AS236: Originalism with Andrew Torrez

Transcript

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

0:00:30 Thomas: Hello and welcome to Atheistically Speaking. This is episode 236 and I am your host Thomas Smith. All right, back by popular demand is Andrew Torrez. How are you doing?

0:00:42 Andrew: I'm well, Thomas, how are you?

0:00:44 Thomas: I'm doing great. I'm very happy to have you back. People really enjoyed when we talked about Scalia. Well, I say we. When you get provided some amazing insight on originalism and Justice Scalia back closer to when he died, I guess, but it was that a few months ago.

0:00:44 Andrew: Yeah, four or five weeks ago, but,

0:01:04 Thomas: Okay. There you go. See what I went on a New York vacation. So I think there's a different time, you know, like that's like four weeks in one week. I think that's how it goes. Ooh,

0:01:14 Andrew: You know, it is, it is the city that never sleeps, you were, you

0:01:23 Thomas: Pretty close. There before anyone asks though, So you're, you, you do, you are in Baltimore at least for some time, but important to establish haven't seen the wire still. Is that still true?

0:01:39 Andrew: I think I'm going to download at least the first season, make sure that I watch it because it is whenever I appear in any court outside of Maryland and they see Baltimore, it is the first question I get asked from judges, I get ask from opposing counsel. No, it's literally the only thing anyone knows about Baltimore up until last year and some of the unfortunate situation with Freddie Gray.

0:01:57 Thomas: Really? Right. Yeah. Let's go back to when it was the wire. That was better. That's so funny.

0:02:11 Andrew: Right. Very few people think of the wires being the heyday for the city.

0:02:16 Thomas: Well, I liked your, your answer last time when you're like, well, you know, I just read stuff about the law. I'm mostly just doing that. I'm law-ing. So that's fine. You can do that, too, because then that makes you such an interesting guest to come on and talk about Scalia. So I've coaxed you into publishing your part two, which was long awaited. So I thought we'd go into that because a lot of people were really, really fascinated by the last discussion and really enjoyed what you had to say. So let's get deeper into that.

0:02:48 Andrew: Of the overarching thesis of all of these posts, and I say all of them, you've coaxed me into part two, there will be a part three.

0:02:55 Thomas: Oh, good.

0:02:57 Andrew: There's a rich vein to mine here. But essentially, it is that the articulated philosophy of originalism by Justice Scalia is really just an intellectual veneer for trying to arrive at a conservative political outcome. And it's why I think it's important to talk about this, because we're going to continue to have Supreme Court fights. Obviously, you know, it's totally dysfunctional right now with the Merrick Garland appointment or nomination.

0:03:33 Thomas: Oh, I can't wait to get your take on that. Why don't we? What did you think about that?

0:03:36 Andrew: Sure. It's interesting. I don't know that I have a specifically legal opinion because, you Know, there's sort of a political chess game going on. Um, and, you

0:03:43 Thomas: Sure. Yeah, that's a good point. It's not really necessarily how good of a lawyer or judge he was. It's more how the Republicans would see the nomination and how they would react and all that.

0:04:01 Andrew: And I mean, and to that end, I think it's a really interesting political move because, um, I mean, Garland is just somebody who is, uh, unimpeachable in terms of, uh his qualifications. Um, I mean so much so that, you know, he was sort of an, an uninspired pick, uh was the complaint by, um you know a lot of, of the more liberal of Obama supporters.

0:04:27 Thomas: They're hoping for a more radical

0:04:29 Andrew: Yeah. Well, I mean, when you, we have we have this asymmetry right now where Republicans look for conservative bomb throwing activists in their late forties. And, you know, I mean it's, it's hilarious to me to watch Ted Cruz running down John Roberts in the Republican debates as if, you know, he's some sort of liberal when Roberts was specifically picked for his long and unimpeachable conservative record and the fact that he was, I think, what, 47, 48 at the time. And, you Know, I mean, it's, again, this is sort of the theme of the Scalia part two, but I mean it's not complicated. Their goal is to get arch-conservative, politically-oriented justices on the court who are going to be there for 30 or 40 years.

0:04:31 Thomas: Attempt.

0:05:23 Thomas: Well, what about, actually, this may be something that, and I don't know, again, if it's your area, but this may Be something that's more of a legal question. What about the The idea behind what they're doing, which is essentially just saying we're not going to have a hearing on this, like we're not even going to write. I mean, what about the legality of that? Because I see something that sort of bothers me a little bit is the meme of like, oh, do your job, do your job. Republicans go do your job and just give this guy a hearing. My take is, well, if it's within the rules of, you know, the proceedings that they can just not do that, then I mean it's not like they're not doing their job. They're just not doing what you want them to do. What do you think about that? Am I crazy?

0:06:06 Andrew: I don't think you're crazy. What the Constitution sets out as the job of the Senate is to provide advice and consent, and I'm sure you've seen that. And then the question becomes, this is sort of a callback to our first episode, you know, that's a sort of vague phrase, right? Right. What does that mean? You know, is it advice and consent to say, I'm going to stick my fingers in my ears and, you know, just not listen, not interview and not talk?

0:06:32 Thomas: Well, Scalia would come up with a two-point test. He would say, yeah, well, it might be advice, but it's not also, yeah.

0:06:38 Andrew: It's not consent, exactly. So, you know, and as you might expect, there's, as far as I know, there is no case law on what advice and consent means. So on the one hand, I think you're correct that from a constitutional standpoint, in other words, I don't think you could impeach Mitch McConnell for saying we're not going to hold hearings.

