Sarah and David have some legal catch-up to do but first on the docket is some rank punditry on Donald Trump’s endless legal saga.
The Agenda:
—Why is there a delay on Trump’s cases?
—David explains NetChoice v. Paxton
—McElrath v. Georgia update
—No Labels considers Nikki Haley
—Dr. Phil’s our guy
—Home Depot and free speech
—NCAA name, image, likeness rules
—AO dating app update
#trump #scotus #law #politics #conservative
Welcome to advisory opinions I’m Sarah isgar and that’s David French and boy do we have a lot to get to and David we’re even jumping in to do like a mini emergency pod in the regular podcast because we have breaking news from the Supreme Court but before we get to that
David I just want to tell you I saw an amazing sweatshirt at the University of Alabama for Valentine’s Day gray sweatshirt Neil gorsuch’s face little pink hearts all around it and it said gor such a babe okay so Sarah yeah it had to be an amazing sweatshirt to Trump starting
With supreme court news that we just have I thought that was the most important supreme court news I could imagine well and that didn’t deliver like all right we’ll get to the main event here uh we got a late night Wednesday order curari granted the application for a stay presented to the
Chief Justice is referred by him to the court the special council’s request to treat the stay application as a petition for rid of sersari is granted and that petition is granted limited to the following question whether and if so to what extent does a former president enjoy presidential immunity from
Criminal prosecution for conduct alleged to involve official acts during his tenure in office in the meantime the stay that was placed on starting the trial will continue until the Supreme Court hears oral argument on April 22nd it’s a fast briefing schedule and this is you know moving from the
Emergency docket into the merits docket something we said could happen and then if it happened it would happen in April and well here we are David they’re taking the case you called it Sarah um just full disclosure uh this is our second intro for this podcast because we recorded a whole
Podcast and then dis occurred and so we re-recorded the opening which also involved re-recording the sweatshirt opening by the way which which how dare you out me which made the sweatshirt even less impressive I don’t know why you’re not impressed with the sweatshirt look so in our original version of this podcast we
Talked about what the delay meant and you said probably nothing probably just means they’re they’re not concerned with the political calendar as everyone else is and I mentioned that there were those out there making the case that in fact this was really bad for Donald Trump it
Meant they were not going to hear the case they were gonna uh remove the stay of the Mandate allow it to move to trial and it’s just someone was writing a descent from the denial or something and I said I thought that was far less likely than this outcome um why the
Delay why did it take so long because it they were going to take the case and it doesn’t matter how quickly they take it at this point at this point the chances of this case going to trial before the election I’m not going to say they’re zero but they’re exceedingly
Small very low and I’ll tell you why because the Supreme Court doesn’t decide cases and I know I’ve mentioned this on this podcast before but it Bears repeating because I’m I think 99.9% even of Supreme Court sort of afficionados don’t know this the Supreme Court doesn’t decide the outcome cases they decide
Questions so that’s why when we talk about questions presented or this question whether and if so to what extent does a former president enjoy presidential immunity from Criminal prosecution for conduct alleged to involve official acts during his tenure in office that’s the only question they’re deciding which means they could
Say you know remember in the Civil context presidents enjoy full immunity for all official Acts including to the Outer Perimeter from any civil liability after leaving office well in the criminal context they could decide that they could extend full presidential immunity but then you end up with that
Whole uh SEAL Team Six assassination scenario what I think is quite likely is that they’ll say sort of there are core official acts that are protected and it’s not to the Outer Perimeter like it is in the Civil context if that’s the case if that were the decision on the
Question the case will be sent back down to judge chucken to then decide whether these acts fall into which category which sort of core versus Outer Perimeter that can then get appealed to the DC circuit and guess what it can go back up to the Supreme Court again so
Sarah can I tell you why I had a Lord of the Rings quote come to my mind when I listened when I read that paragraph because you’re a huge nerd well that’s one reason yeah there’s another reason well and also can I just say when you read that question presented so fast I
Was thinking of the reality that most of our listeners listen on a one and a half to two time speed so I sound amazing like the Micro Machines guy imagine how that sounded but I came up I thought of this quote from Gollum where he said in the two towers sneaky
Hobbitses and I had that feeling about scotus okay and let me explain why so if you look at the order and the order says this the application for a stay presented to the chief justice is referred by him to the court so the whole Court decides this and then it
Says the special council’s request to treat the stay application as a petition for RIT of ciari is granted and that petition is granted limited to the following question which you just read so here’s what happened the court granted the special council’s motion to change the stay application into a rid
Of ccari okay so then what did that mean if you go down it says without expressing a view on the merits this court directs the court of appeals to continue withholding issuance of the Mandate until the sending down of the Judgment of this court the application
For aay is dismissed as moot okay so what’s kind of clever about that clever hobbitses is that to Grant an application for a stay generally requires some sort of decision not decision but some sort of prejudgment of the merits because one of the elements of the stay application is
That there’s going to be a chance you’re going to win this thing a likelihood of success on the merits is the first factor and if you don’t got that you don’t get a stay but here they got a stay without getting a stay and maybe that’s what took so long
It could be so what happened was it was treated as a r partition for RIT of sers Shari that’s granted they don’t even go through the stay factors because the stay is dismissed as Moot and so you cannot read one iota of one cintilla into the Court’s judgment on the merits
On this as a result of that and that’s what’s clever about it and I think the bottom line is exactly what we talked about in the take one of this podcast which is they’re they’re not giving Donald Trump don’t look at this as giving him a favor in the sense of
Treating him specially they’re giving him a they’re giving him assistance by treating him normally does that make sense in other words they’re treating him like he’s a normal defendant where they’re not racing against the clock to put him on trial so they’re treating him like a normal
Defendant and treating him like a normal defendant in this circumstance Works to Donald Trump’s Advantage because treating him like a normal defendant will push the trial and pushing the trial means he could conceivably win and get of the case entirely well look I just want to give a shout out to the
Best tweet that I’ve seen so far on this which is I just got in line for the oral argument because if you’re not already in line for the oral argument you’re not getting in remember right 45 40 people from the public are going to be able to sit in the Supreme Court
