OA62: The Supreme Court's Hall of Shame

Transcript

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

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode number 62. I'm your host, Thomas Smith. That over there is our expert, most expert of hosts, Andrew Torrez. How you doing, Andrew?

0:01:26 Andrew: I'm great, Thomas. How are you?

0:01:27 Thomas: Doing great. I am excited for today's episode. People always love lists. And you know what? Maybe I love lists too. It's a guilty pleasure. But this isn't going to be a stupid clickbaity list where every time you click on something there's like three ads and then you get to the next item. No, no, no. This is a great list. This is a smart list. It's the best. But before we get to that, let's get to our first listener question.

0:01:50 Clip: He who questions training, only trains himself at asking questions. What?

0:01:58 Thomas: Alright, Scott asks, I was looking into creating a Patreon account. Good, so far, so good. As there is a growing number of podcasts I would like to financially support. Being one of those weird people who reads everything, yes, that's very weird, I found this link to their terms of use. Of particular interest is the indemnity section at 2017, April 4th, oh wow, it just happened, or something, they just put that in, interesting. "You will indemnify us from all losses and liabilities, including legal fees, that arise from these terms or relate to your use of Patreon. We reserve the right to exclusive control over your, over the defense of a claim covered by this clause. If we use this right, then you will help us in our defense. Your obligation to indemnify under this clause also applies to our affiliates, affiliates, officers, officers, directors, employees, agents, and third-party service providers. What does this mean, Andrew? I don't really understand it. I think that's what Scott is asking as well. Explain this so that Scott can get to the Law'd Awful Movies content that awaits him after this terms of service

0:02:53 Andrew: Yeah.

0:03:04 Andrew: Yeah, no, it's very rare that we get to answer a hypothetical legal question that also directly affects us economically. But that's why I took the question, moved it to the top of the hopper. This is a standard form indemnification clause. Uh, I am on Patreon, I support other, uh, artists, uh, besides our show, uh, on Patreon, I would, obviously we, we make a plea for, for all of our listeners to support us. Um, it really is what helps us do the show. Um, but, but I totally get, like, I love the fact that we have listeners who are going through and reading, uh, their lengthy agreements and who are like, well, look, and Scott's question is, this kind of seems like they get to control the lawsuit suit and I have to pay for it.

0:03:12 Thomas: Yeah. Yeah.

0:03:53 Andrew: So what the hell is up with that?

0:03:53 Thomas: Well, step back. What lawsuit specifically? Specifically, uh, And maybe you have to get a little more basic than than you were thinking, yeah.

0:03:56 Andrew: Right. Right. Yeah. No, no, no. That's right. I mean, that's what we want to break down. Right? So what is, what is indemnification? Indemnification is an agreement to pay on behalf of someone else. So the first sentence says, you will indemnify us from all losses and liabilities, including legal fees that arise Arise from these terms or relate to your use of Patreon. Well, what would that be? That means if Patreon is sued for something that we do, right, then, right.

0:04:25 Thomas: Well, or that Scott does, or what do you mean? Okay. I'm

0:04:34 Andrew: Exactly. Then if it is, and again, it says that arise from these term or relate to your us of Patreon, then they have the right to turn to us or to turn to Scott or turn to anybody who signed this agreement and say we only have incurred these liabilities because of something that you've done, right? So why is this provision in there, yeah.

0:04:56 Thomas: Trying to Think of what an example real life case would be Is it would be if someone like uses Patreon to Uh, to be a hitman or something, yeah. So

0:05:00 Andrew: Real? Yeah. Don't, don't to defame. Suppose, like, instead of opening arguments, our podcast was, you know, stuff we hate about whoever lives at 347 Main Street, uh, you you know, Minnesota.

0:05:17 Thomas: Should I not Hit live on that page that I was About to. Okay, never mind, I won't. I won't go live On that one, yeah.

0:05:19 Andrew: Right, yeah. Right. Um. Yeah. And, and so if, if we were using Patreon as our platform for releasing a podcast that libeled private individuals, uh, then those individuals would look at it and be like, okay, I could sue, you know, sort of two, uh, probably broke podcasters. Or I can sue the Yeah, I can see the company that has all the money, I'm going to sue the people who host them. And so that's

0:05:41 Thomas: Exactly, they are they want to go where the money is yeah. Good luck trying to get a response from Patreon, yeah, anyway, it says aside of trying to deal with their frustrating customer service, anyway, yeah.

0:05:59 Andrew: The point of an indemnification clause. It's to say, look, I'm going to do this for you. But if in the course of my doing X for you, that exposes me to potential liability because of something you've done, then I'm gonna turn to you to pay for it. And it is a perfectly standard provision. But I love the fact that our listeners are out there taking OA seriously, reading through click wrap agreements, going through, delving into indemnification clauses, and saying, you know, what the hell is up with that?

The control of defense, by the way, is a term I suspect that Patreon copied that from an insurance agreement, because It is typically associated with what you find in an insurance insurance, uh, agreement where they have, if you have, um, say comprehensive general liability insurance for your place of business, uh, that would cover, you know, slip and fall of somebody who's on the steps of your premises, right, and they're coming to visit you, they slip, they fall, they sue you, uh, and your insurance, uh, would provide, uh, to you for, uh, whatever the liabilities are, up to your policy limits, they also agree to tender your defense costs, typically in a policy, as part of paying for your defense, the insurance company will reserve for itself the right to control the defense.

0:06:16 Thomas: Oh, right.

0:07:27 Thomas: So that it they're It's being done in the right way and they're not just paying for a crappy lawyer or something that they don't think is, is the right way to do it? Is that why that is, yeah.

0:07:28 Andrew: Yeah. Yeah, right. Yeah, because We could totally game the system, right? If you yeah.

0:07:36 Thomas: Yeah. Hire Lionel Hutz And there's

0:07:41 Andrew: Hire, hire me.

0:07:42 Thomas: Our friend Yeah.

0:07:43 Andrew: Right. Exactly, yeah. You know, to just

0:07:43 Thomas: Exactly. Oh, he's put Hours and hours into this. Oh, the best defense. Andrew Torrez has got the best offense. It's, he's put 40,000 billable hours into it. Yeah.

0:07:44 Andrew: Uh, right. Right, right, well, and look at it, so if you have two million dollars in policy limits, right, and you're sued for a million dollars, and you as the policyholder get to control the defense, well, your incentive is, uh, why don't I pay this guy out his million bucks, and all but first, if, if I've got a friend who's a lawyer, why don't I hire my lawyer friend and pay him a million bucks?

0:08:09 Thomas: What do I care, yeah. Hire me as an expert to testify, or something yeah. We'll figure this out. No, that makes sense. That makes makes sense, but does it really make So you're saying they copied this from an insurance company thing, which I not necessarily.

0:08:17 Andrew: Right. Yeah. Right. Exactly. So so that's where the control of the defense clause comes from. That's where indemnification comes from? I'm not saying that I know I

0:08:28 Thomas: No, no, they might they might have. Maybe they yeah.

0:08:29 Andrew: Do not want to be. I do now want to beat. Yeah, in

0:08:31 Thomas: Uh, you're, seeing it, and you're saying it, it maybe doesn't make as much sense for Patreon.

