OA430: Amy Coney Barrett Is Terrible

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 430. I'm Thomas. That's Andrew. How you doing, sir?

0:01:23 Andrew: I am fantastic, Thomas. Hopefully, by the time everyone is hearing this, the Tampa Bay Rays will be on their way to the World Series. So, it's been good. Baseball's been good.

0:01:30 Thomas: Mmm. Yeah. Yeah, Dodgers decided to take a couple games off. Well, actually No, they took, let's do some math here. They decided to make 17 innings off, and then, like, in the in the ninth inning of the second game, they're like, "Oh, whoa, we got a play," and they almost did the most heroic comeback of all time, and then first inning, next game, they score 11 runs.

0:01:41 Andrew: Right. Yeah.

0:01:58 Thomas: It's crazy.

0:01:58 Andrew: 11 runs.

0:01:58 Thomas: I'm hoping that it would be too perfect for my Dodgers and your Rays to be in the World Series, it'd be too much fun I

0:01:59 Andrew: It was unbelievable. Unbelievable. How could that not be what every Opening Arguments listener wants, but uh, it's at least what I want so

0:02:10 Thomas: Know who would have thought that in that combination the Dodgers are not looking good and the Rays are like a shoo-in at this point, yeah.

0:02:13 Andrew: Yeah. Yeah. Well, You know, let's, I, I feel about the Raise exactly the way I feel about Joe Biden right now, right, which is like, I, I, yeah, looks real good, but like, uh, let's still walking across the finish line. Okay, so

0:02:29 Thomas: Oh, god. You're right. Yeah, the polls have the Rays ahead, but uh, you never know,

0:02:37 Andrew: Yeah, god, it's all gonna come down to Wisconsin. Oh, All

0:02:44 Thomas: Oh, my god. It's sad, it's, it's funny because it's how we feel right now, like, "Oh my god, please, everybody vote, make sure you vote for the Rays or Biden or whatever." Yeah, all right, we've, we've got a lock to talk about, as always, on the show on Fridays, especially, especially, um, a couple announcements before we get going.

0:02:46 Andrew: Right.

0:03:01 Andrew: Uh, as always, uh, on a Thursday, on a Friday show, which we record on Thursday, about an hour before we were set to record, the D.C. Circuit uh granted en banc review in the McGahn case. So here's the update on that. I've seen a bunch of sources again, kind of get caught up in timing. So let me explain what's happening in the McGahn case. This is the House Judiciary Committee that served a subpoena to former White House Counsel, Don McGahn, in connection with the impeachment inquiry. McGahn said, "Oh, I have absolute immunity." By the way, no court, no judge, not even Naomi Rao thinks that's a good argument, right?

No one has said you have absolute executive immunity because you were the White House Counsel. That position is a bonkers, ridiculous, crazy pants position, OK? OK, but the conservative panel to which this was assigned in the U.S. Court of Appeals for the D.C. Circuit first ruled, to one, in the worst decision I have ever read in my entire life, that, you know, subpoenas are subpoenos, but it's not like courts can enforce them. That was then, that was a 2019 ruling, uh, that was petitioned, and the the entire D.C. Circuit sat on bonk and said, "We don't know what you're talking about, we're vacating that opinion, we're going to send

0:03:46 Thomas: It's

0:04:31 Andrew: This back to you, try not to screw it up a second time, okay, Judge Henderson?"

0:04:35 Thomas: Like, "We're gonna let you take the test again, and if you want to, like, keep the book open while you're taking the test," like, see,

0:04:40 Andrew: Yeah, uh, and they got it wrong a second time, this time saying, uh, okay, there's no blanket immunity, you told us that there was standing because it's a subpoena, and subpoena means "under penalty," right, like, so, okay, we guess there's, but there's no particularized injury here because there's not a specific law, that's it, it's, it's, an it's stupid opinion.

0:05:09 Thomas: Me after class, yeah.

0:05:10 Andrew: Yeah, exactly. That, that opinion came, came down August 31st. The House Judiciary Committee petitioned for en banc review a week later, September 8th. I have uploaded that petition because it contains the ruling and everything else, and it's just super clear, to the Opening Arguments website, and it's linked in the show notes. And then today, October 15th, yesterday, by the time you're hearing this, the entire D.C. Circuit granted en banc review, so a month later, that is, again, a totally normal, if in fact expedited, schedule. It does mean, as people are saying, that the entire D.C. Circuit is not going to issue a ruling on whether McGann has to testify before the election, but no, right, there's no time frame that was going to permit that.