For this oral argument you might as well be in line now a two Monon wait seems Sarah we’re now looking at a situation where it would be entirely possible Poss not likely none of this is likely but let’s just indulge me for a minute Donald Trump wins and he goes straight into a
Criminal trial in December not likely remember this is the Department of Justice true and they have sort of policies about this sort of thing but it’s the policiy pre-election correct that’s right uh but also remember this trial is not a onewe trial no U Jack Smith is
Going to get to call many many witnesses remember there’s four different counts here they last over a long period of time involving a lot of different people and then Trump gets to call witnesses this could be monthlong trial so no doj is not gonna start this in December I was
Just floating some con some possibility but a a number of people have already reached out and asked about could we have a trial in October no no that would clearly VI violate the doj’s policy on um not basically holding criminal trials that could affect uh an election it’s generally Labor day has been
Roughly the guid poost and that’s why I say this is hard even if the Supreme Court decides this in a way that does decide the case even though they only decide the question so April 22nd they decide it by May 15th you have to give Trump minimum six
Weeks I think maybe more to get ready for trial so July 8th I’m I’m doing this in the tightest time frame imaginable yeah July 8th and then you’d have room for a six week trial over August I think you’re out of time it’s it’s possible it’s possible it’s just
Really really difficult and that’s I mean I my basic View at this point on the j6 trial is that’s a rrap um and at Le unless he loses the presidential election is again not for sure not certain but basically that’s a wrap on the January 6 trial unless he loses um
Georgia as a right now there’s zero indication that thing’s going to go to trial before he loses we could very well be now percolating in the background is the classified documents trial which seems more or less on track but really no one’s been focusing on that of late
And then what if we had this situation where of the four cases exactly one goes to trial before the election and it’s the Stormy Daniels case and the one that helps Trump politically the most you’ll notice yes they tried to dismiss the case but otherwise I haven’t seen a
Whole lot of attempts by the Trump team to delay this trial it’s currently set from March 25th uh in New York state court with Alvin Bragg Prosecuting uh there’s a real argument that the Trump team will see this as net political benefit even if he gets convicted because it’s the weakest case legally
It’s the best case politically the underlying um actions you know the paying the hush money to Stormy Daniels is already so baked in for the country it’s not really new information that’s going to come out well David we’re also still waiting on that Colorado 14th Amendment decision on disqualification
We are not expecting any opinions this week from the Supreme Court so at this point we’re already on the next week for that decision we’ll see and the the mara Lago documents trial is still scheduled for May I I’m not I’m not Terri L optimistic
It will happen in May um but it is still scheduled in May and he does not have quite the same kinds of defenses to this case that he has to the January 6th case because he’s being prosecuted for his post presidency conduct which is why this case also
Didn’t affect this New York State case that was pre-presidential conduct so pre- and post no immunity issues um you know when I I hear a different movie quote when you talk about the classified documents days nna nagna not gonna work here anymore no they have so many other
Ways to delay that case because of the classified documents and because of the intelligence communities classified document review as you know anything’s possible um but I don’t think so we’ll see yeah yeah we’ll see uh my assessment on the classified documents case is we’ll see but Trump has not yet begun to
Delay that case um that’s the case that he’s not he has made some motions and we can we can talk about them you know when we’ve got time he’s made some motions that have been denied that would have delayed the trial um but the judge has already signaled openness to delaying it
So we’ll see all right we’ll move on to what else happened at the Supreme Court this week there was a big argument earlier this week on Monday the net Choice cases we also had the Cargill case getting argued Wednesday morning that’s the bump stocks so let’s save bum stocks because we
Started recording this podcast in the middle of the argument and so we’ll do a full rundown of Cargill and the bum stocks case in the next one but why don’t you talk to us about net choice because as listeners know husband of the Pod represented net Choice against Texas
In this case Council of record it turned out that Paul Clement argued both the Florida and Texas sides and um I’m kind of removing myself from this discussion I may ask you questions okay okay okay so I’ve been thinking about how to frame this uh argument ever since I read it
Because there’s so many different strands you can pull on so I’ll pull on two strands right from the start one is strand number one is anyone who thinks this is a monolithic conservative majority needs their head examined by this point because it was very clear from the oral argument that there were
The main divisions that you saw emerging on the court were between members of the conservative six not with members of the progressive three and specifically Sarah do we need to say 333 there was a distinct difference between the Gorsuch Alo and Thomas kind of line of questioning with more emphasis on Thomas
And Alo um really Thomas and Alo standing out so that’s th thread number one was this was a divided conservative majority here thread number two is some of the justices didn’t seem to know what was going on online Sarah um some of the questions betrayed like a real lack of understanding of section
230 uh specifically of section 23 it was really interesting that more so than other cases I felt like the oral Advocates were having to sort of explain the basics um like I’ll I’ll give you this um Justice Gorsuch to Justice pre- logger the whole premise of section 230
That they are common carriers that they’re not going to be held liable in be in part because it isn’t their expression they’re a conduit for somebody else that language common carriers the whole premise of section 230 no that isn’t the premise of section 230 at all in actuality the the prise of
Section 230 was that you were going to be insulated from liability even if you content moderated in other words even if you as act acted differently from a common carrier that just delivers every package and every parcel know what section 230 said is no you get to
Moderate and you get to moderate without becoming liable for all of the expression and so that was a really interesting question from Justice Gorsuch to which Justice progger began her answer with no at all Justice corsage um which is about as clear as you can get and then you have this
Interesting thing a couple of interesting things um both Alo and Thomas seemed really interested in fixating on censorship this is censorship what these what the they objected to the idea that you would call it content moderation it was censorship and so Thomas asked when have we ever
Approve when have we ever approved of censorship and Justice Alo says is it anything more than what this content moderation is a e e euphemism for censorship let me just ask you this if somebody in 1917 was prosecuted and thrown in jail for opposing us participation in World War I was that content