0:08:33 Andrew: This podcast is accusing Patreon of. No, I'm saying I just I just think that that's that that that where they've got it from again. Because Patreon is going to be the primary defendant in any kind of lawsuit against, you know, any of its that that's as a result of what any of Its creators have done. So, but the bottom line is, right, right.

0:08:56 Thomas: So, they would anyway, probably they wouldn't be. It's not, not because Patreon's not paying for us to defend ourselves. Okay.

0:09:02 Andrew: Exactly. That's exactly right. So the clause is a little misplaced, because not, they're not tendering defense costs to us, so, um,

0:09:07 Thomas: Right. I have to say this whole time, all I've been imagining, again, this is a little inside, but just in case you haven't experienced it, Patreon's customer support just sucks. I imagine it's so impenetrable that the law can't even get to it. I would imagine there's a lawsuit and a judge is like, Patreon, you got to do whatever. And they're like, oh yeah, we'll answer that for you. And then they just never respond. And then eventually months later, the, the whole justice system is just like, yeah, we can't, sorry, we give up there. They're above the law because we canít, we can, we canít get a returned email from them. Thatís, thatís how I envisioned that going.

0:09:40 Andrew: Their their said their head contractor beam operator requires you to, yeah, um, Yeah, no, so, but, uh, the bottom line is Scott certainly in

0:09:48 Thomas: Oh man. I feel like you, me and no illusions will be laughing at that and thatís about it.

0:09:53 Andrew: Yeah, the, the bottom line is, um, there's... there's nothing you, you can do as a patron of a show if you're not also creating content that could reasonably give rise to, you know, relating to your use of Patreon, that could, that could expose them to liability, uh, so please be a patron of Opening Arguments, support your favorite shows, do so with confidence, uh, don't take legal advice from this podcast, but please give financial assistance to this podcast, yeah.

0:10:19 Thomas: Yeah. No, I love it. I love that we're getting to learn this obscure gear stuff that most, most of us just gloss over and I don't care. I've, I've given up ever caring about reading any sort of agreement. So that's take a sending Thomas legal agreement advice to sign for and rip them off advice from this podcast.

0:10:37 Andrew: But But, but remember, I mean, as we talked about in Tuesday's episode, like, those that click wrap agreements can contain legally binding terms

0:10:49 Thomas: I'm not worried about signing something that says they get my house cause it's not reasonable. But anyway, so that's an excellent Excellent question, Scott. Thanks a lot. Hopefully, future patron Scott. Great question.

0:10:53 Andrew: All right. Oh,

0:11:07 Thomas: All right Andrew. It's a clickbait top five list, but it's a good clickbait.

0:11:10 Andrew: Oh, I love I love these.

0:11:13 Thomas: Yeah, this is a good one. This is like if it's the top five hottest celebrities that you're trying to resist clicking on. But there's no ads or anything or viruses. It's just a good, it's all good.

0:11:25 Thomas: So here we go. Top five atrocious Supreme Court decisions. This is, like, Supreme Court gone bad. I can't wait. Wait, yeah, you probably won't. And this is of course, uh, the opinion of Andrew Torrez. I'm sure this is, you're speaking for your, for your own view on this. Uh, I know there's not any official, uh. Law sanctioned body that, uh, determines the worst five decisions, is there?

0:11:33 Andrew: Yeah. You won't believe what the Supreme Court has done.

0:11:53 Andrew: No.

0:11:55 Thomas: So this is just for fun. Andrew's, uh. But, but Andrew's considered legal opinion on the five worst cases. Here we go, take us through them.

0:12:02 Andrew: Yeah, and and so let me say a couple of things at the outset. We have talked about Plessy versus Ferguson before, right? Separate but equal. Uh, we have talked about DC versus Heller, which I gotta say, I mean, I, I I'm, I'm going to exclude both of those because we've talked about those cases so much. Uh, DC versus Heller might crack this list. Like that's how bad that, that case is. Um, the reason I wanted to do this, a, I means, I thought it would be fun. B, have gotten the question, we have talked about this on previous episodes of, you know, Andrew, you keep talking about how important stare decisis is, but, do we necessarily, yeah, do we ratify terrible decisions?

And the answer is no, of course not, right? Like, as we discussed, you know, last week, stare decisis says that the fact that there is a history of jurisprudence on the issue is a fact to consider. Not that it is a 100% factor, not that it can never be overturned, but that what you have to do, and to me, the model of stare decisis, we did an entire episode. We did a two-part episode on Planned Parenthood versus Casey, the 1989 decision in which the two sort conservative moderates on the Supreme Court, Anthony Kennedy, still on the court, and Sandra Day O'Connor, fashioned a decision in which they basically said, yeah, we're not totally sold on the logic of Roe v.

0:12:37 Thomas: There's bad examples, yeah? Yeah,

0:13:27 Andrew: Wade. And by the way, we both personally are opposed to abortion. And both of us were appointed by Ronald Reagan and all of that. But nevertheless, the fact seems to be that we're 15 years out from Roe v. Wade, the case seems to work. And for us to turn around and go, Roe vs. Wade is a historical error and belongs in the category of the kinds of cases that I'm about to talk here, all of which have or at least have been strongly disapproved.

0:13:42 Thomas: Right. Gorsuch?

0:13:58 Thomas: Okay. So the ones you, okay, the ones on your list weren't. So that would be different from DC v. Heller, but but that's not on the list, so these are all ones that are pretty much either reversed or not, not regarded. But, but you give, gave a great example. So it's Sandra Day O'Connor and Kennedy, you were saying, who, who very conservative, opposed Roe v. Wade, but said, you know, we respect, uh, stare decisis essentially.

0:13:59 Andrew: Is. Yeah. Right. Right, right, right. Right right.

0:14:23 Andrew: And so and this is the test like we've used this. I think that this is often how lawyers think about things. And I've used this example before. You know, when we were talking about making the First Amendment argument against Trump's executive order, the so-called Muslim ban. Right? I asked I asked you to think in your mind, like, is this as bad as city of Hialeah? Right. Like, is this as Bad as the legislature getting together going? We definitely don't want any voodoo in our city. Um, the, uh, courts in Hawaii and Maryland said, yeah, it is.

Um I, I thought, I uh thought it would probably go the other way, right? Like I thought that, um, as bad As the record was on, you know, hey, Rudy, how can we keep out the Muslims that it didn't quite rise to the level of city of Hialeah. But but like but this is how jurisprudence gets done. This is thinking like a lawyer. So when you want to overturn a decision, ask yourself, is it as bad as as these five decisions? That's that's part of the point of doing this. So, well, I don't I'm going

0:14:23 Thomas: Yeah, Okay.

0:15:19 Thomas: I think we should do, like, a radio, like, number five, so that'll be the first, yeah. Oh,

0:15:27 Andrew: To do these chronologically because I, I don't want to rank them, um, well, Yeah, you know, because, because I'm going to start and devote the least amount of time, uh, to, uh, Dred Scott versus Sanford. That's something that I think everybody who listens to the show has probably heard of. 60 U.S. 393, 1857, uh, that upheld the enforcement of the Fugitive Slave Act, uh, ruled that, uh, an escaped slave who, who left the South and managed to escape to the North where slavery was illegal, was nevertheless legally the property of his master and was required to be returned on a theory of property rights. It's hard to get worse than that as a decision. And this is an unbelievably lengthy opinion, opinion, um, it may be

0:15:29 Thomas: You're ruining the lit. Okay. Darn.