0:06:04 Andrew: Right. Like once once the D.C. Circuit panel decided it was going to play shenanigans, we told you on this show, OK, well, that means we're not going to get testimony from Don McGahn before the election. And if that makes you mad, maybe vote for somebody who doesn't appoint Don McGahn to be White House counsel. So, since this will not come out before for the election, the D.C. Circuit did not bother to expedite the schedule. So, standard briefing schedule, they get the record in mid-November, along with the first brief of appellant. The appellee's brief is due mid-December. Their reply brief is due beginning of January. Oral argument in February of 2021. So a lot of people are talking about the timing. But, but, look, this is a a much better outcome than letting a terrible panel decision stand, so it's it still, you know, counts as a win in in in our books, um, it's just once it got assigned to

0:06:21 Thomas: So

0:07:07 Andrew: A conservative panel that was designed to help Donald Trump run out the clock, uh, guess what, Donald Trump ran out the clock, so we, we've known this, uh, this is a good result.

0:07:18 Thomas: Of, like, let's say this all eventually goes the right way, then, then he has to testify in the impeachment, what happens, what's the end result of it?

0:07:25 Andrew: Look, Like it, it, there are two possibilities, right? The first is that if there is a new administration and there is no ongoing inquiry that the Supreme Court says, okay, well, this, this case is moot. There is nothing left to resolve here and it just goes away. And I said the Supreme Court, but I mean the, the DC Circuit, right. Right. The second and and that's a possibility. The second, though, that I think that has always been entwined with the McGahn subpoena, the Mazars subpoena with everything else is I think the House Judiciary Committee could say, look, we need a full and complete record of what happened so that not just so that we can do our job in a criminal context, which, again, they will lack the jurisdiction to even.

0:08:18 Andrew: Impeach a president that has been voted out of office, but also to craft legislation right to say look, we need to figure out exactly how Donald Trump broke this system so that we can fix the laws so that no future presidents can break the system, right? Though if we are stupid enough to elect another Trump, like maybe they'll find other ways to break it, but like, at least we can stop.

And and to me, that's a pretty good argument that that the case is not moot and that you would want testimony from McGahn. In addition, adjudicating this claim, I think, will have immediate impacts in subsequent criminal procedures against Donald Trump and his family and his band of cronies, even if, because because remember, even if Trump pardons himself and everyone around himself, even if the worst possible scenario happens, that does not immunize him from state law crimes. And we have already seen, right, Cy Vance is on it in New York, and the idea that there may be subsequent prosecutions of Donald Trump, particularly coming out of the state of New York because that's where he lives and that's where a lot of these crimes have taken place strikes me as plausible. So I think that there is a real probability that that this case gets hurt. There is a probability that it becomes moot. The case also gets heard if the election is a disaster. So, you know, let's

0:09:59 Andrew: Let's not have that happen.

0:09:58 Thomas: Yeah, Yeah, I agree, let's not. Okay, um, gonna put out, we're still in announcement mode, folks, that wasn't even a segment, can you believe it, but you also were going to put out a little bonus special extra for the patrons. Oh,

0:10:12 Andrew: Um, one of the things that, uh, that I do every week, uh, with the assistance of Ashley Smith, who works, works for the show, works for my law firm, is I, she puts together top stories and gathers court documents and stuff for me. There have been probably a dozen election cases that have come out in the past week, right? Including two from North Carolina, including the Fifth Circuit upholding Greg Abbott's idiotic rule of one ballot drop-off box per county in Texas, right? So there wasn't a way to kind of do... I thought about doing all of these as a segment on the show. The cases are pretty straightforward. They're not that hard to understand. There's some

0:10:46 Thomas: My god. Yeah, It's like, well, there's a sinister, bad, bad guy trying to take away democracy, and then the other side says, "Maybe have democracy?" Yeah.