Moderation um no that was a prosecution Justice Alo the the difference between content moderation and prosecution is pretty evident as in who is doing it and what are the consequences uh just a really weird thing prosecuted and thrown in jail is government action content moderation is private action so it’s really
Interesting Sarah to me sort of seeing pulling on these two threads the conservatives were very divided and I felt like some of that took uh Paul Clement off guard quite frankly I don’t Paul Clement walked in and the argument that he was giving felt like a an argument you give when you
Think you’re winning this case a sort of a Do no harm approach um but the divisions on the conservative side of the Court became pretty clear right away which then throws into question whether you are in fact on The Winning Side and so I thought that was a very interesting
Element of this where it was clear that the conservative justices were divided and that some of them weren’t actually necessarily that up to speed on the issues um I mean that the the Gorsuch question was pretty remarkable and then Thomas asked when have we ever approved of censorship
Which is a wild question to ask because in that entire exchange he was noting how he’s been on the bench for the entire sort of course of the internet which means yeah he’s been on the bench for a long time and there are cases like Hurley Torino others where the court has
Said yeah private parties have a First Amendment right to exclude messages they don’t like and so that was a really weird question from Justice Thomas and it was feeling like from some of these justices that they had really emed a lot of their online rhetoric about the online world and had disconnected it
From a lot of their larger precedent and that was certainly not Universal Sarah Justice Kavanaugh Justice Roberts Justice Barrett they all seemed to be pretty not just on top of the issues but be able to connect it to precedent uh and then I’ll stop monologuing here in a
Second but the most I thought the most important observation was actually made by Justice Kagan and because a big part of the controversy here was well wait a minute how much is content moderation really expressive in other words how much is this the kind of thing that actually the first amendment should
Encompass and should should cover how how much is content moderation actually changing these sites in certain specific ways in accordance with the values and Outlook of the the actual owners of the site and Kagan brought up the rather obvious fact that Twitter has changed a lot since Elon Musk came over and
Twitter has is a very different website it’s got a very different ethos it’s got a very different it’s got very different content it is very different since content moderation changed and you know I’ll I’ll I’ll pause there because that leads me to another thing and I I’ve already been monologuing two questions
One focusing on the three justices in the middle Barrett Kavanaugh and Roberts there seemed to be two um maybe unexpected things that they were really focused on one was the facial challenge aspect of this that net Choice basically didn’t wait for enforcement um they argued that the
Whole law is unconstitutional in all of its applications and I thought was hearing a lot of well what if we just disagree with that part and wait for this to be enforced and wait for to find out which parts of the law really are unconstitutional which leads me to the
Second part that they seem concerned about which is maybe it wouldn’t be okay if Gmail for instance said that conservatives can’t use Gmail or someone with a specific Viewpoint can’t use Gmail can’t use DMS on Twitter um can’t use Facebook Messenger things that look a lot more like common carrier phone
Type stuff and I was wondering if you could talk to some of the answers on the facial Challenge and the answers to the difference between posting something on Facebook and Twitter publicly versus the sort of private is communication that it allows because obviously if we thinking
About AT&T for instance there was also a physical phone line that AT&T was running to your house yeah so if AT&T said they weren’t serving you you were really so yeah yeah that was it for you man yeah yeah um so even if Gmail started doing that it would be different
Than the phone companies but maybe that distinction doesn’t really matter anymore when we’re talking about Gmail or Facebook Messenger Twitter DMS or something yeah so I think let’s start with the facial challenge aspect of it I think it’s pretty clear to me that there was a majority of the Court willing to
Say that the Texas and Florida social media law to the extent that they impacted the social media we’re familiar with such as Twitter Facebook Etc that that’s likely going to be unconstitutional that Texas and Florida laws will likely be unconstitutional it is very unclear to me that they will extend that kind of
Zone of privilege that they’re going to extend around Facebook Twitter threads Etc that they’d put it to Gmail or even Facebook Messenger or text messaging and there’s a very good reason for that Sarah aric and you you put your finger on it and that is when you’re talking about common
Carriers plac things like AT&T for example is a common carrier or UPS or something like that what we’re often talking about and traditionally what how this sort of common carrier designation came about is you’re talking about private entities that are fulfilling sort of public functions also in some ways in some ways
Also doing so through the use of government resources so the phone lines for example there was an awful lot of government action to put phone telephone lines all over the freaking United States of America and so if AT&T or you know Bell or whatever at the time was saying no
Phone line for you well there’s a pretty strong argument at that point that what you’re doing is you’re essentially you’ve commandeered the government in into your own censorship in an interesting way because this the creation of that whole common carrier infrastructure was a joint government public private partnership kind of
Situation and so you had uh you have point-to-point communications we have a long history in this country of point-to-point communications like I’m sending a package to you Sarah or I’m texting you or I’m calling you that that would be common carrier activity that’s why um you know that that’s that’s when
You think common carrier that’s what you’re thinking about um when you’re talking about posting stuff in public what you’re actually talking about there is much more like letters to the editor it’s public commentary there has never and has there has never ever been a common carrier of op EDS there’s no such
Thing as sort of a common carrier of op EDS um prior to the rise of Twitter Facebook Etc if you wanted your public voice to be heard you did an oped submission to a paper you wrote a letter to the editor maybe you took out an ad for the paper
But even the ads were screened by the paper just buying ad space did not give you an absolute right to get your message out in the public so that’s one reason why when people talk about Twitter or Facebook accepting the DM or messenger functions as being a common
Carrier I’m saying wait a minute you’ve changed the definition of what a common carrier is it’s like if you’re looking at a duck and you’re looking at an eagle and you say they’re both Ducks no they have some similarities but they are very different birds here and and so what
You’re talking about I think what you’re going to see is the court drawing a distinction between public commentary which is your typical tweet versus point-to-point Communications which is your typical common carrier type activity and it’s likely to have an opinion that draws out that distinction and does not strike down the state laws