0:16:20 Thomas: Wow.

0:16:20 Andrew: One of the longest cases, uh, in, uh, sort of the first, uh, you know, century of, of the Supreme Court. This is a seven to two decision.

0:16:26 Thomas: Were So seven to two in favor. Wow. So it wasn't even close, really. That's not a good sign. All Right.

0:16:35 Andrew: Yeah. Yeah, and again, this may be a theme. This was the vindication of property rights over the, you democratic principles of, you know, half the country had said we don't want to recognize slavery. And and the Supreme Court said, no, but, you know, it doesn't matter. Like, if, if someone is a slave, then that we need, via the operation of the Full Faith and Credit Clause, we need to, uh, recognize that relationship, uh, even in the areas that, uh, have held slavery to be illegal, um.

0:17:16 Thomas: I mean, I know you didn't want to spend as much time on this one, But I'm just really curious. Like, so it's this it's the the state law that recognize slavery is a legitimate like property thing. And so that's what they were. That's what They were reconciling because I've just won. The whole thing obviously seems illegal to me based on our unconstitutional, but I know they didn't think that way back then. But, but this was like a state law thing where they didn' think that the Constitution, or that, that, that law went against the Constitution? Constitution, oh.

0:17:17 Andrew: Yeah. Yeah.

0:17:47 Andrew: And so let me read you the uh, the the crucial language. This is page 422 of the opinion, uh, but it is said that a person may be a citizen and entitled to that character, although he does not possess all the rights which may belong to other citizens, as, for example, the right to vote or to hold particular offices. Now, so keep in mind, 1857, the idea is women could be citizens, but they didn't have the right to vot, right? And that yet, when he goes into another state, he is entitled to be recognized there as a citizen, although the state may measure his rights by the rights which it allows to persons of a like character or class resident in the state, and refuse to him the full rights of citizenship. This argument that overlooks the language of the provision of the Constitution of which we are speaking.

Undoubtedly, a person may be a citizen, that is, a member of the community who formed the sovereignty, although he exercises no share of the political power and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote, and when a property qualification is required to vote or hold a political office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens.

0:18:12 Thomas: Yeah Well,

0:18:58 Andrew: So, too, a person may be entitled to vote by law of the state who is not a citizen even of the state itself. And even in some of the states of the unions, foreigners not naturalized are allowed to vote. And the state may give the right to free Negroes and mulattoes, but that does not make them citizens of the State. And still less of the United States and the provision in the Constitution giving privileges and immunities in other states does not apply to them. So that was, as you can infer, going backwards, talking about how could, an escaped slave would nevertheless be potentially eligible to vote in, say, Massachusetts and thus a person and not property. And yet the court said, yeah, you know what? We're not persuaded by that. States can do a whole lot of things.

0:19:44 Andrew: Doesn't really matter. What's important is, does the Constitution recognize and apply to this person as a person? And in the case of, Negroes, as is used in the decision, those born in slavery or subjected to slavery in the South, they were not constitutionally persons, persons. This is an originalist decision, so again, I would love for my originalist peeps, uh, who, you know, tweet at me at Open Args, uh, to get on and tell me, uh, if there is a way to reach a contrary result, or if in your considered view, uh, this is the result you have to come up with, right? Because if, yeah.

0:20:26 Thomas: But would they say, I mean, I'm kind of curious about that, that is a very sensitive thing, I don't want to say something stupid, but would they say, yeah, you, that's why we needed an amendment for this, like, because yeah

0:20:27 Andrew: Yes yes that, I mean that, that's, that's sort of the point, right, is to say, uh, if you, you subscribe to that view of the Constitution, you must subscribe to the view. Again, I invite anyone to make an argument to the contrary, that Dred Scott was rightly decided under the laws of the Constitution at the time, that there was no space to look at it and go, gosh, I understand that the Founding Fathers held slaves. I understand that there was not this North-South divide on slavery at the time that the Constitution was written. But we're 80 years out from that. We've learned a lot. There is a history of jurisprudence talking about the rights, recognizing that African-Americans are people, and talking about their right. And we're not going to take them.

0:20:38 Thomas: Yeah yes

0:21:28 Andrew: We're not going to take a person who is recognized as a human being with rights in certain states and declare that person property under the law, are we? And the answer is yes. Yes, you are.

0:21:40 Thomas: We are? Seven, seven of us are. Yeah, two of us aren't. I'd be curious what the dissents were, but, uh, but you know, we we could probably do a whole episode on just any of these decisions. But unfortunately, since this is a top five list, I think we'll probably have to move on. I know they're not in order, but I just just to have some, you know, use here on the podcast. I want to do my number four. Number four.

0:21:41 Andrew: Yeah. Right. Yep.

0:22:03 Andrew: Number four, Lochner versus New York. 198 U.S. 45 from 1905.

0:22:10 Thomas: Don't think I've heard of this one.

0:22:10 Andrew: Oh five. Yeah, no, I'm hoping that most of the rest of these are cases that you have not heard of.

0:22:15 Thomas: Oh, good.

0:22:16 Andrew: I had to do Dred Scott. We haven't talked about it before. It's probably the worst decision in history.

0:22:20 Thomas: Got to do Dreadscat. Yeah.

0:22:22 Andrew: But but I hope the next four are cases you haven't heard of, so this case, the indictment, it will be seen, charges that the plaintiff in error violated the 110th section of Article 8, Chapter 415 of the laws of 1897, known as the the labor law of the state of New York, in that he wrongfully and unlawfully required and permitted an employee working for him to work more than 60 hours in one week. OK, so that's the case. New York has a law that says it is illegal to require somebody to work more than 60 hours in a work week. And Lochner versus New York. I'm not, I'm going to, I'm going to cut to the chase, said, uh, no, uh, that uh law of the state of New York violates the liberty of contract, uh, and so is therefore unconstitutional. Um, so here's, here's the decision. The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery, this was a baker, of the employer.

The The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the federal Constitution. Under that provision, no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude this right.

0:23:00 Thomas: Workers.

0:23:48 Andrew: And so this era of the Supreme Court's history in the early 1900s was called the Lochner era. And it was a time in which the Supreme Court was, as I would argue, like the past 15 years, a very activist court in striking down legislation designed to protect employees from oppressive working conditions. And the court found that the generalized right to contract was part of the liberty protected by the 14th Amendment and and continued to strike down anything that declared those contracts null and void. So, you know, this is maybe a bit of a callback to last episode when we talked about the United case and we talked about rights of contract. And today, are sort of generally enforceable. And we've talked about contract law on this on the show.

