OA400: No, John Roberts Is Not Your Friend

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 400. 400. I’m Thomas Smith. That’s Andrew Torrez. How are you doing?

0:01:25 Andrew: I am 400 kinds of fantastic. How about that? How are you doing?

0:01:29 Thomas: Oh, wow. You know, I'm doing great. All right. Cat's out of the bag. I did a little surprise for our 400th episode. I arranged a lot of not really good news. It was me, it was me, guys. Surprise 400. Oh, yeah.

0:01:39 Andrew: Oh, yeah. Yeah, this is this is not going to be. Every once in a while we have the shows where we put the little, like, yellow happy face on the cover in the show notes. This isn't going to, but um well

0:01:46 Thomas: Yeah you know I just want, it's 400, I want to celebrate what the show has been about for the last 400 episodes, which is bad news in fairness, I think what was it, like the first, I don't know, 30 were like good news so I'll have to check

0:02:00 Andrew: Crushing people's hopes and dreams. Yeah, exactly. Yeah yeah yeah we had we had a, we had a good two dozen that were, you know, mostly optimistic. Do you remember that the episode we did on what happens if the GOP tries to dump Trump from the ticket and

0:02:14 Thomas: Yeah yeah yeah back in those days, it was like we were doing a course or something, like it, you know, it was just a educational

0:02:23 Andrew: Oh, oh god, god uh yeah online it was it was, that was the division online law school, you know Great Courses updated uh once a week, yeah, but good times

0:02:30 Thomas: Yeah yeah great courses yeah good times, well uh and you didn't hear the new intro because, uh, you know, we argued a lot about this during the year 2000, there was no year zero or episode zero, so the new outro starts on 401, everybody, so tune in for that. Thanks for all your suggestions, and, uh, I'll be working on that, uh, soon. Anyway, uh, we've got a lot to talk about. I know I got a little thrown off because we had the Q and A on, what was it, Tuesday. Uh, that Is was a lot of fun. Thanks everybody for coming. And I, that in my mind went down as an episode because we recorded together. And then today I'm like, wait a minute, we haven't talked about, uh, a lot of the decisions that have been coming out of the Supreme Court so there's a lot to talk about, and some good, some bad, right? I mean, so it's a mixed bag, right?

0:02:38 Andrew: Yep no no we've not, yeah um it's, it's a mostly bad back, um, but yeah, a little bit of an an advance warning. The decision that came out yesterday was Espinosa versus Montana Department of Revenue, which is Montana's scheme to divert public funds to religious schools. Weirdly, and this was a bridge far enough in trying to extend the doctrines set forth in Trinity, Lutheran, and Masterpiece such that it lost Kagan and Breyer, right? So it was a 5-4 decision. They finally realized where, you know, the accommodationist Roberts Court was leading them on First Amendment issues. Would have been nice if they'd figured that out, you know, five years ago, but okay. It is terrible, and I don't understand. There's like this kind of rush in sort of mainstream and left-of-center news sources to say like, well, you you know, this isn't that it's terrible. We're going to have a longtime friend of the show, Andrew Seidel on, uh, not this coming Tuesday, but a week from Tuesday, right? July the 14th. Uh, and, but

0:03:38 Thomas: Yeah who knows what else will have happened by then, Andrew, yeah that's

0:04:34 Andrew: Well, this law isn't going anywhere and, um, and we're gonna, we're going to break it down, um, in the kind of depth that, uh, that it deserves. It, it needs a full episode, it needs a super angry Andrew Seidel on to uh to help kvetch with us and

0:04:51 Thomas: My favorite, because then I start feeling less guilty for being the angry one on the show, it's nice to have somebody else, you know, to enable

0:04:51 Andrew: Um oh yeah yeah um yeah but no, uh, to, to hold you over for a week and a half, uh, it's bad and don't let anybody tell you it's not bad, right?

0:04:58 Thomas: Okay well, I'm glad it was at least 5-4, I hate those ones that are bad and then it was seven two for some weird reason, you're like, well, that seems weird. Why do it, see, it's just feels easier to argue that it was bad when it's a five four because you have the five clear villains. This is a nice easy Disney storyline that I can latch on to, um, okay, and then, uh, is there another announcement before we get started? Okay.

0:05:19 Andrew: Yeah because news always breaks, uh, literally as, as we are recording today. Today, the Supreme Court granted certiarari in five cases, two which are consolidated. The one that you care about is case 19-1328, which is Department of Justice versus House Committee on the Judiciary. This is the lawsuit coming out of the D.C. Circuit over the frankly preposterous argument by the Trump administration that because impeachment didn't occur in a courthouse, it's not subject to the in a judicial proceedings exception to releasing grand jury testimony. This is about getting the House Judiciary the full unredacted Mueller report, right?

0:06:12 Andrew: What we've talked about, what I have access to, what I have reviewed is the Mueller report with the harm to ongoing matter material excerpted and that

0:06:22 Thomas: That was going to be my question

0:06:23 Andrew: Yeah that largely concerns Roger Stone. Joan, I have a whole episode ready to go about that whenever we have time to fit it in. The House also wants the full unredacted report. They should get it. They are entitled to get it, and you might be saying, well, this seems great, right? The Supreme Court's going to come in. The argument's stupid. It's going be fantastic. These are regular grants of cert, right, and so what this means is this is now calendared for oral argument in the fall term that's right, so it, oral argument in the case will be heard after the election

0:06:31 Thomas: 2028 oh okay cool thanks, uh, thanks for that, Supreme Court, wow

0:07:06 Andrew: Yeah

0:07:06 Thomas: Right on time, again, again you've been amazing these last four years, really helped us out, so

0:07:08 Andrew: Yeah so if your case support, and the reason for that is you only need four votes for cert, which they obviously got, but you need five votes, right, you need a majority of the court to vote to grant an expedited appeal.

0:07:28 Thomas: That seems like a pretty clear signal of where this would head decision wise

0:07:32 Andrew: Yeah, I think this validates the argument I've been taking that as far as I know, no other like kind of mainstream legal news commentators are expressing it. But I feel very confident, you know, not 100%, but, you know, 60% that we're not going to get a ruling in the Mazars cases this term either, that the Supreme Court is going to punt. And if you're looking for reasons to think that I'm right, other than, you know. General belief and faith in my legal prognostication skills, this decision to me is a pretty strong signal that says they want, you know, the Roberts Roberts court is going to give America time to get this right.

0:07:33 Thomas: Yeah

0:08:20 Andrew: And if we don't, if we screw it up, um, they're, you know, they're happy to go along and Roberts will just sort of like throw up his hands and be like, well, I don't really see why I should bother to stop. Like if you people are dumb enough to keep voting for this idiot.

0:08:33 Thomas: Why do I have to be the one that does something about it, this is kind of what he's saying. Well, I'm gonna go ahead and say a Thomas was wrong, then, because I, you know, what it felt to me weird that a bunch of Supreme, or, you know, a handful of Supreme Court justices who were appointed for life, who I don't, I don't think think it would be fair to call, I don't any of them like Trumpers, you know, they've been here, Alito and Thomas, they'd been nuts forever, long before Trump entered the scene, the last time you explained this, it felt more like, okay, why would these people even bother protecting Trump in any way, like what's the point, I feel like they would feel a loyalty to him, these are, and also the assumption that these are open and closed cases, which I think they are, right?