To the extent that they interact with Gmail but does to the extent they interact with Twitter or Facebook on on public posting that’s my reading of how this could go but I think you’re absolutely right Sarah that the the Gmail type portion of this there’s going
To be some deal they’re going to deal with that in some way some distinct way so first of all I’m hoping to have a robust conversation in the comments section taking on your ornithological example there because I don’t think duck and Eagle works but I’m trying to think
Of a good example of like you know Eagle vulture they both eat dead animals but one kills the animal and the other just eats the dead animal and maybe that’s a better analogy I was GNA go with duck and goat to signify the extreme difference but see I don’t know because
I think I think that would make it too easy a case I’m not sure this is as easy as that so okay what I’m hearing from you is um look there’s the big win version of this which is sort of what you’re describing um this is just not common
Carrier this is their free speech this is Hurley right they’re excluding people from their parade there’s the let’s call it maybe smaller win options one is distinguishing between Florida and Texas one is distinguishing that the laws of Florida and Texas are slightly different I’m saying um one is saying um you know
The distinction between Gmail and you know Facebook messages or something like that could be a smaller win uh there’s also some the losses though which is hey sorry we’re just not taking this on a facial challenge um it’s not unconstitutional in all of its applications and therefore come back
When you get something that’s smaller and definitely unconstitutional in its current application as applied um challenge versus a facial challenge that would be a loss I think you would agree oh for sure are there any other outcomes that I’m missing here that are I think the loss outcome that is most
Likely is it’s just not right for a facial challenge outcome um there’s not the big loss which would be you this facial challenge works and this is constitutional bye-bye yeah I don’t see that doesn’t really seem like it was one of the outcomes no no it and especially
When Justice Roberts was really not buying the fair versus Rumsfeld analogy um which was for those keeping scored home Fair versus Rumsfeld was a much older case that Justice Roberts I believe wrote the majority opinion in holding that la schools could not in fact exclude military recruiters from
Campus now the interesting thing was in the oral argument this was an interesting exchange because Justice Robert said in a very shorthand way that really the outcome of the Rumsfeld case was because the federal government has been pouring a bunch of money into these schools and so therefore they’ve got
Room they they should be able to have room for their recruiters and The Advocate you know Whitaker pointed out quite accurately that actually fairv rumsfield doesn’t spend a whole pile of time on the money issue that’s right which was a surprise which is why fair I mean you and I have
Talked about this fair is a weird case that is hard to square with anything before it or anything after it it feels like one of those Distortion cases where it’s post 911 it’s the military and it’s sort of cabin to its facts in a lot of ways and I think we’ll
See that potentially after this case that fair gets even more cabined to its weirdness yeah uh well David we’ll certainly talk about it a lot more when the opinion comes out and I’ll feel better about discussing it also I thought you’d enjoy this so of the Paul Clement argued for net Choice Henry
Whitaker was the solicitor general uh Florida Aaron neelon solicitor general of Texas and Elizabeth pre- logger as the US solicitor general um I basically went to law school with everyone but Paul Clement Henry graduated right before I came but we were then together at the department of Justice um Aaron is
A wonderful friend and is the new solicitor general of Texas so congrats Aaron neelen for that yeah and then obviously Elizabeth and I were the same year so amazing cool cool little argument for me no kidding so do you feel comfortable offering any kind of prediction because I think I’ve got one
I’m gonna let you do the predic okay I can’t tell you I’m so uncomfortable I I know I know it’s so funny listeners she’s visibly uncomfortable visibly uncomfortable talking about I can’t wait for the opinion to come out yes yes um I’m gonna go ahead and say it I wish Scott had
Argued I’m saying it I wish Scott had argued so you don’t have to do anything in response at all uh I felt like the argument was not as good as it could have been uh but I’m gonna say 63 or S 72 on the narrow dub for
Scott um so that that’s my best projection I do not see soda myor Kagan I and I never saw Kagan join being with Florida or Texas on this um she’s generally a very strong Justice on Free Speech issues um Jackson we haven’t seen a ton of our jurist Prudence sood to
Myor on Free Speech yet but soda myor gave some pretty strong hints and World argument to where she was leaning so I’m think I’m thinking 63 for at least the narrow win because I don’t think the progressive three would go for the big dub Sarah um because I think on the
Progressive side they believe that there’s more there is some room for regulation here just not necessarily Viewpoint based regulation and so I don’t know how big they’re going to want to go uh on this so I’m thinking you’ve got a a solid majority for the narrow
Win um if I I don’t see a solid majority for the big win I because I don’t see Alo and Thomas going along gorsuch’s questions kind of raised an eyebrow or two um so that’s that’s my current prediction is 63 or 72 narrow dub sorry listeners on the one hand you get the
Benefit of my Insider stuff sometimes and other times you don’t you don’t all right so when we talk about Cargill uh the bump stock case on the next episode we will also revisit two oral arguments from last week the corner post case and the EPA case for those who
Follow this closely and for those who don’t you’ll find out at the next episode all right we’ had an opinion David in a case that we covered yes on this podcast and it was one of the ones that we were kind of into actually like a sleeper case that was interesting this
Is the mckel Wrath V Georgia Double Jeopardy case where um very tragic guy kills his mom because he thinks she’s been poisoning him he has schizophrenia so the state charges him with all different types of the murdery stuff at trial the jury said that he was not guilty by reason of
Insanity on the malice murder that’s your capital murder you know intentional murder type stuff um it’s different it’s named different things in different states So Not Guilty by reason of insanity on the first one and then guilty but mentally ill on another one so uh the defendant the guy who’s
Convicted goes to the Georgia courts and says Ah under Georgia law these are repugnant verdicts meaning they are inconsistent with one another you can’t be insane for the same murder that you’re only mentally ill for same murder same facts like no distinction and so those verdicts are inconsistent with one
Another and they’re so inconsistent that under Georgia law there’s such a thing called repugnant verdicts and the Georgia Supreme Court agrees so he gets his guilty verdict thrown out which is what he wants but the Georgia Supreme Court also throws out the not guilty verdict right so then he’s like well
Wait wait wait wait wait they’re repugnant verdicts but you can’t retry me on the thing I was acquitted of because you know Double Jeopardy and Georgia argued well no because the verdicts were repugnant there were no verdicts at all David you and I said that the court was very likely to naw