0:06:39 Thomas: Yeah. Yeah.

0:07:00 Andrew: I don't think that it is a violation of the law in that sense. And I'm also, I'm somewhat sympathetic to your position to the extent that other words, I don't really know what Democrats want. I mean, do they really want to have hearings and then have Garland get voted down summarily, right? You know what I mean? It's not like there is a very easy path to get cloture, which would be 60 votes in the Senate.

0:07:30 Thomas: Right. Well, that's another point because they could do their job and just never approve one, right? They could just constantly, nope, nope. Nope. Nope. Nope. That would be doing their job. You know, so that just annoys me for some reason. The meme of do your job when it doesn't really apply, I just feel like it's one of those things where Republicans will be like, well, we are doing our jobs. We don't want this guy. That's our job. We're going to do what we can for the Republican Party. And then people who agree are just going to be like yeah, do your jobs. I hate things like that where it's very, very ineffective toward the other side, but, you know, people jump on board with it is like a great argument. For some reason, those things bother me. But I wasn't sure if maybe I was getting something wrong.

0:07:35 Andrew: Right, right. Yeah. No.

0:08:12 Thomas: Like if they were constitutionally required, like, no, you have to hold a hearing within a given time, then sure, that's a different story.

0:08:19 Andrew: Right. And that's not specified. I mean, again, they're constitutionally required to provide advice and consent. And, you know, it is an unsettled question as to whether they would split four to four.

0:08:30 Thomas: What if that went to the Supreme Court? Yeah.

0:08:35 Andrew: I mean, that's sort of the danger to both good government and I think potentially politically with the Republican position of "we're not going to consider a Supreme Court nominee in in an election year," which, which really, I mean, that, that I mean to be fair to the do your job people, that really is an unprecedented sort of position, right? Like I get that.

0:08:59 Thomas: Well, what did you think about the Biden thing? Or maybe you were about to say that.

0:09:01 Andrew: Well, I was, I was just going to say, I get Joe Biden, who was after I mean this was 1987. It was after Gary Hart had that famous scandal. Gary Hart was the sure democratic nominee in 1988 until he was found on board a yacht called the Monkey Business with an attractive blonde woman named Donna Hart, excuse me, named Donna Rice sitting on his lap. And there were photos and it says Monkey Business underneath. I mean, it's as bad a photo op as you can, other than Dukakis in the tank, it's really, really bad. And Biden was early 40s, right? He was an upcoming young Democratic senator who had a real chance of getting the presidential nomination. And he took an overzealous political position in 87, one that the rest of the Democratic Party didn't take, right? I mean, that was Justice Anthony Kennedy, and he was ultimately approved. He was nominated in late 87 and approved in 88 in Reagan's last year in office.

0:09:02 Thomas: Yeah. Yeah. Wow.

0:10:06 Andrew: So, and, you know, if you wanted to continue to draw out parallels, Anthony Kennedy obviously has been a center right justice over the course of his career. He certainly was not a bomb thrower in the mold of a Scalia or a Bork, Robert Bork whom Reagan tried to appoint in 86. So, you know, the Mitch McConnell calling it the Biden rule is really disingenuous. I mean, Biden was head of the Judiciary Committee. He was very active throughout the late 80s. He was positioning himself to be the Democratic nominee. And I think he took an overzealous position that just wasn't tenable.

0:10:55 Andrew: And, you know, it, I think we, it will be, it remains to be seen how badly this McConnell position might backfire over the next couple of months. If we have four, four decisions.

0:11:09 Thomas: Right, was that, you know, this is actually a really good candidate for Republicans in any other time. I mean, in any another time where it's a Democrat president, this would be a great pick, but it's just they're going to try to gamble a little bit. So then what happens if it becomes clear that Hillary is going to win, say? Then Then they just hold the hearings and like, oh yeah, sure, bring him in. He's good, he's good. Because he's older, he is kind of an ideal candidate for the Republicans.

0:11:31 Andrew: Yeah, no, yeah, no. I think, I think that's exactly right. And I think that at that point, um, you know, it will, you know, you sort of have serve and, and counter serve.

0:11:53 Thomas: Right, what I'm asking, is there a take backs? Is there a taked backsies? Can you just say, nope, I take it back?

0:11:53 Andrew: Um, time, right? You know, yeah. Yeah. The president can pull that nomination at any time. Uh, so absolutely. It can be like, you know, Lucy and Charlie Brown with the football, right. Like they could sort of reluctantly say okay, we'll take him, and Obama could say well, you know what, like it's October, and um yeah.

0:12:08 Thomas: Yeah, yeah. Yeah, what's the timing on that? Can they say, no, no we like him, vote approved. And then he'd be like, no, I take it back. You know, who gets the final say if that can't happen?

0:12:26 Andrew: Typically, uh, what would happen there is you would first hold hearings before the Judiciary Committee, and then the judiciary community votes uh preliminarily on whether to approve the nomination uh before it goes out to the full Senate. So, you know, from a from a tactical perspective, President Obama would have a long time to sort of see this coming and say, yeah, you know what, I'm going to pull the nomination. Now, I don't know. It strikes me from years of Obama's presidency as somewhat unlikely that he would engage in that level of political gamesmanship.

