OA413: Birthers are Back and Roberts' Stealth Attack on Abortion Rights

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 413. I'm Thomas. That's Andrew. How are you doing, Andrew?

0:01:23 Andrew: I'm fantastic, Thomas. How are you?

0:01:26 Thomas: Doing... I don't know. File not found. I don't know.

0:01:31 Andrew: We gotta, we gotta find that file.

0:01:32 Thomas: Excited for the show, as always. We got a lot to talk about today. Any announcements andrew all Well, my only announcement is go check out Law'd Awful Movies, which hopefully is up as we speak, patreon.com/law, two dollar and up patrons. Uh, we have a lot of fun doing those, so, uh, hop, hop on there and check it out. All,

0:01:38 Andrew: No, let's get to it.

0:01:52 Andrew: Yeah, absolutely.

0:01:55 Clip: Andrew Torrez is wrong, wrong sir, wrong sir, Andrew Torrez is wrong, wrong, wrong.

0:02:08 Thomas: Right, Andrew, what were you potentially wrong about?

0:02:10 Andrew: Oh, I wasn't just potentially wrong. I was in fact actually wrong on a, on a number of things. So, uh, good to do some omnibus corrections right here. We, uh hold ourselves accountable. And first, I said that Nevada Bill AB4, the comprehensive vote by mail in a purple state, I said was strongly bipartisan and by bipartisan and strongly bipartisan. I meant every Republican in the state legislature voted against it a little

0:02:45 Thomas: Yeah, that sort of stretches the definition of bipartisan, yeah.

0:02:48 Andrew: Bit by part. It's, it's intrapartisan.

0:02:51 Thomas: Partisan. I think is the word.

0:02:52 Andrew: Yeah. No. Um, it's, uh, I, I clicked on the wrong thing and I was like, oh, look, like, wow, Republicans aren't always like voting for voter suppression. I don't know what I was thinking, like, just, I forgive

0:03:11 Thomas: Yeah, hey, your optimism just got got the best of you, wasn't bipartisan, okay, yeah.

0:03:12 Andrew: Yeah, my optimism overcame my reality. Um, that was, that was not a good thing, so, uh, no, Um, and this was, this is a bit more, these, these were both from 411, in talking about Trump's attack on mail-in voting. Um, this is uh, 100% valid correction. Uh, but, but in in no way changes the underlying analysis. Um, I lumped Florida in with these states that require an excuse to request an absentee ballot. Um, and that was based on my doing a 50 state survey of law, like, I, you know, I accidentally had Florida's 2000 law and not their 2001 law, which removed the requirement that, that you have to provide an excuse for absentee balloting.

0:04:09 Andrew: It's really, really important. We have listeners in Florida. I want to emphasize you do not have to provided an excuse to vote absenteed by mail. So I certainly apologize for the law of Florida wrong on the show. I'm glad that we have listeners that are there out to fact check me on that. It doesn't change the underlying dynamics of Trump being pro mail-in voting in the state where that's likely to help him and against mail-in voting Everywhere Else.

0:04:44 Thomas: I even heard, I think that came up on another podcast I listened to. I mean, he's just so bad at not saying the quiet part, like, he just says it, you know, and, and, they're, they're pretending like, well, you know, Florida's had two great Republican governors who, of course, have gotten rid of all the fraud involved in mail-in voting.

0:04:52 Andrew: Yep. Yep. Yeah.

0:05:02 Thomas: So it's fine there, but not in wherever, whichever state doesn't favor him.

0:05:06 Andrew: And keep in mind that Florida does have the more restrictive provision about the ballot must be received or dropped off on Election Day. Right. So it does not have the safe harbor provision that Nevada had. So Nikki Neville and Susan Hofstetter, among others, wrote in to to correct me on Florida. And I appreciate that.

0:05:28 Thomas: Yeah, we want to get the correct info out there. And one more Byron Whizzer White correction.

0:05:31 Andrew: Yeah. Yeah, so Stephen Davis writes in just FYI, Justice Byron Whizzer White was a professional football player, not a professional basketball player.

0:05:43 Thomas: Oh, yeah, I think you've made this mistake before.

0:05:45 Andrew: Yeah. I think you might have been thrown off. This is what I, this is why I really wanted to read this on the air, off by Lamb Number One, where the justice played basketball with Tom Cruise.

0:05:46 Thomas: I fully Right.

0:05:55 Andrew: Justice, White did play basketball in college, but he didn't play professionally, um, and no doubt that the uh the scene from, um, from Law and Awful Movies Number One, which again, if you haven't seen that, it's it's some of our best work, uh, there's no doubt that this is inspired by, I think we even say that in our commentary.

0:05:56 Thomas: Yeah, yeah, yeah.

0:06:14 Thomas: And I think you told a story of him playing basketball with other justice or clerks or something, I think, yeah.

0:06:18 Andrew: And with clerks, so Here's the thing. Whizzer White retired from the Supreme Court in the early 1990s, in 1993. At that time, he was nearly 80 years old. I went to law school in 1994, and the kinds of stories that get passed down, right, from people who were former Supreme Court clerks, who are then advising you on your application to be a Supreme Court clerk, which I absolutely filed, all of the sitting justices, yes, even Antonin Scalia, of the stories that uniformly they would tell is that as a Supreme Court clerk, one of the first things you did was get challenged by Whizzer White, again, septuagenarian Whizger White to play basketball at the the Supreme Court, you know, secret basketball court.

0:06:21 Thomas: Yeah.

0:07:12 Thomas: It's called the Supreme Court. Is it underground?

0:07:15 Andrew: And there's no rule that says a dog can't play it. Yeah, it's safe from the fallout because there's got to be basketball in post-apocalyptic America. And that you would, you Know, again, you would go and most of them would be, you know, 26, 27 and would just get destroyed, right? Right. Like even, you kind of college athletes that that Whizzer White in his 70s would would would put a hurtin on you. So so that's why I always thought of him as a as a pro basketball player. You know, he was a he was he was running back for Detroit.

0:07:17 Thomas: Yeah. I wonder if it's under, and it's a secret bunker underneath the, yeah. Yeah. Oh,

0:07:51 Andrew: An amazing athlete.

0:07:53 Thomas: Wow, I was wondering if he was like a quarterback or something, like Wizard, you know, just like.

0:07:56 Andrew: Nope.

0:07:56 Thomas: I wasn't sure, I was trying to, trying to come and figure out where the nickname came from, not

0:07:57 Andrew: Yeah, probably from peeing. I'm just going to go with that. You never know. So. So there we go. I was wrong about Wizard White being a pro football player.