0:08:35 Andrew: Right. Yeah, exactly. Yeah,

0:09:15 Thomas: So this seems weird. This is not really what I thought would happen. Maybe I got, maybe Negatron got caught being a little too Optimus Prime for once.

0:09:16 Andrew: They are. Absolutely. Maybe. I mean, I certainly think when you look at the Kavanaugh confirmation hearings and what a clownhorning circus that was, that there is lingering and partisan resentment and bickering. And I, I think, I think Brett Kavanaugh truly hates Democrats right now, you cannot convince me that that isn't the case right

0:09:34 Thomas: Yeah, yeah, and Thomas and Alito always do, probably. So I think the three of them, sure, but I would have thought they're, you know, like not really Gorsuch, you know, he seems, for everything he is, I don't think he's like a Trumpy guy, but maybe I'm wrong.

0:09:54 Andrew: Yeah no no look like, and and and, again, I mean, think about the way we covered Gorsuch as the nominee versus the way we cover Kavanaugh. I, again, illustrating the unbelievably preposterous argument that, you know, Lindsey Graham was, was advocating of, like, like, oh, well, you know, Democrats are just going to throw, you know, sexual harassment allegations at every nominee. And you're sitting there going like, no, like, we didn't do that to Neil Gorsuch. You know why? Because Neil Gorsuch didn't have that, anything like this. So, uh, yeah,

0:10:34 Thomas: You know what he should have done? I'm surprised he didn't think of this. Lindsey Graham should have been like, oh, they're going to call anybody Lady G. They'll be like Lady G for the next nominee. They'll probably make a whole thing about them and how they have a profile on a bunch of dating apps, I bet, is what they'll do. You'll see. He could have gotten out ahead of that, is what I'm saying. Might have been...

0:10:42 Andrew: Lindsay Graham's, um, self-preservation instincts, uh, appear to be miscalibrated. How about, how about we put it on? Just let it let go of That, yeah.

0:11:06 Thomas: So this is pretty much just bad news, right? This so far that they granted cert all

0:11:09 Andrew: That's it's terrible news and don't worry, uh, it's gonna get worse, so yeah

0:11:13 Thomas: Right well, I guess now my plan is to beat Trump, we got to be Trump in November, now that I think about it, okay, all right, we better do that, okay well, breaking news, you heard it here first, everybody, uh yeah

0:11:20 Andrew: It's a really good idea. Yeah, well and and, and again, particularly on the unredacted Muller report, which, again, look, like, none of this is about, right, holding, putting individual members of Trump's administration, uh, and his inner circle in jail, although, you know, so there's certainly, don't get me wrong, you heard me kind of swallow on that. It is about, it is crucial that we know the juicy passage. And I can point to them, right? We know where they are, obviously redacted in what remains in the Mueller report. And the House Judiciary Committee deserves to see those materials. The nice thing is when the Democrats win back the White House in November on January 21, right, January of 2021, the new attorney general, whoever she may be, can go through and order the release of those. Those can say, oh, yeah, look, we're we're now dropping our opposition and we are going to release those materials.

0:11:43 Thomas: I kind of want to do that too, though so new attorney general, uh, Harris, no matter who she might be possibly and she'll probably be VP

0:12:33 Andrew: Yeah. Right. Yeah, if I still think Kamala Harris is probably, yeah. That the I would take her versus the field for VP. But but she's definitely would be attorney general if not if not vice president. So, you know, oh,

0:12:38 Thomas: Yeah yeah yeah well maybe I'm trying to be optimistic, and maybe we can get Elizabeth Warren in there as VP, and she could be AG anyway uh, yeah, okay, well, we need to, we need to beat Trump, everybody, this is, this, we have to vote, because if we imagine if there's four more years of Trump, they just get away with all this, there's nobody can stop them

0:12:52 Andrew: God, that would be anyway. Yeah, yeah, that's right. And that is the case. Yes, that that it that is what is on the ballot in November.

0:13:09 Thomas: Happy 400, that was out, everybody. Now for some more bad news, let's, uh, start the show, there's been an update in the, uh, Florida felon voting, or ex-felon voting, I guess, or either way, um, what's the update, I, I'm bracing myself, it seems not good

0:13:18 Clip: The law breaking down

0:13:15 Andrew: Yeah. Yep. Yeah? You should, because this has mostly gone unreported or misreported, and I understand why. The ruling came out yesterday, and it took me several hours to figure out what the hell was going on. Now, I have figured that out, and I'm here to explain it to you. So, we know what happened in Florida. Last update on this was episode 363, but to do, you know, a 30 second recap, in 2018, blue wave, the state of Florida, 64 to 36, right, a two-thirds, one-third vote, voted to amend their state constitution to permit, uh, and, and let me read the precise language of Amendment four, people convicted of felonies in the state will have the right to vote restored, quote, "after they complete all terms of their sentence, including, including parole or probation."

0:13:34 Thomas: Yeah

0:14:31 Andrew: That brings Florida into line with a majority trend in states that says, yeah, we don't think you should permanently lose your core right of citizenship for a temporary sentence for a felony. And remember, when we say felonies, this bears repeating on on the show over and over again. When we say felonies, what we mean are black people put in prison for possessing marijuana. That is what, statistically speaking, what felony means in the United States, right? Because, you know, you throw it around and you think, well, like, you know, murderers and rapists and, you know, no, it's not a million, right, 2.2 million people in federal prisons, the overwhelming percentage of which are black, the overwhelming percentage of which are therefore drug offenses. The largest percentage of those are marijuana related drug offenses so in other words, right, black people, it is, so I said federal because I was thinking about the federal numbers in prisons, but this is, yeah, anybody convicted of a felony in the state of Florida, so you, you, uh, so you are correct on that, but, but I was just thinking about, because

0:15:14 Thomas: Are you telling me it's not a million murderers that are in, okay but why did you say federal, is that because this is Florida, right, or what oh

0:16:00 Andrew: I happen to have

0:16:01 Thomas: I never thought about that, so what if you are an ex-federal, you know, felon, or what if that makes any sense, um, and you move to Florida, would it be the same thing, like, okay gotcha you

0:16:01 Andrew: Yeah yeah it would, it would be the same thing, yes, um so Amendment four passes, uh, Florida follows the majority, uh, direction, right, now, if not the majority of states. And immediately, because Florida voters also voted in Ron DeSantis as governor, the Republicans tried to figure out how to undo this. And the way they figured out to undo this was a bill called Senate Bill 7066, which said, oh, all terms of your sentence, including parole or probation, also means you have to pay all the fines that were associated with your criminal offense. And to jump to the punchline, statutory mandatory minimums on possession with intent to distribute marijuana, for example, are $10,000 per count.

0:17:06 Andrew: It's led to the point where there is over a billion dollars in outstanding fines. These are fines that from a state budgetary perspective, when you look at the state budget, they have written off. Right? The state has said, we don't anticipate ever collecting these things. They're uncollectible debts from poor people getting out of prison, right? They areinflated because it's not like the state sends the sheriff after you. They hire private debt collection entities to harass you. And as a condition of of that contract, the debt collection entities can tack their fees onto your court debts, which can add 40% onto the total, right? So $10,000, that's what the state law allows. So you owe $10K, the state sells that debt to a debt collector, and the debt collector can then add a $4K administrative fee on top of it.

0:18:02 Andrew: So now you owe$14K. And I could go through the statistics. I could go through the reports. We know what this means. The overwhelming majority of ex-felons cannot possibly pay these fines.