Dog this one 90 they n doed it yeah they naw doed it hard Justice Jackson wrote the opinion um which is only insulting in the sense that when the junior Justice gets assigned the 90 opinion it means there was no discussion about this at all that that’s how easy it was Justice
Jackson handling this um quite quickly in a 11 10 11 page opinion just nope nope nope nope nope so in the end Georgia gets to keep their repugnant verdict statue they can knock out all the guilty verdicts they want what you can’t do then is retry someone on the
Not guilty verdict right which basically means you’re only undoing guilty verdicts and my prediction is David we will not see any more repugnant verdicts in the state of Georgia I think that is right and this this was a interesting case because not so much because it’s hugely consequential this is a pretty
Unique setup here but it was a mental mindbending exercise because the question was if you had the repugnant verdicts did you have a verdict at all were was any of it did any of it really truly conceptually exist if you had two incompatible findings and the argument
From the defense was yes in fact there is one of them that does exist and it is the aquid that is is the one that exists the other one does not exist and so the court well I would say the other one exist it just because it’s so
Inconsistent we don’t we’re not going to put someone in jail when we can’t trust the jury’s decisionmaking because it’s so inconsistent right so so I think their argument is no they both exist that’s why Double Jeopardy attaches but when one is so inconsistent that we can’t trust the jury to have actually
Made a rational decision we then also toss out the guilty verdict and it’s basically a mistrial yeah yeah it it right I mean I think there’s a number of ways to frame this because they’re trying what this court was essentially trying to do is this is just I mean what
Georgia was trying to do is this was a mess it’s a doover and it’s just such a mess that it’s a doover and the argument from M melrath Mel wrath was no no no no there’s a there’s a through line here and the through line here is that he’s
Mentally ill that’s the through line line that’s the that’s the core that’s the real core finding here um and you know I remember as we were discussing this one of the aspects of this case is if you really dive into the procedural history here there was some pretty
Phenomenal lawyering going on on the defense side I mean really pretty phenomenal lawyer maneuvering this case to ex get exactly into the position where it is and then making the argument that was the ultimately successful argument for before the Supreme Court um this is one of those few cases where you
Can sit down and say I can clearly see how legal strategy really played into this outcome I say few cases just in the sweep of all the all of the cases we see that quite frequently in Supreme Court cases but this is another one of those examples it really a fascinating case to
Work through conceptually all right next up there’s been some rumor of Nicki Haley who just lost in Michigan but picked up two delegates by the way she got about 30% of the vote and just if we can do a little political punditry here David which we don’t do a
Ton on this podcast anymore but um you know I was a republican political operative for roughly 20 years yeah there’s a lot of discussion I do radio for ABC News and I call into one radio show and they’re like it’s so ridiculous that anyone is covering the Republican
Primaries if Nikki Haley is actually somehow showing that Donald Trump is weak in any way she only got 30% this is ridiculous that’s totally normal and then on the other hand I call in it’s like can you believe Nikki Haley got 30% doesn’t that show how vulnerable
Donald Trump will be in the general election and it’s like living in two different realities so here’s my real take on this which is the reason that this is a roar shock test for so many people is because we can’t decide whether Donald Trump is an incumbent or
Not if he’s an incumbent it’s a real problem when someone’s getting 30% against you yeah but if it’s a normal Republican primary because technically he’s not not an incumbent then someone getting 30% in late February it’s a route is a great sign for that leading candidate yeah and so it really depends
On whether you consider Donald Trump an incumbent or whether this is a normal Republican primary and I will say as negative polarization has increased in the country over the last 10 years we talk about negative polarization a lot but we don’t Define it a lot and I think a good definition for negative
Polarization is the idea that you don’t like your own team but you hate that team a lot more and so what motivates your vote is hatred of the other not love of your side and the question for those Nikki Haley voters or for the that matter the 133% of uncommitted Voters in
Michigan that were trying to send a message to Joe Biden in the Democratic primary is this a sign that they’re so unhappy with their candidate that they’re going to stay home that they’ll consider voting third party that they may even cross over and vote for the other side or will negative polarization
Take over and in fact all of those folks are going to come home vote for their own team not because they suddenly like Joe Biden or Donald Trump they clearly prefer someone else but in the end because they hate the other guy more and if that’s the case then neither of them
Are vulnerable in the sense that these votes are showcasing their vulnerability and there’s another there’s another bit here Sarah that’s interesting which is Who are the inde attendants who are voting for Nikki Haley so I read an interesting analysis that says wait a minute okay you cannot extrapolate the
Fact that Nikki Haley is walloping Trump with Independence in the primary with that Donald Trump is really weak with Independence in the general election compared to Joe Biden and part because let’s not forget a primary vote is a very low turnout election relative the to the general and then these These are
Independents who are then voting in a Republican primary so again another self- selected group High information High activity level in New Hampshire we saw over and over again independence vote for Nikki Haley in the primary who said they would vote for Joe Biden in general even if Nikki Haley were the
Nominee potentially we saw something quite similar happening in South Carolina and I haven’t broken down the Michigan numbers yeah and you know the analysis I read which was fascinating was said look if you really dive into the demographics of who voted The Independents who voted for Nikki Haley
There are never trumpers and theirs are almost never trumpers like your people who are the genuinely stricken to pull the lever for Trump not the people who pretend they’re stricken to pull the lever for Trump but the genuinely stricken and you’re getting a very small
Sub now it’s a it’s a it’s a group of people that’s meaningful in very close elections in States like Georgia and Wisconsin where there’s a lot of good argument that it is in fact the never Trump vote that sank Trump in both Georgia and Wisin but it is not a number
To extrapolate out from nationally all right so given all of that no labels this potential thirdparty candidacy that has worked on ballot access they now say they’re going to be on the ballot in 30 33 States they’ve claimed though they’re not actually on the ballot in those
States um has at least floated the idea that they’re considering Nikki Haley I think that is politically dumb for a number of reasons that you can extrapolate from our previous conver ation just now but legally it’s a fascinating question because the vast majority of States 45 States in total have something called
