OA8: You Won't Have the Satanic Temple to Kick Around Any More, Part 2

Transcript

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

0:01:18 Thomas: Hello, and welcome to Opening Arguments. How you doing, Andrew?

0:01:22 Andrew: I'm great, Thomas. How are you?

0:01:24 Thomas: I am doing great, especially because you asked.

0:01:28 Thomas: Alright, so today's episode, as people might know, is going to be the second part of the Satanic Temple. So that's a little teaser of what's ahead. We're. I can't wait to find how Satan plays into this. You know, he's got to have a role somewhere. But before we do that, let's go to our first segment of the day.

0:01:47 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:01:56 Thomas: This is a Closed Arguments. This, this is a good segment. I like this one. It's kind of interesting. It's, it's, I don't, I've never heard anything like this, but here it is. Closed argument. Here's a headline. It's okay to pray in the courtroom, Texas top attorney says.

0:02:12 Andrew: Yeah, and the reason this is a Closed Argument is because if you scroll through the article to the actual opinion written by the Texas Attorney General, you, even non-lawyers, will find it kind of breathtaking in its lack of legal rigor. So, what does it mean to have an attorney general issue a letter? Sometimes when governors or legislatures are considering promoting a law, changing a practice, passing a new law, somebody will say, hey, is that law constitutional? And that person will do is ask the attorney general to write an opinion letter and say, hey, we were thinking about, in this case, starting every court courthouse day with a prayer.

0:03:01 Andrew: Uh, do you think that's constitutional or not? And, um, and so they asked Ken Paxton, do you Think that's Constitutional? And he wrote a five page letter. It's called a six page letter in the article, but the sixth page is entirely just his signature and sign off.

0:03:13 Thomas: Yeah, that doesn't count. I mean, mean, we all know those tactics from college. It was a double-spaced, yeah, 15-point font. Does it start, dear morons?

0:03:15 Andrew: So yeah, right. I, yeah. Uh, yeah, and no, you will not be surprised to learn that the, uh, Attorney general of Texas, thinks it's perfectly constitutional to open every court with a prayer.

0:03:23 Thomas: No.

0:03:36 Thomas: Oh, no. Uh-oh.

0:03:37 Andrew: And you will probably also not be surprised that the primary case that he cites is Town of Greece versus Galloway, which is a 2014 Supreme Court decision authored by,

0:03:37 Thomas: Okay.

0:03:49 Thomas: Bob Dylan. I don't know. I was just taking... Are we

0:03:50 Andrew: Yes, Antonin Scalia. Now, we talked about this in our Atheistically Speaking episode, uh, devoted to discussing, uh, Scalia's impact on the First Amendment's religion clauses, uh, and Town of Galloway, a Town of Greece versus Galloway was a, um, a prayer, uh, at the beginning of a legislative session, a long-standing prayer at the beginning of the legislative session, and his sort of classic Scalia overreach, uh, but the reason this letter gets into the, it gets into our duh segment, uh, is because, uh, if you were going to, knowing only what we've talked about on this podcast, Thomas, if you are going to issue an opinion letter on whether government could do this thing that seems to help out religion, do you remember, this is the quiz, do you remember what you might examine to make that decision?

0:04:44 Thomas: Talking about the three-point test that we went over before?

0:04:45 Andrew: Exactly, that's Exactly what we're, we're talking about. You would say, does this violate the Establishment Clause? And when we ask, does something violate the Establishment Clause, we look to Lemon v. Kurtzman, the 1968 case that sets out a three-part test that you have to follow.

0:04:46 Thomas: Okay.

0:05:00 Thomas: But, you know, I believe there's actually a fourth part that trumps everything, which is, does Scalia just want you to be able to do it anyway? Which I think is so, an obscure fourth point to the test that Scalia, I believe, just invented, right? He's like, nah, this, this trumps all of it.

0:05:03 Andrew: Mm-hmm. Right, right. Yeah, the Scalia part is, eh, if it's Christians and they've been doing it for a long time, Sure, probably. Why not? Leave aside the fact that that on the facts, that there is a real distinction that we're not going to get into in this segment between practice that has been longstanding, even if it's of questionable constitutional merit, and starting that practice brand new in 2016.

0:05:21 Thomas: Yeah. Oh, okay.

0:05:43 Andrew: '16.

0:05:43 Thomas: So that could be treated different legally. Legally, uh, Grandfathering.

0:05:43 Andrew: Right. Yeah. Yeah. Absolutely, um, And then the question there is you know, sort of way, there's a grandfathering concept, there's a question of whether the religious content has become de minimis, right? Like people are so used to it, um, and the de minimus concept, um, that's Latin for, uh, really minimal, I think, uh, I'm not that good at Latin, um, but, uh, is the, yeah.

0:05:49 Thomas: Huh, yeah. Really? Really? Really minimal.

0:06:08 Andrew: It's small, what it, it means is, I mean, you know, when I, if, if the judge leans over on the bench, when, uh, one of the lawyers sneezes and says, "God bless you." Right. We know that he is not saying, "I invoke upon the powers of Jesus Christ to cram your soul back into your nose. Like, no, he's just, he is just being nice.

0:06:08 Thomas: Yeah.