But we know that unconscionable terms within a contract will not be enforced, uh, by the court, uh, and uh, and this was an era in which the Supreme Court said no, no, no, like, uh, contract is contract, like, it, if they want to contract away to an unconscionable term, uh, who are you? It, it violates the Constitution for the state of New York to say you can't do that, right? And this is generally considered, again, this is genuinely considered by conservative legal scholars and liberals alike to be the lowest point in the Supreme Court's history, the Lochner era. So I, you know, I offer that forward because I don't know what our Supreme Court is going to look like at the end of the Trump administration.

0:24:12 Thomas: Yeah.

0:25:29 Thomas: Yeah. Would

0:25:29 Andrew: But that the potential is there. You know, we have sort of justices like Antonin Scalia have, you, you know, rewritten history and suggested that it's only ever, you know, left wing justices that engage in judicial activism, and, and I would contest that, and I would say, you know, this is right wing judicial activism, overturning laws, because they don't comport with the concept of the liberty of contract that is inherent in the 14th Amendment, uh, and you had a, you know, really aggressive, this is symbolic of a lot of cases, yeah.

0:26:06 Thomas: They Have thought, but they would have thought there's got to be some things that can't be in a contract, right? But they just thought like this, this was fine. I don't get it. I mean, could they have contracted, you know, uh,

0:26:16 Andrew: To for The for the hit man, right? Like, you Know, I Paid You a million dollars to kill, you know, Thomas, and you took my million dollars and didn't kill him. Um, I Don't, I don't think you want to promote that one, Thomas.

0:26:17 Thomas: Yeah. Exactly. Yeah. Patreon. Goal. Oh.

0:26:33 Andrew: So there's nothing in the case that sort of defines the contours. But let me see if you find this language slightly familiar after a certain confirmation hearing that you may have paid attention to. So talking about various, the 60 hour work week, the safe working environment laws, other things, uh, the Supreme Court, and this is a 6-3 decision, I should say, uh, says these various sections may be wise and valid regulations, and they certainly go the full extent of providing for the cleanliness and healthiness, so far as possible, of the quarters in which bakeries are to be conducted. Adding to all these requirements a prohibition to enter into any contract of labor in a bakery for more than a certain number of hours in a week is, in, in our judgment, so wholly beside the matter of a proper, reasonable and fair provision as to run counter to that liberty of person and free contract provided for in the federal Constitution.

0:27:29 Andrew: So in other words, what the Supreme Court said was, yeah, no, I know you're talking about, you know, the the the laws that say our employer can't, you sprinkle arsenic on you every 20 minutes, you know, the kind of basic minimum health codes. But but isn't that enough? Right. Like, really, we should pile on top of that. And if we were to pile on Top of that, that would run contrary to the liberty of person and free contract provided by the Constitution. So so there you go. Our number four, again, chronologically, not in order of importance.

0:27:56 Thomas: Right.

0:28:04 Andrew: Lochner versus New York ushered in the Lochner era, considered the lowest point in in American jurisprudence by by most lawyers, even by most conservative lawyers.

0:28:15 Thomas: Is It time For number three, okay. Number three.

0:28:19 Andrew: It is. All right. Number three is Buck versus Bell from 1927. This is a really short

0:28:25 Thomas: I Hope It's Joe Buck being sued. For being the worst, uh, announcer. I don't know, he's the plaintiff. Huh. Darn. Yeah. I

0:28:33 Andrew: In. Yeah, in 1927, but oh, my gosh, Gosh, I would totally join as a class action plaintiff.

0:28:38 Thomas: Know. Maybe.

0:28:39 Andrew: God, he's terrible.

0:28:41 Thomas: Just, maybe some time traveler went back and tried to nip it in the bud, just, just before. Yeah, anyway. It's not that. So you're saying not that?

0:28:46 Andrew: OK. Not that this decision was written by Oliver Wendell Holmes, considered the in many cases to be the most brilliant justice in Supreme Court history. This is an eight one decision. Justice Pierce Butler dissented, but without a written dissent. So just there's a single line that says, Mr. Justice Butler dissents. And here's the case. This case comes to us on the contention that a statute authorizing the judgment, and I'm going to tell you that in a minute, is void under the 14th Amendment as denying the plaintiff due process of law and equal protection of laws. Laws. Carrie Buck is a feeble-minded white woman, yes, the Supreme Court felt that important to say that, who was committed to the state colony of the state of Virginia, above mentioned in due form.

0:28:48 Thomas: Okay.

0:29:35 Andrew: She's the daughter of a feebleminded mother in the same institution and the mother of an illegitimate feeble-minded child. She was 18 years old at the time of the trial of her case in circuit court.

An Act of Virginia recites that the health of the patient and welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, and that the sterilization may be effected in males by vasectomy and in females by salpingectomy without serious pain or substantial danger to life, and the commonwealth is now supporting in various institutions many defective persons who, if now discharged, would become a menace, but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and society.

And that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc. so this case, as as you can tell from that preamble, upheld the Virginia statute requiring the compulsory sterilization of, quote, feeble-minded individuals. And Oliver Wendell Holmes, our most celebrated Supreme Court justice, writes, the The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. There's a citation of case and then ending with what this case is known for among our lawyer listeners: three generations of imbeciles are enough.

0:30:41 Thomas: You.

0:30:56 Andrew: I don't think too much more need to be said. This is a 1927 decision, uh, that says it's perfectly okay to sterilize, uh, people who are considered mental defectives, and that that That somehow does not violate due due process of law.

0:31:12 Thomas: You know, something I should have been asking you, Andrew, if I were a better podcast host. When were these overturned? Because you talked about all of the more, or maybe not all of them necessarily were overturned, but I think most, most of them. So catch us up on that.

0:31:26 Andrew: Sure, so Dred Scott v. Sanford, not explicitly overturned, overturned by the enactment of the 13th, 14th and 15th amendments after the Civil War. Lochner v. New York overturned by the 1937 case West Coast Hotel Company versus Parrish. And in that case, the Supreme Court upheld Washington state's minimum wage laws. So when and obviously right if if 60 hours a week is unconstitutional, minimum wage laws were also held unconstitutionally in the Lochner era. This, you might recall dimly from your U.S. history days, was as part of the Roosevelt court packing plan, which I would add is still a viable option.

0:32:17 Andrew: I don't want to give President Trump any ideas, but the Lochner era extended through the 1930s. President Franklin Roosevelt was enacting various New Deal policies that were, I think it is safe to say, were influenced by the philosophy of socialism at the time, were meant to curtail the absolute freedom of capitalism with a concern for workers.

0:32:50 Andrew: The Supreme Court was invalidating many of the provisions of the New Deal. And an FDR threatened to pack the court, expand it from nine to fifteen and appoint six new justices that would that would all support the New Deal. And then ultimately, you know, the court wound up repudiating the Lochner era that began with with the West Coast Hotel case in 1937. So that remains a live option. Right. Like it is it is. It is valid. The Constitution does not prescribe the number of Supreme Court justices. So I don't want to give anybody any ideas, but you absolutely could expand the Supreme Court. So that's

0:33:04 Thomas: Wow. Yeah. No kidding. I might cut

0:33:35 Andrew: Lochner.

0:33:35 Thomas: That out. No, I'm just kidding.