Sore loser laws if you run in the primary in a state and you lose you can’t then run as a third party in the general election you can’t be a sore loser get it but does that apply in in presidential elections I.E would they be in really big trouble if they picked
Nikki Haley right off the bat or not so much so credit to Richard Winger editor and publisher of ballot access news back in 2016 he actually ran through all 45 states with sore loser laws to see if any didn’t or did apply in presidential races it’s fascinating there’s a real
Argument that a lot of the sore loser laws don’t apply in presidential races but the problem will be that at least South Dakota and Texas definitely claim that they apply Virginia for instance it’s just phrased as if candada is defeated in the primary his name is not
To be printed on the ballots for that office in the succeeding general election so there’s that the only states without sore loser laws are Arizona Delaware New York Oklahoma and West Virginia Arizona is the only one of those that matters one bit and here’s why I’m gonna say it’s stupid no matter
What and then we can talk briefly about why even if you tried to apply them to presidential races maybe um that wouldn’t be constitutional uh it’s stupid no matter what because if there’s a legally cognizable chance that she can’t be on the ballot yeah what are you
Doing this late in the day picking her and fighting those legal battles and trying to get it to the Supreme Court which may or may not take it and you’re running out of time and this is the you know it may get decided after the election capable of repetition yet
Evading review mutinous exception but of all the money that you need to spend to get a third party candidate noticed to get the ballot access to fight off the negative ads that you’re going to get from the two major parties that will have a billion dollars you’re telling me
You also want to spend a few million on litigating whether someone who ran in the Republican primary can then run as a no labels candidate it is some combination of Legally and politically stupid and I can’t decide which one more so I think the best way to describe how
Legally and politically dumb it would be is imagine your campaign poster Haley Phillips 2024 vote for us asterisk after we win 33 lawsuits yes that’s it’s not practical guys it’s not practical no no and as youall know I’ve said all along No Labels should be looking at Celebrities I will note by
The way that Dr Phil just came out with a new book and was just at the southern border he just did a radio interview where he sounded awfully up to speed on immigration policy David and didn’t he just go on The View and rail about um
Yeah what did he rail about on The View oh school closings and covid restrictions and yep yep yep so he’s definitely gonna be a right of Center candidate already has Universal Name ID this is the candidate I’ve been describing that you need if you want to
Run a viable third party and I put that a little bit in quotes because I don’t necessarily even mean one that can certainly win but one that’s getting more than two to five % uh in this election cycle Dr Phil is your guy and I don’t know why we’re not talking about
Him more I mean I’ve been saying Matthew mccon because you know Dr I don’t think Dr Phil is big enough at this point I think it’s taking I disagree he’s a he’s he’s a household name you and even better you don’t know anything about him you really don’t right you don’t know
Anything about his politics and he’s also from Texas so actually I take it all back I’m good Matthew MCC and Dr Phil on the ticket but David I thought we could spend just a brief moment on why sore loser laws might be unconstitutional and it’s this idea that
It actually goes back to what we’re talking about in the Colorado 14th Amendment disqualification case a state can’t create a new qualification to be president right outside of the ones in the Constitution I.E 35 years old uh natural born citizen Etc hasn’t held office um well
That you know that one it’s twice but technically if you’re elected to one of them anyway um in the Colorado case the idea is because 14th Amendment Section 3 only says hold office they are creating another qualification to get elected to office to be on the ballot in their
State and that’s what makes it unconstitutional to take Donald Trump off this would be a similar argument that in fact you can’t uh say that Nikki Haley can’t run in a presidential campaign because she is qualified right to run a presidential campaign and you can’t create an additional qualification
I think the answer would be well yes she ran in the campaign she already ran and she lost there have been Court challenges to sore loser laws and they they’ve generally been upheld and I think the reason why you know one of the key reasons why is you do have a Zone
Although the independent state legislature Doctrine does not create the uh State Legislature as the 800 pound Guerilla that can do anything it wants uh regardless of anything else in elections there is a wide Zone given constitutionally into state legislatures to regulate elections regulate presidential elections and if they say you’ve
Run you’ve already run we we’re not blocking you from the ballot you’ve been on the ballot and you didn’t win is a little bit different from saying you can’t be on the ballot at all so I I am interested in this um I’m generally of the view that they would be upheld
Though as s loser law I’m generally of the view that they’d be struck down I think because the states have not been enforcing it in other uh categories so for instance and I’ll just name a few here Gary Johnson ran in the Republican primary in 2012 then ran as an
Independent in the general election and got 45,000 votes in Georgia uh let’s skin down to Michigan John Anderson in 1980 ran as a republican ran with the Anderson Coalition in the general election got close to 300,000 votes in Michigan in 1980 now let’s look for another swing state here North Carolina
Also John Anderson got 52,000 votes that time Pennsylvania John Anderson so Wisconsin Lyndon larouche 1992 ran as a democrat in the primary and Independence for economic recovery in the general election got 633 votes in the general election in Wisconsin that year those States would need to explain
Why they’re going to enforce the law now when they haven’t before which is a different but interesting question for them so fun s loser laws I don’t think it’s gonna come up I’d feel better about a case if they had not enforced it before and now are enforcing it uh that
Would be yep but that’s yeah that’s not necessarily a challenge to sore loser laws but to The Selective enforcement of sore Los or loss indeed and in fact 43 of the 45 States uh Richard Winger has put together examples where they allowed someone to run in the general election
Who had lost previously the most fun one by the way roanne bar ran in the Green Party primary in California in 2012 and then the Peace and Freedom Party in the general election well my how things have changed my mind all right David a couple more
Things on our list here one the National Labor Relations Board had a fascinating case that we’re going to watch you guys know that normally we don’t talk about things until they get to sort of the circuit court level but this one struck my fancy and Mitch McConnell even put
Out a statement about it so clearly it’s getting some traction and it’s an issue in your wheelhouse David like an office space if you work at Home Depot you are encouraged to have flare on your apron but there’s a rule no political flare or like social movement de flare even
Though I don’t know what that leaves at this point because everything is political or social movement uh at this point if you said you liked puppies I’m sure someone would complain nevertheless this employee had several complaints about racial discrimination in the workforce this is around um the time of
