AS225: Andrew Torrez on Scalia's Legal Activism

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:31 Thomas: Hello, and welcome to Atheistically Speaking, I'm your host, Thomas Smith, and this is episode 225, mm, square number, nice, that's a good number, I like it, and today, I've got a nice, long interview with a, an expert, a legal expert, aka a lawyer, a lawyer on, to talk about Scalia, and I have, you know, that feeling I've had of, I know Scalia was terrible, but I'm just, I'm not an expert. So, I got an expert to touch on exactly why Scalia was terrible and it's great. So fun stuff. Long, long interview. Didn't, didn't give you a two-parter. Wanted to give you nice meat jam-packed episode, and in return, if you wouldn't mind, go to iTunes right now, give me a five-star review, it helps the show, helps grow it, and we're on that quest to 500, we may get there someday, be slow going, but we'll get there, and then I'll give you a bonus show of something, it could be, it'll be great, all right, thank you for that, let's get to this interview.

0:01:40 Thomas: All right, with me right now is Andrew Torrez, and I'm hoping that's what you go by, because that's how I'm introducing you. Okay, good, Andrew Torrez. No relation to Phil Torres, somewhat recent guest, totally different, actually, different spelling, too, so no, no relation. We're not talking about the end of the world this time. We are talking about, I guess, generally, law and Scalia, possibly. Thanks for coming on. Andrew had messaged me, Andrew's a lawyer, I'm sure he's going to tell you a bit more about himself, but, but had messaged me about Scalia in a post he had done about originalism. And I thought, oh, that's a great thing to talk about and a chance to get some actual expertise on the show, which I always want to take people up on. So with that said, how about you introduce yourself and tell us a little about yourself, Andrew?

0:01:47 Andrew: You hit it exactly right, so, well, Thomas, thanks a lot for having me on the show, I am a big fan of everything that you do, so this is great, and , I

0:02:39 Thomas: Let's just take 20 minutes to talk. Talk about that. Just a quick...

0:02:43 Andrew: Could, I, absolutely, so here's, about me, I'm a practicing civil litigator, which means I represent individuals and small businesses in generally commercial disputes. I advise small businesses. So my professional job typically doesn't overlap with atheism very often. But one area where it does is I do a lot of appellate litigation. I'm admitted here in Maryland, also in the District of Columbia. I clerked for my state's Supreme Court when I got out of law school. And I handle cases on appeal pretty frequently. So something that I care about both as a lawyer and as an atheist is how the constitution is interpreted.

0:03:36 Andrew: And so I had reached out to you, we talked on a couple of previous occasions, and I had reach out to in the wake of Scalia's death, thinking that that might be a timely topic. And we could chat a little bit about sort of the future of the Supreme Court and everything. And I'm putting together a law review article, but those things take forever. It will never be timely. And my working title, I don't know if they'll let me keep it, but my working titled is that you hate Scalia for the wrong reasons. And so, yeah, so that's kind of my thesis and my background. I don't know if that hits everything. I know that who I am is sort of the most interesting part. I think the interesting part is what can we do about Greenberg?

0:04:14 Thomas: Interesting. Interesting.

0:04:28 Thomas: Hey, we'll be the judge of that. Maybe you're the most interesting part. Just out of curiosity, how long have you been an atheist? Was it a whole life thing, midlife, early life? What are we talking here?

0:04:33 Andrew: Yeah. It was, um, probably, uh, late high school and early college, um, so I was raised in a, in a Lutheran church, um, which it didn't seem particularly conservative to me at the time, but, but I have to admit I didn't get very deep into the doctrine, um, it, it sort of in retrospect, respect, kind of seemed like, you know, traditional sort of mainstream, uh, Christianity, uh, and I was, you know, I was happy with the, uh, community, church, and my parents are still in it, and that sort of thing, but, um, I just had, uh, intellectual difficulties, uh, and, and so I was in college in, uh, 1990s about that time frame, so it's, you know, pre-9/11, pre-new atheism, um, I fell away and then kind of came to, to the, you know, what, I don't, I don't know how you feel about the new atheism label. I don't know if you've ever mentioned that in any of your commentaries or not.

0:05:13 Thomas: Right, right. Yeah, it's not something we should get into today, but I don't really find it terribly useful, but sure. I wonder, Or just while we're on this topic, so does your atheism conflict with your job ever? I mean, are there ever times where that comes up or maybe the nature of the specific area of your practice, it doesn't sound like it would come up too often, but yeah,

0:05:46 Andrew: Yeah. Mm-hmm.

0:06:03 Andrew: You know, here's, here's how it, it, it came up a lot as a younger lawyer in exactly the way that you might suspect, which is to say, I am in the service industry. And so, you know, most of my clients are a subset of most of the people in, you know in this country uh meaning to say I dealt with a lot of Christians and so when I was a younger lawyer um you know I would be very sort of non-confrontational and kind of sublimate uh the uh the atheist views and you know sort of go yeah

0:06:21 Thomas: Yeah. Right. I think that's probably be familiar to a lot of listeners. That's certainly something I've had to do. You just kind of keep it to yourself and for the sake of your job or relationships at work and stuff. But yeah, sure.

0:06:37 Andrew: Yeah right and and as I've gotten as I've got older and struck out on my own and uh you know I'm a pretty good lawyer and I've sort of have the confidence that if this comes out, I mean, it's not hard to find out what my religious views are. I, you know, if I have a client who, and I do have clients who, you know, are religious and will, you sort of make, you know, kind of vague religious expressions, you know, God bless you at the end of the conversation or something like that.

0:07:21 Thomas: Yeah, yeah. I mean, the Satanism facial tattoo that you have might be a giveaway, but other than that.

0:07:24 Andrew: And It's rough being in court when everything from the eyes up is tattooed red. I know that is, gosh, for any of my clients that are listening, I am not tattooed in the face. But no, so, you know, I think that just comes with professional development is being willing to look at it. And if I, you know, if I were a jerk about it, I think it might interfere with my professional stuff. But I couldn't imagine if you had, you know, a high end problem of the kind that I typically solve. And you've discovered that, you know, I had a different set of religious beliefs, that I can't imagine that that would that that would be a career problem. I actually met with, I think his name is Eric Greenspan, but one of the lawyers who, he was at a big firm and he volunteered on the Kitzmiller versus Dover case.