0:33:36 Andrew: Lochner overturned in 1937. Buck v. Bell, 1927, never expressly overturned. The case that is typically recognized as marking the end of the Buck v. Bell period is a 1942 case called Skinner versus Oklahoma. Um, after that, and and and for the period thereafter, uh, the philosophy of um, of eugenics, uh, in the United States and around around the world really, uh, kind of dwindled away, that the the that that notion that

0:34:14 Thomas: Well, it got some bad publicity around.

0:34:14 Andrew: Yeah, Well, you might you might think, right, like 1942, you know, you're don't, yeah, you don't have to draw too many dots together to figure out why that happened.

0:34:17 Thomas: Yeah, yeah. In all those Holocaust centers. Yeah, all right.

0:34:26 Andrew: So that's, that is Buck versus Bell.

0:34:27 Thomas: That's number three. Yeah, okay. It would have been much better if it were a preemptive case to end Joe Buck's uh announcing career. Uh, number two, yeah.

0:34:28 Andrew: Yep.

0:34:37 Andrew: Number two, Korematsu versus United States, 323 U.S. 214, 1944. Uh, Korematsu is the decision that uh upheld the removal of uh Japanese American citizens to internment camps. Um, I, am going to reading the conclusion of the majority opinion? Um, is said that we are dealing here with the case of imprisonment of a a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camps because of racial prejudice. Regardless of the true nature of the assembly and relocation centers, and we deem it unjustifiable to call them concentration camps with all the the ugly connotations that term implies, we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice without reference to the real military dangers which were presented merely confuses the issue.

0:34:54 Thomas: Oh.

0:35:46 Andrew: Korematsu was not excluded from the military area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our our West Coast, and felt constrained to take proper security measures because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders, as inevitably it must, determined that they should have the power to do just this. There was evidence of disloyalty on the part of some. Some, the military authorities considered the need for action was great and the time was short. We cannot, by availing ourselves of the calm perspective of hindsight, now say at the time that these actions were unjustified.

0:36:37 Thomas: My favorite part about that one is the, well, it has nothing to do with his race or anything like that. But anyway, it's all about his race and the fact that we're fighting. It was weird that it even bothered, like, at first it tried to sound like it's nothing to do with his race, you or heritage, and then it instantly was like, well, they decided that it had everything to do với his race and heritage, and so therefore it's fine.

0:36:58 Andrew: And I deliberately wanted to read the court's language without comment because I think it speaks for itself. I mean, we have seen similar language well, again, I said without comment. So I will leave it to our listeners to make that application. And to follow your prior question, Korematsu versus United States, never overturned. Still, technically, good law, but a couple of things. Number one, one of the legal briefs in support of Trump's executive order as the Muslim ban cited as part of the string site Korematsu versus United States as part of precedent in favor of doing so. And we did not cover that as massive outrage. Agent. I can tell you the reason why is has to do with how lawyers look to see if cases are still valid. Now, again, is mind boggling to me that anybody who's been through law school would not recognize the Korematsu

0:37:11 Thomas: Yeah. Oh. Okay. Likely.

0:37:27 Thomas: Yeah.

0:38:03 Andrew: Decision. It's it's it.

0:38:06 Thomas: But. It. Was more of a mistake of not recognizing. It it. Then, yeah.

0:38:08 Andrew: Yeah, it's infamous and Notorious. But what you, you do is there's a um, there's a process called shepherdizing a case, uh, and it it stemmed from, it used to be, Shepherds was the publishing outfit and you had to go to the books and you would look at a book, uh, and you would flip to the page and look up your citation and it would say whether uh there were subsequent decisions that overturned or criticized it. Um, I will tell you, I learned, I mean, you know, I didn't go to law school in the Cretaceous. Right. Like, I was there with my good buddy, Ted Cruz. We, this is well established. And and and I learned to shepherdize with books, even though at the time it was clear, like, we were moving to the way you shepherdize now.

0:38:10 Thomas: Okay. Yeah.

0:38:24 Thomas: That.

0:38:54 Thomas: Would.

0:38:54 Andrew: Is you. Yes, exactly.

0:38:55 Thomas: Be like, that, that activity you're describing sounds like the main use of computers, like that was like people. Were like, we need computers because this is freaking ridiculous. That we. Have to keep doing.

0:39:04 Andrew: Exactly right. And. Today.

0:39:05 Thomas: This. Type.

0:39:06 Andrew: What you do is you pull up a case.

0:39:09 Thomas: It. In, yeah.

0:39:09 Andrew: On. Either Lexis. Or Westlaw and it.

0:39:09 Thomas: Yeah. Color-coded.

0:39:11 Andrew: Has a little picture next to it. And that picture is blue, green, yellow or red. Right. And blue means it's never. Yeah. Blue means it'S a valid decision that'S never been cited. Green means it's a valid decision that has been cited. Yellow means it's a valid decision, but there are cases that criticize it. And red means it has been overturned. And so if you pull up Korematsu versus United States, it will have a yellow button next to it. So if you are assembling a string site of cases in support of X proposition and Korematsu says that, words are having trouble coming out of my mouth because I don't want to say you can cite Korematsu in a brief. Like, that's a horrifying thing to say. But I can understand the process by which that that happened. Again, I would never cite Korematsu in a brief.

0:39:20 Thomas: Right. Yeah.

0:40:06 Andrew: Nobody should cite Korematsu in brief. But that's how that happened?

0:40:06 Thomas: We. Got it. All right, it's time for number one.

0:40:12 Andrew: Number Yeah. One, the most Most recent terrible decision is Bowers versus Hardwick, and that is 478 U.S. 186 from 1986. And this case involved a Georgia law that criminalized sodomy by committing that act with two adult males in the bedroom of one's home. And so, uh, there, I don't begin to know how one gets arrested for such a thing. Uh, yeah.

0:40:44 Thomas: To hear how the. Justification for this one.

0:40:46 Andrew: So, respondent brought suit in federal district court challenging the constitutionality of the statute insofar as a criminalized consensual sodomy. He asserted that he was a practicing homosexual and that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest and that the statute, for several reasons, violates the federal constitution. The district court granted the defendant's motion to dismiss for failure to state a claim, which this court then summarily affirmed. A divided panel of the Court of the Appeals for the 11th Circuit reversed. Um, so you have a, you have an action for declaratory judgment saying, hey, look, I'm a homosexual. This statute criminalizes consensual sodomy. That violates the Constitution. I want a declaration that that is unconstitutional. I'm in imminent danger of it being enforced against me.

0:41:34 Andrew: The Supreme Court summarily affirmed, went back down, came up on appeal to the Court of Appeals for the 11th Circuit. And that court, uh, held, uh, that based on some of the cases that we've talked about, where we talked about Griswold versus Connecticut, that recognized the right of consenting adults to purchase contraceptions, and Roe v. Wade, uh, the that the Georgia statute violated the respondent's fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the due process clause of the 14th Amendment. The case was remanded to trial. Because other courts of appeals have arrived at judgments contrary to that of the 11th Circuit, we granted cert. OK, so split among the circuits.

0:42:19 Andrew: 11th circuit says, yeah, in light of what the Supreme Court has said in Griswold and Roe and some of these other privacy decisions, it seems like the state ought to stay the hell out of people's bedrooms. Um, here's what the Supreme Court says in looking through all of those, and I'm just not going to talk about that. Loving versus Virginia is in there, which is the case that that prohibits uh banning interracial marriage.