0:11:09 Andrew: Yeah, that's right. Well, and the wrinkle is that's a real one that that courts will be wrestling with over the next three weeks is how do you craft a remedy for some of these policies where early voting has already begun? Gun, right? That came up in one of the North Carolina cases, for example. Like, if people are already complying with the policy, then there's an argument that you are discriminating against one class of voters, right, if you then subsequently remedy the policy. Now, I would argue that the remedial action outweighs the classification harm, but it's just one of of the many kind of crazy things that uh that we are seeing coming out of the courts in this highly unusual election season. So um, so I'm gonna put together a little uh, a little memorandum with some hyperlinks, and we're gonna send that out to all of our patrons. And again, uh, Ashley did a lot of the legwork, uh, pretty much all the leg work on that I read them.

0:12:14 Thomas: Hey, quick quick question. Are any of those included where, uh, in California the GOP is putting out fake ballot drop boxes? Is that one of them? It's real real thing

0:12:16 Andrew: So yeah, uh-huh Absolutely. So that has not yet gone to court, but those stories are linked. So, again, just an illustration of we did some really good behind-the-scenes research. And we don't have time for it on the show, but I do want to share it with folks. So, if you're a patron at any level, you will get that little extended notes memoranda and hope you enjoy it.

0:12:25 Thomas: Right all

0:12:48 Clip: He who questions training, only trains himself at asking questions. What?

0:12:55 Thomas: Andrew, Andrew, listener question here. For a freedom not protected by the Constitution, can the federal government pass a law preventing the state government from restricting it? If Roe v. Wade is overturned, can there be a federal law to replace it with the same effect? If the Fed decriminalizes weed, can it also pass a lot of preventing the states from criminalizing it? Yeah, this could matter. Great question.

0:13:20 Andrew: Yeah, I thought this was a great question. And I thought this was really a great setup to our discussion of Amy Coney Barrett in the main segment and sort of what the the correct answer right wing activist judiciary plan is to make it harder for the federal government to do. So let me give you the civics answer first. Right. And that is our federal government is a government of enumerated powers. So they have to specifically have been delegated. The right Congress has to specifically had been delegating the power to do a certain thing in order to do that thing. That is set up in Article 1, Section 8 of the Constitution. It is the longest section of the Constitution. And it has 18 different clauses. You probably memorized a bunch of these like in your high school civics class,

0:13:26 Thomas: Yeah, sure. Definitely.

0:14:10 Andrew: Right? Like Congress shall have the power to, yeah, well, that's the preamble. But Article 1 Section 8 are the enumerated powers of Congress. That is to lay and collect taxes, to borrow money, to regulate commerce with foreign nations and among the several states, to coin money, to establish post offices and roads, right? All of those things that Congress specifically has the power to do. And the most important historically in our nation's history has been the one that I had just read, not the constructive post office, but to regulate commerce with foreign nations and among the several States, right. And that is Congress has the power to regulate interstate commerce. And throughout our nation's history, as we've grown,

0:14:10 Thomas: We We the people uh yeah

0:15:01 Andrew: Not just geographically and numerically as a nation, but in terms of infrastructures, we went from a loosely connected agrarian confederation of states into an information economy of instantly networked states. Right. That up until the last 20 years or so, the direction has been saying, OK, if something is somewhat connected to interstate commerce, then it falls under Congress's power to regulate as interstate. So let me give you a perfect example of how this would apply 100 times out of 100 prior to, say, from 2005 and earlier. And you see where this is going. And it would be Congress could say if if the Supreme Court were to decide that abortion is not a fundamental right inherent in the right of privacy and therefore guaranteed to.

0:16:05 Thomas: Well, Because after all, Andrew, the word abortion does not appear in the Constitution, so ipso

0:16:10 Andrew: Yeah, I think we tackled that one like in OA episode three. Yeah. Yeah. If so, fatso. Yeah, I mean, that is that is truly one of the dumbest arguments that that anybody could make. Um, and and I won't even waste time on that one on on this show.

0:16:15 Thomas: Facto right For the record, I want to say that was a member of Congress from the GOP who tweeted that. I can't remember if that was that went around recently. That's why I brought it up. But anyway, sorry, carry on.

0:16:31 Andrew: But but yeah No, it in indeed, it was uh, it was either a sitting member of Congress or a congressional candidate, uh, Republican, obviously. And uh, and you know, they do the same thing with, well, you know, separation of church and state is not in the Constitution. And it's like, right, lots of things aren't in the Constitution, you. Yeah. Yeah. Anyway. So, yeah.