0:06:23 Thomas: But At the same time. I believe this something like this was used for "In God We Trust" on the money, which really pissed me off, which maybe we should talk about on a later date, but

0:06:31 Andrew: And, uh. Oh, yeah. Oh yeah. We absolutely should. But, all of those are valid arguments that aren't looked at by this letter. And the biggest thing is, the letter is asked, does this violate the Establishment Clause? And the Attorney General of Texas, somebody who I assume has graduated from a law school and passed a bar, answered the question in a way that I consider to be inferior to and more stupid than our co-host, Thomas. So take of that what you you will, uh, those of you are listeners in Texas who would like to write in Thomas Smith for Attorney General in the next election,

0:06:38 Thomas: Uh, yeah. Wow. Yeah. I'll

0:07:11 Andrew: Uh, I wholeheartedly endorse that.

0:07:13 Thomas: Run on A platform of, I'll not only do this podcast with Andrew, I'll, I'll listen to of the episodes like again, and then maybe I'll, you know, I'll be able to answer all those questions at least to a reasonable degree. And that ought to qualify me for Attorney General of Texas, I think.

0:07:27 Andrew: You, you would do a better job than somebody who is not capable of, uh, responding with closed arguments, that's good, I like that, case closed, it's a good way to sign off.

0:07:36 Thomas: All right. Case closed. I'll say that'll be our sign off for that one.

0:07:43 Thomas: Yeah. There's got to be a good law and order. Maybe a law and orders sound too. Yeah.

0:07:44 Andrew: All right. Oh, Yeah, we could use that, you know, the Law and Order piano. Right.

0:07:52 Thomas: Yeah. We'll, we'll figure something like that out. Maybe the listeners has already heard it. I don't know. We'll, we'll see.

0:08:03 Thomas: So satanic temple continued, hopefully for the last time, maybe we'll get through it all today. Um, where did we leave off?

0:08:10 Andrew: So we left off having read through the complaint, talked about the counts and talked about, as we've learned in the opening segment, the Lemon v. Kurtzman test, which is critical to understanding count one of the complaint. And now what we're going to do is we're going to look at what the court actually did. And if you remember, the court in this case is a federal district court. And what that means is it's a trial court. It's in federal court. So there's one judge who's been appointed by the president and confirmed by the Senate. And that judge, any appeals, you have one appeal as of right from the Eastern District of Missouri, That's to the Eighth Circuit Court of Appeals. I think earlier in part one, I said Seventh Circuit, but it's to the Eighth Circuit.

0:09:03 Thomas: Oh yeah. Well, I mean, I look, I caught it, but I didn't want to embarrass you. I, you might've heard a little bit of a scoffing sound though. Just like, okay. Okay. Okay, sure, Andrew. Seventh circuit.

0:09:07 Andrew: I appreciate that. No, I'm owning up. In my defense, I have litigated a case in the Seventh circuit, and I knew that that got there from Chicago. And I thought, well, Missouri is really close to Illinois. They're probably part of the same circuit because the circuits are arranged geographically uh turns out that there is gerrymandering even in appellate circuits. And so the Eighth Circuit is kind of shaped a little bit like a wrench, and it goes down and around and cups the Seventh Circuit and includes the Eastern District of Missouri. So that was my error in the last episode.

0:09:49 Thomas: It literally threw a wrench-shaped object into your plans. And yeah, okay. So eighth circuit.

0:09:54 Andrew: Um. So. So, that's and that's where you and the Satanic Temple, um, sneak preview, this is a spoiler, uh, the defendants, who are the governor of the state of Missouri and the attorney general of the state, moved to dismiss the case and won. So the Satanic Temple appealed to the Eighth Circuit. And in probably a year's time from now, we will get a result from the Eighth Circuit, which I predict will overturn the lower court and remand back and say, no, no, no, no, you can't dismiss this case. This is ridiculous, for reasons that I'm about to get into.

0:10:30 Thomas: Oh, okay.

0:10:31 Andrew: Why don't we get there? Why don't I say what happened? And then we can talk about why that happened. And there's something that sort of seems ridiculous. Slightly less ridiculous than it seems, but it's still more ridiculous than the law should allow. So So the decision, we will also link the decision in the show notes. And in keeping with our theme of high school padding of papers to reach minimum size, if you download this, you will immediately notice that the opinion is 11 pages long in 14 point font. That's double spaced. Based. Now, we cannot make fun of the judge on that because it turns out that's actually required by the federal rules of civil procedure. But we still need to know about that because as you're scrolling through, in part one, we talked about how you read a complaint.

0:11:22 Andrew: In part two here, we're going to talk about how you read a district court opinion. And as you're scrolling through this opinion, you don't see a whole lot. The first eight and a half pages are really just repeating the plaintiff's arguments. And so you'll see plaintiffs claim this, plaintiffs seek a declaration, plaintiff also seek this. And it is just, it is literally lifted from the party's briefs. It is no work at all. And it's just cut and pasted. So that's eight and a half pages out of 11. And then the discussion starts on page nine. So you can subtract out and realize the discussion is only two and a half pages long, but it's even better than that because the discussion section is three paragraphs. It's helpfully marked. If you scroll to page nine, you'll see the word discussion in bold.

0:12:06 Thomas: By the time you're done with this, we're gonna get down to to like, no, there'll just be like one little thing just says, nah, the official decision is and then here's four more pages of like BS afterwards.