0:08:11 Thomas: For the first time. I swear we've had that one before, we'll try to get it right in the future, uh.

0:08:12 Andrew: No. Yep. I probably probably won't. So, there we are. Thanks, Stephen. Even.

0:08:15 Thomas: Yeah. That's fine, I'll all guys. I'll try to remember, uh, I'll try it for next time.

0:08:22 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.

0:08:31 Thomas: After that nice bit of pleasant, uh, correction on Andrew, let's get to the unpleasantness that is, uh, some more birtherism. Yay, hooray, awesome. Awesome.

0:08:40 Andrew: Yeah. We mentioned on Friday's episode, Kamala Harris was born in Oakland. That's in California. That's the United States. That settles it. She is a U.S. citizen. And the person making the argument that she is not a U.S. citizen is a racist Federalist Society society hack named John C. Eastman. We are going to tear his arguments apart. I will link his article in Newsweek in the show notes, but I've already clicked on it, don't click on it, and if you subscribe to Newsweek, like, stop, um, because they, they ran this piece and then they immediately ran, like, this disingenuous, like, editors like, oh, we're just presenting scholarly art, like, no.

0:09:24 Thomas: Yeah.

0:09:24 Andrew: You're not. Right. Like, you are presenting nativism and birtherism that, that have, that has zero basis in law, that has been roundly rejected by the Supreme Court for more than a century. Uh, and by the way, you failed to disclose, uh, that John C. Eastman ran in the Republican primary to be Attorney General of the State of California, losing to the guy who just narrowly lost to Kamala Harris. So I am a hundred percent positive that John C. Eastman stays up late at night going on, if only I'd been the nominee, that, you know, it is, it is ridiculous. Um, and and we're going to go into it. So, um, first let me get, let me actually give a content warning, because I'm, I'm going to use the slur that the right wing uses for immigrants born on American soil.

0:09:25 Thomas: That's

0:10:20 Andrew: So feel free to skip ahead if you don't want to hear that. We know that term. It's anchor baby, the right? Reason that they've politicized that term is because the Supreme Court for more than a century has said, if you're born on America's soil, subject to the jurisdiction of American law, you're an American citizen. That's what's led people to denigrate immigrants born here on American soil with that term, which I'm not going to use again. By the way, not the case for Kamala Harris, right? Her father's a Jamaican national who was legally in the United States at the time that she was born. Her mother was an Indian national who was legally in the United States on a student visa at the time she was born.

0:11:08 Andrew: But it wouldn't have mattered. Her parents were not, but could have been, illegal aliens. And it does not matter for purposes of the 14th Amendment. Because the 14th Amendment, Section 1, Sentence 1, says the following, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United states and of the state wherein they reside, period. So you might be thinking, well, gosh, case closed.

0:11:46 Thomas: Case closed, all right, moving on, next segment, sure.

0:11:49 Andrew: Here's Eastman's argument, and it is 100% not the law and has never been the law. He says the original Constitution did not define citizenship, but the 14th Amendment does, and it provides that all persons born in the United States, and here he italicizes it, and subject to the jurisdiction thereof are citizens. Those who claim that birth alone is sufficient to overlook the second phrase. The person also must be subject to the jurisdiction of the United States. And that meant subject to the complete jurisdiction, not merely a partial jurisdiction, such as that which applies to anyone temporarily sojourning in the United States, whether lawfully or unlawfully. That's not true.

0:12:36 Andrew: He cites to no case law that says that. He will never find any any case law that says that, because the only case to consider this question was a case called U.S. v. Wong Kim Ark 169, U.S. 649 from 1898. Good old, old-timey 19th century law, which born in the United States to Chinese nationals who at the time were ineligible to naturalize because of our racist naturalization laws was a U.S. citizen under the 14th Amendment. Perfectly clear, percent on point, no ambiguity. Eastman says, well, that's just dicta in that case that to say that, you know, because it it he has a lengthy In fact, I will read his effort to distinguish Wong Kim Ark.

0:13:29 Andrew: He says, at issue there was a child born to Chinese immigrants who had become lawful permanent residents in the United States. Domiciled was the legally significant word. But that was the extent of the court's holding. Everything else is dicta. And the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen. That's true, but that's only true in the, there's no rule that says a dog can't play basketball, sense. Right. They've never ruled on that precise question because they've never had to, because the logic behind the dicta in Wong Kim Ark is just as applicable as the logic behind the holding, right, and and and it is this, the, was very clearly meant to exclude, quote, Indians not taxed.

0:14:20 Andrew: End of quote. Right. This was a huge issue in the 19th century. Right? We had the Trail of Tears. We were forcing, we were forcing Indians westward across the entire country, breaking treaties, you know, gradually shoving them into more and more marginal areas. But nevertheless, as a holdover from the Three-Fifths Clause and other racist aspects of our initial Constitution, states would to count Indians among their residents. Right. And we're sort of trying to figure out Native American law with respect to, you know, does being on a reservation count as being under the jurisdiction of a foreign nation? Right. There were all of these questions. And so it was, it was clear that what they didn't want to say was that anybody born on an Indian reservation is necessarily a citizen under the 14th Amendment.

0:15:17 Andrew: This is not just my analysis on this. I'm going to include in the show notes the definitive law review article on this, it is by a law professor named Garrett Epps. It is called "The Citizenship Clause: A Legislative History." It was written in 2010. Right. So it absolutely, it, you know, is not, a is not hacking out for Kamala Harris. Right. It was, you know, written long before she was on the national scene. And it describes the debate over the adoption of the 14th Amendment, and and it describes what the 14th Amendment includes, right, which is in individuals who are in this country, regardless of their immigration status, and give birth to a child on American soil.

Right. What racists describe with the slur that we let off the segment with All the way to anyone born of American citizens on American soil. Right. It is the, and I'm not going to give the the Latin phrase of, you know, use in solely, maybe I am going to try and give the Latin phrase, I'm, I'm going to botch it, but but right, again, it is the idea that citizenship in this country conveys with birthright. Now, you are free to argue, and and and I should say, look, I don't want to steel man this guy at all, but I will say, right, you could have an academic debate over whether birthright citizenship is a good idea, right, yeah.

0:16:45 Thomas: Yeah, I was surprised to to find out a few years back that, you know, not very many countries have this, it's kind of interesting that we do, and

0:16:50 Andrew: It. It is, right, and so you right.