0:16:37 Thomas: Right mm-hmm the internet is not in the Constitution. Yeah.

0:17:00 Andrew: Funny how the things they care about that, you know, can be inferred in any event. Right. So the Supreme Court says abortion is not a fundamental right, is not an aspect of the fundamental right of privacy. That would turn 50 years of court precedent on its head. But that's where we are. It would be 100 percent reasonable and constitutional for Congress to say, whereas, whereas access to abortion often leads women and those seeking abortions to travel between across state lines to procure services due to unequal regulation, and whereas we think that activity is inherently dangerous to the patient, and we think that that activity is something that the Congress ought to regulate,

0:17:03 Thomas: Coming

0:17:53 Andrew: Therefore, we promulgate the following uniform national standards for when and where abortion rights can be restricted, and we explicitly preempt all state laws to the contrary. That is, if this were opening arguments 2004, I would say there is a 100, yeah, when yeah, you're done with your AOL chat rooms, come on over here. Yeah. And I would say there's 100 percent chance, like, obviously, that is a core power of Congress to to regulate interstate commerce. One may infer from that long setup that there has been a history of Supreme Court decisions from 2005 to the present that have tried to and have successfully narrowed the scope of what constitutes interstate commerce in ways that completely overturn, you know, a century worth of decision making. And I think none more drastically than NFIB versus Sebelius, right, than the Supreme Court decision, quote, upholding Obamacare, which justified the regulation of health care on a national level, not as a regulation on health care.

0:18:16 Thomas: At you on your dial-up modem. I don't, yeah, well,

0:19:18 Andrew: On a national level because, you know, people move, people travel across states, insurance companies offer policies across states, the rates differ across, like, there there is such an obvious connection to interstate commerce, and the Supreme Court said no there isn't. Go ahead.

0:19:33 Thomas: But isn't isn't There also the power for the Jeff, or the well-being, or whatever the something for the betterment of the, there another way that Congress has power to do stuff.

0:19:42 Andrew: It, it, Congress has. So that that's clause one, glad you asked, shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.

0:19:55 Thomas: General welfare, there we go. Why is it not general welfare, but

0:19:55 Andrew: Yep. I will tell you that in the same way that abortion is and the word privacy are not in the Constitution, but are nevertheless part of constitutional jurisprudence, the words general welfare are in the constitution, but have never been interpreted as providing plenary police power. In other words, it is not sufficient for the Congress of the United States to say, yeah, we think this would be a good idea. Like we think this would probably help people. That's not enough to be a hook to to claim it as an expressly enumerated power under the Constitution. I could get into the the various debates by and between the authors of the Federalist Papers and among the founding fathers. But but suffice it to say, like when you.

0:20:53 Thomas: Then you'd have have to make some rhymes and put a beat to it, and we'd have to dress up, it's the only way you do it anymore. So now let's avoid it.

0:20:59 Andrew: That is no, no, but but look, if anyone were an honest originalist and, you know, who knows? Right. I mean, Jed, Jed Sugarman came on the show and said that he was, and well, you know, I'll take him at his word. Um, if you were an honest originalist, you would say that there is, uh, a, it's probably a minority position, but there is a a legitimate founding father driven argument of, that's that's exactly the point that you just made, Thomas, right, which is, uh, that the the the right, uh, of the Congress to, uh, pass laws to provide for the general welfare of the United States, uh, ought to be sufficient to cover this kind of legislation. Um, but, uh, that's has not, that has, that that that has not prevailed throughout throughout history.

0:21:05 Thomas: Wait,

0:21:50 Andrew: And despite the fact that I am certainly willing to engage in constitutional hardball, I am not willing to gauge in liberal originalism and claim that, you know, precedent doesn't matter for anybody now. Let's get it to have liberal. I like, that's just, that that's a race to the bottom. I'd like to. So the the answer to the question is, yes, the federal government under the supremacy clause can override state laws if it has a reason to do so that is within the enumerated powers of Article 1, Section 8. Yes, interstate commerce ought to be enough to override those state laws in the two instances that you talk about. So both abortion and weed seems to be a pretty strong connection to interstate commerce, but it has been a game of the right wing since, well, it's been put into practice for the past 20 years to try and artificially constrain the definition of what counts as interstate commerce.