0:07:31 Thomas: Yeah. Oh,

0:08:28 Andrew: And so, you know, and I heard him give a lecture basically about the Kutzmiller case, and that was the intelligent design case in Pennsylvania. And, you know, we talked about some of the legal geekery involved in that. And then I asked him the same question you asked me, which was, were you worried from a business generation standpoint that being one of the primary lawyers out there fighting against intelligent design was going to get you branded as kind of a crazy atheist and hurt? And he gave the same answer that I'm giving to you. So again, that sort of helped give me the confidence. And I mean, this guy's been on Nightline and National News who's defending these folks and his practice is doing just fine that, you know, probably mine would, would do just fine as well. So

0:08:37 Thomas: Okay.

0:09:15 Thomas: Well, that makes sense. I mean, in criminal law, I mean it's oftentimes you could be defending someone you completely, uh, don't agree with or don't support or whatever, or something like that. I mean, it's, it makes sense that for lawyers that, you know, personal issues don't, don't usually come into it, um, or shouldn't anyway, but, oh, you live in Baltimore. So now how accurate is the wire? Can we talk about that? Is that everyday life for you? Just, yeah.

0:09:38 Andrew: Can I confess to you, and this is, I, I tend to have a national practice. So I Meet, I mean, I do a lot of work in Baltimore. I do lot of work in Maryland and in DC. But I'm also on big cases that are across the country. And every time I meet a lawyer from, you know, Kansas or Oklahoma or whatever, they say, "Oh yeah, Baltimore, you're in a Baltimer office." Uh, you know, let's talk about The Wire, and I have to confess that I have never seen this, so much as a single episode. Uh, they do, they, they do, it's like 15 years old now, but uh, they they they did film out in front of the Mitchell courthouse, which is our state courthouse, was right around the corner from my old office. Uh, so uh,

0:09:49 Thomas: Oh, okay. Yeah, that's true, man. Well, that's a great

0:10:25 Andrew: Sure.

0:10:25 Thomas: Show. You need to get on that, but hey, maybe you don't have time. You're too busy being a kick-ass lawyer, so you don't have time for all that. So let's get to the topic at hand. I had talked a little bit about this with Noah and Heath in a completely, I wouldn't say completely uninformed, but not a very, I didn't judiciously study Scalia's rulings or anything.

I just saw, I saw a pattern that was annoying me, which was people giving him a lot of reverence, even people on either side that I wasn't sure he deserved, but I'm pretty agnostic. I could be convinced that he was some sort of genius, but just from the stuff I read, from the rulings and the wording that he used, it just sounds like, I don't know, this guy just kind of sounds like a fundamentalist of some kind, but I don't know. I'm certainly not the most informed, and then when I saw your message, I thought, oh, this will be awesome. Let' s get some real expertise on. I'm very curious to hear what you have to say about about originalism and all that.

And you don't have to specifically comment on this now, but one thing that I was keeping in the back of my mind was, what are the parallels between originalism and analyzing the Bible, and whether you're going to stick to the Bible literally, or how Christians interpret that, and how much do those groups align, too? If people are originalists with Do they look at the Bible in the same way? And that's something to maybe keep in the back of our minds. But with that said,

0:11:11 Andrew: Um,

0:11:57 Thomas: How about you tell us a little bit about Scalia and your thesis that you're going with about we're hating him for the wrong reasons?

0:12:05 Andrew: And this, I think this will disappoint uh you and disappoint uh Noah a little bit, uh, but I, I really do think Scalia is, was a genius. Uh, I think he was incredibly intelligent, and I think that what he's done is is implant the seeds of an idea that's allowed a method of interpreting the Constitution to be perceived as mainstream when it is... I literally, I lack the analogy for how far outside the mainstream Scalia's approach is. So let me tell you what I think he did, and that is he played into a narrative that became popular in the 1980s that's even more popular today. And that is, you've probably heard the phrase, you know, if you're, if you're not a liberal by age 20, you have no heart. And if you're not a conservative by age 40, you have no head. Right.

0:12:59 Thomas: Right.

0:12:59 Andrew: And, and the idea is, you know, conservatives are the daddy party, and they're, you know, smart and intellectually rigorous. Uh, we'll leave aside the sexism inherent in that. I'm not endorsing that. I'm just saying that, you know, this is the argument, Yeah.

0:13:11 Thomas: No, no, that's the typical view.

0:13:14 Andrew: And and liberals are the mommy party and we're, you know, nurturing and and we care about, you know, what happens to people. But, you know, we're not too concerned about the details in getting there. And so in particular, I think Scalia tied originalism to that. And it's this idea that he has this intellectually rigorous approach. And it just so happens just by total coincidence to always produce conservative political outcomes.

0:13:40 Andrew: And so, you know, when liberals want to appoint judges that and they use phrases like the living constitution or consistent with reality or whatever, what that means is they're really trying to reach results and they're disregarding what the law really means. And the reality is that that couldn't be more backward, and that Scalia's political philosophy of originalism is inherently contradictory, and it is designed to let him start at the result he wants to reach and reason backwards from it. And there are a number of ways that we can go about proving this. But I mean, sort of the easiest to a non-lawyer to kind of start from is if I name a case with political implications, you can guess how Scalia came out in that case.

0:13:40 Thomas: What do you know? No.

0:14:35 Andrew: And you will be right 99% of the time. And so even with other conservative jurists on the court, right, like John Roberts, for example, you can say, how does he come out on this political issue? And by and large, he comes out politically. But when it came to upholding the individual mandate on the Affordable Care Act, he, consistent with his judicial philosophy, came out the other way. And so and lots of people have these exceptions. And for Scalia, the only exception I can find in 30 years of him being on the bench is a case called Lawrence v. Texas, which was decided the first year he was on the bench. And it was, I believe it was unanimous decision that struck down the Texas law that prohibited flag burning.

0:15:27 Andrew: And that is literally the only case that I can find where you say, what's the conservative political outcome here? Where did Scalia wind up? And it's not a one. One.