0:16:53 Thomas: I'm not that I'm against it or anything. It just wasn't I did, I took it kind of of for granted, yeah.

0:16:55 Andrew: Me, too, no, it's, I'm really glad you pointed that out, because uh, until I started looking into this, I, I, I did as well. Right. I mean, so much of our stuff comes from 13th century Saxony, and I just assumed that, you know, all of Europe would be the same way, um, and and it's not the case, and so, uh, yeah, we could have, if it were possible to have a good faith debate, you could have one on whether birthright citizenship is a good idea, what you can't

0:17:25 Thomas: But even if you did, and even if we somehow got rid of that, there is no possible way, unless we're truly living in a just a absolute dystopia, there's no way that we would ever say this retroactively applies, and now you're not a citizen if you, uh, if you were born here to people who weren't citizens, there's no way that would happen. If we get to that point, then, you know, we, we will long since have stopped doing the show and moved to Canada or something.

0:17:46 Andrew: You you You would think that. Um, here's how Eastman tries to make that argument, and this is something I have never seen a lawyer try to argue in print, no matter how dumb. Eastman says, "Granted, our government's view of the Constitution's citizenship mandate has morphed over the decades to what is now an absolute birth on the soil, no matter the circumstances, view." Okay, now stop. Right, like, again, once you write that part, right, it doesn't matter what, what comes next in your sentence, right? Like, you've lost the argument if you concede that the Supreme Court recognizes birth onthe soil, no mater the circumstance. And again, I forgive me for reading this racist words to you, but whatever. Um, he then says, "But that morphing does not appear to have begun until the late 1960s," after Kamala Harris's birth in 1964. I, I...

0:17:53 Thomas: Yeah. Wow.

0:18:43 Andrew: I, we have now entered the phase, right, we're not just, it's not just originalism where you have to put yourself in the mindset of the people who wrote the 14th Amendment, right? That's, that's a given for this argument, right? You have to say, "What did the people who broke the 14th Amendment and expect it to apply to?" Oh, oops, um, our courts now believe that what they expected it to imply to was birth on the land. You now have to to say, "What would a Supreme Court justice in 1964 have thought that the framers of the 14th Amendment thought?" That is the most preposterous and stupid and indefensible piece of jurisprudence that you could possibly imagine. But you don't have to take my word for it.

0:19:29 Andrew: You can take the a Rehnquist court's word for it, because John C. Eastman managed to convince one of the most evil lawyers in American history pre-Bill Barr, Ed Meese, of his position. And so in 2004, Ed Meese, whom you might remember also submitted an amicus brief alongside ours in the Michael Flynn case, this is what this guy does, right? He's a serial amicus grief writer, right. And in In 2004, he submitted an amicus brief in the case of Hamdi versus Rumsfeld. That case was about trying certain individuals as enemy combatants, right? Right. And so this was the defendant was Yasser Issam Hamdi.

0:20:18 Andrew: And, and the question was, could he be tried as an enemy combatant or as an American citizen? Was he entitled to the protections of the Constitution? Ed Meese filed an amicus brief. The person who wrote that amicus brief was John C. Eastman. This was 2004, he was making the exact same argument, right, birthright citizenship isn't in the 14th Amendment. And so his argument was, yeah, you don't have to figure out whether Hamdi as a citizen gets the protection of the Constitution, spoiler, he does, uh, because you could, you could hold that he's not a citizen within the proper interpretation of the citizenship clause, uh, because his parents were aliens and they were present in Louisiana on temporary work visas at the time of his birth.

0:21:14 Andrew: So in other words, the exact same argument they're making about Kamala Harris that he's making about kamala Harris right now, Supreme Court neither adopted nor even addressed the arguments that were made in the Mies brief. Instead, they followed the, quote, dicta from Wong Kim Ark. They said, look, Hamdi is a citizen and as a citizen, he is entitled to the protections of the Constitution, may not be tried as an enemy combatant. This was a 6-3 decision. Even the dissent did not say that he was not a citizen. The dissent said, yeah, he's a citizen, but he can be tried as an enemy combatant. So, this argument is 100% nonsense.

If you see somebody repeating it, it And you should, as I said on Twitter, if you have great grandparents who still subscribe to Newsweek, you should cancel their subscriptions. I do want to to to remind everyone, as we said on Friday, if you haven't listened to that show, cherry on top of all of this is John Eastman wrote an editorial for the National Review in 2016, 16, arguing that Ted Cruz, who was born in Canada to a Canadian father, uh, and a U.S. citizen, uh, living abroad, uh, was a natural born citizen eligible to be president and wrote, and I quote, "So let's move on from this particular silliness and get back to the business of choosing a president from among the broad slate of well-qualified and fully eligible candidates before us."

0:22:02 Thomas: This sounds like completely unsubstantiated garbage that is not fit to print in a publication.

0:23:00 Andrew: That was how John Eastman thought about this in 2016. Now he thinks, "Before we so cavalierly accept Senator Harris's eligibility for the office of vice president, we should ask her a few questions about the status of her parents at the time of her birth. Were Harris' parents lawful permanent residents at the time of her birth? If so, then she should be deemed a citizen. Or were they instead merely temporary visitors, perhaps on student visas? If the latter were the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers, Jamaica in the case of her father and India in the cause of her mother." Um,

0:23:45 Thomas: Dot dot according To the bullshit. Shit I just made up that has no basis in any case or anything he did not add.

0:23:46 Andrew: Yeah. Yeah. This This This is, again, that's not a dog whistle, that's just a whistle. He And I quote, "Journalists should ask Kamala Harris if she owes her allegiance to Jamaica and India." I promise you, there will be journalists, quote unquote, who do that. It is despicable, it is racist, it is vile, and we should oppose it.

0:23:53 Thomas: Yeah. Oh.

0:24:21 Thomas: I'm not looking forward to this, uh, this general election process. Who, who knows what's going to come out of Trump's mouth about this.

0:24:27 Andrew: Got some good guesses, yeah.

0:24:29 Thomas: I, for Trump, I guess birtherism has been a long favorite of his. So, cool.

0:24:34 Andrew: I share this out if you have, uh, racist idiots in your family, um, It's

0:24:39 Thomas: I mean, yeah, this is just truly garbage that Newsweek did this. Absolute garbage. It's one thing to say, here's a position that someone might argue, blah, blah. We'll get both sides to some extent. Okay, I get that here and there for certain issues, certain things. We can debate that. But when this is entirely just nonsense and no rational person, no lawyer who's not a screaming racist would ever endorse this view like this. Why are you publishing this?

