, but it's one of the best pieces of journalism I've read in years. And it's also one of the most important. And it's way, way, way outside of the headlines when it should be. We'll include the link in the pod notes. If you visit thedispatch.com, go to Advisory Opinions, we'll have it there.

Excellent. All right, Sarah, do we have anything else for the good of the group? See you Thursday. All right. See you all Thursday. This has been Advisory Opinions with David French and Sarah Isker.