0:18:18 Thomas: Mean, working for, like, 12 cents an hour in the prison that they were in is not going to get them to that, yeah yeah this is just a very, very direct and targeted way to deprive people of their constitutional right to vote

0:18:23 Andrew: Yeah. In a for-profit prison, yeah, that's right. Yeah.

0:18:34 Andrew: It is intended to and did, would have gutted Amendment 4. Now, reported, right, Right. Episode 363. Good news. Here's how we got good news, because what happened was I will. No, it was. And and this process is truly, I was giving an interview on on Mueller. She wrote, I was talking to AJ yesterday when this broke and I described this as the, this is why we can't have nice things, because that that's truly what's happened. So procedurally, what happened? The minute SB 7066 passed, a group of ex-felons on their own behalf and on behalf of the class of all other former felons, right, who can't afford the fines, filed for a preliminary injunction in federal district court in Florida. And they won. That was a case led by Kelvin Leon Jones.

0:18:49 Thomas: Explain yourself likelihood

0:19:39 Andrew: That injunction was appealed up to the 11th Circuit. And March of 2020, we won at the 11th Circuit. And remember, when you win on a motion for a preliminary injunction, one of the things you have to establish, Thomas, is save for everybody.

0:20:03 Thomas: Of success on on the merits, seem like a good sign do

0:20:04 Andrew: Exactly. So in other words, a district court judge said, yeah, we haven't done the merits yet, but you've demonstrated, Mr. Jones, that you're right. That we think there's a, there's a substantial likelihood that you're right. And the 11th circuit disagreed. And, uh, the number of cases in which you grant a preliminary injunction and then on the merits, the judge is like, you know, when I granted that injunction, I don't know what I was smoking that day. Like, uh I thought you were substantially likely to win. Uh, but no, uh you lost. I cannot recall. I'm sure there There are cases. But but as a lawyer, like I've never seen it happen. I've ever been involved in a case in which I I won an injunction and then lost.

0:20:52 Thomas: Do you think it's more of those that have happened, or ones where the government drops a case against you after you've already pled guilty twice to them similar

0:20:52 Andrew: No, no.

0:21:02 Andrew: It's it's definitely. Yeah, no, it's definitely more of the former. Right. I am positive that there are instances of a court granting injunctive relief and then on the merits saying, well, upon review, we were too hasty in granting the injunctive relief, you are going to lose. That's not implausible the way the Michael Flynn case is totally implausable.

0:21:06 Thomas: Okay yeah like just two different courts go

0:21:25 Andrew: Yeah, it's just unlikely, right? It's just very, very unlikely. But 11th Circuit 3-0 panel affirmed. And so we said, look, like this is done, right, like you could appeal to the Supreme Court, which they did not. You could appeal for rehearing on Bonk, which they did not. And, you know, it was time to dust our hands together and say case closed, right? Not so fast. So that March 2020 decision affirmed the preliminary injunction, kept it in place, prevents Florida from kicking felons off, ex-felons off the voter rolls if they have unpaid fines. And then the trial on the merits began. And the trial and the merits went exactly the way that we thought, right?

0:21:25 Thomas: Different would take, yeah, yeah

0:22:14 Andrew: Which was they won really quickly at the district court level because this is a slam dunk case and the facts are pretty obvious. And that which came out at the beginning of June of 2020, was appealed back up to the 11th Circuit. And at that time, the DeSantis administration did a thing that, and I know I keep using this phrase a lot, they did a thing that I have never, ever seen before. This was a pleading filed June 11th. So, you know, two and a half weeks weeks ago, slipped under our radar because it wasn't anything I noticed, saw, or thought had any chance of actually being granted.

0:23:01 Andrew: And that pleading, was a, addition to the appeal, a petition for initial hearing on Bonk. And if you're sitting there thinking, thinking, how in the world is that possible? Congratulations, you're thinking exactly like a lawyer. I've never heard of that, but it is what it sounds like. It says, we don't want this to go to a panel. We want this appeal to go directly to the full 11th Circuit en banc as a matter of first impression. It almost never happens that way. That order was granted yesterday and the order granting an initial hearing on Bonk also dissolved the permanent injunction issued by the district court.

0:23:56 Andrew: Let me translate that for you because I realize that's a lot of legalese. What this means is that three months after having lost in the 11th Circuit, the DeSantis administration, in collaboration with a deeply conservative 11th circuit, came together and crafted brand new relief that should have been foreclosed because the timing for appeal was gone, right? Right? They already had a bite at the apple, right? Like they appealed it up to the 11th Circuit. The 11th Circuit 3-0 said, get out of here. This is fine. They could have gone to the Supreme Court. They didn't. They couldn't have petitioned for rehearing on Bonk. They didn't instead. They went down to the trial on the merits and then appealed that and asked for collateral relief that that again, we have a lot of lawyers who listen to the show. It seems seems obvious to me that that this is ultra virus, that this is relief that the court is not empowered to give because you've waived your right, right? You want to petition for en banc? Yeah.

0:24:30 Thomas: Yeah so who who's in charge of that part, that, I guess I'm confused, so So they do a thing that they shouldn't be able to do, and then the court, I guess, because they also are racists who don't want felons to vote and want to disenfranchise black voters maybe, they're like, "Hold on, let's let you do this.

0:25:20 Andrew: So, well, Yeah, I've got I'm gonna give you some insight on that too. But but but but let's be clear. You have a right to petition any appeal for an initial hearing on bond, right. It's just that it was never granted. And it's just that usually in the overwhelming majority of cases, that initial, that's the meaning of the word initial, right? Like it's the first time the court has heard it, right? So there's nothing inherently wrong about saying, hey, this is a super important case and I want the whole 11th circuit or, you know, whatever to hear my case on appeal. And sometimes people file those, I guess, like I said, I'd never seen one before today and, and always they get denied. What makes it pernicious here is because unlike the pattern that that contemplates, this is a case that the 11th Circuit has already ruled effectively, right?

0:26:12 Andrew: Again, not on the merits because it was a PI, but prejudging the merits, right, they have ruled that the plaintiffs had a substantial likelihood of prevailing on the merits. And now the 11th Circuit went by and and reverse that. And, um, and I figured out why that happened.

0:26:30 Thomas: Is it racism?

0:26:31 Andrew: Uh, yeah, it is. Um. Here's, it's always

0:26:32 Thomas: Oh, okay. That was just a guess, but if you guess racism, it's actually right most of the time. It's a pretty easy way to be right in this country.

0:26:38 Andrew: A good guess. Uh, so the 11th circuit is a deeply conservative court. There There are 12 12 current judges on the 11th Circuit and six have been appointed by Trump alone. OK. Yeah. So half the court are Trumpers. And when I say Trumpers, I mean Bill Pryor and Kevin Newsom. I mean, hardcore pro-Trump judges. Now, you might be saying, wow, how on earth then did the first panel come up 3-0 supporting the injunction?

0:26:53 Thomas: Wow.

0:27:17 Thomas: Lucky. So?

0:27:17 Andrew: Uh, lucky as in, uh, the the metaphor I used on, uh, on Muller she wrote was drawing to an inside straight, lucky, right? Like, that initial panel was R. Lanier Anderson, who is an 84 year old Jimmy Carter appointee, and And a senior judge, Stanley Marcus, a 74 year old Clinton appointee. And the third judge on the panel, because there were vacancies on the court at the time, was a senior district court judge sitting by designation, that being senior judge Barbara Jacobs Rothstein of the district court of the District of Columbia, who is 81 and a Carter appointee. Right. Like, so I, it is that, you know.