0:24:42 Andrew: Just, it goes, yeah, agreed 100%. Yeah, no, I want to endorse that 100%. And I wantto add that is far more, right? And again, we never articulated the argument that Ted Cruz is not eligible to be president because he's a Canadian. We've made jokes about it because Ted Cruz will never be president of the United States.

0:25:12 Thomas: Yeah. Well, there is. Wasn't there some view that like it's possible that the founders did intend natural born to to exclude Cruz? But we wouldn't bother like you know, way.

0:25:40 Andrew: But that's that's right. No, no, no. But you're you're right there. Right. Like, but but from the like just asking a question, right, like which which was his justification, if you're saying, you know, ifyou're giving kind of like the Sam Harris like, well, youknow, we're engaged in an academic dispute. We do all sorts of like hypotheticals, which again, OK, fine. Sometimes that is true. The academic argument against Ted Cruz is much, much stronger for precisely that Reason, because it hinges on the question not of, you know, not of what counts as under the jurisdiction of the United States, which, by the way, like, I mean, I could go into I could fill the rest of this episode with questions of jurisdiction are never interpreted the way the way Eastland has done so. So, right. Like, it you are subject to the jurisdiction when you purposefully avail yourselves of the law of a particular jurisdiction. Right. Like, it's just it's it. But but there is a somewhat more respectable debate. And again, I don't want to go there because. Right. If if.

0:26:07 Thomas: Stronger yeah case closed Well.

0:26:47 Thomas: I don't want to ever be in the position where Ted Cruz is anywhere near the presidency again. So that's why I don't to go there.

0:26:50 Andrew: Right, exactly. Exactly. But but look, like there is a more reasonable academic position as to because the Constitution says that you must be a natural born citizen. And so the question is, what does that mean? And there is A a minority argument that says natural born means born in the United States and not born elsewhere. Right. I think Eastland is almost certainly correct. Right. How's this for steel manning a racist? He's almost certainly correct that natural born just means the opposite of naturalized. Right. Means not naturalized right. So it

0:26:53 Thomas: Yeah. Right right right so

0:27:32 Andrew: Means a citizen from birth. Right, however, that that citizenship conveys.

0:27:32 Thomas: A citizen from birth, not necessarily okay gotcha I'm

0:27:39 Andrew: But but to argue that citizen from birth does not like, that, that it depends on the the allegiance and the legal status of the baby's parents is it's it's bonkers. It is contrary to Supreme Court precedent. It is contrary to the way the Supreme Court has handled these issues. And it contradicts your own party's arguments for the past four years about immigration. Right. Like, if that were true, if you could revoke citizenship on the basis of the legal status of your parents, there would be an awful lot more people headed to the concentration camps on our nation's borders right now, so it's it's it's garbage all the way down.

0:28:30 Thomas: Just wondering if Ted Cruz is the worst thing to ever come from Canada. I mean, would you rather Ted Ted Cruz or Nickelback? I don't know. That's a push. That's the tough one.

0:28:43 Andrew: Ted Cruz is is is certainly he's he's worse than William Shatner way.

0:28:47 Thomas: I think whichever one I was hearing at the time, I would say that's the worst one and I want the other one, but then I would keep switching like, no, no, turn the Nickelback back on and then after 30 seconds of that, maybe I'll hear Ted Cruz just for a minute. Yeah, it would be tough. It would just go on and on. There's no deciding.

0:28:59 Andrew: Worse than Rush. I mean, you know, I listen to Rush every day for the rest of my life to not have to listen to Ted Cruz. Yeah, um,

0:29:07 Thomas: Oh, yeah, that's not even a... That's great. Yeah. And by the way, I just kind of want to jump in and say, like, it seems weird that we even have this requirement. I mean, I guess I get it back in the 1700s when they were figuring this out. But it's like this, along with the age requirement for the presidency. Like, I don't know if we, not that it's anywhere higher on our list, and that we're ever going to be able to pass a constitutional amendment again. But it does seem kind of pointless. Kind of feels like, you know, what if you're what if you're an immigrant at age, you know, three days, uh, that somehow you would be disqualified from being a president, whereas if you you know, if your parents somehow were here those four days earlier and you were born here, then you would. Yeah, it seems a little pointless, but, uh, I guess that's the the Constitution we were given. Hmm.

0:29:55 Andrew: Well And and let me add to that, and right, again, I feel like this is maybe steel manning a racist too much, but, um, none of these are justiciable questions to begin with, right? Like, you raised the the age issue, you, um, we've we've talked about this. I, I do not know, uh, and I'll make it stronger than that. Um, let's make it a Republican nominee, right. Suppose, uh, the Republicans nominate somebody who's 29. Yeah.

0:30:04 Thomas: Oh, Yeah, I remember we talked about this just Ben Then Shapiro. No.

0:30:22 Andrew: Ben Shapiro, right. Let's say Ben Shapiro is 33 in 2024. And he becomes the Republican nominee for president. I'm right holding back the bile, but let's say he's elected president. I right don't know that you would be able to petition the Supreme Court and get Ben Shapiro kicked out of the presidency for violating the the president must be 35 clause. Right. Like, I think they would say this is a non justiciable political claim. Like, if everybody knew it's not like he was hiding it. Right. Like, if everyone knew he was 35, 33, and they nominated and they voted for him anyway, like, well, the remedy is don't vote for 33 year olds.

0:30:23 Thomas: What's How is that different then, if a group of people somewhere in this country decide to vote in a totally unconstitutional law or ballot initiative or whatever? Like, doesn't what's the difference there? I mean, wouldn't the remedy always be, well, they voted for it. So the concentration camp bill of, you know, what a Kentucky goes through.

0:31:20 Andrew: So, so good question, because there you would have very circumscribed modes of relief, right, because it's question of what relief could be awarded. The Supreme Court could say, yeah, we adjudge that Ben Shapiro is not constitutionally eligible to be president. But unfortunately, there's nothing we can do anything about. Whereas when they adjudged that a bill is unconstitutional, they can say, yes, the remedy is that we're going to strike down the bill. That's what judicial review is. So what I'm saying is, I don't think a Supreme Court would say we're going we have the power to kick a president out of office. Right. So in other words, we could say, yeah, opinion is that he is not constitutionally eligible to be president. President, uh, but, uh, are you coming to us like, we're we're not the place you go where you have a problem with your president. Yeah.