I mean, for all of the kind of partisan freak out, would say, again, I'm a Democrat, so take it with whatever grain of salt that you will. It seems to me that President Obama has always tried to seek out some sort of consensus and some sort of bipartisanship, you know, sort of from the earliest days of the Affordable Care Act, kind of all the way through to the present, and you know, I know your uh conservative listeners are probably uh gritting their teeth at that right now, but um, but but my view is, I don't see President Obama pulling a Garland nomination, you know, just for one-upsmanship.

0:13:05 Thomas: Yeah.

0:13:48 Thomas: Yeah, you know, I agree with that, actually. It doesn't strike me as something he would do. But I do appreciate you answering my ridiculous questions. My hypothetical. Is

0:13:48 Andrew: Yeah.

0:14:01 Andrew: And the reason that I think we could be in that political position is not just, you know, if Donald Trump is the Republican nominee and, you know, the polls in late August, you know, show him losing by 20, or you know, 20 or more points, uh, uh, that could certainly happen. Um, but I also think that the disposition of a number of four to four cases uh at the Supreme Court could really cause um a lot of conservative activists to sit there and say, well, gosh, you know, not having a fifth person on the court is almost as bad, uh, as, uh, you know, having a Garland on the court, because at least then, you know, we have a chance of persuading this person.

0:14:46 Andrew: So, for example, I mean, just a couple of weeks ago, the court split on a, it's a pretty arcane, the public union case, right, the Friedrichs versus California Teachers Association case, and they split 4-4. And the court had cut, the case had come out of the Ninth Circuit, which is the the appellate circuit that includes California. It's a very liberal circuit. And the Ninth Circuit had ruled in favor of the unions. And by splitting 4-4, that lower court decision stands. And so from an outcome perspective, if you are rooting for the unions in that case, having a 4-4 court is just as bad, just as good, depending on what side you're on, as having a 5-4 majority. The case that is really going to, it's actually a consolidated set of cases that's still pending, are the Little Sisters of the Poor case.

0:14:53 Thomas: It the union? Oh, yeah. Oh,

0:15:46 Andrew: It is Little Sisters of the poor home for the aged versus Burwell, which is consolidated with six or seven other And they are all RFRA cases that are trying to extend provisions of the court's Hobby Lobby decision from 2014 involving exceptions to, you know, religiously motivated exceptions to the Affordable Care Act for providing contraception and the like. And I believe that all of those cases are up in a posture whereby the lower courts have said, no, you do not have a right under the Religious Freedom Restoration Act, RFRA.

0:16:04 Thomas: Really? Really?

0:16:29 Thomas: So to translate that, a tie would be good for the anti-hobby lobby side of it? Yes.

0:16:37 Andrew: That's exactly right. Right. And so if all of those cases split 4-4, right, that's just from their perspective, you know, that is a complete failure. And so, you will see, they just had oral arguments on the Little Sisters of the Poor case a couple of weeks ago. So, when that decision comes out in a couple months' time, you are going to see very agitated conservative commentators, commentators and they may rethink the strategy. Now, you know, it works both ways, right? Like there are plenty of cases that are potentially pending That Are split 4-4, where it goes the other way at the circuit core level.

0:17:14 Thomas: Right. The 4-4 tie benefits them. Yeah. All right. Well, let's get back to Scalia specifically, but thank you for answering some of my silly questions and maybe some of my good questions. We'll let the audience judge, but let's give back to part two of Scalia. And the important part, I think the thing that blew my mind about the last episode was the excellent point you made about what Scalia is doing or was doing was judicial activism, which is the very thing that conservatives claim liberal judges are doing. They claim that liberal justices are being activists from the bench and making all these things happen, but his weird approach of just what I found the most bizarre thing, taking words and just extracting weird meanings out of them that didn't make any sense to me and saying, no, this is what they originally intended. This is for surely what the original, the founders intended. That is just as much or if not more activism. But

0:17:33 Andrew: Yeah, That's exactly right. And I would put it this strongly, I would say, including the Warren court, including the most activist periods in Supreme Court history, that Antonin Scalia was the most active this judge to ever sit on the Supreme Court. And the reason is, because he set as his criterion, the only thing that matters, supposedly, as he says, is what the framers thought, then the extension of that was whatever conclusion a previous Supreme Court reached didn't matter at all because that court either wasn't trying to figure out what the framers intended or they did so wrong. So in other words, you always have this ultimate appeal back to the 18th century, even if you have 100 or 200 years of precedent on top of that in which courts have unanimously gone the other way.

0:19:18 Andrew: And I mean, it's truly sort of mind boggling regardless of your political opinions. And, you know, I've sort of made no secret of, you know, the fact that I'm politically left of center here, but, but

0:19:31 Thomas: I can tell you the right wing does buy into that, though, because I even talked with some family members after the episode we did. And I referenced Scalia's method, as you described. And the response that I got from them, conservative family members, was like, no, that's originalism. That's what it should be. That'S the right thing. They've really bought into that. And it's so much about the right wing these days, I think, you know, this idea that some stuff that was older, that whatever the framers thought was magic and

0:19:37 Andrew: Well,

0:20:08 Thomas: Then nothing else counts.

0:20:10 Andrew: And, and let me answer that a couple of ways. First, I think that a major flaw here is a failure of good PR by on the side of traditional jurisprudence. And I think they were sort of blindsided by Scalia's ability to work not only the court, but the press and sort of deliver this pithy argument. And Robert Bork did so as well, but deliver this Pithy Argument in a couple of sentences that anybody who's a lawyer sort of instantly recognizes as nonsense. But it sounds pretty good politically. And the other side, I mean, you'll hear this, right?