0:12:10 Andrew: Yeah, it's close. It is close to that. It really is. So if you turn to discussion, the discussion section, which is marked off in bold letters with a helpful little interjection there, is three paragraphs long. And the first paragraph repeats baseline legal standards that are operative here. And these are not challenged by either party. So paragraph one says, defendants are moving to dismiss. Here's what a motion to dismiss means. And for our our listeners, that a motion to dismiss is something you file at the earliest stages of litigation. And it says that the facts alleged in the complaint, even if they're true, we pretend they're truth for purposes of evaluating a motion of dismiss.

0:13:08 Andrew: But even if their true, they do not state a legal cause of action against someone. So for example, I file a lawsuit in California tomorrow, I sue Thomas, I say, uh, he has been unreasonably mean to me in our recording sessions, uh, and

0:13:22 Thomas: Jeez. Let's wait till episode like 11. If you don't mind, geez, give me a chance.

0:13:23 Andrew: Yeah. And that's made me super sad and I want a million dollars in damages.

0:13:30 Thomas: This is the risk of going into a project with a lawyer. You know what? Okay, fine. Well, I'll use my powers as a podcaster to edit an episode so that you come across really badly. And then we're even. We both used our powers.

0:13:42 Andrew: Yeah that then that I could actually, that I could actually really sue you about. Right, but But but, yeah, we can talk about that in a future episode. Spoilers or foreshadowing or however we call that out. Yeah.

0:13:48 Thomas: Oh, wow. All right. Let's do an episode series called All the Ways Andrew Could Totally Screw Thomas Legally because Thomas is an ignoramus. Let's go.

0:14:01 Andrew: But one thing I can't do is I canít bring a lawsuit that says Thomas said mean things to me during our recording session. And by the way, you have no idea the things he says to me during our recording sessions. It's 100%. I can't say, you know, paragraph one, Thomas has said mean things to me in our recording sessions. Paragraph two, that made me really, really sad. Therefore, paragraph three, I want a million dollars. And you would move, if I filed that lawsuit, you would moved for a motion to dismiss and you would say, look, even if it's true, I'm not contending that it's true. I've never said a mean word to Andrew ever. I don't think he was really sad.

0:14:14 Thomas: Yeah.

0:14:37 Thomas: But for the purposes of evaluating a dismissal, you can assume that like best case scenario for the what plaintiff, I guess.

0:14:42 Andrew: Right for the plaintiff.

0:14:46 Thomas: Yeah. Yeah, I get it.

0:14:46 Andrew: Right? Assume it's true. And even if it's true, he doesn't have a legal leg to stand on. Right So that's what a motion to dismiss is. It's a it's a little different and it usually comes at the beginning of the case for fairly obvious reasons, uh, and it's and yeah, Yeah, and uh, it stands in in contrast to, we talked about motions for summary judgment last time, uh, where uh, once you have all the facts, uh, and there are no more disputes as to what happened, then you no longer assume the facts in the complaint are true. You take the facts that are not contested between the parties on the basis of the evidence.

You, you construe any inferences in favor of the plaintiff or in favor of the party against whom summary judgment is sought, because plaintiffs can seek summary judgment. It happens. And then you say, the only thing left are legal questions, and we want the judge to decide the legal questions. So that comes at the end of discovery, typically. And you actually do look at some facts, you look at to see whether there is a dispute over over facts that are material to the allegations that are made.

0:14:52 Thomas: Gotcha.

0:15:02 Thomas: Yeah. Save yourself some work.

0:15:57 Andrew: But this is motion to dismiss, comes at an early stage. All the facts are assumed in favor of the plaintiffs. And that's all, this paragraph one doesn't say anything other than we're looking at a motion to dismiss and then cites a whole bunch of cases that says what I just said to you. So there's no no argument, no dispute doesn't mean anything. Paragraph two then begins with, uh, Article under Article Three, Section Two of the Constitution. And this is, um, maybe a little bit scary. Uh, but it, this is another pretty straightforward paragraph. Um, and it's based on the principle that, uh, in our courts, um, our courts do not issue advisory opinions. So, for example, in the, in the A segment where we talked about a governor seeking an opinion from his Attorney General as to whether they could start courtroom sessions with a prayer.

0:16:52 Andrew: The reason that that opinion letter was sent to the attorney general and not to, say, the state Supreme Court is because, by and large, our courts are prohibited from issuing advisory opinions, from saying, oh, hey, we kind of think the law means this, right? Is an exception on referred questions, but that's a long topic for another day. But by and large, the Constitution says that federal courts are limited to hearing what we call, quote, cases and controversies. And so that then gives rise to a requirement that we call standing. So here's what that means. Thomas, you and I read about this brand new creationism law that is going into effect in, let's say, let'S pick a state we haven't picked on before. Let'S say New Jersey schools. Okay. New Jersey state legislature. Yeah, Yeah, really, really weird.

0:17:49 Thomas: Wow. That's a bad sign for, yeah, for us.

0:17:56 Andrew: Yeah. But New Jersey just decided that they're going to teach nothing but intelligent design as mandated, as discussed by the Discovery Institute in all of their high school science classrooms. Classrooms and you and I look at that and come to the conclusion, correctly so, that that's outrageous and ridiculous. And we rushed to court in New Jersey to sue the governor and the state legislature of New Jersey for passing this law. And the result of that lawsuit is going to be that we lose and we're not going to lose on the merits, but we're going to loose because a New Jersey court, a federal court in New Jersey, is going to look at that and say, do you guys live in New Jersey. Neither of you Guys are attending public school.