0:22:01 Thomas: Let's not, yeah

0:22:56 Andrew: And they succeeded in the Affordable Care Act in ruling that regulating the interstate markets for insurance did not contain a sufficient nexus to interstate commerce to justify the Affordable Care Act. And that's that's a pretty good segue, I think, to to talking about Judge Barrett's confirmation hearings, which are every bit as much of a farce as we thought they would be.

0:23:25 Clip: The law breaking down

0:23:32 Andrew: Here's here's what you need to know. Sheldon Whitehouse is the only person who is doing any good in my view. He's great. And if you watched, I

0:23:39 Thomas: Right Are you telling me that Feinstein coming out and, you know, praising her family and giving her a bunch of compliments is not helping the cause? Oh, yeah

0:23:50 Andrew: Am telling you that. Yes, um, could we, could do an entire Patreon only special on, you know, how Diane Feinstein has made managed to screw up, uh, both Amy Coney Barrett confirmation hearings. But uh, I'll just, I'll just say this, like, it is within your power to primary Diane Feinstein. People so you know for all the people arguing about, like, how, you know, we've sold out for Joe Biden. Yeah, and and look, like, when when Feinstein faces a lunatic Republican challenger, like, Thomas is gonna go vote for Diane Feinstein. But you know what, like, we we can primary her, especially in California.

0:24:08 Thomas: Yeah let's let's do that. Mm-hmm.

0:24:27 Thomas: That's how it works. You vote for your dream candidate in the primary, and then in whatever the general is, you're going against Nazis, so you vote for the not Nazi. It's pretty simple. It's so easy.

0:24:28 Andrew: Yeah. Uh, I couldn't say it better myself. So anyway,

0:24:38 Thomas: You can do it too. Okay. Sorry, yeah, oh,

0:24:39 Andrew: All right. So uh, yeah, and a bunch of people have like sent uh, white house's testimony to us uh, you know, in clip form and ask like, "Boy, isn't this great?" And And I'm just hoping you guys are recent listeners to the show, because we broke down this argument 121 episodes ago, more than a year ago, when Sheldon Whitehouse first made it, which was in what I described as the best amicus brief ever filed.

0:25:09 Thomas: Yeah. Good.

0:25:10 Andrew: Right. Amicus brief filed in the New York Pistol and Rifle Association case before the Supreme Court. We talked about that at length in Opening Arguments, Episode 309. So if you liked his half an hour of questioning, backed up by evidence that the Roberts Court reaches partisan political outcomes in the overwhelming supermajority, 76 of 79, 5-4 decisions, go back back and listen to OA 309 and read the actual brief, because uh, we've, we've been on this train for uh, for a long time, so yeah.

0:25:47 Thomas: On uh, good on Sheldon Whitehouse, way to go Rhode Island, who would have thought they'd come in Handy. I just Try to diss As many States as I can, so That we have no More Fans, but Only

0:25:50 Andrew: Yeah. He's He's Great. Yeah. Exactly. Exactly. Yeah. You want everyone To just live in California.

0:26:00 Thomas: The small ones by the numbers, we should still be okay.

0:26:03 Andrew: Thanks.

0:26:03 Thomas: Well And speaking of uh, by the way, I was going to mention earlier and I forgot, but speaking of new listeners to OA, I, I recently, regarding all this Amy Coney Barrett stuff, did you see uh, there was an article going around on Twitter that was like, "I don't think people really fully grasp how bad a 6-3 court is going to be," you know. And I was sitting there thinking like, yeah, well, unless you listen to this show and then you actually do Have some idea of how bad it would be. I don't if you saw that one as well, but hopefully more and more people are catching on to how backwards these people's views are, as much as Amy Coney Barrett can, without the aid of any notes, uh, can just, you know, give all this BS nothing answers, which is amazing. Can you believe she didn't need notes to not answer anyone's questions, Andrew? Incredible.

0:26:05 Andrew: Yeah.

0:26:28 Andrew: I

0:26:51 Thomas: Sorry.