0:20:55 Andrew: Right. You'll hear President Obama describe the other side as the living constitution or, you know, a jurisprudence that takes that into account, you know, reality. And they don't have a pithy saying for what is, you you know, the way in which we do law, right?

0:21:12 Thomas: Yeah. Yeah. Well, it's almost like that sounds too conservative. It's funny how you put it like, yeah, traditional jurisprudence. You would think that would be what conservatives would be into, but you're right. It's this rebranding thing. It's like the cloud. It's IBM and the cloud, you you know, they just came up with this word. It's like, well, that sounds cool. Let's do that. Yeah, it's just hard drives. That's all it is. It is the same crap that's always been around. But yeah, that's an interesting point. I think that's certainly true.

0:21:44 Andrew: The way in which I push back against conservative friends and family members, not that many pick arguments with me anymore.

0:21:51 Thomas: Well, I wouldn't on legal stuff, that's for damn sure.

0:21:54 Andrew: But the way in which I, I push back on that is just sort of by asking the question, okay, how would you go about interpreting what the framers originally thought. Because I think that the smuggled premise really comes out when Scalia says, yeah, no, I honestly don't care what happens between 1787 and 2015, 2016. All I'm trying to do is get at a snapshot of 1787. And I think if you push and say, well, you know, isn't it more likely that a court in 1825, looking back, would have some idea of what they meant in 1787? If that's saved in the record, right, if that's become part of our jurisprudence, and then that's cited by a court in 1875, and then that's sort of cited by court in 1925, and that's sited by court 1978.

0:22:52 Andrew: Well, you know, that, that that, and then that's cited by court 2004, right? Right. That 2004 that court isn't just making it up. Right. They're saying our understanding of this principle has been, you know, dates all the way back to the 18th century. But, you Know, here's how that's been consistently applied over time. And under

0:23:13 Thomas: But that's not to say they never get stuff wrong, right? I mean, there could be bad precedent. How does that get dealt with, I wonder?

0:23:21 Andrew: The traditional model, under the non-originalism model, the way bad precedent gets handled is the Supreme Court would meet and would write in the opinion, this is an unusual case. We are faced with directly contrary precedent, and it's just wrong, and so we're going to overrule our prior decision as wrongly decided. And so one of the landmark cases for that is the Brown versus Board of Education decision, which held that the Plessy v. Ferguson standard from 50 years earlier that said segregated schools, separate schools are fine so long as they're separate but equal. And Brown versus Board of Education said, you know what, we've had 50 years, we have looked at this, and separate segregated schools are inherently unequal.

0:24:13 Andrew: And so we have recognized that was a mistake, and we are explicitly overruling Plessy versus Ferguson. Ferguson.

0:24:22 Thomas: Well, but that's interesting. If I were to try to push back a little bit, not that I'm at all defending Scalia's, you know, method, but it is interesting that it's almost like then, I guess, the desired outcome is synonymous with wherever social, you know, progress is, like wherever the progressive, you know? Because so in that ruling you're talking about, was it the case that they said, okay, 50 years ago, they got wrong what the framers meant, or 50 years ago they were just wrong and we've decided now that that's not equal. You know what I mean?

0:24:25 Andrew: No, no, no.

0:25:04 Andrew: It's a really good question. Because Scalia wasn't on the court in the 1950s, it wasn't framed in that way. So in other words, the Brown decision doesn't say we got wrong with the framers. And I should add, both Brown and Plessy were interpreting the 14th Amendment, which was passed after the Civil War. So you wouldn't go all the way back anyway. But the point is, both of those opinions were trying to apply the principle that was enshrined in the 14th Amendment. In other words, both were saying, look, the Constitution and the 14th amendment tells us that we have to have, if we're providing public schooling for children, That we have to provide equal access to education for everybody. And the of the century, I think Plessy versus Ferguson was 1897. I could be off by a couple years. But in the Plessie decision, they said, yes, we have to protect equal education, but we can protect equal education by having racially segregated schools separately equal. And then the Brown v.

0:25:13 Thomas: No.

0:25:24 Thomas: Yeah.

0:26:11 Andrew: Board said, Plassey is right in the sense that we're trying to apply this principle of equality of education, but they were wrong in their application. They were saying that it is possible to protect the Constitution's guarantee of equality and still maintain segregated schools. And 50 years of history have taught us that that's not the case. And I think that it's that sort of applying the abstract principle to the circumstances that and his acolytes have sort of turned into the boogeyman here as somehow being kind of impermissibly just judges doing whatever they feel like. But again, that's what the law is.

0:26:58 Andrew: We talked about this 10 minutes ago with advice and consent. The Constitution enshrines general principles and the Constitution says the framers intended for the judicial branch to do the hard work of applying those principles to specific circumstances. That's why our And that's why lots of constitutions have come and gone since the American Constitution that have been sort of overly specific. And that, I mean, we found as a historical fact that those tend to be less stable, right? Right. Like you have a stable society when you say, look, we agree on certain fundamental principles and we agree on a method to apply those principles going forward.

0:27:46 Andrew: But but we're not going to take, you know, a set of, you Know, you should do X, you should do Y, you Should do Z and impose it now and think it's going to work in 200 years. That I mean, that was never the founders intent.

0:28:00 Thomas: Interesting. So the distinction, I guess, which is, I see it, but I guess it's a little less distinct than maybe I would have thought. In one case, because in one case you're saying here was the principle enshrined in, now it could have been the founders, but in the case of Brown, it's this amendment that was passed much later. But still, the point was, no, the original intent of that amendment was this, and the Plessy-Ferguson decision got that wrong. Now, how is that different from Scalia saying, I mean, now again, I think it is different somehow, but I'm trying to put my finger on it. How is that different from Scalia saying for any given decision? No, no, no. They got it wrong. This was the original intent.