0:18:45 Andrew: So even if this is wrong and unconstitutional and stupid and everything else you've said in your brief, why do you care? Why are you here? It doesn't affect you other than, you know, it affects you because, you know, someone's wrong, um, but let's wait to find out if anybody from the state of New Jersey who's actually in public school is going to sue here, if anybody who's really been hurt by this law, uh,

0:19:08 Thomas: Now, let me ask you, is there ever wiggle room in that? Is there ever like, if it's a case where it seems like it's going to have a bad effect on, I don't know, society or something. If I'm like, well, you know, sure, I Don't live there, but this, this dude, does anyone ever try to make a case for a more global impact, does it just come down to, nah, you don't live here. You're not in our club.

0:19:09 Andrew: No.

0:19:29 Andrew: You're, you're absolutely right that there are cases in which the standing requirement is interpreted broadly, right. So, for example, when you have, um, in it, when you challenge a state law, many of those cases where you're spending money, for example, courts have said, well, any taxpayer here in the state who's spending money has standing to sue, even though, you know, again, you kind of have that de minimis injury, like what is it? You know, a 10th of a penny from your taxes is, is going to any one program. Um, but it's sort of the principle of the thing. Uh, you, you get the right to sue. When I litigated the billboards that were placed onto the exterior of the Baltimore Arena, I should say it's now the Royal Farms Arena in downtown Baltimore, it went through several name changes during the

0:19:36 Thomas: Okay. Yeah. Yeah, but

0:20:20 Andrew: Course of the litigation. The we had a question about standing and the judge said that in order to to challenge this, that the plaintiffs had to be representatives of nearby landowners who were actually affected by the fact that the billboards went up. And eventually that that became the group of plaintiffs that challenged the action in that case. But

0:20:47 Thomas: For the most part, you're going to need to live in the state at least. Okay, wait,

0:20:50 Andrew: Yes, exactly. Exactly. And so that's paragraph two. And now you're thinking, well, there's only one paragraph left. And that paragraph, no, paragraph Two literally just says you have to have standing in order to be a plaintiff in federal court. Okay.

0:21:01 Thomas: When you say that's paragraph two, did they dismiss it because of that, or that's just explaining and it doesn't make a conclusion on whether they have standing? Oh, okay. Is that on every single legal decision that they do then? They just go over all these basics?

0:21:13 Andrew: Right. Right. Paragraph Yes. Yes.

0:21:24 Thomas: Oh, man.

0:21:24 Andrew: Yes. They do, yeah. Um, and uh, one day we will, we will pick apart an actual lengthy decision and I will teach, uh, everyone how to read a court decision in the same way that, uh, I've taught you how to write a complaint and hopefully hopefully that will be more interesting than I just made it sound, I mean, I made it sounds awful, I know, but

0:21:38 Thomas: Wow. It sounds like if you apply your method, you only have to read three things out of the entire several pages. So, that's good. I like that.

0:21:49 Andrew: Yeah, you really do. I mean, and that's, I think I have not, I've worked with one journalist, but I suspect that in newsrooms, you know, when you're on the court beat, right? I mean, look, if you're Jeffrey Toobin and you've been reading Supreme Court decisions for 30 years, you probably don't need somebody to give you these shortcuts, and you know them already. But but so the person, but the average person who's assigned, you know, to the court beat, would be surprised if if they don't get a lecture that something like this, like how much, how much can you just trim away and what do you actually have to read?

0:22:24 Thomas: Interesting. Paragraph three.

0:22:26 Andrew: Yeah. Now, paragraph three reaches the conclusion that you've just set. And paragraph three is maybe 15 lines, lines long, counting the quote. And again, remember, each line is 14 point font double spaced with one and a half inch margins. In this case, the judge throws out the lawsuit for lack of standing. And you want to take a wild guess. Now, remember, if we go way back, the plaintiff is a member of the Satanic Temple. She is seeking an abortion in the state of Minnesota. She objects to the fact that the state has required her to do three which she says conflict with her religious beliefs. Number one, read a pamphlet that says life begins at conception. Number two, be exposed to an ultrasound, a mandatory ultrasound that shows her fetus. And number three, wait 72 hours after doing those two things before she can actually have her abortion. Abortion. So if you were to take a wild guess, now I want you to pretend you are the judge for the Eastern District of Missouri, throwing out this case on standing, having just learned what you did on standing.

0:22:48 Thomas: Really?

0:23:40 Andrew: Why would that plaintiff in your eyes no longer have standing to bring their lawsuit.

0:23:46 Thomas: Wait, I feel like I already know this for some reason. Did, is it because she doesn't have the baby anymore? Or like, pat, the time passed?

0:23:51 Andrew: Exactly. Right. Because because she got an abortion. Right? Because if she had waited

0:23:53 Thomas: Yeah. Right. So you need to be mid abortion in order to file a suit? This is absolute bullshit. So you got to be in the the three-day waiting period in order to have legal standing in order to file this, this complaint, I reject that, sir. Right?

0:24:08 Andrew: And and and it's worse than you suggest because she filed the complaint during The three day period. But if you have ever tried to bring a lawsuit, and you know, I've only done this a few hundred times, um, it, it, you don't get hurt in court, uh, a couple of days after you file the lawsuit. It takes a long time, um, and so, uh, that, that situation, I mean, you know, creates a kind of ridiculous catch-22, uh, where

0:24:17 Thomas: Right. Yeah, you have. Yeah.