0:27:36 Thomas: Someone Do the uh computational permutations On that, so we was choose three of how many, was the total 12? And

0:28:09 Andrew: Yeah. Twelve. And you got and you got none. You got none of the.

0:28:17 Thomas: Six Are Basically six Of the 12 are basically cyanide pills.

0:28:21 Andrew: Yeah, six of the 12 are cyanide pills and you pulled zero of not just not just of the Trump appointees, but zero of the active judges on the 11th Circuit. You pulled two senior judges, right, that are in a semi-retired status. That was Marcus and Anderson. And you pulled a DDC judge who was, you know, sitting by designation. It was it is it is truly a like one in a million shot. And again, I know we have listeners who do combinatorics, so they will tell us.

0:28:27 Thomas: Yeah Well I'm Not I Didn't I don't really understand What the denominator is if you've got these judges that aren't actually currently sitting, I don't know how to account for that, like, what are the odds that, anyway, what Are they part Of the 12, or are they, also, no?

0:29:06 Andrew: I don't know. No, they are not part of the 12. So in other words, there are 12 current sitting judges, six Trump appointees, one George W. Bush, one Bill Clinton, four Obama. And hey,

0:29:22 Thomas: I'm Like trying to Do The the odds on the, like, in poker, with which card I'm going to draw, and then you draw like a Pokemon card and you're like, how Do I What are the odds of that, I don't know, how do I calculate that?

0:29:28 Andrew: That is right. Everybody. So then in addition to that, there are senior circuit judges, right, that are semi-retired, but still eligible to be assigned to panels. They don't sit on bunk, but they can be assigned for panels, again, because our courts are overloaded, including like, right, Judge Tloflat, who's 90, 91, was appointed, I'm not making this up, by Gerald Ford, right? Right. Judge Fay, also a Gerald Ford appointee. Right. And so in addition to the 12, the panels have a lower. And I don't know how to figure out the denominators either. But there are.

0:30:16 Thomas: That's What I'm Saying, I think this goes beyond mere probability This is also about, like, well, how often do these You know, other jets, so that's Impossible, so it was very lucky, all

0:30:18 Andrew: Yeah, exactly. It was very, very lucky. And this is the 11th Circuit going, well, that's not representative of the 11TH Circuit. There were no there were

0:30:25 Thomas: Right, yeah. Yeah. But you're still saying that that should have been an en banc thing that would have taken more time, right? Or yeah,

0:30:34 Andrew: No. Yeah, they should have. That's that's the pernicious aspect here. It truly is a strategic decision not to move en banc in March because that would have taken sufficient time, right, that probably would have kept the injunction in place, which would have protected the rights of a million ex-felons in Florida to vote in the 2020 presidential election. The way they did it and the invitation back to the 11th Circuit was, hey, grant us an en banc initial hearing. And by the way, strike down this injunction while you're at it. And a majority, again, there were only six votes. We don't know where they were, but I know where my vote would be, you know, where my guess would be. Voted to grant that relief. And that means it is going to be a mess. That means even if we're able to prevail at the 11th Circuit on the merits, that ruling is likely to come very, very late and after tremendous amounts of misinformation.

0:30:57 Thomas: Yeah,

0:31:48 Andrew: Information. So I want to say this, and I want to be really, really clear, because I am positive that the Republican dirty tricks machine are going to do things like distribute leaflets that say, if you're an ex-felon and you try and vote and you haven't paid your fines, you can be arrested by precinct workers. You cannot. OK, we don't know. Listen here on Opening Arguments. As of right now, there was no determination on the merits, right? Like there's now no No injunction. Right. But there's no determination on the merits that you do have to pay all of your fines in order to have your right to vote restored.

That may or may not be the law. You may or may not know if you have paid all your fines. But if you are an ex-felon in Florida, you may go to the polls with confidence. You will not be arrested for failure to pay outstanding fines. Don't fall for propaganda. Please do go out and vote, maintain your rights that were granted through Amendment Four, as a part of the voting process that the state overwhelmingly wanted to welcome you back into the community. It's really, really important.

0:32:07 Thomas: Yeah.

0:33:00 Thomas: So they get away with it, though. It sounds like this, the DeSantis and, and I also am wondering, is I don't want to get tinfoil hattie, but like, how do they know this would work? Are they just talking to the Trumpy judges and being like, hey, just kind of do this weird, one weird trick. We'll make smooth it out. How, you know, because it seems like a weird thing for them to have done and then it perfectly pans out for them as

0:33:22 Andrew: It seems weird. I don't think, and and again, we can't rule out collusion that would violate the canons of judicial ethics and would subject. And again, remember, district and circuit court judges can be censured. It's not like Brett Kavanaugh, where his hundreds of ethics complaints are now just going to the shredder. There are consequences for sitting Article III judges that engage in misconduct that are independent of and usually lead to impeachment. So I don't know that you could infer that. You could just say like, hey, they put on a full court press to try and do everything they could to derail this operation.

0:34:11 Andrew: And let's be clear about what the purpose of this is, right? Right. Like I should also take a step back and say we've seen the Hofeller documents on his hard drive. Right. So, yeah, two years ago, I might have said that sounds kind of conspiracy theory ish to me. Um, we saw a paid consultant keep an encrypted file that said how to advantage, uh, Republicans and disadvantaged non-Republican, you know, how to advance, uh、 Republican white people, right? I mean, it was just, um, the, the level of coordination of, well, we should try these six things to depress voter turnout.

Out, you it would I now am of the belief that there's no doubt in my mind that every Republican, every elected Republican official who is looking at 2020 is looking at how do we undo Amendment 4, right? Because if Donald Trump loses Florida, there are basically no viable paths for him to victory, right, if the converse isn't the case, right. Right. Trump can win Florida and still lose the Electoral College, but it makes it right. That's one. That's the biggest advantage that Trump has, you know, where he can win with 45 or 46 percent of the vote like he did in 2016. And that has to go through Florida. And so, yeah, if if there

0:35:44 Thomas: Much as that's horrible, setting Trump aside for a moment, how do these people who deserve their right to vote get their right to votepack Because it's not as though this, this isn't one of those things, and let's correct me if I'm wrong, where winning in 2020 does anything. Like, this, they still have DeSantis, you, the, people voted to make this happen, and then Republicans said, nah, we don't like the will of the people. What's the recourse? How will this ever get fixed?

0:36:12 Andrew: Are, there are two ways, ways, um, first you could win on the merits in the 11th Circuit, um, seems unlikely at this point no no, so yeah yeah now

0:36:20 Thomas: Wait, I thought you just, yeah, I guess I don't understand the one weird thing they did. I thought they said they did on the merits sooner than they could have.

0:36:26 Andrew: The appeal. So what they've done is now the appeal on the merits, right, of the, the, the win for Jones at the district court level, right, is now going and will be heard by the 11th Circuit, but it will be heard by the full 11th Circuit en banc as a matter of first impression, even though they typically you get a three-judge panel. Does that make sense? Yeah, but procedurally you get what's happening.

0:36:53 Thomas: I mean, no, but sure. They're cheated, I think. I

0:36:59 Andrew: They've cheated. When you appeal up to any circuit court of appeal, you get an appeal-free judge panel. That's the way it works. And then if you lose, you can petition for rehearing on bunk. What they did effectively here was say we want to pre appeal for reconsideration on bunk so that we don't wind up with the

0:36:59 Thomas: Yeah.