0:26:51 Andrew: I, I Actually think, and again, feel free to discount, because everyone knows where I am with respect to this, um, I, I thought the moment of her smirking and holding up the blank notepad, uh, was a, a really terrible moment for her and and for her supporters during this hearing. And And part of that is because all of these hearings have to fall into the category, right? Like, let's be honest about this. And again, I support all of the lobbying organizations, including our friends over at the FFRF, who are trying to stop this nomination from going through. I, I applaud them for fighting the good fight. We're not an advocacy organization, we're a news show.

0:27:40 Andrew: And I will tell you that I think the likelihood of that happening is beyond remote. So what So please do fight the good fight. Please do keep up as much pressure as you can. I'm preparing for the counterattack. Right, which is, I think, a totally straightforward argument to the American people in January of 2021 that says, look, we know what the Republicans just did over the last five years. They spent all of their political power entrenching a minority position with lifetime appointments to the federal bench. And the question is, are we going to let them get away with that?

0:28:26 Andrew: Or are we gonna, now that we have the political power, take appropriate steps to remedy that injustice. And I think that that is the kind of message that is politically possible for someone like Joe Biden to take to the American people. And again, I would say, as I've now said a couple of weeks in a row, the fact that the Biden-Harris camp will not come out and take the worst version of that question, right? So the way to get this to poll as bad as possible, Right. If you say, do you think the Supreme do you have confidence that the Supreme Court is fair or is it politically motivated? That's like an 80 20 split.

0:29:11 Andrew: Right. Like, everybody agrees that the Supreme Court is politically motivated right now. But if you ask the question, "Do you want to pack the Supreme Court," like, that? That's, that's the worst way to phrase that question in terms of skewing the polls. Right? Because "pack" has a negative connotation associated with it. And Biden-Harris campaign, in both debates in front of tens of millions of people, refused to answer that question in the negative, continues to give me confidence that they are waging this battle the same way I am, which is to say this is an extremist. Yeah, the Republican Party, they got power now, but they're not going to have power forever. And if their only justification is "we're doing this because we can."

0:29:57 Andrew: Well, we're going to we're we're we're going to remember that in January of 2021. so I think there were there were really three main areas of Judge Barrett's non answers.

0:30:13 Andrew: That that came to the fore during this this week of questioning. And by the way, this is it. This is all we get in terms of confirmation hearings. So So there you go. The first has to do with the Affordable Care Act. Right. And And I, I want to explain, because there is, there is a sense in the political sense in which the argument that is being made by the Biden campaign is 100 percent correct, OK. And I want to explain what that is. But But I also want to explain how that's coming into play, because it's not right. So what Biden and Harris both said during the debates was some version of this: the Trump administration is before the Supreme Court right now asking them to take away the entirety of the Affordable Care Act during a pandemic, okay? That statement is 100% true, and let me explain how that's 100% sure. It's 100 percent true because there's a pending case called, yeah, yeah

0:30:22 Thomas: Yeah.

0:31:12 Thomas: Here.

0:31:23 Thomas: I can explain, It's because right now, the Trump administration is trying to get rid of the Affordable Care Act during a pandemic. Did I, did I nail it? I don't even have any notes. Nothing. There's nothing on my notepad, Andrew. Nailed it.

0:31:31 Andrew: You, yeah I'm pleased, Yeah. So there's case called California versus Texas. I'm going to explain why it is before the Supreme Court. It will be heard. Oral arguments are scheduled for November 10th, 2020. Right. So week after Election Day. And in that case, let me walk through this because Republicans have lied about this. They've said, oh, no, we we have a special secret plan to keep everyone's preexisting conditions. Politicians, let me explain, a, we we know they don't, and and b, if if they did, they just had to not make this argument, but this is in fact the argument that they have made. So I'm going to link their brief in the California versus Texas case, I'm gonna read three sections of it, and this should be enough to convince even your uncle Frank. Now he will then move on to, right.

0:32:30 Andrew: But, you know, Joe Biden will let, you know, school teachers set buildings on fire or whatever. So I can't can't promise this will help you, but it will at least debunk his argument and Donald Trump and Mike Pence lying on national television, which, again, you know, we're not surprised by. So in the brief first, I want to give the definition because the government refers to this as the guaranteed issue provision, right? So that's on page three. In addition to the individual mandate, the ACA includes a number of other provisions addressing the health insurance and healthcare sectors. For example, the guaranteed issue provisions prohibit insurers from denying coverage because of an individual's medical condition or history.