0:31:59 Thomas: Hmm.

0:32:11 Thomas: Weird. Seems interesting. I don't know. I'd also feel like this would just depend on who was in the court. Like, I feel like it might just entirely be a question of what outcome they want and whether they want to fight for it?

0:32:24 Andrew: Well that that theory that legal realistic theory, uh, legal realism theory, has, um, uh, has a lot to commend it over the past decade. How about how about we say that yep

0:32:36 Thomas: All right. Well, let's again, just close by saying this was a BS article. Shouldn't have been published. This is horrible, and this is racist drivel. Okay. All Opening Argument is brought you by Paint Your Life. That right, Paint Your Life is back with us, and I am so happy because, again, I love talking about beautiful painting I had done of Phoebe and Lydia on the beach in Hawaii. It is something I wish we could go back to right now someday. It is truly phenomenal.

I wanted to give Lydia a gift, and I chose to use Paint Your Life to have a painting done of this picture that we took on our vacation of Lydia holding Phoebe, and I'm so glad I did. It's going to stay with us forever. It' so beautiful up there on the wall, and it makes a fantastic gift. So here's how it works. You get a professional hand-painted portrait created from any photo at a truly affordable price.

You can choose from a team of world-class artists and work with them until every detail is perfect. You There's a user-friendly platform which lets you order a custom-made hand-painted portrait in less than five minutes. It's a quick and easy process, and you get your hand- painted portrait in about three weeks. So send any picture yours, it could be you, your children, your family, a special place, or or even a pet. I've seen a lot of good paintings done of pets. That's hilarious. I think it's a great idea. Or you can combine photos, even into one painting.

Ooh, maybe I can make it seem like Heath was on vacation with us in Hawaii. I didn't think about that. I'll have to do that too. Again, this makes the perfect birthday, anniversary, or wedding gift. It's meaningful, it's personal, and it can be cherished forever. At PaintYourLife.com, there's no risk if you don't love the final painting, your money is refunded, guaranteed. And right

0:32:45 Andrew: Yeah

0:34:28 Thomas: Now, as a limited time offer, get 20% off your painting. That's right, 20% off and free shipping. To get this special offer, text the word OA to 64 000 That's OA to 64000. Text OA to 640000. That's all you have to do. Paint Your Life. Celebrate the moments that matter most.

0:34:53 Clip: The law breaking down

0:35:00 Thomas: Right, let's hear about John Robert. Yeah, man, I, I hope that Andrew has a optimistic take on this, maybe, but, uh, yeah, John Roberts's stealth attack on abortion. Yeah.

0:35:10 Andrew: I do not. Um, uh, A bunch, this to me. This is a Slate article from August 7th, so a little over a week ago by the time this airs. It is by Dahlia Lithwick and Mark Joseph Stern. And I thought I've said this before, but Dahlia Lithwick is excellent. She's one of the very few voices out there writing about the Supreme Court that uniformly gets it right. So, and this is 100 percent correct. So what's the article about and what happened? The article follows our OA episode 400. John Roberts is not not your friend.

0:35:12 Thomas: Okay. Hmm.

0:35:58 Andrew: And and it specifically a month later than we did, by the way, points out that the Roberts opinion straddling the line in June Medical Services versus Russo was not only not a win for reproductive health rights in the court refusing to overturn Roe versus Wade. But was, in fact, as we called it, the very worst good outcome imaginable. And And that is validated by a decision by the Eighth Circuit that came out on the same date as this article, right, to which this article was response, August 7th, in the Eighth Circuit that is called Hopkins versus Jagley.

0:36:45 Andrew: And in it, the Eighth Circuit, relying on the June Medical Services opinion, upheld wide-ranging restrictions on abortion put into place by the Arkansas legislature and specifically cited to the Roberts concurrence as the basis for upholding those laws. Um, so what I want to do is go into a little bit more from Roberts's concurrence in the June medical services opinion, um, why I think the Eighth Circuit is wrong here, but why I'm not surprised at this result and, and, and why I think Dahlia Lithwick is correct in identifying this as paving the way for stealth attacks on abortion.

0:37:39 Andrew: So first, we have to talk a little bit about civil procedure. The June Medical Service's opinion was 4-1-4, right? This was a complete redo of the whole Women's Health versus Hellerstedt opinion in 2016 and involving placing restrictions on abortion center providers that required them to be within 30 miles of a hospital, that the Supreme Court had previously decided just four years ago that that impermissibly burdens the right to choose of a person who was pregnant. The four conservative activists said, yeah, we don't care. The court's liberal wing said, obviously, this is ridiculous, and I can't believe we have to decide this.

0:38:30 Andrew: And John Roberts wrote a very, very narrow concurrence that we focused on the second half of. That said, stare decisis instructs us to treat. Like cases alike, the result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. And we talked about how that specific part really paved the way for, hey, so, you know, if you if you, you know, X and A on the identical like and just change up a little bit, you know, maybe we'll come up with a different result. What I didn't get into, because I do not believe that this is a part of the holding, is the A part of John Roberts's opinion. Dahlia Lithwick does, and so does the Eighth Circuit.

0:39:18 Andrew: So first, the civ pro. Whenever you have a divided court like this and there is no majority opinion, the rule is for stare decisis purposes and for interpretive purpose, right, for understanding what the law is, The rule is it is the most narrow grounds to garner a majority. And my view on that is that the narrow the narrowest grounds for the outcome in June Medical Services versus Russo is stare decisis. Right. It's the only grounds that are common to both for justice majority opinion and the Roberts concurrence. So that means that you are not to take the Roberts concurrents and particularly the a part as being the holding.

0:40:12 Andrew: Nevertheless, that's what the Eighth Circuit did. Did. The Eighth Circuit said, look, this was, in fact, let me not paraphrase. Let me read directly. Chief Justice Roberts provided the critical fifth vote in favor of striking down the Louisiana law, but he concurred in the judgment, not the plurality's reasoning. Chief Justice Roberts acknowledged that he had joined in the dissent in Whole Woman's Health and has expressed his continued belief that the case was wrongly decided. Nevertheless, he agreed with the plurality that it cannot stand under stare decisis. And then they just jump into, relevant to the present case, Chief Justice Roberts discussed at length the undue burden standard. Now that sleight of hand is the transition from the B part of his concurrence to the A part of his concurrency, which does not match up with the plurality at all.