0:37:21 Thomas: So that there's no injunction or whatever, so that they can, yeah?

0:37:23 Andrew: Exactly so that that Senate bill is now there's nothing to stop it from going into effect as ballots are being prepared in the state of Florida for the 2020 election, election, that's the significance. And so could you win in the 11th circuit? You could win, um, but but you could also lose. And and if that happens, right, if the 11st circuit rules, uh, as as I believe they will, the the 11 circuit en banc rules that, uh, no, um, there's, it it only requires a rational basis review and the state has a good reason to want to make sure that felons have completely paid paid all of their fines before restoring their right to vote. And the fact that that's going to benefit Republicans is, you know, totally coincide. Is it going to benefit? But we have no idea. Like we're we're a court. We just call balls and strikes.

0:37:26 Thomas: Yeah does

0:38:19 Andrew: We have, you know, we don't we don't consider those things. That's the opinion I think you were very likely to get. And your remedy for that, Florida, is to vote out Republicans. Right. That that's to say I'm kind of mad that I went to the polls in 2018 and I voted for a thing and you Republicans gave me the opposite of that thing. I like, I don't know how else to put it, yeah.

0:38:44 Thomas: Anyone wonder still why there are protests and why sometimes they get out of control. It's like, what's the alternative? You try to make something happen, nothing happens. You vote something in, then they're like, no, we're not going to do that anyway. Like, what else are people supposed to do? It's so frustrating

0:38:59 Andrew: It is we we are watching, right? And again, you know, I I wish we were watching this with, you know, 30 years in the future to be able to look back and say, but what we're watching is a political party going through its death throes, right? A national political party that looks at the makeup of the country and says, well, we're 44% of the population. So how do we stay on top as long as we can with 44%?

0:39:00 Thomas: Yeah yeah Republicans are like the Ballrog, and then Gandalf is democracy, and then it's not, oh, we got him, and then he does the whip thing. And it's like that.

0:39:41 Andrew: Yeah, right. It's look, I don't see. I would love to have a Republican political operative come on the show and and argue with a straight face that like no, no, no, no. It just so happens that we have principled stances on these eight things that all correspond to reducing the number of people who vote. I mean, you're the you're the party of we don't want people to vote and you're the party if we don'T WANT PEOPLE TO VOTE, BECAUSE WHEN PEOPLES VOTES, YOU REALIZE YOU'RE 44% OF THE COUNTRY AND IT'S REAL HARD TO GET 50% WHEN YOU'RE 44%. ALL OF A SUDDEN, IT BECOMES EASIER WHEN, YOU KNOW, YOU DECIDE TO MAKE TRACKS OF LAND EQUAL TO HUMAN BEINGS WHEN You Decide To GERRYMANDER 80% OF THE POPULATION INTO ONE DISTRICT. Right. Like, you know, that that that's the game plan. And but but even that's about to break. Right. Because there are so few Republicans and it is such a toxic party that that you're seeing them do stuff like this. So. So there

0:40:02 Thomas: Yep. Well,

0:40:48 Andrew: You go.

0:40:48 Thomas: That's our first segment. Does that wrap up the bad Florida news?

0:40:49 Andrew: Yeah. That wraps up the bad Florida news. Yeah,

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0:42:59 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.

0:43:09 Andrew: This is the worst possible good news. So yeah.

0:43:11 Thomas: Worst... How appropriate. Let's get to our main segment, the worst possible good news in the abortion case that I guess kind of went our ways. But I've been waiting, I've contained my excitement to hear Andrew break this down for us because I just don't trust it.

0:43:22 Andrew: Yep. You shouldn't trust it. So this is technically Andrew was wrong, and I'm pleased to be wrong because I thought that this Supreme Court would take up this case. June Medical Services v. Russo was pending before the Supreme Court as an invitation for the activist court to overturn or drastically scale back Roe v. Wade. The howler monkey contingent wrote dissents eagerly desiring to do that. But what we wound up with was a split 4-1-4 decision with John Roberts concurring in the judgment, so we're going to focus on his opinion. And now this has led again, I just, I don't understand why journalists take on the, like, Charlie Brown kicking the football role, but like they they love they love this, like, John Roberts is a secret liberal, Neil Gorsuch is a secret liberal, and it's like, maybe the more parsimonious explanation is, every once in a while, if you're not a lawyer, what, you know, and we can see in fact, mathematically, we know it is 1.8%, 7% of cases don't turn out exactly the way you would predict in advance on partisan lines.

And, like, for some reason, journalists love to be like, see, it's all, it's 50-50, and you're like, no, no, no, it's 98.2 to 1.8, right? Like, it, it is, this is a deeply political, political activist conservative Supreme Court. But it is one, and I'm about to explain, we've talked about this on the show, but sort of putting all the pieces together, why everybody should send a thank you card to Rhode Island Senator Sheldon Whitehouse,

0:44:23 Thomas: Yeah, they love it.

0:45:19 Andrew: Because the shame John Roberts strategy that we've talked about on the shows, that was on display here in terms of the outcome, the June medical services case, was, I think, the credit for, you know, pushing the ball down the hill, getting the fulcrum, like whatever the metaphor you want to use. What tipped this case and what tipped a couple of other narrow cases, I Think, was Sheldon Whitehouse's amicus brief. So we're going talk about that, but let me first explain what this case said and and most importantly, what it didn't say. We have covered this case extensively on the show, episodes 249, which we called Overturning Roe v.

0:46:09 Andrew: Wade starts today, episode 251, and bonus episode 251 and a half, right? So this is a really, really important case that we put on your radar a little over a year ago. And what made it an important case was that our thesis was really, really straightforward. In 2013, Texas passed a law, and these laws are sometimes referred to as trap laws. They are laws that are on face if, you know, you're a pro-life Republican and you chew down hard on your cheek so that you don't smirk. You can say, oh, we're just trying to make abortion safe, right? Like where the practical implication is to try and restrict abortion and make it harder for patients to receive abortion services.

0:47:04 Andrew: So the 2013 Texas law had two provisions. The first was a requirement that a physician performing an abortion must have admitting privileges at a hospital within 30 miles of the abortion clinic. That's a preposterously stupid requirement, and we don't have those requirements for other similar medical procedures. And number two, a provision that required that abortion clinics must meet the state criteria for ambulatory surgical centers. And testimony on the record in the Texas case was that that second provision would have cost millions of dollars at each abortion clinic. And despite what, you know, Matt Gaetz will tell you, like, abortion clinics are not profit centers, right?

0:47:57 Andrew: And the record was clear that the effect of that Texas law would have reduced the number of abortion clinics in the of Texas to seven or perhaps eight in

0:48:14 Thomas: Well, if you don't think abortion is lucrative, clearly you've never heard of the black market for baby parts that conservatives think is a real thing that happens, that they sell baby parts.

0:48:16 Andrew: Texas. Since we have both done these kinds of things on God awful movies, right? Like we've been exposed to lunatics who make these arguments, but, but they're lunatics. Those are not, they're not real things. Those are made up. Clear record, state of Texas, right. Right. The the the largest by geographic area in the continental United States would have had seven clinics in five major metropolitan areas. And everybody like you're you're a woman in rural Texas. Too bad. That Right. Case went up to the Supreme Court as Whole Women's Health versus Hellerstedt 2016. 2016. It came again because Texas is in the Fifth Circuit.