0:42:40 Thomas: Right. Yeah.

0:42:41 Andrew: Right.

0:42:41 Thomas: Blah.

0:42:41 Andrew: Accepting the decisions in these cases and the above description of them, we think an evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated either by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from, straight, from state prescription is unsupportable.

Aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that, despite the language, that despite the language of the due process clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the the processes by which life, liberty, or property is taken, the cases are legion in which those clauses have been interpreted to have substantive content, that to a great extent are immune from federal or state regulation or prescription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language, right?

And so basically they're saying these cases are not closely tied to the text of the amendment. Uh, and then they say, uh, they talk about the language of um fundamental liberties that are implicit in the concept of order, ordered liberty. So in other words, they are dealing with the penumbra argument, right? And they, and then again, they, the Supreme Court

0:44:16 Andrew: Says it is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Prescriptions against that conduct have ancient roots, and then, and, you know, blah, blah.

0:44:30 Thomas: Blah blah. States rights, uh, sure, uh, we don't like gay people, end of, end of decision. It's

0:44:38 Andrew: Yeah. I mean, you have you have characterized this, right?

0:44:41 Thomas: Alarming how. Recent. That that.

0:44:43 Andrew: Yeah. Nineteen eighty six.

0:44:43 Thomas: Uh. Decision. Was, yeah.

0:44:45 Andrew: And and the dissent. This is the only case on the list that is five four. And the liberal wing at the time, Harry.

0:44:45 Thomas: Yeah. Well, at least there's that.

0:44:53 Andrew: Yeah. Blackman, Brennan, Marshall, and and and John Paul Stevens said, "I mean, to me, this is just as devastating as a dissent gets. This case is no more about a, quote, 'fundamental right to engage in homosexual sodomy,' end of quote, as as the court purports to declare, then Stanley v. Georgia was about a fundamental right to watch obscene movies, or Cats v. U.S. was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about the most comprehensive of rights and the right most valued by civilized men, namely the right to be let alone. The statute at issue denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity. The fact that moral judgments expressed by the statute may be natural and familiar ought not to conclude our judgment upon the question about whether statutes embodying them conflict with the Constitution of the United States."

0:44:53 Thomas: Yeah.

0:45:48 Andrew: "Like Justice Oliver Wendell Holmes, I believe that it is revolting to have no better reason for a rule of law than 'so it was laid down in the time of Henry IV.' It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the path. I believe we must analyze Respondent Hardwick's claim in light of the values that underlie the constitutional right to privacy. If that right means anything, it means that before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is, quote, an abominable crime not fit to be named among Christians.

0:46:04 Thomas: What a crappy decision and what a great descent. Jeez.

0:46:35 Andrew: Yes. Bowers v. Hardwick was overturned in Lawrence v. Texas, 539 U.S. 558, 2003. So 2003, meaning that in 2002, it was legal for states to criminalize private, consensual homosexual behavior. And again, I would love this is another one of these maybe we should have done this episode before. But I would Love for someone to ask Neil Gorsuch, where he stands on Lawrence v. Texas and Bowers v. Hardwick. Um, is, it, there is, there was no consistent originalist view in which you can say Bowers v. Hardwick was, was wrongly decided. Uh, and look, Lawrence v. Texas, uh Scalia had a scathing dissent in that. There was there was a 6-3 decision Scalia, Rehnquist, Thomas were wrote in dissent and Scalia's dissent in which he, you know, sort of mockingly said, well, you know, if we recognize a fundamental constitutional right to sodomy, what's next? Letting gay people get married directly,

0:46:46 Thomas: 2003. Oh, my gosh.

0:47:11 Thomas: Yeah, God. Yep.

0:47:44 Andrew: Directly led to the it was, was cited by the majority in the Obergefell decision, decision. So, um, uh, that is, you know, we know, we've, well, we've gone through, like, you know, it, it, the defenders of, of, uh, course, such, have noted his humor, uh, and his detractors have have described his writing as, as sarcastic. Look, as somebody who writes plenty of sarcastic stuff all the time, uh, there's nothing wrong with having a sarcastic personality, uh, but when you write Right. A sarcastic dissent, it can often come back and bite you.

0:47:50 Thomas: Take that, Scalia.

0:48:16 Andrew: And this is this is an example of that. So those are my in no particular order. I do not. And look like Bowers v. Harder was a terrible decision. Right. It's not worse than Buck v. Bell. Rightly so. Not not not in order, but in chronological order. Those are my top five Supreme Court terrible decisions worth departing.

0:48:16 Thomas: It really did. Wow. I love it. I love it. Clickbait and then there's the next, uh, there's the next slide, which will be, you support our site or something, I don't know, there's always there's always the one after it on the clickbait thing. Yeah, but no, there's none of that here except to say patreon.com. Okay, great, great list, Andrew. That was a lot of fun, and boy did I learn a lot in that, uh, packed into those. We could have done a whole episode on any one of those, but, uh, but thanks for taking us through your personal list, in no particular order, of five really horrible Supreme Court cases.

0:48:42 Andrew: Yeah this one you thanks thomas I had a lot of fun

0:49:11 Clip: The law breaking down

0:49:17 Thomas: All right. Let's get to breaking down the law as usual. Once you heard that, oh, I had the funniest thought, Andrew. Maybe, and again, trying not to hit the Patreon stuff too hard here, but I just thought of another thing. Live show, I can promise a live performance of breaking down the law.

0:49:34 Andrew: My gosh okay we've got to make that happen because

0:49:37 Thomas: Come on, patreon.com slash live, everybody. Live performance of the brilliant, my remix of breaking down the law. All right, but that aside, breaking down something, you've actually, we did a lot on arbitration, a somewhat recent episode, but you this involves a rule recently passed that entails mandatory arbitration in Cook County. What's going on here, Andrew?

0:49:37 Andrew: Yeah Yeah.

0:50:03 Andrew: This was sent to us by a listener. Um, effective October 1st, 2016, so it's been in effect for about, uh, right, yeah, uh, but you know, seven months ago, uh, mandatory arbitration is required in commercial cases that are filed in the uh courts, state courts, in Cook County, Illinois. And as our friends at Cognitive Dissonance can tell you, Cook County, or anybody who is a fan of the Blues Brothers, uh, would, can tell us that, Cook, Cook County, Illinois, is the county that encompasses the city of Chicago. So big, big county. And Cook County local rules section 25 says the damages are $75,000 or less, including cases, but not limited to breach of contract, employment disputes, employment discrimination, civil and commercial fraud or conspiracy, interference with business relationships.

0:50:12 Thomas: So before the world ended, but yeah, a month before. Do

0:51:02 Andrew: And shareholder disputes will be referred to mandatory arbitration taken out of the courts and sent to an arbitrator. And, we talked about sort of the pluses and minuses of arbitrating your case. Case. The big minus in arbitrating your case, depending on what side you're on, is that a final rule in arbitration is essentially unappealable on the merits. You may only challenge, move to modify or overturn an arbitration award if there were procedural defects of the kind that we talked about in our prior episode. So this really, you know, when you think about you're in a typical lawsuit, you have a trial and you have at least one appeal as of right.