0:24:41 Thomas: I know that's absurd. There's no, how, how could this happen? How are people, because then you can just substitute any facts and they would be okay because you can't sue them in time. You know, like it's ridiculous. The requirement is you actually just have to not get an abortion. Like that's the, in order to get an adoption, you have to NOT get an abortion. And then it doesn't work because you You can't file it in time.

0:24:42 Andrew: Um, Yeah.

0:25:05 Thomas: This is ludicrous.

0:25:05 Andrew: So It will not surprise you to learn that other abortion cases have considered this standing question, right? As a non-lawyer, if I were to ask you to name an abortion case, what would you name?

0:25:25 Thomas: Well, I guess Roe v. Wade would be the only one I'd know.

0:25:28 Andrew: Yeah, Roe v. Wade, of course you would name Roe right? If you can only name one abortion case, you can name Roe v. Wade. And in Roe vs. Wade, there was the same argument that was raised, was to say the woman had not, had not managed to stay pregnant by the time that she had got her case all the way up to the Supreme Court, you know, which was filed. The oral arguments were in 1971 and the decision came out in 1973. The underlying case was from 1970.

0:25:29 Thomas: Yeah.

0:26:01 Andrew: So yeah, she was not an elephant. She did not for

0:26:03 Thomas: So she didn't tough it out and keep the baby for three or four years in order to. Yeah.

0:26:06 Andrew: Three or four years. Yeah.

0:26:08 Thomas: Well, that's her fault. Case dismissed.

0:26:08 Andrew: And and so here's here's what the Supreme Court said in in in Roe v. Wade. They said the usual rule in federal cases is that an actual controversy must exist at stages of appellate or cert review, which is to say in the Supreme Court, and not simply at the date that the action is initiated. It. But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes the case moot, pregnancy litigation seldom will survive much beyond the trial stage. This is pretty good humor for the Supreme Court. If you're not laughing here, you will never laugh at a Supreme Court decision, which, you know, that may may be the case.

0:26:55 Thomas: It's possible. Yeah.

0:26:56 Andrew: Right. So the litigation seldom will survive much beyond the trial stage and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman. And in the general population, if man is to survive, it will always be with us. Pregnancy thus provides a classic justification for a conclusion of non-mootness. It truly could be, quote, capable of repetition yet evading review. View, um, so what the Supreme Court is saying there is

0:27:23 Thomas: That guy, that guy was really proud of himself. Whoever wrote that was just like throwing these zingers. The lawyers in the room were like just dying, laughing their asses off. And then they then he reads it to somebody like me and I'm like, uh, what, that's kind of funny, I guess, uh,

0:27:23 Andrew: Yes, yes, yeah, yeah, that was that was that was Harry Blackman, who was well known as, uh, the, uh, the Robin Williams of the Supreme Court, which, I mean, to you, deliberately, um, knowing your, uh, non-love for Robin Williams.

0:27:46 Thomas: Oh, I love, I love him, I just don't think he's that funny, like, I, like, okay,

0:27:50 Andrew: Right, well, and I, and so I think the analogy works, right? Like, it's, it's pretty good, right, but it's just you know

0:27:54 Thomas: Okay. Well, but then that would imply, like, there's some, so is there a lawyer in the Supreme Court or whatever who's like a real lawyer's lawyer, like, they're like, no, this is the guy who's really funny, like, he's, the he's not the popular comedian, it's like, uh, uh, Louis CK type, is there that that equivalent somewhere

0:27:57 Andrew: Right, I, I hate to say this, but the, the funniest Supreme Court Justice in recent years is Scalia. I mean, like, he's he's evil, and his wit is, you know, in the service of, uh, you know, the, the forces but

0:28:11 Thomas: Oh, yeah, so he's funnier, he's funny, like, the Joker and the second Batman, like Heath Ledger's Joker. Essentially, yeah, okay, there we go, all right, well, we're running short on time, actually, so sorry, I'll stop, uh, sidetracking you. All

0:28:27 Andrew: Yes, exactly. Exactly. Yes. Okay. So, but no, no, that's fine. So in other words, if you have read only one abortion case, you know that this, that there was just no way that you can throw out an abortion case on mootness because the plaintiff is no no longer pregnant. And in fact, the two cases that are cited by this court, one is an internal citation, which is just setting up the law itself on mootness. That is that allegations of future injury must be particular and concrete. And that citation is to a prisoner's rights case that is not at all relevant. And then the comparison is cited to a trial, to an Eighth Circuit decision called Miller versus City of St.

0:29:21 Andrew: Paul, that as far as I can tell, was the exact opposite of this case. Miller versus City of St. Paul involved a Christian protester that went to the Irish Fair at a public park in St. Paul, Minnesota, was told by the police patrol commander who was patrolling the fair that he could not take in his Christian literature and distribute it, uh, and afterwards, uh, the city said to the plaintiff, yeah, you know what, like, we screwed that up, you have a First Amendment right to go into the fair and bring your stupid tracks and annoy people at the fair and all that stuff.

0:29:56 Thomas: Right. Please tell me that was in the official decision. Yeah, your dumbass little things you want to distribute.