The George Floyd murder and protests and this person writes BLM on the apron Home Depot fires the person because they won’t take BLM off the apron right and it violates the policy the National Labor Relations Board found how ever that this was part of their rights and Collective action to be
Advocating for that and it was in fact a you know protected activity in the workforce and I want to read you a little piece of this the National Labor Relations Act however protects the legal right of employees to engage in quote concerted activities for the purpose of
Mutual Aid or protection whether or not they are represented by a union so the nrlb held that the employees refusal to remove the BLM marking was concerted because it was a logical outgrowth of Prior concerted employee protest about racial discrimination in their workplace and because it was an attempt to bring
Those groups complaints the attention of Home Depot managers they also found that it was for Mutual Aid or protection because the issue of racial discrimination involved employees working conditions interestingly when the employee was asked about it like oh hey I see you have BLM on your apron you know that violates our
Policies you need to take it off why do you have it on your apron the person basically says like George Floyd solidarity with that movement right at no point did they say it was related to their complaints about racial discrimination I mean wow David like can you have rules in a Workforce anymore
Because remember the Starbucks case where the employees uh after hours brought in a camera crew that violated Starbucks policy to talk about unionizing so Starbucks fired them the nrlb found that that was protected action even though you’re violating the store’s policies and in this case the
Store just has a policy of like we don’t want customers to feel uncomfortable with our employees who have political views because we just don’t want that coming into your you know 2×4 conversation so we can’t have any of it it’s not Viewpoint discrimination and now the nrlb is saying well
No sometimes you can violate that policy if we think it’s for Mutual Aid or protection of other employees though I’m sure that having a pro-life sticker the nrlb would not find protected right I mean this this is a bad decision it’ll be interesting to see the ultimate
Outcome here if it if Home Depot continues to press this because there are some real constitutional issues because if I’m providing if I’m providing you with a Home Depot APR if I’m providing you with a job I’m giving you access to the public if I’m providing you with a Home Depot apron
That is my expression and then I’m saying hey I don’t want you to use my expression it’s essentially a billboard for your politics that strikes me as imminently both constitutionally appropriate and reasonable that you can’t use my colors my vest my jacket and to the extent you personalize it do
It you did an Iron Man Triathlon put that on there you like the Philadelphia Eagles put that on there but this this idea and then the notion that sort of like if you’re saying B BLM that that’s some sort of super speech um no it it it
Should not be viewed that way it’s Free Speech but you’re this is a private employer it’s a private employer and that private employ you don’t have constitutional rights V Vis A Home Depot now these are statutory rights he’s trying to vindicate but Home Depot has constitutional
Rights uh even if the statute is held to be broad enough to Encompass the speech I’m not sure that that survives First Amendment uh scrutiny here might remind you a little bit of net choice in fact that apron looks a lot like you know Facebook yeah so the Supreme Court is
Set to hear that Starbucks case about the employees letting in the camera crew after hours I don’t expect anything in that resulting opinion to directly implicate this case but it’ll give us some Vibes so when we do hear that oral argument I’m sure we’ll be talking about
This example again and you know we’ve had a few Union cases with an iteration of this supreme court before remember uh having to allow the inspectors on the California farm for instance so this will be in a line of revisiting the nrlb revisiting union rights at a time when
Unions are shrinking in the country but also interestingly at a time when those union members demographically are looking a lot more like Republicans and conservatives so a lot going on politically on that veilance and institutionally within unions as well we’ll see all right David Tennessee the Tennessee attorney general
Jonathan scetti also law school classmate and friend Jonathan scetti congrats Jonathan for your very high-profile injunction Nationwide injunction against the NCAA name image likeness rules now David I’m GNA tell you I don’t understand one bit what is going on with the NCAA these days because we have the Supreme Court
Decision which basically says when it comes to educational benefits um and that it was only brought up on that question B NCAA might have antitrust problems because that came up on an injunctive relief standard so it was just likelihood of success on the merits and irreparable harm um so it was just
Sort of the it opened the door to the possibility that the NCAA had antitrust problems now this also was an injunction about name image likeness stuff but I’m pretty confused David other than now the NCAA can’t enforce rules on nil stuff does that mean that schools can just start directly paying
Like Purdue can directly pay Zack Edy now Zack Ed doesn’t have to get sponsored by the local barbecue joint to pay him the million dollar um and did we just witness the end of college sports is it now just going to be the minor leagues where they can actually then potentially have
Contracts because one of my big complaints about college sports right now at basketball and football level is everyone keep transferring yes oh my God you nailed it it’s a transfer portal it’s so annoying because they’re not really for your school anymore they’re just going to leave the next year
They’re G know they’re not from your state um yeah and so you could at least have contractual obligations like nope you’ve got to stay with our school if we’re g to pay you this money and maybe that would fix some of the college sports problems I don’t know oh I I
Think that would be a great Advance let me do something we do on occasion let me give a malpractice warning on two counts here yeah because number one interpreting NCAA regulations people do this for a living right they do this for a living and they argue over NCAA regulations it is a
Byzantine system so we’re dipping our toes into a Byzantine system and then in a very specific way antitrust which every time anti trust comes up we give the same disclaimer this is complex area of law as you have noted Sarah a lot of it
Seems to be kind of made up uh a a sense that actual antitrust lawyers have reinforced by emailing us and saying you know what Sarah’s right it’s made up but essentially what’s happening in the case is that after the nil ruling that essentially said uh look um you own your
Name and image if you’re if you’re a an athlete you own your name and image um the NCAA does not own it and you can enter into deals to make money off of your name image and likeness and so then as soon as that started one of the first things people
Did is they got organized with it and they began to create these n collectives and I think the first one was Gators was Florida so they began to create these nil collectives and as understand an nil Collective it’s a coalition of people who are offering name image and
Lightness money to student athletes well the NCAA got wind of this and said no this ni these nil collectives we’re going to consider them to be like boosters and we don’t want the student athletes negotiating directly with these nil collectives so oh that’s where the booster stuff came in I I wasn’t