0:40:17 Thomas: Can

0:41:03 Andrew: It's why I skipped it the first first time around because it's super duper terrible. A part is discussing what it means for restrictions on abortion to constitute an undue burden. And again, remember, we did this. This goes way back to OA Episode 23. We talked about the shift from Roe versus Wade to Planned Parenthood versus Casey. It's it's a shift that I'm one of the very few liberal legal commentators that I think was a terrible decision, that that in terms of there was a lot of criticism of Roe v. Wade as, you know, not being constitutionally sound. And to me, Roe v.

0:41:49 Andrew: Wade was a much more sensible framework, right? It had the trimester framework. It said you have to competing interests here, you have the woman's interest in personal liberty, in determining whether or not to carry a child to term. And you have the state's interest in protecting potential life. And what Roe v. Wade did was supposedly should have made nobody happy, right? This is a good lesson of like sort of fighting, holding actions, right. It created a compromise. It said, look, we're going to balance these liberty interests the best that we can. So we're gonna say, first trimester, the person's liberty interest is paramount, right, what the court at the time said, the woman's interest is paramount, and states may not restrict, may not infringe upon that right at any point whatsoever in the first trimester.

0:42:36 Andrew: Third trimester, the state's liberty interest is paramount, and the state may therefore prohibit entirely abortion in the third trimester. And then in the second trimester, in the middle, you have to balance, and so therefore you would engage in an analysis of whether they can restrict but not prohibit. Activists went to work sort of immediately trying to find all the loopholes you could find. Planned Parenthood versus Casey scrapped that entire setup and just said, the only question at any point in the pregnancy is, does this constitute an undue burden to the woman, to the person who's pregnant? So, so, yeah, you could say from day one, we're going to condition your right to get an abortion on getting the man's consent, yeah,

0:43:25 Thomas: It's like The kind of thing that could have honestly been really progressive if the undue burden were defined properly, maybe like that could've allowed for like a more progressive view, or you know, but like what actually happened is that That hasn't been the case, like lots of stuff that really should be judged as an undue burden is somehow not

0:43:40 Andrew: Correct. Correct. Yeah, could have been. But practicality, what it what it did was pave the way for the series of challenges we've seen since then, which really leave the status of the right undefined. Right. Like when you have a nebulous balancing test, like what constitutes an undue burden? Well, you know, like, what, what white guys in Louisiana think constitutes An undo burden is very different than what, say, women in Philadelphia might think constitutes and undo burden. And again, as a lawyer, I've talked about this before, like I would rather have a concrete system that has some injustice associated with it than a vague system, because then I can't advise my clients what to do, right?

Right. And the classic example of that is like the speed limit posted is sixty five. Like I know what to do. Right. And so, yeah. Are there some vague or like am I going to get mad if I get pulled over for going sixty eight? Like, yeah, sure. But like I know I can't go 90. Right. Like, I mean, you know, it it tells me how to conform my conduct so that I don't run afoul of the law.

When you say, well, don't violate a person's like don't impose an undue burden. What the hell does that mean? I would Right. Much rather have like a clearer standard, even if that created some injustices in the individual cases. So here's what Roberts did in the a part that is incredibly subversive. What he said was that under Casey,

0:44:14 Thomas: Yeah Yeah

0:45:24 Andrew: The way in which we determine whether a burden is undue, right, is we ask, does it impose a substantial obstacle on a person who is seeking to procure an abortion? Right. Here's his language. The upshot of Casey is clear. The several restrictions that did not impose a substantial obstacle were constitutional, while the restriction that did impose a substantial obstacle was was unconstitutional. OK, so got that. So he says essentially all of the Casey balancing test just reduces to is there a substantial obstacles? Here's why that changes the law. And that's a bad thing. Prior to this decision, it was truly, because that's not a balance, right? I just indicted Planned Parenthood versus Casey as a balancing test. And you might be thinking like, well, it's a weird balance that only has one thing. And it's true. Casey was never interpreted as just asking, is this a substantial obstacle? The question was, is it a substantial obstacle that is not borne out by the advantage to women under the law, right? In other words, you had to say in these restrictions, you had To present evidence that you were doing this for a positive reason, right.

0:46:55 Andrew: And again, these are fig leaves, and they're terrible anyway. But think Think about like the justifications, right? Like the justifications for requiring abortion clinics to be within 30 miles of a hospital is ostensibly Like, oh, well, you know, it could go wrong, and, you know, and everything could be a disaster, and we would want to get the woman to a hospital. And then, and so what you do is you analyze the benefit to the woman, right, which is um, how often do women have to go to hospitals after an after an abortion, and the answer is virtually never, right, like literally that that that, you know, almost is zero versus what kind of an obstacle does this put in their path. And right, the answer in Texas and Louisiana under those laws was a really really substantial obstacle.

0:47:07 Thomas: Right So

0:47:45 Andrew: So you balance it out. What Roberts has done, and uh, what the Eighth Circuit adopted, is get rid of the analysis of any benefit to the woman whatsoever. So in other words, the question is now just, there will there will be no requirement if this, if this Eighth Circuit standard is is left to stand. And look, um, our options are this. This can either be the law in the Eighth Circuit, or it can be the law everywhere, right? There's not much in between.

0:48:25 Andrew: Now, legislatures will not have even to offer the fig leaf of, oh, we are doing this to benefit women. And if you think that I'm being hyperbolic here, let me read from page five of the opinion. And again, this is page five of the Eighth Circuit's opinion. According to Chief Justice Roberts, the appropriate inquiry under Casey is whether the law poses a substantial obstacle or substantial burden, not whether benefits outweighed burdens. I'm going to skip some citations. Bottom line, as a result, Chief Justice Robert's concluded that nothing in Casey required, quote, consideration of a regulation's benefits, end of quote.

0:49:10 Andrew: So what does that mean? That that means anti-abortion legislators no longer have to even pretend that they are trying to do what's in the best interest of anyone. They just have to say, oh, well, yeah, this isn't that big a bird, so suck it up and deal with it. And the laws that were, we don't even have time to to deconstruct the uh, the laws in Arkansas, um, that this involved, the requirement of uh, among other things, that uh, you know, you bury uh, fetal remains after an abortion, um, and that uh, abortion providers maintain certain forensic sample, I mean, it's just it Yeah. Yeah, go ahead.