0:15:37 Thomas: And even that One, I don't know that you could even say that's the conservative look on that because it's, I mean, wouldn't you think there'd be like the libertarian angle of the conservative party or the libertarians with that bent would probably side with freedom of speech in that case, don't you? It's not like a clear cut conservative byline. So maybe that's why he he was able to overcome his bias on that one.

0:15:58 Andrew: That's right. Well, I think today, in terms of how we use the language, that certainly there are a lot of people who identify themselves as conservative, who are also very pro-First Amendment. But I think the sort of core of what we think of as Christian right, I mean, I literally mean that you can calibrate it down that fine. Like, I don't see any libertarian strains in in what Scalia does, other than libertarians like his Scalia's rulings on the Second Amendment, for example, on the District of Columbia versus Heller.

0:16:39 Thomas: Oh yeah, I wasn't saying he was. I'm just saying that the party, you know, it's not like the conservative. I would guess if you polled conservatives on the flag burning issue, you're not going to get 100%. You're not going to be like 60-40 or something. I don't think it's that, you know. But maybe I'm wrong.

0:16:41 Andrew: Yeah, no, no.

0:16:59 Thomas: That's my impression from people I've talked to. Too.

0:16:57 Andrew: I think you were describing where the Republican Party is today. And I'm thinking back to 1987, 88. Now, I was 13 at the time so you know I was young but I was politically active and uh the flag burning case was actually an issue in the 1988 election um

0:17:07 Thomas: Oh, okay. Okay.

0:17:22 Thomas: Okay, okay, yeah, yeah. No, I didn't think about it from that angle. So, yeah, that makes sense.

0:17:22 Andrew: Yeah. Yeah. And And So I but but again that's just a historical right it was one of the clubs that uh George HW Bush used to beat poor Michael Dukakis was uh you know he was pro flag burning and anti uh saying the Pledge of Allegiance. And Oh, yeah, no, Bush, Bush went, this is totally off topic, but Bush actually went and visited a flag factory. And, and it was, you know, this was pre-CNN, I guess, CNN was active at the time, but this was, before the 24 hour news cycle. And there were these shots of Bush, like trudging through this just dismal, you you know, assembly. I mean, think about what a flag factory is like, right? I mean it's just a horrible place. And then he gave this speech at the end full of you know kind of rah-rah patriotism about how, you know enthusiastic he was to be

0:17:39 Thomas: Pro flag burning.

0:17:51 Thomas: Oh man, yeah yeah.

0:18:17 Thomas: How

0:18:17 Andrew: On the floor.

0:18:17 Thomas: Many how many slightly damaged flags do they have to throw away in the flag factory like constantly? I just want, I can only imagine like the workers must think like, I don't give a shit about these flags.

0:18:27 Andrew: Well, right, is there somebody that, you know, goes through to make sure that they receive the proper military, you knows, who knows?

0:18:32 Thomas: They don't touch the ground. Yeah. Oh, man,

0:18:37 Andrew: That would technically violate That Texas law. Anyway, so Back back To Scalia, the sort of the underlying methodology of originalism, here's what, here's how Scalia defines that. He says you interpret the Constitution based on what the words of the Constitution of that particular provision meant to the founding fathers at the time that they wrote it. And that that sounds kind of pithy and, and, you know, I mean, it passes the straight face test, right? You say, okay, well, the people who wrote it, that's okay, that's what it means. But, but one of the easiest ways that, you know, upon examination that, that's not how the Constitution is meant to be interpreted is that it's contradictory. And that is, if we look at the words of the founding fathers who were writing at the time, who were arguing in favor of ratifying the Constitution, they spoke on what the judiciary should do.

0:18:38 Thomas: That's hilarious. Anyway, yeah.

0:19:35 Andrew: And they were accused of saying, well, what we're going to do is basically take your ideas and ratify them for all time. And the founding fathers basically said, oh, God, no, no, no. I mean, the whole idea is for the Constitution to be a living document. So, you know, if you look at the Federalist Papers, if you look at its 78 to 81 are the ones that are about the judiciary, you know, If you read them, it's clear, right? So Federalist 78, for example, I pull this up. Alexander Hamilton wrote it and he said, by a limited constitution, I understand one which contains certain specified exceptions, blah, blah, blah. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

0:20:29 Andrew: Without this, all the reservations of particular rights or privileges would amount to nothing. So, you know, I'm kind of stripped of the 18th century flowery language. Yeah, I mean, what he's saying there is the Constitution doesn't set forth sort of specific do's and don'ts for the most part. What it does is it embodies principles. And so, you know, he calls them the manifest tenor of the constitution. When I was in law school, I learned that as the moral animating principles. But basically when you read through, yeah. So when you reading through, so for example, the 14th amendment says that no person should be deprived of life, liberty, or property without due process of law. So when you that, like what's a process and how much of it are you do, right? Like if you just take the words at kind of a literal level, that's not very helpful. It's meant to be vague. And what it's meant to do is enshrine kind of a moral idea that

0:20:38 Thomas: Yeah, moral animating principles.

0:21:28 Thomas: Oh,

0:21:28 Andrew: Says, if the government is taking something away from you, they have to make sure they're doing it in a fair way. And they have procedures that enable you to ascertain whether that's fair or not. And the more severe the restriction, the more process you get, right? And that's kind of a contrast to the originalist idea that these things are all sort of fixed and set in stone. And in fact, I mean, the only thing that is really set in stone in the Constitution that I know of, is the Third Amendment, which is the amendment that prohibits quartering soldiers in your home. And that means exactly what it says, right? The government cannot station soldiers in

0:21:29 Thomas: I see. Okay.

0:22:15 Andrew: Your house. It was, it was enacted in response to a specific practice that the British uh army did uh during uh during the war for independence uh and uh as a result uh there is, in 200 plus years, uh there is, there are zero cases, and there's exactly one law review article that's ever been written on the Third Amendment, right? Because there's... there's no, that doesn't have any enduring legacy because it only applied to that specific time and in that specific circumstance, whereas most of the rest of the Constitution is written with these kind of more vague principles, right, like due process of law. And in my view, and again, I think this view is analogous to, have you read a lot of Bart Ehrman's stuff?

0:22:25 Thomas: Right.

0:23:07 Thomas: Yeah, actually, a while ago, so it's not fresh in my mind or anything, but I believe I've read two of his books.