0:29:59 Andrew: Yeah, well, this was, this was in the letter, right? This was before there was litigation, uh, the, cd said, and, and, and, you know, I should be, I should should be more charitable here. The city said, no, no, that, that police captain, uh, police commander, patrol commander, interesting, uh, makes you sound like a Star Trek villain, but, um, that the patrol commander had overstepped her authority, uh, that you should have been allowed in the fair, we're really sorry, you can come back in the fare next time, you'll be allowed to distribute your literature, literature, um, and that wasn't good enough for this guy. He sued, uh, not only the city and the patrol commander for his Section 1983 injuries, we talked about that in the last episode, because his civil rights had been violated, and that's perfectly reasonable, right? You have a right to distribute Christian literature in public, and a police officer stops you, uh, again, don't take a legal advice from a podcast, but, uh, you have the right to sue that police officer for violating your your constitutional rights. Nothing

0:30:01 Thomas: Oh, okay, right, I'm Sorry,

0:30:58 Andrew: Wrong with that.

0:30:58 Thomas: Just to make sure we're on the same page, this was a case you've gone in depth on, another case now, and this was referenced in the decision.

0:31:04 Andrew: Yes, this is the only case cited in the decision that is thought to be relevant, right? Everything else that's cited is cited for basic principles of law about which there is no dispute. Then they say, see, this case is like this Miller case. So that's why I'm going into it, because it's literally in an average case, you'll have a dozen or 15 cases that they say that the judge will say, well, this guides us in this direction And this guides us in this direction.

0:31:09 Thomas: Huh. Who the hell? It's like someone just lazily decided like, no, here's what I want the ruling to be. Do the minimal amount of work. Let's write a bunch of bullshit and then just cite it. So they're really saying that, well, wait, hold on. Other question is why would you need this if there's no standing? Why would you even need a decision?

0:31:30 Andrew: Yeah. Yes.

0:31:45 Andrew: Well, this is so this winds up being this Miller case is the only case they could find that was similar in a kind of First Amendment religious establishment clause, free exercise clause context. I Mean, what happened? To be honest, I suspect that your take on this is correct and that the judge's law clerk just went to Lexis or to Westlaw and typed in First Amendment religion standing and the only Eighth Circuit and the only case she could find is this Miller case. Case, uh, because what happened, so, you know, to kind of go back to the facts, what happened in the Miller case was, uh, he brought lawsuit, he brought a lawsuit, uh, against the cop, against the city, wanted damages and also wanted an injunction saying, "And make sure they let me back in in the future," and what the Eighth Circuit said was, "You can proceed with your lawsuit against the cop, you are, and if a trial court decides that your

0:31:46 Thomas: Right.

0:31:59 Thomas: Well.

0:32:44 Andrew: Rights have been violated, you're entitled to damages from the city and from the cop for not being able to distribute literature this past year, but the city said they screwed that up and that they're going to let you in next year, and so you don't need an injunction because there's no harm coming to you on the horizon. You have no standing, that controversy is moot. Right, the city says they're gonna let you, you want to be let in, we as a court don't have to say anything, right?" And this case, now we jump back to the Satanic Temple, this, the Satanic Temple case, cites that decision for support for its proposition that a pregnant woman also doesn't have standing. Right. I was to say you could get pregnant again, despite the fact that, again, I asked you this before, I told you the only case literally any human being would tell you to look at on standing in abortion would be Roe v. Wade. And they didn't look at it, yeah.

0:33:41 Thomas: Not only that to be analogous to Be, yeah, yeah, exactly, but to be analogous, wouldn't it have to be like the Christians would say, "Next time you get pregnant, we won't make you read this literature when you get in," a, like, that would be the analogous situation Well, this is crap, yeah, this really Is crap, but I really am curious, I know this is a crap ruling, so maybe they just did a bad job, but when you say they don't have standing, why do you need to cite... I don't get it. How does that... So, it's just citing that case because they didn't have standing in that case, but then why does it even... Like, standing seems to me like it's a trump card. Like, you don't even need to look at the case or the details or anything if you don' have standing. Am I wrong in my understanding of it?

0:33:53 Andrew: Yeah. It's just it's just it just stupid all the way down, that is absolutely correct. Yeah, so No, You are 100% correct on that, but you would still look to other cases, because ideally what you would find is another case on the same facts in which a court has said that people in the same or similar situation, situation, don't have standing. Right.

0:34:42 Thomas: Same situation. Okay, okay.

0:34:44 Andrew: So that's why they're citing it for. They're saying, see, look, you don't have standing here because you're not pregnant. See, look at what the Eighth Circuit did in this Miller case. And then you look through to the Miller case and you're like, isn't not only is this not remotely analogous, but it seems like kind of the exact opposite. Because in the Miller case, right, the city said, no, oops, we're wrong. And we promise not to do it again. And here Here, the state of Missouri has said, no, no we're right and we promise we're going to continue giving out these booklets and we're gonna continue having ultrasounds. So, you know, it literally is, I think the only explanation is clerk laziness. And I mean that non-sarcastically.

0:35:23 Thomas: I mean, this could be a... Yeah,

0:35:26 Andrew: That's a real issue because judges work very, very hard. Federal district court judges typically have two law clerks, many of whom were my colleagues. I applied for these sorts of jobs and was invited to have them.

0:35:26 Thomas: Yeah, yeah. Yeah, so you're not talking shit on all law clerks. It's just that this particular one in this particular case is not good. But this literally sounds like a closed argument segment, except for the fact that it didn't go well, I guess. I don't know. Yeah.