0:49:10 Andrew: The Fifth Circuit was like, we don't know what's the problem here. Totally fine with us. Like, it just so happens that there won't be any abortion clinics left after this. But, you know, rounding down right there, percentage wise, there will be zero percent of abortion clinics in the state of Texas. But you know this is all, we're just interested in, you the health of abortion patients. The Supreme Court, five to three, reversed. And they said, that's an undue burden on a person's right to have an abortion under Planned Parenthood versus Casey. It was five to three because Scalia was dead and Anthony Kennedy joined the majority.

So that dissent, just so we're clear, was Alito, Thomas, and John Roberts in dissent in Whole Women's Health versus Hellerstedt. This is why I thought, uh, Yeah, anyway, um, literally ink is dry on the Supreme Court opinion and the state of Louisiana in 2016 passed the exact same law. And when I say the exact same law, let me read from the opinions, from page 47, quote, "Today's case is a challenge from several abortion clinics and providers to a Louisiana law identical to the Texas, Texas law struck down four years ago in Whole Women's Health.

Just like the Texas law, the Louisiana law requires physicians performing abortions to have active admitting privileges at a hospital located not further than 30 miles from the location at which the abortion is performed." End of quote. That is the citation to the law. Now, you might think, gosh, that seems weird and convenient that like it uses the exact same language, right?

0:49:52 Thomas: Those were the days.

0:50:04 Thomas: Yeah.

0:50:55 Andrew: That's because anti-abortion groups write these laws for legislature, right. And the thought process was super simple, was, oh, hey, yeah, we just lost, but we lost 5-3. Trump won, right, because this was late 2016. He's going to, Mitch McConnell stole that Senate seat. So we're going to get, stole the Senate seat, stole that Supreme Court seat. So at And so the thought process was, yeah, the three people who were in dissent, Alito, Roberts, Thomas will still be in dissent and maybe we'll have one or two more Supreme Court seats by the time this comes up. That was 100 percent the strategy of take the same law.

0:51:41 Andrew: The Supreme Court just said this law is unconstitutional. And Louisiana was like, "Well, thank you, sir. May I have another?" Remember, Louisiana and Texas are both in the Fifth Circuit, right? Like, Louisiana is right next to Texas, right. Right. So in any sane universe, the Fifth Circuit says, like, "Guys, we, we try. We really wanted to be with you on the abortion way. But, but the Supreme Court called us idiots. And this is the same law." And the Fifth Circuit's like, "So like, where are you? We're not getting smacked down by the Supreme Court twice. Like, you know, go home." And, and if they didn't, right, then the Supreme Courts would either refuse to grant cert or they would grant cert and 9-0, they would be like, "Dude, did we stutter?" Right, like a whole Women's Health versus Hellerstedt, it would be 9-0. That's the way the law used to work before Republicans hijacked the Supreme Court. I'm not kidding I

0:52:31 Thomas: I like the idea of the Supreme Court handing down a decision. Did we stutter? Oh,

0:52:36 Andrew: I, this is why I will never be on the Supreme Court. But, but look, when I was in law school, and I was not in law school in the 19th century, right, like, it I'm not that old, this is is what stare decisis used to mean. It used to mean, however much you disagree with the decision that just came down, like, you lost, right? Like, okay, I wanted this to go the other way, but if the exact same question comes up, that's not a hard question. That's not question that gets back to the Supreme Court. That's a, "Hey, we just did this. Did we stutter?" But because we live in the worst possible timeline, that's not what happened. The court is packed with right-wing hacks. Everybody knows it. And so Louisiana passed the law.

0:53:23 Andrew: It was challenged. The district court enjoined the law, the Fifth Circuit made up a completely nonsense opinion, distinguishing the law that the Supreme Court disregarded, right? Like the, the reason the the Fifth Circuit made up their nonsense opinion was to force the liberals on the Supreme Court to take this case, right? Because if they had upheld the injunction, then nobody would have voted for cert, right, the right wingers would have been like, "Well, let's get a less terrible case than this," right. And the liberals would have done, like, "Nope, let us just let the Fifth Circuit opinion stand," and this case would have died an ignominious death. Um, so the Fifth Circuit pretextually invented reasons to uphold the law, forcing the Supreme Court to take up this case.

That's why we described that process to you in depth in episode 246. That's why it was so dangerous, and I truly thought that their play was going to work, right. I thought this was going, going to be 5-4 the other way. And now we get to pull that pin out, because you and I have talked about this, but to kind of wrap that together, in episode 309, we talked about the amicus brief that Senator Sheldon Whitehouse filed in the New York State Rifle and Pistol Association case, right? That case, we talking about it, that was the one that New York had the ban on driving, driving around with a pistol in your car. And as soon as it was

0:54:56 Andrew: Appealed, it was petitioned to the Supreme Court, they repealed the law, right? They were like, okay, all right, well, if that's where this is going to go, like, fine, you win.

0:55:03 Thomas: Yeah. I did a fake out just

0:55:06 Andrew: We're not, yeah, we're not going to do that, right, because we know that this is gonna be a terrible opinion by a right-wing Supreme Court. And Sheldon Whitehouse filed a cert petition that worked. It got John Roberts to vote vote with the liberal majority. I said a cert petition, but I mean, he filed an amicus brief that got Roberts to vote with The Liberal Majority in New York State Rifle and Pistol Association, and I think really defined the parameters of what shame John Roberts means, right? That amicus briefing, again, we went through it on episode 309, so I'll just give give you the highlights, it was that as of 2018, right, excluding the grotesquely partisan 2018 to 2019 Roberts Court that we discussed here, right?

0:55:53 Andrew: In which every single case that was 5-4 went that way because of conservative political outcomes and featured the five justice conservative majority ruling in favor of a conservative political outcome. Prior to that, and those 17 5-4 cases, by the way. Prior to that, because White House was writing this brief while that term was still in process, he filed a brief that said the Roberts Court had had up to 2018, 212 5-4 opinions. But look, not everything that comes before the Supreme Court has political implications. Of those 212, the vast majority, two-thirds of them, were, you know, over obscure bits of regulatory law or whatever, right?

0:56:48 Andrew: Didn't have any kind of political implications. 78 were what you would think of as political cases, right? Cases about abortion and gun rights and voting rights. And of those 78, 73 were 5-4 with the five conservative justices, counting Anthony Kennedy, lining up to deliver a conservative political outcome. So that's a pretty strong percentage, 73 of 78. And Whitehouse wrote his amicus brief to warn John Roberts, hey, you're risking the legitimacy of your court because your court is being perceived as an instrument of right wing hackery.

0:57:38 Andrew: And that amicus brief is a glorious, brilliant document to behold. We will link it again in the show notes. It's linked on the 309 show notes, um, it quotes John Roberts at great length, right? When you say shame, John Roberts, right. It begins with, uh, quoting from Roberts's descent in Obergefell. Yeah, yeah, it's exactly. He's naked, wandering through the streets as a dragon flying overhead. It is great. Okay. They quote, right, it begins with, "This court is not a legislature," quoting from Roberts' dissent in Obergefell. "It can be tempting for judges to confuse their own preferences with the requirements of the law and to legislate political outcomes from the bench. But justiciability doctrines such as standing have evolved to serve as an apolitical limitation on judicial power." That's also a quote. That is quote from a law review article called "Article Three Limits on Statutory Standing," written in the Duke Law Journal in 1993 by John G. Roberts, Jr. So it is not, you know,

0:57:57 Thomas: Says shame shame shame

0:58:43 Andrew: It's like the scene in Spaceballs, right? This is not a shot across the bow of John Roberts, right. This is up the nose of John Robert's, right, Right.