0:23:07 Andrew: Yeah. One of the things that Bart Eherman does that I think is really neat and that I appreciate is he says, I'm going to tell you the view that they teach of biblical interpretation at every seminary, you know, liberal to conservative, you know anywhere in the country and 99% of anybody who's ever studied biblical interpretation will agree with me. And what I'm trying to do here is sort of set forth the rules of legal interpretation that are taught at every law school, that every lawyer, you know, 99% of all lawyers minus this kind of fringe group over here uses to interpret cases.

0:23:25 Thomas: Right, right. At seminary. Yeah. Mm-hmm.

0:23:53 Thomas: Right.

0:23:54 Andrew: And that is you look at the clause and you invite of, I mean, you basically balance two goals here. The first is trying to understand what the underlying principle is at work. And the second is applying applying the circumstances of the specific case to that principle. And in my view, right, that methodology, the fact that the Constitution is mostly clauses, mostly clauses like due process of law, and not a lot of Third Amendment quartering soldiers, is what's enabled it to endure over time. You know, I mean, you think about virtually nothing that we face today as a political issue is really matches up with the problems they had at the late 19th century, and so but what we've been able to do is apply those principles over time as the technology and as the situations change.

0:24:50 Thomas: Yeah?

0:24:50 Andrew: So, you know, so the First Amendment talks about freedom of the press, right? Well, you know, by press they meant newspaper, uh, and how does that apply when you're talking about radio or TV or the internet? And the answer is, um, you know, we, we look back, we, we take the fundamental animating principle, which is this should be free from government restriction, uh, and then we look at the specific circumstances and say, okay, do we think radio is more like a newspaper here, or is it more like, you know, private communications? Um, and and and that sort of building on things over time, uh, is how we, we build up a body of jurisprudence. And the most dangerous thing in my view about what Scalia's originalism does is it says, I don't care what even the prior Supreme Court has said.

0:25:44 Andrew: None of this jurisprudence matters. The only thing that matters is making an argument about what the founding fathers would have thought. And so if you think about that, It just becomes a tool.

0:25:55 Thomas: Is it normal for my blood to be boiling right now? This guy is driving me nuts. And I think it's because I already read your blog posts where I, where I've heard, you brought up some of the other examples that I'm sure you'll get to. Let me, let me say right now, this is from a lay person's perspective, this is really interesting to think about because I, you know, I'm obviously not a lawyer and I've only had, I had a business law course, but that was about it. So it's, it's interesting to hear this. So when, when people are interpreting the constitution or, or let's say at the Supreme Supreme Court level. One thing, I'm not exactly sure how to ask this because I don't, you know, again, I don'T think I have the framework that you do in mind, but so if, is it always from the perspective of like, the Constitution has the right principle, now we need to apply it?

0:25:59 Andrew: Yeah,

0:26:46 Thomas: Or when does it get to, look, they just didn't have a principle for whatever this thing is, because because it's too new. It's not, you know, we're 200, 300, whatever years, 250 years past when this was relevant. So, at what point does that kick in? Or is it always a question of we have to find whatever we think they would have said about this, or what the closest thing is? Does that make sense?

0:27:14 Andrew: That makes sense. And the answer is, if you are going to tie something to a constitutional right, the argument you have to make is going to be the former, right? Right. You have to say that this is connected to some kind of basic principle that the Constitution was meant to. Right. So, you know, and and for example, the the the time that is generally criticized as the most activist period of the Supreme Court is the Warren Court in the late 60s and 1970s, which desegregated schools, implemented busing, you know, had Roe versus Wade, and had a variety of kind of far-reaching policy implications that, you know, that really changed the landscape of the country. But as you go back and read those cases, even the cases that are criticized as being activist are reasoned from this kind of basic model of interpretation.

0:27:26 Thomas: Oh, okay. I see.

0:28:28 Andrew: So, for example, a woman's right to choose is found in the Roe versus Wade decision in the penumbra of the first, fourth and 14th amendments, right, that there's kind of a general right to privacy and that right to of privacy, which is, and you and I actually emailed on this, I think post-Tyler Vela.

0:28:51 Thomas: Oh, that's right. I think I, okay, yeah, yeah. I remember remember now. So people might remember that I referenced a little bit your comments. We have the source of those comments, everyone. He's on. Okay, go ahead.

0:28:52 Andrew: Yeah, yeah.

0:29:04 Andrew: But yes, they're using privacy because lawyers occasionally use ordinary words in weird ways to, I don't know, keep our aura of mystique and make sure that outsiders don't understand. So when the Supreme Court says privacy, they don't mean privacy the way normal human beings mean privacy. They mean bodily autonomy. And you can get to bodily autonomy. You can get this right to privacy from looking at how the Supreme Court has ruled over the intervening years to get there. In other words, in 1973, you didn't have to look back to 1788. You could look back the miscegenation cases and say, okay, we think the Constitution doesn't say anything about marriage.

0:29:51 Andrew: But nevertheless, we've had laws that have come up over the last hundred years that say we're going to find an equal protection violation when we hold that states have laws prohibiting interracial marriage, right? So it's not a far step from looking at how does this clause apply to a law prohibiting intraracial marriage to how does does this apply to a law prohibiting a woman from getting an abortion? So, in other words, I mean, it's kind of like perpetually building a scaffold, right?

0:30:30 Andrew: You, in getting from, you know, if you were to time travel Alexander Hamilton here from 1788, I mean...

0:30:30 Thomas: Which we have in the hit new musical Hamilton. Oh, sorry. Is that where you're going? Never mind. Go ahead.

0:30:45 Andrew: No, I think you and I should develop that. That'd be great.

0:30:48 Thomas: Wait, you don't know the musical Hamilton?

0:30:51 Andrew: I actually don't know the musical album you

0:30:53 Thomas: Oh my God. See, personally, I don't like it, which I probably lose a thousand million listeners for saying that. But no, Hamilton is a gigantic thing sweeping, like, it's the biggest musical right now. I'm not joking. You don't know this? This is hilarious. Okay. Anyway, check that out after you watch The Wire.