0:35:40 Andrew: Um, no, no. No, no was. Yeah. Well, and and so the the conclusion is this ruling came out. It has been noted already. The the Satanic Temple is appealing the case to the Eighth Circuit. And I have no doubts that whatever three judge panel of the Eighth Circuit Court of Appeals gets assigned that those three judges have read Roe v. Wade. Um, and, and I strongly suspect, uh, that they're going to over, that they're doing to reverse, uh and remand here.

0:36:25 Thomas: So procedural question. Sometimes when there's an appeal, Supreme Court or I guess the circuit, the Eighth Circuit or whatever it is, the circuit court, they would make some sort of judgment based on the facts. But when it's a standing issue, are they going to just say, oh no, they have standing. And then when you say they remand it back. So they still, will, the Eighth Circuit isn't going to rule on the facts, right? They're just going to say, no, they have standing because you're morons and read Roe v. Wade. And then they'll have to go through back to the federal court to kind of evaluate the facts of the case again. Is that how?

0:36:27 Andrew: Mm-hmm yeah.

0:37:00 Andrew: To still try the case? That is exactly right. Um, and, uh, the, the general principle there is that appellate courts do not review facts. They have a standard of deference on the facts, uh, that is, that uh, that is called the clearly erroneous standard, and it means what it says, so basically, you know, you're stuck with whatever facts are developed at trial.

0:37:01 Thomas: Okay, cool.

0:37:22 Thomas: Okay. Yeah. So I shouldn't have said facts, but if let's imagine this same case happened, it wasn't thrown out based on, or whatever the correct terminology is, sorry. It wasn't thrown out based on standing. It was they actually ruled, oh, no, this is totally fine. It passes the test. And then let's say they appeal it. That goes to Eighth Circuit. Now, can the Eighth circuit say, no. This doesn't appeal to pass the test, and therefore, we're reversing this. And that's different than remanding it is all I'm wondering.

0:37:23 Andrew: Yeah. No. No, no, that That's Yeah, that's exactly right. And they procedurally they will still remand in those cases because there's a judgment to be entered, but, but, uh, but from a uh

0:37:52 Thomas: Okay.

0:38:01 Thomas: But the federal court has no say after that, right?

0:38:04 Andrew: Right, right. And, the big thing here is, remember, this motion to dismiss comes early in the proceedings, right? Like, there's been no discovery. There, there, that there hasn't been a trial yet. Right. So the eighth circuit isn't going to conduct the trial. The eighth circuit is going to say, okay, Eastern district of Missouri, nice try. Uh, but you, you have to let them, right.

0:38:05 Thomas: Okay. Okay. Oh, okay. Yeah. Yeah. He tried to get out of your work. Yeah.

0:38:26 Andrew: But you have to let and, and, uh, I mean, we're laughing, but, um, courts are ridiculously overburdened at the moment.

0:38:26 Thomas: Oh, man.

0:38:35 Andrew: And federal courts in particular, the sequestration order that came down several years ago, basically cut federal court budgets by 30%. So there are fewer judges, fewer magistrates working longer hours with longer dockets. And that, look, I have friends, very, very close friends who are federal judges. I would trust even the ones who are Republicans I would trust each and every one of them. I have yet to meet one who is, who would say consciously, yeah, I'm just kicking this out because I'm overburdened. Uh, but, but from a societal perspective, there's no way that, uh, that that hasn't increased the kinds of pressures on everybody in the federal court system to really get rid of cases. Uh, and that's something, I mean, that's going to be a continuing theme as, as we go through opening arguments.

0:38:35 Thomas: Yeah, yeah.

0:39:26 Thomas: Well, we are plum out of time. We're over time as usual.

0:39:28 Andrew: Yep. But I think we've, I think we've, we've brought this one to ground. Uh, keep, keep a lookout because, uh you're going to see a headline that says, you know, Eighth Circuit loves Satan. About this time next year.

0:39:32 Thomas: Think you covered it? Yeah.

0:39:42 Thomas: Well and if you don't see the headline, you'll hear it from us for sure. That'll be exciting. It's gonna be cool to have these things that are on the horizon that we're talking about, and then we'll be able to bring them up when they, you know, when they progress, when the next thing happens, and we'll say, "Hey, remember when we explained this to you and Thomas sort of followed along and kind of understood it? Well, guess what? The decision is out." So, that'll be interesting.

0:39:46 Andrew: Yes, yes.

0:40:05 Andrew: Yeah, and it'll be fun in the times when I'm wrong, because I am occasionally wrong. Not going to be wrong on this one, though. I feel pretty good about that.

0:40:09 Thomas: Yeah, yeah. Okay. Oh, all right. So hey, if anyone's taking bets, like if you find a guy on the street, like, hey you want to bet on some rulings in the Eighth Circuit? Good odds on this.

0:40:23 Clip: He who questions training, only trains himself at asking questions. What?

0:40:31 Thomas: All right. Listener question. Law student. Oh, here we go. This better be a good question. Otherwise, they're going to, you know, it doesn't bode well for their law degree. But law student Jason Burkhead asks, how can I be sued in another state if I don't live there?

0:40:31 Andrew: Yeah.

0:40:45 Andrew: And, uh, and I, I think Jason was trying to, uh, you know, sort of set me up for this one, uh. I, I appreciate the question, um. In general, uh, so there, there are two principles that work here. The first is, in what court are you being sued, and the question. And the second is, is whether that court has sufficient jurisdiction, both personal jurisdiction over you and subject matter jurisdiction over the dispute. So generally speaking, if you live in a state, you are subject to the courts of that state and the federal courts that are in that state in terms of personal jurisdiction, because you live there and you've voluntarily chosen to avail yourself of the state in which you reside.