0:58:49 Thomas: Ah thank you for referencing Space yeah is that a cross or no, it's not up it, yeah

0:58:55 Andrew: Right. Then says, in short, courts should not undertake political projects. But this is precisely what this case and lots of other cases are doing. And then they documented how the NRA bankrolled pro-Kavanaugh commercials and the way in which they solicited their membership to donate was, hey, Kavanaugh is going to be a reliable pro-gun vote on the Supreme Court, so we need to pony up for him right now. And used language like, once we get Kavanaugh on the court, we'll be able to partner with the Supreme Court to protect the rights of gun-owning Americans. And Sheldon Whitehouse, this is not the kind of thing that usually finds its way into an amicus brief.

0:59:43 Andrew: This is not the kind of thing usually finds Its way into judicial pleadings, kind of laid it bare and said, you need to look around. You can sit here and like read this cert petition and apply X law You need to know it included polls that showed support for the Supreme Court nosediving, right? Public impression of the Supreme court as an impartial arbitrator of the law, you know, falling to its lowest levels in American history, right. Right. And said, you're about to lose this court as an instrument of impartial justice and and you should do something about it. And and and I firmly believe that if Sheldon Whitehouse had not written this brief, then the few fig leaves that we've gotten would have gone the other way.

1:00:34 Andrew: And I've done all that by background. I need to tell you, yes, this opinion, John Roberts says we need to follow stare decisis. This is the exact same case as whole women's health versus Hellerstedt. So it compels the exact same result. He does say that. But, A, four judges say we don't give a damn about stare decisis. We knew that already. And I want you to compare, this is the last lengthy quote that I'll read, but I want to compare. This is what the law on stare decisus is. This comes from Planned Parenthood versus Casey. And, and I'm not reading from it because it's an abortion case, but because it is the modern case that every judge, every lawyer, if you ask, hey, what does it mean to follow precedent, right?

1:01:28 Andrew: What does stare decisis mean? They will say, read Planned Parenthood versus Casey, right. That's when Sandra Day O'Connor crafted an opinion that said, I would have voted the other way on Roe v. Wade. I don't like Roe V. Wade, if it were a matter of first impression, I would, I would've come out the other away, But we're not going to overturn laws just because you guys elected Ronald Reagan president and he appointed conservatives to the Supreme Court. And in that opinion, the Casey opinion sets forth the four criteria for when stare decisis should be abrogated. Right. When it's OK to say, all right, well, usually we follow the cases, but not right when there are these four criteria coming into play.

1:02:16 Andrew: One, whether the rule that is that the prior opinion has proven to be intolerable simply in defying practical workability. OK, that that's a high bar. Right. That is the opinion said do X. And now we realize like nobody can do X, right? Like it is.

1:02:34 Thomas: Or you do X, and dogs and cats are living together, mass hysteria

1:02:37 Andrew: Right, exactly. Exactly. Yeah, it is. It is. Yeah. Extreme, right. To whether the rule is subject to a kind of reliance that would lend a special hardship to its consequences of overruling, and add inequity to the cost of repudiation, right. That would be, by the way, the strongest argument for maintaining Obergefell, right. Would say, even if you thought everything else, like, hundreds of thousands of people have gotten married since Obergefell, and overturning that decision would put hundreds of 1000s of same sex marriages at risk, right. So that's kind of point two. And you can see also how that would apply potentially in abortion cases. Three, whether related principles of law have so far developed as to have left the old rule no more than a remnant of an abandoned doctrine, right?

1:02:38 Thomas: Yeah

1:03:29 Andrew: In other words, has this case been practically overruled by, you know, the passage of time? Or number four, and this is really the only thing that gives you much wiggle room, and it's what the conservatives have driven a Mack truck through, whether facts have so changed or come to have been seen so differently as to have robbed the old rule of significant application or justification. Okay, so those are your four criteria. And, and it's just abundantly obvious. And anybody who is not a hardcore judicial activist would look at that and go, okay, that means stare decisis gets 99.5% of the weight, right? Like that, that, it's really, it has to be the bile at the back of your throat.

1:04:17 Andrew: And it's got to fit in in one or more of these kind of pretty narrow criteria in order to come back and go, yeah, we were so wrong. Right. Again, classic example. Right. Plessy versus Ferguson to Brown versus Board of Education. The court, you know, straight facedly, candidly said, you Know what? We once said separate and equal as separate. But equal is fine. Now we realize that separate is inherently unequal. Right? That's a near direct paraphrase. That's how you get to overturning stare decisis.

1:04:51 Andrew: So that's the law of stare decisus. Here's John Roberts' summary of the law of stare decisive. And again, I'm going to read directly from his opinion. Decisas is not an inexorable command, but for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly. The court accordingly considers additional factors before overruling a precedent, such as its administrability, its fit with subsequent factual and legal developments, and the reliance interest that the precedent has engendered." See Janus. Again, remember, Janus was overturning prior precedent on union contributions simply because the conservative majority didn't like it.

Um, I, I don't think I need to do any additional analysis. I really like, you see the mealy-mouthedness of, uh, you know, just how willing John Roberts is to jettison press. All right, we look at its administrability, we look out at its quote "fit with subsequent factual legal," like, that is, that is nowhere near the language from, uh, from Casey, and Roberto knows this, right? Like, this is, this is Robert saying, "You gave me a law that is identical to one that we struck down four years ago. All right, I'm not going to strike down something that's identical." Dot,

1:05:34 Thomas: Just give

1:06:11 Andrew: Dot, dot.

1:06:11 Thomas: Me something slightly different, basically yeah yeah so

1:06:12 Andrew: Right. Doesn't say that, right. That, that he says, John Roberts is smart enough to leave the quiet part quiet. Uh, but, but I firmly believe that, that, that, that there is a quiet part. So, uh, look, good result. Um, but the worst possible good result for those reasons.

1:06:29 Thomas: We'll see this again, what, in a year, in a half a year, there will be some other thing that we'll have to dread read all

1:06:35 Andrew: Yeah. As long, as long as it is not the model legislation that was struck down here, right? Like as long As it is, not admitting privileges within 30 miles of, of the abortion clinic. Um. I don't see any reason to believe that, That Roberts is going to come out, the same way again. He certainly gives no indication of it in this opinion. He just says stare decisis means that we have to treat like cases alike. Four years ago, we struck down a nearly identical law in Texas. And for those reasons, I'm going to strike down this one. That's it.

1:07:08 Thomas: The worst possible good news. I think was a good way summarize to it with that, uh, bad good news, good, bad, bad good news out of the way. Uh, it's time to move on.

1:07:17 Clip: And thank you, Let's go!

1:07:18 Thomas: And now it's time to, uh, thank our new patrons at patreon.com/law. Hope you've enjoyed everything, folks, the uh, the Law'd Awful Movies, the Q&A the other day, you got to ask questions, uh, lots of fun.

1:07:31 Andrew: Brand new special. Tuesday show on John Bolton's book, only for patrons. So, yeah. That.