0:31:08 Andrew: Will find out. I feel very, very comfortable discussing matters of legal minutia, but as soon as we get to pop culture, right, like I listen to podcasts on my drive into work, and yeah, and that's about it. So I did see Deadpool

0:31:23 Thomas: Hey, don't get me wrong. I have a ton of respect for that. I long for the days, I used to know a lot less about pop culture. Now, I will say that, you know, knowing Broadway musicals isn't exactly like the most vain pop culture kind of thing. There's a little bit of substance there, but I'm so surprised that you, especially, you you know, it's about Hamilton.

0:31:41 Andrew: Yeah no it's right it's clearly right in my wheelhouse and I would have gone I would've gone 10 years and never heard of it

0:31:41 Thomas: So yeah, yeah, okay, sorry, that's so funny. Wow, so I know I can't make any references with you. So I, okay noted, no, no any sort of pop culture references, but hey, I respect that. That's, I like the purity there. You're just, you're here to talk law. That's what, maybe if there's a case involving a musical, maybe you'd know that, but yeah,

0:31:57 Andrew: Yeah I would only know everything that I had to research from my clone. Uh, now this is, this is great because now everyone is going to picture, like, you know, Ben Stein from Ferris Bueller's Day Off, so maybe I can, you know, drone my voice into a monotone or something and truly yeah

0:32:06 Thomas: Yeah. That's funny. No, no, no. It's great. But so this is interesting. So Scalia would be more about looking, you know, screw all the scaffolding we built over the years. Let's just, you know, jump off of it and or let's look, use a telescope and look back at the base of the scaffolding and figure that part out. Is that what you're saying?

0:32:38 Andrew: That's it. That, that is exactly right, um, and we can look at, I, there's one really, really obvious example that I talk about on the blog involves

0:32:47 Thomas: Yeah, I love this example. So yeah, yeah, go ahead.

0:32:52 Andrew: But there are a bunch of them like that. Sort of the predicate for this is when you have principles as opposed to fixed rules, then you do run up against a problem that is a kind of a rule of law problem. And I think the best way to think about this is think about two different ways that we could control speeding. You could have the U.S. highway rules, which say if you drive faster than 65 miles an hour on the highway, you're going to get a ticket. And that is that maximizes predictability. Right. If I'm going 66, I'm breaking the law, and I'm 65, I'm within the law. I know exactly what I have to do in order to obey the law or not. But it sacrifices an awful lot of, you know, sort of situational value, right? Like if I'm driving through Arizona and it's 3 in the morning and it to six lane highway and I'm the only car on and then it's flat, like I probably go 90 and be totally safe. Right I

0:33:49 Thomas: Amen to that. God, can we get that fixed? Can we change that law? I'm so tired of that. Oh man. But are you going to go into the eighth amendment example? Cause I actually would really love you to, to go Into the detail on that.

0:33:53 Andrew: Agree I agree so you know so yeah yeah I will. I'll jump to that. I was just gonna contrast that the the Audubon rule says you drive safely on the Audobon, and that that means, you know, if you're driving 115, but you're driving safely, it's fine. If you're driving 65, but erratically, it is not fine. And so the problem with having an autobahn style rule, what you need to make sure you protect against is that people know what the law is. Right? In other words, if you bring a case and I arrest you for going 65 and the judge says, no, I'm going to throw that out. Driving 65 is safe. And then When you're driving 65 and you get arrested and the judge says no, and a different judge says, no, driving 65 is definitely not safe. Well, how were you to know that,

0:34:03 Thomas: Okay. Okay, sorry.

0:34:13 Thomas: Right. Yeah,

0:34:48 Andrew: Right? Like you can't conform your conduct to the law because the law could be whatever any judge says it is, right. So that's the idea behind the legal phrase. It's called stare decisis. I don't know if you've ever heard it before. But the idea is, generally speaking, if a court has ruled on a particular set of circumstances, then unless there are compelling reasons to change it, they ought to defer to the previous court at the same level to the previously court's ruling. Right. And so in the Eighth Amendment case, it is a hundred. I mean, it's just as stark as anything I've ever seen. It was a 1983 case. States in the 1980s were starting to pass what were called three strikes and you're out legislation, which basically said if you're convicted of a third felony on the third try, you go to jail, life imprisonment without parole.

0:35:36 Andrew: And states were doing this, you had situations where somebody would commit three nonviolent felonies. In the case of Solomon v. Helm, it was an Indiana case, the defendant, his third felony was writing a bad check for $100, right? Right. And so he he appealed his conviction all the way up to the Supreme Court and the Supreme Court said, no, come on. If the Eighth Amendment means anything, it's cruel and unusual punishment to lock away a guy for life with no possibility of parole for writing a bad check. Right. That is just so grossly disproportionate that you couldn't possibly come up with. And then Scalia was appointed to the court and it was literally seven years later. And it was a case with the the exact same fact pattern of three strikes in your outlaw, this case in Michigan.

0:36:26 Andrew: And this was Harmelin versus Michigan was the case. And the guy, his third felony was possession of a tiny amount of cocaine. And now, you know, I don't know how you weigh using cocaine in your house versus passing a bad check. Like I could hear the arguments either way, but they're both non-violent kind of petty crimes, uh, and uh, and and the rule from just six years ago was you don't get to imprison somebody for life for a petty crime, uh, under a three, a third strikes law, and Scalia came out the exact opposite, and he crafted a rule. He crafted the rule that, uh, to call it a high school debating tactic, I think would insult some of my former high school debaters.

Right, like I mean, you, you know, it's literally on the order of the, you know, like, if you ask me for a hot dog and I send you a flaming poodle, right? I'm like, oh, it is. It's hot and it's a dog. But that's what Scalia did. He said cruel and unusual punishment means the punishment must be cruel and unusual. So, and he says this in the case. So even though long mandatory minimum sentences are exceedingly cruel, they're not unusual in the constitutional sense because they were were employed at many times in our nation's history. And as soon as you dig into that, I mean, number one, that's a test that was never, I mean the Supreme court has 220 years of cases interpreting the eighth amendment. And no one's ever used that phrase before Scalia, right? I mean it was just something that he completely invented. It's a facially ridiculous way of interpreting a case.

0:37:12 Thomas: I know. Oh, it drives me crazy. Go ahead. Yeah.