0:41:31 Andrew: But people don't stay in the state in which they live. They go into other states for, you know, business reasons, for personal reasons, or for good reasons, for bad reasons. And if you avail yourself of another state's laws, you can be sued in that other state, even if you don't live there. And what constitutes availing yourself of another state's laws is a very long and complicated process, too long for this segment. But something that I want to, that I think is relevant for you and I, and for a lot of our listeners, yeah, that's, that was exactly where I'm going. When you conduct business over the internet, a majority of jurisdictions have said, uh, if you have real sales, so if we have a patron, if we have a patreon.com/law patron who lives in Idaho, and that person wants to sue us for defamation, uh for something we say about our Idaho patrons, which by the way, Not going to happen. We love our Idaho patrons.

0:42:01 Thomas: Right. Yeah, I was going to say, can we be sued anywhere that someone is listening to this podcast?

0:42:37 Thomas: Oh, yeah. There's some of my favorite.

0:42:38 Andrew: Yeah. Courts Have said, yep, we have put our service into the stream of commerce. We have availed ourselves of the fact that the internet even reaches to Idaho. And if somebody listens in Idaho and then has a cause of action against us based on what we've said in Idaho, we can be sued in Idaho. Now, the additional wrinkle, and this is another implied part of Jason's question, is in order to get into federal court, you have to have, are two ways by and large to get into federal court. The first is you can break a federal law. Federal courts adjudicate federal laws. That's a no-brainer. But the second is if you have a violation of state law where the parties are citizens of different states and the amount in controversy exceeds $75,000.

0:42:39 Thomas: Oh.

0:43:33 Andrew: And the reason for that is because our initial federalist system was set up on the idea that, you know, Virginians had a proud national heritage and thought of themselves as, you know, Virginians first or Marylanders first or, you know, whatever. If you If you read any 18th century historical documents at the time of the founding of the Constitution, you'll see this notion that people had a great love of their home state. And the idea was, well, you know, there's no way if you were a Kentuckian sued in a Virginian court, no judge on earth would rule in favor of the Kentuckians. And so the idea is that the federal courts with judges that were appointed by the president and confirmed by the Senate, that would cure that partiality.

0:44:20 Andrew: And so they said, if you had the kind of suit that we described and, you know, a Californian and a Marylander are dragged into an Idaho court, that even though we're in Idaho and even though the plaintiff is from Idaho, the fact that he's a federal judge means that she's more likely to be open-minded on in terms of listening to those heathen Californians and Marylanders. But we only get into federal court if the amount we're being sued for is $75,000. So a crafty Idaho plaintiff could sue us for $70,000 and, yeah, right,

0:44:49 Thomas: Okay. I'm uncomfortable with how good you're you're making our listeners at suing us because it, the more they listen, the better they're going to get to, they're going to know all the loopholes. Is to like, it's, I'm trying to think of the movie. It's like, where, you Andrew, you're just such a legal expert that you're now bored that you want, you're trying to train a nemesis.

0:45:10 Thomas: You know, you like somebody, somebody like, ah, I've, I've taught you everything I know now. Can, can the nemeses best you in court? Maybe that's what what it is.

0:45:10 Andrew: Yes, that is exactly what I'm doing. But I have a Trump card up the sleeve for us. But so so our our Idaho nemesis.

0:45:21 Thomas: Ooh, wait, are you going to tell people our Trump card? You can't, that's not how a Trump card works, man. I'm concerned for my legal.

0:45:28 Andrew: No, I'm I'm holding that in reserve. I'm holdin that in reserved. But our Idaho nemesis could sue us in Idaho for seventy thousand dollars and we would be forced back into the parochial state courts in Idaho where the local Idaho judge is likely to say, you know, get them California and Maryland boys out of here.

0:45:30 Thomas: Oh, okay. Okay. Yeah. He's going to go home team. All right.

0:45:51 Andrew: Right. And that, I think, answers Jason's questions. If not, keep

0:45:56 Thomas: Well, I'll tell you what we can't be sued for is under delivering on our content promise because our 30 minute episode is 50 minutes. So that's how that goes. Us. No lawsuit there. All right. We got to wrap it up. So many reasons to go over to patreon.com/law and pledge, one of which is then you can sue us. Another, I think, is you can be in Idaho and sue us in whatever state you're in. Also, we won't be so conscious of our time limit if we reach our goal after next. But thank It's time now, of course, to thank our patrons, patrons.

0:45:57 Andrew: Them coming.

0:47:36 Thomas: And now we've got to thank our Hall of Fame level sponsors and above, and they are Dan Irizarry, Eli Bosnick, Dave Nichols of the Positively Doubtful Podcast, Dale, Anonymous, Steve Siegmund, Jim Grove, Roger Metcalf, Desecratr, Amanda Lipnack, Hunter Ash, Michael, Kaile Riser, and the Inciting Incident Podcast. Thank you so much for being our top level patrons. You guys are the best. Test.

0:48:05 Thomas: So thank you guys for listening so much to Opening Arguments. Andrew, anything for you to say before we call it a soad here?

0:48:12 Andrew: No, I don't think I've said enough.

0:48:15 Thomas: You said way too much, and I'm now concerned about our legal future, but we'll make do. I'm excited for your trump card up your sleeve. All right. See you guys next time.

0:48:34 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.