1:07:36 Thomas: That's Right. Good point, yeah, uh. We always take care of our patrons, we're like the mafia or something, except a good mafia, uh. When you're in the family, yeah. Um, thank you, two new patron, @Casa_Agria is the best brewery, @EmperorsBrewery is a close second, oh cool, we're all about brewery ranking, Marc Banks, Erik Sczygelski, Andrew Lawton, Elizabeth Palmer, Shannon Johnson, Christopher Cormier, or Cormir, depending on how you pronounce it, Andrew Fillmore, Douglas Jordan, Not one of those Karens. Oh, I'm sorry for people named Karen who are actually cool right now. That sucks for you, but what are you going to do? You. John Williams. We got John Williams? Fantastic. That's amazing.

1:08:19 Thomas: Does he want to write the score for our show? I mean, I do pride myself on my music, but not if John Williams is going to come and take over. That'd be fine with me. And God damn it, Duck. Your turn, Andrew.

1:08:19 Andrew: Would Be Great, yeah, yeah. Thank You to vilkin, to Bernardo Cuña, Matt Cain, I don't if that's ex San Francisco Giants pitcher Matt Cain, but hey, if we got, uh, John Williams, maybe we got Matt Cain too. Uh, to tell your mom to top up the cell phone she bought me so I can FaceTime her late at night. Uh, throw in a little shade there, also British.

1:08:54 Andrew: Spelling of mum, so uh, you know who knows, uh, to Vincent Chen, Amanda Coffey, Matthew Hunt, Is that an appeal in your amicus brief or are you just happy to see me, could be both, to Michael HASSE, it was all caps in his last name so I had to, had to shout it out, to SarahMonster, uh, to Tony Esteves and Jori waldren. Thank you all so much for supporting the show over at patreon.com/law.

1:08:53 Thomas: Weird. And

1:09:21 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:09:26 Thomas: It is time for T3BE. Oh, I am on a bad streak. Let's, um, let's turn it around, let's Turn the Ship Around. Everybody, I

1:09:34 Andrew: Let's turn it. Let'S let'S turn this ship around. I like it. So So, Thomas, a schizophrenic patient who was institutionalized in a psychiatric facility pushed a nurse down a stairwell at the facility. The nurse, a paid employee of the facility who was trained to care for schizophrenic patients, was injured. The patient is an indigent whose care is paid for by the government. Deficiency is held to the standard of a reasonable person. In a negligence action brought by the nurse against the patient, the patient's lawyer will argue that the patient should not be held responsible for the nurse's injury. Which of the following facts will be least helpful, love this phrasing of this question, to the patient's lawyer's argument? Got that?

1:09:41 Thomas: Already love this question, okay.

1:10:27 Thomas: Wow.

1:10:27 Andrew: All right. So least, least helpful facts.

1:10:28 Thomas: No. But I'll figure it out. Least. Helpful to the, to the patient lawyer.

1:10:33 Andrew: Right. Right? A. The nurse was a professional caregiver. B. The nurse was trained to care for patients with schizophrenia. C. At the time she pushed the nurse, the patient thought she was being attacked by an elephant. Or D. The patient is an indigent whose care is paid for by the government.

1:10:34 Thomas: Okay. Okay. Huh. What an interesting question, uh, this is, okay, uh, all right, so we've got somebody in a psychiatric facility who's clearly, uh, having mental health, health issues, pushes a nurse down a stairwell. So when the patient's lawyer is arguing that the patient should not be held responsible, you, if I'm thinking like a lawyer, I'm thinking two things for one, it might be, you know, the, the, well, this is going to be tough.

So it says the jurisdiction generally follows the rule that a person with a mental deficiency is held to a standard of a reasonable person, so that would really lean me toward C, not helping. Um, at the time she pushed the nurse, the patient thought she was being attacked by an elephant, well, if we're holding people to the standard of reasonable person, you know, that's not, that's reasonable, so that wouldn't be helpful.

I think the nurse was a professional caregiver would be somewhat helpful to say, look, you got into this job for this, this, you know, If I were to rank them in order, I think the most helpful fact is probably B, the nurse was trained to care for patients with schizophrenia. I think that, you know, in my mind, as much as I'm not a lawyer, that's like, okay, you got into this job to do this, you're specifically trained to take care of these kinds of patients, and that comes with risks is what I would say.

And then the second most, I think, would be the nurse was a professional caregiver, similar, but I think slightly less helpful, you know, because it's not as, you know, tailored. So maybe under this logic that means I'm eliminating B and A because those seem the most helpful to me, and then now it's going to get really tricky because I think D is probably

1:12:40 Thomas: Irrelevant. I don't think D is helpful at all. D, the patient is an indigent whose care is paid for by the government, government, or, or under some technicality, is that going to make a difference, I don't know, this, uh, no, because I mean, the, the nurse, like, is, is it going to be that, that somehow means that, you know, since the care is paid for by the government, the government, you can't sue the government because of, like, you're not going to get any money or something, I don't know, um, I I could see there being some weird technical reason that D makes a difference, but the problem is I also think C is really bad because, as I said, at the time she, C is at the time she pushed the nurse, the patient thought she was being attacked by an elephant. You would think that would be helpful possibly, but because of this, you know, it follows the rule that the person is held to the standard of a reasonable person.

1:13:32 Thomas: That's not reasonable at all. So I, it's between C and D. I think D is just not really relevant here. There's going to be, because I'm on a skid, I'm sure there'll be some way I'm wrong on this, but I think I'm going to go with D. I don't think the fact that the patient is an indigent whose care is paid for by the government really makes any difference in whether or not the patient should be held responsible, unless, I don't know, it could be some technical thing, but, I don't know. I'm, oh, this is really hard. Between C and D, I'm pretty certain on that. I'm gonna go with D, so that means everybody should guess C. So, have fun getting the answer right while I get it wrong, everybody. D, final answer.

1:14:10 Andrew: Alright.

1:14:11 Thomas: No.

1:14:11 Andrew: Alright. And if you'd like to guess C, you know how to do that. Just share out this episode on social media, include the guess C. Includer your reason therefore, uh, you can, you can guess other things too, that's that's fair, uh, We

1:14:21 Thomas: I like When you mess with me like that. Though. That's, that's I appreciate It.

1:14:23 Andrew: Will We Will Pick a winner and Shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed. A

1:14:30 Thomas: That's our show. Congrats, Andrew, on 400 episodes. Imagine the work, the billable hours, the, the research, here's to another four more, at least, we'll start with, I'm just, I don't, to commit to 400, yeah, no, okay, five, six More.

1:14:47 Andrew: All Right. Well, we'll have a retirement party at episode 406. So, yeah, enjoy these last six episodes, folks, because they're going to be good.

1:14:48 Thomas: Yeah.

1:14:57 Thomas: I'm Gonna say I got a provisional basis, like, I'm not saying I'm not doing more, I just don't wanna commit, I'm, the, you know, it's bad news these days, and now I'm just teasing, here's, do another million more, thanks for listening everybody, see you next time.

1:15:09 Clip: YOU BETRAYED THE LAW! LAW!!!! 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 5-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 at 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. Opening Argments is produced with the assistance of our editor, Brian Ziegenhagen, our transcriptionist, Heather Leverage, production assistant, Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. And a big thank you to our Facebook moderators, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian, and Teresa. Check out the Opening Arguments community on Facebook, linked in the show notes. And finally, thanks to Thomas Smith for creating the fabulous theme music, which was used with permission.