0:38:09 Andrew: But it was designed to let him reach the outcome of, I want to uphold this guy's sentence. And if you look, you know, again, this is sort of a broken record, but if you look at the history of Scalia's cases, he's never ruled that a state-imposed punishment violates the Eighth Amendment. I mean, you know, I guess I could come up with some hypotheticals that might violate that, you know, upside-down crucifixion or something like that. But if the punishment was in widespread use in 1788, Scalia's view is no matter how cruel it is, that wouldn't be cruel and unusual. And I mean, I don't know, now my blood is boiling. But

0:38:49 Thomas: It really is driving me crazy, like, God, this guy, this case, when I read this on your blog, I was like, this is unbelievable. I don't, and I can't even say, now, here's where, and again, you know more about his other decisions and all that. I still don't look at this and say, well, that's a genius who figured out a way to get, No, like you said, it's high school debate level. It's not, that's not genius. It's just that I disagree with it. It's, it'S, that, that'S idiotic. It's a dumb way to interpret that. I mean, no one, no-one in their right mind should be interpreting it like that. Like you say, it has 200 years of history that he decided, nah, no good, not gonna go with that. I'm, I'm just gonna create this new test that has to be both cruel and unusual. I, I hate it. Like, and it's also, it's so, it is so childish.

0:39:38 Thomas: It's like, you know, what it reminds me of is all those, I can't remember specifically their name, but maybe it's Orthodox Jews who follow all those rules about like, they can't push a button on the Sabbath, but they can have an elevator where every button is already pushed, and then they un-push the button of the floor they want to go to. It's, like, are you really? Really? Like, it's like, I can't, it might be ingenious. Maybe that's a better way. Like, there's ingenuity, but it's not genius. Like you got it. It's pretty stupid in a lot of ways, but maybe there's more examples of Scalia's genius. And I'm, you know, I'm happy to hear the evidence. And if you still disagree, no problem. You know more about it than I do. But every example I hear of this is like, come on, man. There's like a common sense aspect to it that drives me nuts.

0:39:58 Andrew: Here's where I think that the genius lies. And that is, if you Google judicial activism, or if you think about any of the times that you've heard judicial activism right, you will pull up thousands of sites and they are all conservative sites attacking what they think are outcome oriented left-wing decisions, right? And that is literally the co-opted meaning of that phrase. But if you think about what it means to be judicially active, right, the definition of judicial activism is departing from precedent, ignoring stare decisis. And so to me, the genius is, here is somebody on the highest court with a philosophy that, in my view, is disqualifying for serving on the Supreme Court.

0:40:47 Thomas: Right. Yeah. Yeah,

0:41:19 Andrew: No, it really is.

0:41:19 Thomas: I totally agree. I'm laughing because it should be so obvious. But yeah, sorry. Go on.

0:41:27 Andrew: And he's managed to do two things. He's managed, number one, make it an article of faith for the conservative movement that is now, yes, you ask any of the Republican nominees for the past 20 years, who are you you going to appoint to the court? And they said, we want to appoint strict constructionalists who will faithfully interpret the constitution. And, and so he's made it, he's make it not only acceptable, but the litmus test for the right. And he's managed to successfully, I don't know anybody. I haven't tried, maybe I should have tried this before coming on the podcast. I'm going to do it right now. I don't know anybody who's calling Scalia an activist. I just typed it into Google. And the first hit is a New York Times article from 2005.

0:42:14 Andrew: And, you know, there's a couple on the front page. But, but by and large, you know, he's managed to persuade people of this, you know, sort of heart versus head thesis. And and, you know, you mentioned the, you know, the kind of the Orthodox Jew, sort of strict adherence to the rules. And and I think that's like that's a misapprehension that people have about the law generally. Right. Like and I.

0:42:40 Thomas: Yeah, Yeah. Hey, you know, that's one thing I've actually said before. I can't remember if it was on the show, but the one law class I did take, which was business law, and I had a professor that I loved. He was really great. And I might have taken two classes actually, but either way, one thing I was impressed with, which I think is where you were going, let me know if I'm wrong, is that you did have to make, it was about things being reasonable. You know, it wasn't about like when you look at assault and battery or whatever, it isn't like, oh, okay, I can look at the letter of the law, which says you actually have to, you know, touch someone or do whatever. The details might be a little fuzzy. It's been 10 years or whatever, but he said, no, you can't just go up and like constantly put your hands right around someone's face and not quite actually be touching them just to get around the law because you do have to appeal to a reasonable standard.

0:43:30 Thomas: Like there has to be, and that was one thing I really liked about it that there isn't a lot of just, oh, the very specific wording of this law says this, so you can get around it with this, you know?

0:43:42 Andrew: Yeah, that's exactly right. And there is there is sort of a widespread view that, you know, the law is sort of set up as a trap for the unwary. And you know, if you don't jump through the hoops in the proper order, then, you know, horrible things will come. And and I have to tell you in court, oftentimes, right, I'm on both sides of this, I will, I will have a situation where it is clear, right? The law says x, there are six cases that are on point that say x. And the judge will say, you know, well, why should we do I understand what the law says. But like, you Know, this really seems like this is this is going to be unfair. Like, why Should this, you know? Why should we go ahead?

0:43:51 Thomas: Yeah, yeah,

0:44:28 Andrew: And, you know, it was an eight-year case. And the other side basically said throughout the entire process, we understand that the law technically lets them do this, but the combined effect is that it's not fair to us. Um, and that was, I mean, I'm glad I won, uh, but, but it was, I mean I took that seriously and the court took it seriously and I had to go into court, not just say, you know, well, look, you know, section 43a says this, so, you know, too bad, but I go in and say, look, here's, here's the remedy that you have here.

Here's how this is addressed in zoning law and I'm sympathetic that, that there might be adverse outcomes. In this case, it's kind of irrelevant, but just so I'm not talking in vague abstractions, it involved putting billboards in downtown Baltimore on the outside of an arena, which is then called the First Marin Arena, arena, it's an arena for indoor soccer, seats like 20,000 people and the other side was represented, um, were landowners that were complaining about the value of their property going down, basically, um, and and so you know, I had to say like, look, here are, it's not, I couldn't just say, well, the law lets us put up the billboard, so too bad.