0:51:50 Andrew: This takes that away. This says if you sue somebody for breach of contract, it's under $75,000. And look, like, that's real money, right? That get shunted off to mandatory arbitration and you are deprived of the opportunity to go to court. So really, really interesting. I imagine that as a result of this, that there are a lot of motion. Let me tell you, if I practice law in Illinois, what I would be looking to do is move early and often for partial summary judgment on complaints that were over $75,000 to try and knock them down and get them to quantify and say, Hey, look, we're below this seventy five thousand dollar threshold.

0:52:36 Andrew: Therefore, this rule kicks in. Right, because typically, you know, what will happen in a typical civil lawsuit is, you know, you you allege the facts and you alledge every cause of action that could plausibly fit those facts against every party against whom that might apply. And assuming that you've survived a motion to dismiss, we've talked about that, as the case goes on, will discover certain facts that will make some of those claims not tenable. Right, and you know, what happens is the plaintiff will sort of narrow their focus. You might have a motion for summary judgment, for partial summary judgment, on some of those claims, or the plaintiff might just voluntarily drop those claims before trial. I would be very, very aggressive because if the way in which you get over that $75,000 threshold is by having six causes of action that each sort of, you know, they may potentially overlap, but they add up, or whatever.

0:53:31 Andrew: However, you know, this is a way to get a case off the docket and to arbitration, which, from my view as somebody, again, who primarily does defense work, that's a win in litigation if you can get it off the docket. So I thought this was a really, really interesting rule. It follows up on something we did. It's a little bit of, you know, kind of and business. Yeah, but if you're, if you're sued in Cook County, Illinois, some other states have have similar provisions. But I don't know of anything that's this expansive. I certainly don't know of anything that's this expansive

0:54:04 Thomas: You think it's a result of overcrowded courts?

0:54:04 Andrew: Yes of course it is, yeah, yeah, and again, right, I mean, we're talking about Chicago, we're not talking about, you Idaho, uh, this is the bluest place on earth, uh, but but the reality is, I mean, I could share this, I've mentioned before, uh, you know, I sit on the uh, the uh, Board of Governors for the Federal Bar Association of Maryland, uh, and we discussed in our last meeting, um, promulgating uh, potential policies and discussing uh, the reality of what if there's another uh, sequester, what if there's another government shutdown, what if the courts are underfunded, because on that board are uh, a lot of uh, judges in the state of Maryland's, uh, that it really affects the court. Like, it's you know, we, I mean, we talk about kind of the political implications. But when you say, yeah, we're just going to cut, you know, 30 percent from all federal agencies, like cutting 30 percent from the courts means firing clerks and not hiring judges to fill vacancies. And people still sue people. And so during the last year.

0:54:07 Thomas: Yeah. Okay. Yeah. Yeah, you know, let me ask you something because it seems like we got a little time here. Could I ask your opinion, Andrew Torrez's opinion on this? So it's pretty much, it seems to be pretty much everywhere, But but especially in a place like Chicago sounds like or wherever, whatever example you want to pick, where the courts are incredibly overcrowded you've talked about the long delays and getting seen, you've talking about all this stuff like arbitration that they do to try to try to lessen that. What in your Andrew Torrez lawyer view is the main problem? Is it is there some like if you could again like wave a magic wand or something? Is Is it a funding problem? Is it like we need more resources in the courts to be able to do this? Is it too many people sue too many people problem? Is it what I'm just curious?

0:55:09 Andrew: Yeah, sure.

0:55:55 Andrew: Yeah. Great question. And let me say that the political ire is typically directed along, you partisan lines of, you know, frivolous plaintiffs lawsuits. I have spoken on this podcast about plaintiffs, lawsuits that I think are frivolious and that are are incentivized to continue to go to trial.

0:56:02 Thomas: Mm-hmm. Right. But if I recall, largely, you don't think that's the issue.

0:56:16 Andrew: No, the largest issues are the of law that I left, which is to say big firm law by one member of the, you know, by one company that is in the Fortune 100 against another company that isn't the Fortune 100, where both sides have lined up a high-priced legal counsel. That is going to include, you know, a dozen lawyers on each team, each of whom are, you well compensated. And and the case will then, you proceed to discovery of millions of pages of documents. And there will be a dozen expert witnesses on each side. And so basically, like when you have a multinational corporation, they can afford uh and and they do in in every case uh to bring sort of the the maximum uh pressure that they can

0:56:24 Thomas: And

0:57:11 Andrew: Possibly bring to bear in any particular lawsuit, and so you get two of them bumping up against each other, and these lawsuits just take uh they take years to resolve and they clog up the die and there's time well everybody's incentive, right? Like, look, again, I was there, right? Yeah, if Microsoft is footing the bill. Uh, and they say, yeah, we got $200 million at stake in this case. So, uh, if we pay 5 million bucks to you, uh. You know, to litigate it out then and win, you know, that that's a net 195 million to us. And so, you know, what you do is you file motions at every stage. You look at every single document you stat, you.

0:57:22 Thomas: There's lots of little procedural things that go on. Yeah.

0:57:42 Thomas: Yeah. Yeah, everything's contested. Everything's.

0:57:52 Andrew: That is, and I think everybody, I, you you know, we, we our political opinions or our political opinions. I would, I would gladly welcome anyone listening to this show to, you to dispute that I know I've got some of my friends from big law who still who listen to the show. I think regardless of where you come down left right center, that if if you're a lawyer, if you're involved in the judicial process, that what sucks What sucks up the oxygen, what sucks up the time and what, you know, sort of occupies the court's civil docket are mega scale civil cases that are just litigated all the way down to the bottom.

0:57:52 Thomas: Yeah interesting. Interesting.

0:58:30 Thomas: So last follow up would be assuming, you know, we take that on, take take that as as as the main culprit. Is there anything that can be done about that, or is it truly a supply problem where you need to be able to supply more court resources to to accommodate? Or is there any way to cut kind of the demand on court resources?

0:58:31 Andrew: Yeah. Yeah. Well, one one way to to cut the demand is to continue in the direction of having corporate relations governed by contracts that are subject to arbitration. Um, because, and if you think about it, I mean, to me, in my view, you know, that's, that's sort of the best of all possible worlds, right? Like you're, you're essentially, you know, saying, okay, you know, Microsoft and Lloyd's of London, again, both former clients of mine, so I'm not picking on either one, uh, can both kind of exempt themselves out of the process. They pay the arbitrator, uh, you know, you've removed yourself from the court docket, and and and, then then you can litigate the case up on both sides to your heart's content. But you're not, you're not blocking the access to the courts that, know, that that that the next person in line needs.

0:59:34 Thomas: The common people need.

0:59:36 Andrew: Yeah. Yeah. So that's my view.

0:59:36 Thomas: Yeah. All right. Interesting. Well, thanks. Thanks for that opinion. And I appreciate it. So it makes sense to me. And I guess you seem to have a pretty favorable view toward arbitration in general. So maybe this is not not such a bad thing. This this law.