0:28:46 Andrew: Yeah. And I think it's a difference. It's a distinction in degree, right? In Other words, prior to Scalia, there was this concept of stare decisis, and we talked about this in the first episode. And the idea is, even if you might disagree with a prior court's decision, that once the Supreme Court has ruled on an issue, that that precedent has value going forward. And one of the ways in which it has value is by promoting certainty, which is kind of a key aspect of the rule of law.

I mean, so think about if you lived in a complete totalitarian state in which there were no public laws and the absolute ruler could do, you know, whatever he wanted at any time, and you know, you, you have no advanced knowledge, so you don't know if your conduct conforms to the law or not, right? So, you know, I didn't like the way you did X, so now I'm going to, you know, imprison you and take away your property. And the American model that was implemented by the framers to prevent that from happening was the idea is the laws are public. The laws are disseminated to the people.

And that way, you know what violates the law and what doesn't. And so one of the things, I didn't fully appreciate this when I was in law school, but I definitely appreciate it now as a lawyer, um, is the more specific a court ruling is on any subject, the more I can advise my clients what they can do to, to not run afoul of the law, right.

0:28:53 Thomas: Sure.

0:30:33 Andrew: Whether it's, whether it's a good idea or not. So, you know, I mean, we, if you have a terrible decision, example, this is, this is not the case, but, um one of the things that's changing really quickly in, uh, the law is how courts are enforcing what we call covenants not to compete. And I don't know if you've ever had one of these in one of your employment contracts, but basically you sign up with company A and they say, if we fire you or you quit, you're not going to work in the same industry for a certain period of time in a certain geographic space, based on the idea that you may have trade secrets or they might give you certain information, which you could then walk out and use against them, right?

0:31:14 Thomas: Yeah. I've heard of those. Certainly.

0:31:15 Andrew: Yeah. And so the more specific a court says, so for an example in Maryland, the Maryland courts have said, it's reasonable to have your non-compete agreement operate within 30 miles of the original, of the first of company A, and it's reasonable for it to run for a period of six months.

0:31:40 Andrew: And somebody comes to me and says, hey, you know, I'm working for Company A and I'm thinking about heading off on my own. I can, you know, sort of very quickly meet with them and say, well, let's take a look at your non-compete. Oh, look, your non-competes as you can't go into a competing business within 30 miles within six months. So you're gonna have to do that, right? You're going to have to abide by the terms of that agreement. On the other hand, you know, there are, forget, the was a retailer, it might have been Walmart, but I don't want to slander Walmart here.

0:32:12 Andrew: But so there was a retail that tried to put, you know, five-year non-competes on all of their, you know, shelf, you know, their baggers and shelf stockers And you know, anywhere around the country.

0:32:11 Thomas: Yeah, they get slandered enough.

0:32:27 Andrew: Well, exactly.

0:32:24 Thomas: Oh my gosh. Yeah Yeah. All those trade secrets. They'll be bagging and stocking shelves secretly with secret methods.

0:32:29 Andrew: Yeah. And yeah. And so if you, if you met with me and said, well, I signed this, you know, agreement when I worked with Walmart, and now I want to go to Target and, you know, work as a beggar, but is that, you know, competing, I would say, yeah, let me, let me add as a preface here that nothing in this podcast should be interpreted as legal advice, actually providing any legal advice to anyone, I want to make that very, very Clear, but in the abstract, right, you

0:32:53 Thomas: Okay, good. Important stuff. I'm going to edit that out and get you in huge trouble.

0:32:58 Andrew: Thanks.

0:32:58 Thomas: No, I'm just kidding.

0:32:58 Andrew: That's that's outstanding, you know, get barred grievance complaints, and you, you will be, be able to say, disbarred lawyer is on my, is on my program.

0:33:06 Thomas: Yeah, yeah. But you'll still have to come on.

0:33:09 Andrew: But, you know, anyway, I mean, we're sort of down a rabbit trail, but, but the point is, okay, you, you may be the only person on earth who's ever been fascinated by my story.

0:33:13 Thomas: I'm actually very fascinated by this, though. It's a great point. No, I doubt it, but it's a good point. Point. So you're saying, because I think it's key because I'm very conscious of making an argument and then the other side says, well, wait, but you're doing the same thing here. Like, I want to make sure I'm not just being biased toward or biased against Scalia. And the difference seems to be that you've outlined, which I think is a great point. It's one thing to say, okay, in this one decision, the precedent might've been wrong. And we've got this historical data that kind of shows that the precedent was wrong. It's another thing to say, nah, president, nah. It doesn't matter. It does matter. Not going to worry about it. Because like you are saying, that gets rid of, how do you, we know what the law is going to be.

The next time a case goes up, we have no idea. Scalia could have, if he were still around, just completely dismissed everything. It would be very difficult to operate under those circumstances. So I like that. That makes a lot of sense as a principle of law. So let me, let's get out of the rabbit hole. I'll let you get back to it.

0:33:37 Andrew: I agree.