0:44:59 Thomas: Yeah. Right,

0:45:46 Andrew: Right. I had to go in and say, okay, here are the avenues by which you would, you can go about trying to find the appropriate balance here. Because, you know, the first question I got from the state Supreme Court, which is the Maryland Court of Appeals, when it got up to that level was, okay, well, you want to put a hog rendering facility next to my assisted living center. And, you know, it's going to be noisy and flood them with toxic, slaughtered pig fumes all day. Like, why, why isn't that the logical consequence of the position you're arguing, right? And it was totally a fairness-based argument.

0:45:47 Thomas: Right. Yeah,

0:46:23 Andrew: It had nothing to do. So that's a long, yeah.

0:46:23 Thomas: Yeah. And that's a good part of our system. Not that, obviously, I don't think you or I or anyone would say the system is perfect or anything. And it does, I would guess that that opens it up to the judge kind of needs to, you know, be a good judge in order to be sympathetic to that. But I do like that part of, that very small part of our system that it does allow for like, wait a minute, you you know, we're not going to just be fourth graders and look at like, what does the specific word say here? You know, cause that's just not a good way to do things. And it looks to be the way that Scalia did things a lot of the time, just

0:46:57 Andrew: And let me say that that's really a 20th century innovation across all of the law. And what happened was basically lawyers decided, it used to be in In the 19th century, you had what were called the forms of action. And basically, that's where you get all the like weird legacy. I don't know if you own a house, but if you if you ever do any like real estate, then I'm sure you have seen like all of the crazy 19th-century legal terms that come along with it.

0:47:26 Thomas: Bought a house.

0:47:36 Thomas: If I hadn't completely snoozed through the signing of this, then yeah, my, my philosophy was I'm never going to fucking understand all this. I just, I'll sign whatever. I don't care. I'll sign whatever. And then I'm I'm sure if something's really unfair, I'm sure I have some recourse. That was my philosophy. Maybe I'm, see, I don't have time. Too many podcasts. That would be my, judge, I have too many podcasts, I could, there's no way I could read all this. It would have taken me a week to read everything I was signing.

0:47:41 Andrew: Sorry. Sorry.

0:47:58 Andrew: I see all that. Well, number one, they really, law school, one of the major things it does is it forces you to read quickly or else you just can't get through it. But I spend all the time that I spend not going to Hamilton and watching The Wire.

0:48:11 Thomas: Yeah. There you go.

0:48:20 Andrew: My real estate agent, she was like, okay, now sign these 32 pages. And I'm like, well, you do understand I'm going to read those first. And she said, look, nobody reads these.

0:48:27 Thomas: I'm just going to start sending stuff to you. I'm going to send all my contracts to you, I just, hey, can you read this? I'm sure there'll be, I sure you'll be a big money moneymaker for you. Just like, how much to read this? Yeah. Well, you know, we are running a little close on time. Did I interrupt a thread that you wanted to finish? Oh, okay. Well we are running a little close to time. Man, I have to say though, I feel like I could talk to you forever about this. Two things. First, I'm uncomfortable the degree to which I agree with everything thing you're saying. It's rare for this show

0:48:49 Andrew: It was probably a tangent. So, yeah, I promise you, this is not, it's not like I read this, I found this all on a yik-yak and, you know, you're going to get like 800 comments.

0:49:09 Thomas: That I agree, but I don't like to have people I just fully agree with on the show because it gets a little boring. But I think in this case, it was not at all because I don't know how many people know the details of this, you know? I don't know how much people... I certainly didn't. I mean, maybe... I'm sure a lot of my My listeners are more well-read on legal issues than I am. It's just not something I've put a whole lot of focus on. But I'm really, really happy to have had you on here to give some of the details of his rulings and what he's doing there because, or was doing rather, because it's, God, it drives me nuts. Now I feel better prepared when someone like, because I have relatives who are really into Scalia and it's like, listen, here's what he did and here's why it's wrong.

0:50:00 Thomas: So I, this was absolutely fascinating. I'm uncomfortable with how much I agree with your analysis here. I think it's really excellent. So there you go. Whatever that's worth. And then secondly, oh, go ahead.

0:50:11 Andrew: Well, I was just going to say that, thank you. That means.

0:50:17 Thomas: It's excellent. Everyone should go to the blog, PATorrez, and that's two R's and a Z. I'll link it in the podcast, of course, but patorrez.com and check out. It's a newer site, so there's not too many posts on there, but definitely keep it up. And it looks like there's going to be a part two to this post, right?

0:50:37 Andrew: Oh, yeah. And I mean, you and I in this podcast, we haven't even talked about Scalia's religion cases, which are fascinating. And I'll I'll hold back.

0:50:41 Thomas: Oh, yeah. Oh, man. Well, the second thing I was going to say is I want to have you back. I think here's what I'm thinking. And this is live on for us anyway, figuring this out. I'm wondering how many people like me have a bunch of questions, like not personal legal things, but like, oh, what about, you know, Scalia's stance on this? Or what about this case where maybe it's a Second Amendment case? What are your thoughts on this? I was wondering if I did happen to collect questions from listeners, would you be interested at all in trying to tackle some of them or maybe something like that? What do you think?

0:51:22 Andrew: Oh sure. I would I would love to come back and and talk about all of those things.

0:51:27 Thomas: That would be so cool because Second Amendment stuff, how, I don't know, again, with lawyers, I don't know if you specialize in like one specific thing or if you have an opinion on and everything, but how into the Second Amendment stuff are you? Look, once we've established you haven't seen The Wire, anything could be true. I have no idea.

0:51:42 Andrew: Well, right. Right. Yeah. In general, it's a fair bet if you ask a lawyer if he has an opinion on something. That answers yes. But no, I mean, look, part of being in this profession is that I read this kind of stuff for fun in my spare time instead of watching The Wire. So yeah.

0:51:53 Thomas: Wait, no, now I got a question for you. Are there any TV shows that are really good, like have good legal aspects and you happen to have watched those because it's like, ooh, this is a TV show for lawyers.

0:52:09 Andrew: Okay.

0:52:18 Andrew: Yeah. Here's the answer to that. So almost all of them are terrible. But the right answer is the early, like the first five or six seasons of Law and Order, the original Law and Order, are dead on to the point where in my law school evidence class, we would come in and ask questions based on things that were ruled admissible or not admissible.

0:52:22 Thomas: Yeah. Oh, yeah.