0:59:50 Andrew: Yeah. Well, I do a nuanced view. Hopefully I mean, go back to go back to that away. But But yeah, look, I think between two Fortune 100 companies, I like the The arbitration and the arbitration process has merged so sufficiently with the civil litigation process that, you know, I think it's kind of fair at the end of it. You All

0:59:52 Thomas: Sure, sure. Cool. Well, you know what? It is our favorite time. It is. I shouldn't say that. It's our co-favorite time. And that is Top Hall of Fame Patron Friday, and hopefully, you know, maybe one day Scott will find himself among the future patron. Scott from the first segment will find himself among these names, but nevertheless, we've got a lot of people to thank.

1:00:33 Andrew: So thank you to Roger Metcalf, Danny Rosari, Eli Bosnick, although I'm not sure how sincere that thanks is given last week's scathing atheist. Uh, thank you too, Dave Nichols of Positively Doubtful Podcast, Steve Sigman, Jim Grove, Desecrator, Patrick Fussell, thank you to Amanda Lipnack, long-standing personal friend of mine, actually, uh, thank you to Heather Loveridge, Geeker 41, One Sean Pity, Ian and Ali, thank you Matthew Vernon, Violet Page Hall, thank you sort of to Heath Enwright, to Jeffrey Mainer, the Wayward Willis Detective Matthieu Max, and that is a sincere thank you, uh, Zena, Dave Lovely, Danny Baker at Combat Nonsense, thank you to our friend Charone Frankel, the host of the delightful podcast Habeas Humor, uh, I can contest to that, delightful, uh, thank you to Squick Thinger, Ian Ryan, Matthew Hillier, Aaron Graddy, and to the You Are Here sci-fi audio drama. Thomas, why don't you take it away? No,

1:00:42 Thomas: Absolutely.

1:01:33 Thomas: My pleasure, pleasure. Thank you so much, Brandon Smith, TV Is My Girlfriend, C6 Sarah, Hunter Ash, Torsten Skrv, Adopt a Homeless Pet and Oppose Declawing and Ear Docking, Philip Stromberg, John Bodley, Esquire, Kaylee Reiser, Jeff S., Sakashite Fukasumi, Michael Schaefer, Michaela, The Electronic Frontier Foundation at EFF.org, The Inciting Incident Podcast, Marissa Alexa McCool and her snarky publishing stuff, The NetSec Heathen, Jessica Wilson, Frederick Alstromer, Reeven Michael Ropps, Conrad Michaels, and Zabby, thank you guys so much. If indeed we ever get to hear the live performance of Breaking Down the Law, it will be mostly because of our top patrons, our Hall of Famers, our all-time greats. But Also, everybody over on patreon.com/law, and I hope you enjoy all the bonus content. All

1:02:24 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:02:30 Thomas: Now, with that, again, the most pleasant part of the show over, uh, time, time for, uh, Thomas about to get another question wrong, takes the Bar exam. Okay.

1:02:37 Andrew: You're Gonna, you're going to get this one right, I feel good about it.

1:02:40 Thomas: All Right, I, I need to, otherwise I'm at 50. This is Really Pivotal.

1:02:43 Andrew: All Right. Well, This Is an opportunity, uh, for you to, uh, maybe revisit, uh, question number 18. So, all right. A regulation prevents persons with a drug arrest and conviction and or those undergoing current treatment for drug abuse from working in certain state run facilities for the safety of the general public. One employee of the Department of the Treasury brought an action claiming a denial of equal protection and due process by taking away his right to a job.

It is claimed that the prohibition is necessary to protect the public from potential problems that could arise. Which test of constitutional validity would likely be applied to this regulation? Okay, regulation is if you have a drug arrest and conviction, or you're undergoing treatment for drug abuse, you can't work in certain state run facilities including prisons, safety, employee of the Department of the Treasury says, Hey, this is deprivation a of substantive due process by taking away my right to a job. Presumably, he's undergoing drug abuse treatment. So which test of constitutional validity gets applied to the regulation that prohibits hiring somebody with a drug arrest and conviction or undergoing treatment? A, strict scrutiny, since drug users are a special class of persons often discriminated against by the public. B.

1:02:45 Thomas: Okay.

1:04:09 Andrew: Intermediate scrutiny, because like gender, this can be a sensitive area where discrimination is common. C. The rational basis test, because discrimination is generally favored with drug users or even those getting treatment. Or D. The Rational Basis Test, because the regulation need only be related to a legitimate state interest to be valid.

1:04:30 Thomas: Well, it does sound a lot like that question, doesn't it? Um, the first, yeah, the first two really didn't sound right to me, uh. Odds wise, rational basis seems to be 50% of the, of the possible, uh, tests. So that seems that it seems that now I'm worried that it's leading me, uh, you know, down the wrong path here, but certainly the last one sounded the most reasonable to me, because it seems like if you have a, enough of a, of an estate interest in it, that, uh, that, that would be the test you would apply. Uh, so, I mean, I'm thinking it's gotta be D. I just, the first two don't, don't seem right at all. And the third one, which would be, of course, C, would be the same test as D. Um, it, it really sounds weird to me to say, discrimination is like preferred.

1:05:19 Thomas: I maybe that'll end up being right. I hope not, but I'm going to say D and I'm at 50%. No, I'm gonna say D. We'll see if I can stay above 50%.

1:05:31 Andrew: All right. And if you would like to play along with Thomas and either stay at or above 50 percent or as I know, because I get tweets on this all the time. I know most of you are already 23 for 19. So if you want To continue your, your better than 100 percent ratings, play along. What we do is we announce the show on Twitter, that our account is at Open Args. So quote and retweet our announcement and include within that your answer, maybe the hashtag TTTBE, and include your answer and reasons. Therefore, lots of people have done creative things like including screenshots as a, as a graphic, when they want to give a lengthy explanation. Sometimes we pick that. Sometimes we take really, really short, pithy ones. Sometimes we pick wrong answers that make us laugh, uh, but, all the time we pick answers that, uh, bestow upon our winners endless fame and fortune, uh, and uh And so, play along, submit your answers, submit your reasons, and uh, maybe we'll get you a shout out on the show.

1:05:43 Thomas: Yeah.

1:06:34 Thomas: Same goes on Facebook. And if you want Thomas's tip for this week, I can tell you how to win this test. Go with C because it's probably the right answer. And because I guess D you see. And so when I'm ever deciding between two, it's always the one I didn't guess. So that's probably, you'd probably be at 98%. You'd probably be at like 18 for 19 if you use that strategy. So definitely do that. I'm worried because drug users don't, I don't think they're any sort of protected class. So I don'T know why you would need any, any real screw. Well, but then again, they, they hadn't committed any crime in ways either if they can been convicted of a crime or receiving treatment. I don't know. So it'll be C. Anyway, play along, have fun.

1:07:20 Andrew: But Thomas, let's Be clear, Thomas guessed D, so

1:07:24 Thomas: I guess D. Yeah, so guess C. All right, that's our show for today. Thanks so much for listening. Thanks so Much to our very fine patrons, and thanks to our very fine Andrew Torrez as well. We'll have to see you guys next week.

1:07:47 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.