Figuring that out that makes so much sense please continue this is helpful I’m learning yes so you have these nil collectives and then you have these boosters and the boosters uh they’ve boosters tradition have been heavily regulated with NCAA because these are the rich like the owner of the local car
Dealership who’s got cash to burn really cares about the local college football team and you know one of the ways that n NCAA rules used to be attempted to be circumvented is boosters would give money to student athletes it’s not that the colleges would the boosters would and the boosters were then heavily
Regulated so what they’ve attempted to do is essentially take these nil collectives and put them in the position of a a booster and previously the court had essentially said wait a minute this could be wrong but we’re not going to Grant an injunction because we can’t see the
Irreparable injury there if there’s a likelihood of success on the merits you still also have to have irreparable injury before you grant an injunction and originally the thinking was well this is only money damages here between what you could have gotten in an open market versus what you’re getting in the
Sort of the controlled market so that’s not irreparable injury but what the court essentially did was say wait a minute we don’t really know what the financial gap is what the financial harm here is and another way of thinking about irreparable injury is one that’s difficult to quantify financially and so
If you can’t really quantify it financially you’re restricting free trade and a free Marketplace of of services injunction then there’s going to be a reparable harm injunction granted and so it it was really aimed at trying to open up the ability of the student athlete to negotiate with more parties in the name
Image and likeness Arena and so that’s your your basic setup and all of this comes into play through Tennessee because Tennessee is facing potential NCAA sanctions and this injunction just really helped it really helped my kids former school yeah so congrats to the University of Tennessee and the University of Virginia for like
Basically being threatened with detention and then getting the teacher fired exactly well done um all right last thing interesting breaking news David a federal judge in Texas ruled that the $1.7 trillion Government funding bill that passed in 2022 was unconstitutional because of proxy voting they did not meet the
Quorum requirement as established in the Constitution because of the proxy voting Allowed by um the Democrats and therefore the whole bill is thrown out this came in the form though of a challenge from attorney general Ken Paxton to block a provision that gave pregnant employees stronger legal protection so not the most
Sympathetic lawsuit I’ve ever seen in my life God forbid we help pregnant women um but in some way that’s not going to be what’s at all interesting on this case I wish we were going to talk more about requiring employees to provide pregnant women with reasonable accommodations but instead we’re going
To talk about proxy voting because if you remember this has actually come up before The Supreme Court declined to take the case but it was brought by members I believe chip Roy led the caucus on that one Republican members saying that proxy voting was unconstitutional that any resulting legislation would be found
Unconstitutional so Supreme Court just was like yeah no standing not interested let’s see it when it happens wh just happened so that one is GNA go to the fifth circuit and depending on that panel could get interesting could get interesting it might be going to the big house sooner
Rather than later let me put it let me give a spoiler alert to everyone the one point how many trillions was it 1.7 1.7 trillion dollar spending bill is not going to be overturned ultimately David how dare you prejudge a case without knowing anything about it I’m so sorry
All right last thing David I have been getting so many requests from AO listeners to find other AO listeners to date I really someone needs to start this dating app because we have a uh we have a marriage as we’ve talked about yes we also have a successful couple that met through advisory
Opinions um things seem to be going well I check in on them from time to time I’ve also had a federal judge offer to marry them when and if the time comes and then just today David I got another request these hard up you know single people living out there in the country
The the social you know the online dating apps like the filters that they have just aren’t going to do it if what you really want is to talk about Supreme Court oral arguments on that first date don’t know this is my business idea for
One of you go run with it yeah I don’t know how these apps work but can you put in like a hashtag advisory opinions maybe but a pre screener like the filters that you have on education or income or all this other stuff like doesn’t actually mimic what used to be
Dating in friend groups there were lots of problems with dating in friend groups but on a first date you had this commonality um that you shared because you were at least tangentially connected to the same friend group and I actually think podcasts are a better proxy for a
Friend group than education or income level or political affiliation or anything like that and so one could imagine a dating app that is just a podcast dating app where you like check which podcast you listen to and you look for other listeners of those podcasts and that’s your only real filter other
Than maybe like age or do you want kids or something yeah um anyway if you’re a single lady and you’re um 30s and Tampa like hit me up no not for me just to be clear I’m very happily married that’s so funny that is exactly the kind of quote that if just spliced
Out and popped on Twitter I just yeah which don’t do that Adam do not do that all right David next episode we will have exciting conversations about bump stocks because bump stocks and IVF banss are going to have a lot in common for me these are cases where Congress
Can act doesn’t act and it ends up at the relative Supreme Court and then there’s going to be all this Fury about it and the headlines are going to be about the court court you know Alabama Supreme Court bans IVF US Supreme Court strikes down gun control measure when in
Fact it was always up to the legislative branch so that’s going to be our Cargill conversation we’re also going to revisit those two others which the facts may not be that interesting to you but the potential outcomes one of which is going to be one of the few cases that Chevron
And the demise of Chevron could really affect and another one on sort of that continued climate change through executive action problem right uh so we’ll touch on both of those next time and David we also when we recorded this podcast before um talked about how we you know we’re going to keep our
Microphones close to us during the week it’s a good thing we did keep our microphones close to us because that turned out to be quickly necessary but you know what I’m going out of town this weekend I’m still gonna take my microphone with me because I just feel
There’s static in the air you know I don’t know a lot of things seem to be moving a lot of things are moving I think basically at this point Sarah we should just pledge between now and the election everywhere we go we’ve got a lap laptop and a microphone going to
Dinner with the family you David bedtime in the briskets room the microphone’s there just in case just in case just in case now I will not I might bring the microphone to Dune 2 on Friday night but um it’s gonna be tough to pull me out of
That movie to record I’m just going to tell you that right now all right listeners thank you so much