0:49:57 Thomas: Well What's the distinction? You talked about the A part and the B part, and there's some confusion as to whether or not like this A part was was like part of the concurrence or part, so what's, can you Clarify that for Maybe people like Me Are a little confused, okay

0:50:10 Andrew: Yep. No, no, no. I'm really glad you've asked that. So Roberts wrote a concurrence. He said, I concur in the judgment. That is that the Louisiana law at issue in June Medical Services versus Rousseau was unconstitutional. He that's what happens in the case. It's unconstitutional. The law is overturned. He then writes a separate opinion to explain why he's concurring. That Separate opinion with part one that outlines stare decisis, and then goes into a part two. And that part two is what's scheduled, what has the A part and the B part, um, and that part two applies, ostensibly applies, the law of stare decisis to the the Louisiana statute at issue, the admitting privileges statute, right. The A part interprets Planned Parenthood versus Casey in the in the way that the Eighth Circuit just described, right, as saying, hey, uh, Casey doesn't require us to look at the benefits of the law at all, it just says, is this a major obstacle? The B part says, but in any event, we don't have to

0:50:42 Thomas: So

0:51:28 Andrew: Analyze this under Casey, because this is exactly identical to Whole Women's Health versus Hellerstedt. We decided that four years ago, and this is the same damn law. In The Same Damn Way Yeah 100

0:51:37 Thomas: Okay So Is He Like sneaking In a revision Of How Casey is to be read, okay

0:51:42 Andrew: And look And don't say sneaky, say sneaking, it's fair, because it's what he did. But be fair to John Roberts, it's perfectly fine in a concurrence to describe what you think the law is and should be, right? Like, that's okay. But where it's sneaking, what the sneak job here was, the Eighth Circuit said, oh, that makes all of Roberts's concurrence the majority holding in June Medical Services versus Russo, and it does not. But the problem is that this is now the, that

0:51:43 Thomas: Yeah Yeah The People Who will tell us it does not is the Supreme Court Who will just rule in favor of whatever it is anyway Gosh Okay, mean, I feel like, so then, I mean, ultimately the problem here is the Supreme Court and the fact that there's just no way that I can think of to get liberal uh, justices in the Supreme Court, oh, short of, you know, voting for a Democrat For the presidency, I guess that's something, man, in retrospect, maybe we could have done that

0:52:19 Andrew: Is exactly right.

0:52:35 Andrew: Yeah. Let me explain what happens now. This opinion, right, came out August 7th, right, a little over a week ago. The Supreme Court is still under the COVID rules, so they have, I think, I, 90 days to file a cert petition. I don't know what to do, right, like I Mean, if I were, if I was being called upon here, right, like you you Have Well

0:52:54 Thomas: Yeah Because If You, if you get cert, then they they make this the actual law, but if you don't, then it's effectively the law is That the, yeah

0:53:05 Andrew: Then It, then then it is the law in seven States, and let Me tell You These seven states: Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota, Nebraska. Right. Six of those are deep red states. Well, I don't want to say Iowa and Missouri are deep read states, but but whatever. Six or those are red states, six of those or conservative states that are going to enact draconian restrictions on abortion. And the Eighth Circuit has now said, you don't have to balance that against anything. You just have to not be as bad as you could possibly imagine. Right? Right. Like

0:53:08 Thomas: And Seven Yeah Yeah And

0:53:42 Andrew: Literally, their wording is just the law has to not constitute a substantial obstacle or a substantial burden. That's it. It doesn't have to be a good law. It doesn't have to have good idea. And so you can say, yeah, this is a terrible idea that won't help anybody. And it's an obstacle. But, you know, it's not a substantial obstacle. And under the Eighth Circuit rule, that's fine. Right. That's oh, come on. Like how how bad is it to require you to have to hold a funeral for your abortion and, you Know, cremate the remains or bury them in a plot? I mean, like, seriously, that was the law in Arkansas. Like that'S our new frontier. And so, yeah, these these cases matter. These elections matter. And like we told you back in Episode 400, John Roberts is no centrist and he is no friend.

0:54:20 Thomas: Yeah Oh, on that depressing note, uh, please vote for Biden Harris, uh, in this upcoming election, there's a lot at stake, a ton at stake, and uh, it's very vital. And if we haven't made the case so far in these last four years, then I don't know why you're still listening, but

0:54:48 Clip: And thank you. Let's go!

0:54:49 Thomas: With that said, why don't we thank our top patrons over at patreon.com/law, uh, it's our favorite tradition, we get to hear all the fun names that people come up with. And again, go check out that Law'd Awful Movies, it's out as we speak. Uh, and I'll start us off here. Thanks to ATT. Casa Agria is the best brewery, at Emperor's Brewery is a close second, stoic paralegal, your honor, I'm just a simple country hyper chicken. Chicken. Man, we need more hyper chicken in the intro. It's been a while. Great Dooku Tree, Thomas Kleberg, Bradford Keating, Mary Perez, Amicus Flinch, Dan from Deerfield, I won't tell another dicta joke until Trump is out of office, I now possess that which you most fear, you'll do my bidding or taste my wrath, okay, and Schmeckle. Hold up, I actually like real property.

0:55:35 Thomas: I blame Melania for Trump's suggestion to postpone the vote. Who else would ask Trump to prolong his his election.

0:55:43 Thomas: Two fabulous lesbians who just got married. Congrats.

0:55:46 Andrew: Oh, congrats.

0:55:47 Thomas: William Drew Collins. Bob Newhouse. Sassy Italy tours really will use a truck to stop Nazis from running into Black Lives Matter protesters. Greg Krimer. I'm only here for the never-ending fame and fortune. Register every person you know to vote. Imagine the G Carlin 2020 album. I pronounce it G off in my head. I guess murder hornets were just a filler episode cheeky breeky the article I wrote and announced here on Trump's narcissism got published by the folks at the Midas touch thank you congrats 2020 has been the most exhausting decade my call horn book law is a primer that's pronounced primer you ninny it's not paint Samuel Bland fly like a hot dog freedom eagle angry mac face say it with me amicus Matthew McConaughey portraying Matthew McCunaughey long time ago me and my my brother Kyle here.