0:52:46 Thomas: Man, I wish they would have kept that up. You know, that's useful because stuff like CSI, it's such bullshit now.

0:52:48 Andrew: Yeah, it went downhill in a hurry. Yeah,

0:52:53 Thomas: It's like and I love I love in those shows. My favorite thing is like one guy does everything. Whatever the show is about, that guy, it'll be like, yeah, it will be if it's about the let's say it's about the detectives, they do everything. They arrest everybody. They do all that. If it's the CSIs, they'll do everything too. They'll happen to be looking at the forensics and they'll see a bad guy and they'll go hunt him down and all this crap. Whoever's the focus, they do every single part of the legal process.

0:52:54 Andrew: Well.

0:53:24 Andrew: Did you ever watch House when it was running? Yeah.

0:53:27 Thomas: No, I never did.

0:53:28 Andrew: Well, see, you know, you didn't watch that.

0:53:30 Thomas: Well, but that was a conscious his choice. I didn't like it, but that's just me.

0:53:33 Andrew: Okay. That's a fair way. Anyway, it was the, if had you seen it, the, the protagonist is a, you know, a genius diagnostic physician, scenes over, it's like, you know, six year run or whatever. And I mean, he's essentially doing the cross examination in the courtroom scene. Like, I, you know, I mean what you want to talk about, right? Like, maybe you've stretched a little bit when you have the CSI or the police officer in court but I mean here, you know, he's standing, he's a doctor on trial, I mean it's just, uh, yeah, it

0:53:36 Thomas: Yeah. Uh-huh. Yeah... Did

0:54:08 Andrew: Made you want

0:54:08 Thomas: He ever say, like, I rest my case? And then, yeah. He's testifying.

0:54:09 Andrew: The very worst I I, it, it came on, uh, cable TV, uh, but um, but, but the firm, you know, with, with Tom Tom Cruise, it's the very worst. Because if you're a lawyer and you watch it, right, you're eight seconds in. And you're like, okay, well, the solution to this is very simple. You go to the police and it's over.

0:54:14 Thomas: Oh, The Firm! I've seen that way back in the day. Oh, I even have to rewatch it.

0:54:37 Andrew: Because it sets up this whole idea where it's like he's

0:54:36 Thomas: Yeah, it ended up being some conspiracy, Right? Like, they were... uh-huh.

0:54:42 Andrew: A Young – and this part has some basis around it. But he's a young lawyer who's recruited away from Harvard Law School or some Ivy League law school. And he goes into a firm and he realizes that the firm's major client is the mafia or some criminal organization or something like that. And he's got this ethical dilemma of, you know, my duty as a lawyer and confidentiality prevents me from, you know, revealing their scheme, but, but you know I'm participating in this horrible scheme. So how do I resolve that? And the answer from a real lawyer is you, you go to the, right?

0:55:19 Thomas: Oh.

0:55:19 Andrew: Like, like the one, the, the what, what attorney client privilege covers is anything that is a past crime, right. So, and I will say that I've volunteered and done a few uh criminal cases you know pro bono uh it's not it's not my area of of expertise but um uh but I've helped out when you know when judges have asked me to do that and uh and I tell I've told all my criminal clients the same the same thing which is um you can come in and confess to being the second shooter on the grassy knoll in the Kennedy administration and if I tell a soul you can have me disbarred right uh so you can literally tell me me anything in the course of this conversation. But what you can't do is come in and say, hey, Andrew, what I really want to do is knock off a 7-Eleven next week and get away with it. So help me plan that out.

0:56:10 Thomas: Right.

0:56:10 Andrew: The moment

0:56:11 Thomas: So the so stuff in the future that, yeah.

0:56:13 Andrew: You ask your lawyer to help you in future criminality is the moment the lawyer says, well, this has been a fantastic conversation and all, but I need To go and call call The police like

0:56:21 Thomas: Oh. I Thought You just saw dollar signs and then went like cha-ching. Cha-cing, all right. Yeah. Well This Oh man, this is too much fun. I, so we'll definitely find a reason to have you on in the near future, maybe, uh, yeah. I invite people, uh, email, let's see, Atheistically Speaking in Gmail, or of course on Facebook message, whatever, I have a million ways. What topics you might want to hear us cover, let's plan on having you back on because we have not even, I'm sure, touched the surface of it. But, you know, law, we could go on forever. I'm certain we could gone for ages and ages and not touch the surface of what we're talking about here. But this was so much fun. Thank you so much for coming on.

0:56:23 Andrew: Yeah. Yeah. Right. Well, if we Split it now, well. I I really enjoyed it, uh, thank you for having me on and thanks for, um, I mean I really appreciate, uh, the degree to which you are, uh, open and accessible in the community and, you know, anybody can just kind of reach out and, you know, send you a message on Facebook or, uh, an email and you know and you respond and, like, like, that's really cool that you've got this, you know, podcast is a one way, but, you know, you're sort of making it a dialogue. So,

0:57:25 Thomas: Oh, it's the least I can do. Yeah, it'S the least, thank you for saying that. That. It's the least I can do for the support my listeners have given me. I will say it can't just be anyone. You do have to be kind of interesting. You have to at least be interesting. No, I actually do reply to almost everybody, but I don't invite everybody on the show or whatever. I save that for guests who are going to be really fascinating. And boy, this was thoroughly fascinating. So I maintain my good record with that, I think anyway. So yeah, thanks for that. Thanks for coming on, PATorrez.com if you want to check him out, and that hopefully will encourage you to keep blogging, so I look forward to seeing more from you.

0:57:37 Andrew: Absolutely.

0:58:24 Thomas: All right, that's it for this one, thank you so much for listening, as usual, I really appreciate having your ear balls on this podcast, keep growing it and growing the community, so, if you want to pledge, patreon.com/atheist, and Thursday, we got another great interview, this is a two-jam-packed, cool interview week for you. Thursday I got Sarah Moorehead on. And we talk about some issues involving sexual abuse and whether or not the humanist or skeptic or any community should be endorsing and encouraging extrajudicial beatings of people like Jared Fogle. Maybe the way I framed that, you can kind of gather what my opinion is on it, but you'll have to tune in Thursday for that. So thanks so much for listening. I'll see you then.