0:34:23 Andrew: Yeah, no, I think that's a, I thing that's a good way of putting it. And the, and the question is you you know, is it of value that the court has recently and consistently ruled a certain way in certain cases? Right. So, for example, if we want to get to the my latest blog post, which was on how Scalia ruled in free exercise and establishment clause religion cases. If it's well known, right, if over our nation's history, it's well known that if you're a member of a religious minority and there is a law that interferes with your ability to practice your religion, people have been able, that those adherents have beenable to seek accommodations and exemptions from that law under the Constitution's free free exercise clause, then under ordinary jurisprudence, right, that matters, right?

We would say, yeah, you know what, like, we've looked at this question repeatedly in our nation's 200-year history. I'm not sure it's how I would come out, right. Just from abstract viewpoint, all right. I don't know that I want to expand the set of religious claims that people might make. But nevertheless, right, if that's how courts have consistently ruled, then you would be surprised to have the court immediately go the other way just five or six years later.

0:35:57 Thomas: Sure.

0:35:58 Andrew: But in fact, I mean, this is probably not a spoiler alert. In fact, that's exactly what happened when Scalia got his first exercise clause case in sitting on the Supreme Court and involved an Oregon law. There's a general prohibition on the consumption of peyote in the state of Oregon. But there are also American spiritualist religions and traditions in Oregon that use small amounts of peyotes in their religious ceremonies. And so there were two individuals who were employees of a nonprofit. They attended those services in hours, right? They just attended religious services, consumed peyote, were drug tested at work, were fired from work. And then under the Oregon law, because they were terminated for cause and because it was a drug based offense, they were no longer eligible for unemployment compensation.

And so they sued for basically seeking an accommodation and exception to the law that says, yeah, no, we get that you're banning peyote from general use as a recreational drug, but because this is a part of our religion, we don't think that that ban should apply to us in the same way.

And their lawyer made the argument before the Oregon Supreme Court that I think is pretty good that says, in the same way that if I were to go out and try and serve wine to 13-year-old girls in my neighborhood, you might arrest me.

0:36:42 Thomas: Well,

0:37:40 Andrew: But if that were done by, say, the Catholic Church, all of a sudden, that's fine. Tend not to think of the accommodations when they occur to majority religions. And it kind of seems weird when you're talking about spiritualists eating peyote. Of the points of the First Amendment is you should treat Christians and the Native American spiritualists equally, right? And that argument had no force on Scalia, even though, as I'd said, the court had fairly recently and fairly consistently upheld those sorts of exceptions. It was a case called Sherbert v. Verner, which was, I think, 30 years old at the time. But it involved Jehovah's Witnesses who couldn't work on Sunday, right?

0:38:30 Andrew: Okay, it's not quite the same as going off and eating peyote. But essentially, their employer had to accommodate the fact that they weren't going to work on Sunday. And that, you know, again, that kind of accommodation has been really commonplace. And instead of, what Scalia's opinion in the case was called Employment Division versus Smith. And Scalia said, don't care at all about Sherbert v. Verner. There was sort of a half-hearted attempt to distinguish it, which I think was not very successful. And, and Scalia said essentially that have no free exercise right if the law that has been passed is a neutral law of general general application, right? So in other words, if we've banned peyote, because we don't want anybody to ingest peyotes, then it doesn't matter that that's a part of your religious practice.

0:39:23 Andrew: You get no exception, you get no nothing, get out of court. And, I mean, I think that was a pretty good illustration of the, you Know, sort of pulling up the rug and changing the rules because, yeah,

0:39:36 Thomas: Right. Because another thing you said back in the first episode was you can almost, you can look though and see that this always happened to align with conservative principles. It always just so happened that it went with what the Republicans would have wanted it anyway. It's weird. It is weird that the founders were all Republicans. Isn't that weird?

0:39:53 Andrew: Well, it's particularly weird. So one of the things that I think is of lost today, and I think it gets lost because the Smith decision that I just talked about, the peyote decision, really gutted the free exercise clause of the First Amendment. So, I mean, let me take a step back and say that the First Amendment the Constitution has two clauses, right? It says, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. And so those cases are called, they're respectively called the free-exercise case or the establishment clause. And Smith has essentially gutted every case to come up under the free exercise clause, unless you have direct evidence that the government has tried to suppress a particular religion. Now, one of the things that you have certainly seen politically is that Republican state state lawmakers will sometimes say, yes, I want to pass this in order to promote Christianity, or I want to pass this in order to make sure Muslims don't gain a foothold in this community.

0:40:17 Thomas: Sure.

0:41:12 Andrew: There was, um, actually a very notable, uh, case in the city of Hialeah, Florida, in which, uh, the city council got together and said, uh we want to outlaw the, the Santeria practice of sacrificing chickens because we think that's gross and icky. And we don't like that kind of practice in our community. So if the legislature is actually dumb enough to say that, to say you're of a minority religion and we hate that and we're going to outlaw this practice, then you have a free exercise claim. But if they don't say that then you'll have nothing. And the city of Hialeah actually learned that lesson. And their first effort at passing the law, they said, we think Santeria is weird and icky and we're going to outlaw animal sacrifice. And it was struck down by the Supreme Court.

0:41:58 Andrew: And so the next time they just passed, they happened to pass a city health ordinance that was a general and neutral law applicable to everyone that said, nobody can sacrifice chickens in the city of Hialeah, Florida. And that's perfectly fine. That law is still on the books today. So, sometimes legislators will kind of give away the game, sometimes they're, particularly when they lose, they get sneaky about it and they'll say, oh, no, no. No, we're passing this to make this a neutral law of general applicability when they're sort of pretty clearly targeting one particular minority practice. And under Smith, if that's what they do, if they cover their tracks, then you have no case.