0:56:37 Thomas: We was hitchhiking down a long and lonesome road. I could do the whole song right now, but I'll, I'll spare everybody. So good, center, black trans sex workers, stop, ask a question, a president of Finland would ask the Books That Burn podcast, reviewing fictional depictions of trauma since 2019, wear a mask, vote and overwhelming numbers, we can do this, wear a mask, it's polite, this episode brought to you by the letter Q for quarantine, a crime that is sufficiently complex is practically legal, maybe Patreon will save this name, change this Patreon name, paid for by the Lionel Hutz for SCOTUS committee, he's more qualified than Brett Kavanaugh anyway, Haney Maxwell, hey Rocky, watch me pull an executive order out of my ass, that trick never works, yikes, I'd better get another ass, so our movie studio lawyers, experts in real property, nice, in Illinois we pronounce it Illinois, make Steve King an author again, Murray Gregerson, Andrew is my favorite undeclared congressional candidate, Thomas's close second, howler monkeys turning dicta into dogma one case at a time, some infinity symbols, Ian Buckley, donate to restore Florida voting rights at, we got the vote.org slash fines and fees, not that Chris Wallace, just effing vote blue, Jake Braun, Haywood Chablomi for Congress, gift

0:57:55 Thomas: Him give to my needs.org. Give to minus needs.org. Christopher for Brown, she's got dumps like a Trump, Trump, Trump, vote them out, like, what, what, what, vote is dumb, I, yay, yes, uh, Lawful Copter says of course Trump isn't throwing out the Yankees for its first pitch, he's dropped the ball and literally everything else, virtual law school with a third grader, what could go wrong, can we get cert to appeal all of Thomas's incorrect T3BE answers, challenge, Wild Heaven is the best brewery, Three Taverns is a close second, oh, Brad in Texas, there's a goat, why is there a goat, Rob M., Andrew sidles but thinks it's weird for atheists who launder ideas for Christian nationalists, yeah, there you go, check out the latest Serious Inquiries Only for more on that, Zirkle,

0:57:53 Andrew: Oh, I'll always laugh at that. Oh, Yeah, yeah,

0:58:41 Thomas: Podcasters lives matter too, I'm pledging 250 a month for Patreon creators, please don't tell my wife, Odin wants you to adopt a shelter animal and vote for Joe Biden, I want more briefs, Paulie Hernandez, the previous Patreon name is true, the next Patron name is false, my charity puts fraudulent NRA board members into comas, waiting York State to investigate, Emily Rainbow Spence, stocking up on lung injectable bleach, Internet Explorer votes for Boston Life Show, Terry Cannon, Jason Kopus, punching fascists is not enough, get into good trouble, Hotspear asks if we're invading our own country now because of travel restrictions, and take donation advice from a podcast, FFRF, EFF, ACLU, Modest Needs, and our damn Patreon. Oh, your turn, Andrew.

0:59:31 Andrew: Thank you to Japanese caravan, synchronized swim team, Destination Portland, Nate Drex, Darth Mandy Pants, a string of unfathomable Trump quotes, talk to two friends today and make sure that they are registered to vote, yeah, that's a great idea, 13th century Saxony gravel truck lawyer, save the USPS, they are essential for small businesses and our democracy, volunteer for your candidate today and take back your government, Jennifer Cratch, J. Cheever Loophole, Diogenes the Cynic was right, but Epictetus the Stoic lets me, lets me enjoy nice things while they laugh, that is some amazing coordination on the list there, that was, that was fantastic, uh, the amicus shall inherit the earth, what, wash your hands, then vote for Joe Biden, Steven Balticate, Sandoval, civil politics radio.com, Fridays at 7 p.m. Eastern on Valley Free Radio, John Bilderback, remind me to never hire Sydney Powell as a lawyer, yeah, that's good advice, 1917, pandemic, ending world wars since 1945, oh my gosh, oh, yeah, no, we don't have time, Philip Kizer, Andrea, the arbitrary and capricious, you'll have to speak up, I'm wearing a towel, Eric Alsman, superior may be going too far, but I'd like a show comparing, pairing civil law versus common law systems, keep asking, man, it's on our whiteboard, me fail presidenting?

That's impossible. So sad that Tulsi Gabbard won't be present in Congress next term. Moot would be my favorite word if it weren't so redundant. Absion. Therese Chan. Pain's Trumpet. Trambolus. The Marlins aren't even a major league baseball team and they're kicking your ass. That's so good. The Wandering Gambler. Akitarawa, Japan. I say this at least twice a week. I say this at least twice a week. Milo Meat Song stands in solidarity with UW nurses and their union.

1:00:30 Thomas: That's all real. That was a real quote.

1:01:18 Andrew: Guy Chapman, death escrow karaoke, only songs by dead artists. Join your labor union together. We bargain alone. We beg. Wait, wrong list. These are the people with restraining orders against us. Wow. James K., lawyer, comedian, guest, microphone, podcast.

1:01:35 Andrew: Ah, ah, and with that, I'm going to need a glass of water. Hope you appreciate that, uh, that scream required me to refresh myself here, Chad T., anonymous, siege Megatron's overly elastic lip animations, yeah, I, I have so many thoughts on this, hope you are all safe and well, have a good week, yeah, we endorse that, word origins.org, your source for legal terms from 13th century Saxony, impeach Thomas's penguin, close and concessions, Airbud 435, Barker of the House, maybe the real Conrad Michaels is the friends we made along the way, Liz Weeks and Liz, time to get a new name, Derrick, Adam Costa, J. Alden Walt, okay, fine, I'll vote for Joe Biden, would you quit bothering me already, geez, no, Opening Arguments official subreddit at reddit.com slash r slash openargs, that is true, big easy blasphemy, a string of unpronounceable characters, if a lawsuit has no briefs, it is going commando, Ronda 2020, because, because WTF not?

1:02:34 Andrew: I've donated more to Biden than any other candidate combined ever, and I don't even like him. That is the spirit, my friend. Malika Chandler, tricycler manslaughter, soggy pants, Matthew Vernon, adopt a homeless pet in a post, declawing an ear docking, Sakashite Fukasumi just can't even. Advice from laser beam monstrosity attorney at law, Heather L., David in Brooklyn, Jeremiah's fancy microwave emporium, Ian and Allie, Danny Rosari, Eli Bosnick, Sam Donow, humpity pumpity. Mitchell, no commute so behind on podcasts. You can tune a piano, but you can't tune a fish. Sam Buck, Natasha Crunchwrap wants you to support the Justice Policy Institute. OK, I agree with that 100 percent. And of course, our all time great, he who shall never be dethroned, Conrad Michaels. Such a good list.

1:03:21 Thomas: Good times. That always cheers us up, even when the news is negative. Thanks so much for listening. Thanks so many patrons for supporting the show. And we'll see you on Friday.

1:03:24 Andrew: Yeah.

1:03:31 Clip: He's not even a lawyer and he's kicking your ass.

1:04:04 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, 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. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.