0:42:49 Andrew: And so all of the remaining religious cases now fall into one of two subsets. Either they are Establishment Clause cases, which I'll speak to in a minute, or they're RFRA cases, which are their own. RFRA is a law, so different rules apply. You're not talking about a constitutional right, you're talking about interpreting what Congress meant when they they passed a particular law, you know, 10 years ago. And, you know, sort of different different rules and principles apply. But the Establishment Clause cases are uniformly laws passed publicly by city and state legislatures. And, as you might imagine, those are democratically elected bodies, they tend to pass laws that favor the religion of the majority, Right?

So that's where you get laws that require teaching creationism in schools or permitting teachers or students advised by teachers to lead prayers in public school graduations or at football games or promoting Christian magazines and literatures on public universities and all of those kinds of cases that tend to get our hackles up. And shockingly, Scalia voted in favor, either via dissents or by joining narrow 5-4 majorities of all of these cases. So, in other words, there are zero Supreme Court cases that came before Scalia in which a legislature tried to entangle the government with Christianity, in which Scalia said, yeah, that's a problem.

0:43:39 Thomas: Sure.

0:44:33 Andrew: And so, you know, hanging Ten Commandments inside the courtroom, having prayers at public graduations and at public football games. Town of Greece v. Galloway, was a town of Greece, New York, that opened their hearings with Christian sectarian prayers. And all of those were fine. And, you I think, again, you cannot come up with a defensible principle whereby it's okay for the government to overreach in all of those cases, no force whatsoever in the free exercise cases. Unless what you're doing is trying to promote an agenda that advances conservative Christianity, which I think Scalia's very open that that's what he wanted to do. I've got some quotes from, oh yeah,

0:44:55 Thomas: Right. Oh, he was? Oh,

0:45:27 Andrew: I've Got a quote from one of his dissents in the article in which he says, The Establishment Clause must be construed in light of the government policies of accommodation, acknowledgement, and support for religion that are an accepted part of our political and cultural heritage. Now, you might ask, where is our shared political and cultural heritage in the Constitution, the framers? That kind of goes out the window,

0:45:27 Thomas: In the Constitution? Yeah. Oh man.

0:45:58 Andrew: But it's there in black and white. And notice that Scalia, who you and I have gone back and forth over whether he's an evil genius or just got lucky. But notice how clever he is there with saying we interpret the establishment clause as accommodating and supporting religion, but we don't interpret the free exercise clause as accommodate and respecting religion. And the reason is, you know, as I tried to lay out, because the Establishment Clause typically involve pro-Christian laws passed by majorities, whereas the free exercise cases tend to involve religious minorities seeking exceptions from

0:46:10 Thomas: Yeah. Right, because basically

0:46:43 Andrew: Generally acceptable Muslims.

0:46:43 Thomas: There is nothing that locks you out of practicing Christianity currently. So those all tend to be other religions that are like, like, wait, but you have this law that doesn't let me do this. Okay. I see what you're saying. That makes sense.

0:46:48 Andrew: Right, right, right. It would be interesting, right? I think Dearborn, Michigan is like 20% Muslim. Certainly are very small communities that are Jewish, but I've yet to see, think I can guarantee that there are no Supreme Court Establishment Clause cases that involve laws passed by a non-Christian local majority. I mean, that would be sort of an interesting test to see if this is really, if the folks voting in favor of, well, obviously it's okay to just have a prayer and if 100% of the residents happen to be Christian, then so be it. If they would feel the same way, if you had, yeah, exactly.

0:47:24 Thomas: Yeah.

0:47:40 Thomas: When you change God to Allah. Yeah, it

0:47:43 Andrew: Exactly. I mean, we tend to know how that works out politically, but, you know.

0:47:45 Thomas: Is true. Right. And, and it's, does that relate then to the Hobby Lobby thing? Is it because those are, yeah.

0:47:53 Andrew: It's a good question. Hobby Lobby is a RFRA case. Okay, so here's what happened. Scully had only been on the court for a couple of years, two and a half, when he wrote the Smith decision, the peyote case that I talked about. And a lot of conservative Christian lawyers looked at that and said, boy, gosh, this is the first thing this guy has written about religion, and the court's gone 5-4, and it's pretty stark that we're not going to be able to make free exercise claims anymore. More. And I should add that the ACLU, which has consistently defended these free exercise I've talked about religious minorities bringing free exercise cases.

But certainly there are Christians who bring free exercise gases as well. And typically what that is, is when And you don't see it as much anymore because there's more of a political alliance between conservative Catholics, at least, and evangelical Protestants that kind of make up the religious right. But certainly in the 1950s and the 1960s, you had, exactly right. And so you would have free exercise cases that were brought by particular Christian denomination. So a bunch of conservative lawyers looked at the Smith case and said, oh, my gosh, like this, this could be a real problem.

And so they got together, and as a result of the lobbying, they passed and encouraged states to pass various versions of the Religious Freedom Restoration Act, in order to specifically protect the kind of free exercise claims that were abolished by the Smith decision. And so the Hobby Lobby case and the Little Sisters of the Poor case that's pending and much of the jurisprudence has sort of been shifted from looking at the First Amendment to looking at whether this conduct was prohibited or whether there's an exception under the Religious Freedom Restoration Act.

0:47:54 Thomas: Yeah. Oh, okay.

0:49:05 Thomas: There used to be more like Catholic versus Protestant stuff going on. Yeah.

0:50:08 Andrew: So, like I said before, it's a little different because you're not looking back in history. You're looking back only a decade or so to the passage of a law. And again, think about the sort of pro-majoritarian bias that that reinforces, right? It's pretty easy for Christians to get a pro-Christian law passed. It's pretty hard for religious minorities to get law a protecting their rights passed. That's sort of the purpose of the Bill of Rights and of the 14th Amendment. Again, I think that's a part of ordinary jurisprudence that we recognize that majorities can act in certain ways and we have these protections, protections that are specifically designed to, to help protect you when, when you can't get a law passed. Um, so that's, that's a long-winded way of saying the Hobby Lobby in those cases, they're a different kind of animal. And I could, I could set up the landscape for that. Um. But I, I think we should do that on a, on a follow-up episode just because it's a little bit, right.

0:50:30 Thomas: Yeah.

0:51:09 Thomas: I was going to say, I can't believe how long we've already got. This goes so quickly for me because I really do love hearing you talk about this stuff. It's really cool. So do you want to try to tidy up on your Scalia part two? Is there anything else that you wanted to get to that I didn't let you? There's probably a million things.

0:51:31 Andrew: I I think the point has been made that what Scalia has done is managed to reach the maximal outcome that advances religion when he agrees with it and inhibits it when he doesn't. And it's kind of striking. And I think, I mean, I would encourage folks who are interested in this to read the blog post because, you know, there are, you know, I try and pull apart some of the public misconceptions and kind of walk through in a more structured way, you know, how to understand and parse out, you know what he's done because I I really do think it falls under the evil genius um under the evil genius side uh here as opposed to, you know, just sort of consistently coming out uh, you know, one way or another. Um, But,

0:52:22 Thomas: Right, well, we can go back and forth. I understand. Well, I don't think it's a binary genius or idiot thing. I think it is dumb of him to want to use his evil genius in that way. How about that?

0:52:24 Andrew: Well, Sadly, we will now never know if Nobody can, you know, subject him to the uh, you know, Clockwork Orange machine and drag the truth out of him. Um, I know when we left last time, um, you were going to, you know, sort of put, um, put the question to the to the community as to whether there were, you know, legal topics or things that, um, that folks wanted to talk about. And I was curious if uh, if anybody got back to you, and and it was anything that uh, oh.

0:52:38 Thomas: Yeah, absolutely.

0:53:03 Thomas: I can't believe we've already gone this much time because I did want to talk about the Second Amendment. I had a specific question about that I was going to ask you about, you know, what exactly you think they meant by a well-regulated militia, that kind of thing. I just, unfortunately, we're already out of time again. But I really would love to have you right back on another date if that's okay with you. And maybe we can, you Know, we can keep encouraging Andrew to post on his blog, you you know, keep that up because I really enjoy your blog posts. And you can find those at PATorrez.com. Just click on the blog. And that's where you'll find Originalism and Justice Scalia Part 2, which is somewhat the basis for this conversation. But you know me, I always like to take you down on wild goose chases on stuff. But thank you so so much for coming on again. I really enjoyed it. And yes, uh, send more questions if you do have them. We may never get to them, but we might if you have. So we got the second amendment on the docket.

0:53:21 Andrew: Well,

0:54:08 Thomas: We'll talk about that at a later date. And then if anyone else wants to launch some questions, post them, I'll find them. Hopefully I'll save them this time. I get questions in nine different places, but I'll definitely make sure I have easy access to them. And thanks so so much again for coming on.

0:54:24 Andrew: Thanks again for having me on and uh, I'm looking forward to the discussion of the Second Amendment, the uh, Scalia's case in uh, that that touches that is outrageous. Uh, and so if if you've enjoyed my uh ranting on the religion cases, uh, you really uh, have not seen anything yet, uh, When it comes to, when it comes to that case. So how's that as a teaser?

0:54:41 Thomas: Ooh, excellent teaser. I, yeah, I can't, now I want to do, no, let's just do it now. No, I'm just kidding. Let's, uh, let's definitely perfect teaser for that. We'll talk about it at a later date. Andrew Torrez, PATorrez.com. Thanks so much for coming up.

0:54:58 Andrew: Thank you. Thank you very much.

0:55:09 Thomas: Alrighty, thank you for another great week of podcasting. I appreciate your listenership so much. I want to thank my new patrons, Running Beck, Frederic Dumont, Jeremy, and Skeptic Tim. Thank you guys so much for pledging. Much appreciated. I'm going to do my best to get the episode early to you, the James and Eli debate. Debate that should be barring a scheduling disaster or something that should be the next week's episodes. I am guessing it will be a two-parter, and if it's a two parter, you can count on patrons getting the second part right away, because I definitely want to get that to you guys right away. So thanks again, if you want to pledge, go to patreon.com/atheist, and I want to thank my top patrons, Al Lehman of the Inciting Incident Podcast, thank you.

0:56:01 Thomas: Kaylee Reiser, Zimu Zinu, Adrian Borshchoff, Jonathan Moyet, Jay Aldenwalt, Bangs Naughty Bits, Kristen Jay, Peter Skelton, Brian Gareford, Dale, Matt Garrett, Lizzie, and Samantha. Thank you guys so much for being my top patrons. I hope you enjoy. Oh, and I'm also going to get some Jake bonus content going this weekend too. It's been a while since we've done that because we've both been very busy, but we'll get that back on. We usually find a nice little topic or article to talk about and it's a good time. So look for that on the bonus channel. All right. Thank you so much for listening. I can't wait for next week.