0:33:18 Andrew: And the community rating provisions prohibits insurers from charging higher premiums because of an individuals risk profile, including medical condition or history, okay? So pretty clear, when we talk about pre-existing conditions, those are the two sub provisions of the ACA, the guaranteed issue, that is, they have to write you the policy, and the community rating provisions, which is, okay, they have the issue of policy, and they can't say, yeah, fine, we'll cover you with your pre-existent condition, but your premium is a a billion dollars a year, right? Those two put together are what we mean by protecting people with pre-existing condition. Now, let's go to page 37. And again, direct quote, this is the government's brief.

0:34:03 Andrew: This is Noel Francisco, Solicitor General of the United States, arguing on behalf of the Trump administration, quote, even though the guaranteed issue and community rating provisions are constitutionally valid when standing on their own? Sidebar. That's the whole listener question that I just answered. In other words, the government concedes that it can regulate insurance, presumably due to the provision on interstate commerce, right? Resuming their argument. So even though it would be constitutional for the government to pass the guaranteed issue and community rating provisions. That's the first half of the sentence. Continuing the quote, it is evident that Congress would not have wanted them to stand without the individual mandate, end of quote.

0:34:51 Andrew: And then their argument is, and look, we got rid of the individual mandate. So now that means we have to get rid of those two provisions as well. They are inseverable is the legal term. And so then you've got to throw out those provisions. And then that leads to page 43. And again, I'm going to read directly, quote, once the individual mandate and the guaranteed issue and community ratings provisions are invalidated, the remainder of the ACA should not be allowed to remain in effect, period. So that is how you get. And again, let's be clear on how we got there. The Supreme Court in 2014 recognized that the ACA was permissible as a tax and not as an exercise of regulation of interstate commerce.

0:35:41 Andrew: In 2017, through the budget reconciliation process, the Trump administration reduced the individual mandate penalties that formed the basis for that tax to zero. And so now the Trump Administration is in court saying, look, we got rid of the individual mandate. Without the individual mandate, we wouldn't have passed protection for pre-existing conditions, so you should get rid of that too. And once you get rid of all three of those things, well, then the rest of the ACA is just, you know, that's we've we've already gutted it.

0:36:16 Andrew: So you might as well just burn it to the down.

0:36:16 Thomas: It's so infuriating. This is the court deciding it. This is legislating from the bench, isn't it? The People voted. People, in their representatives, their senators, their representatives and their president, enacted Obamacare. And then the court said, "Well, we don't want you to do that, so we will find all these creative ways to overrule it and take it away," right?

0:36:19 Andrew: Yep. Yes.

0:36:37 Andrew: Yep. And and again, that is 100 percent correct. And again, I just want to be clear, not even the Trump administration argues that this is unconstitutional. What they argue is that the Supreme Court should put itself in the position of the U.S. Congress circa 2010 and ask it, OK, if you if you voted for this bill, but for some reason a later Congress comes by and guts the individual mandate, would you still vote for this Bill? And if you're asking yourself, that seems like doesn't that seem like, yeah, not the court's job. I think 200 years of conservative judges would agree with you on that.

0:36:37 Thomas: Yeah.

0:37:00 Thomas: Not A Job That The court should be doing. Yeah, They've

0:37:31 Andrew: Wanted to kind of go through and explain, because I think it's easy, particularly in a debate like when, you know, the party seemed to be kind of trading hyperbolic statements back and forth, I thought it was really important to document in black and white what this administration is doing, because it's astonishing, right? It is the saying the quiet part, you know, screaming the quiet parts out loud. But also add this part, which is there's a little bit of misleading analysis on the taking away the ACA during a pandemic, pandemic, uh, because although the oral arguments will be heard yeah right Yeah, because it's irrelevant, right?

0:38:07 Thomas: Been trying to take it way long before the pandemic, yeah. Yeah, Ready?

0:38:11 Andrew: Like, and and because the Supreme Court will not rule on this in November, they will hear the oral agreements, they will rule on it next spring, right? And, you know, who knows what the conditions will look like next spring? Hope, hopefully things are starting to turn in a a positive direction. I don't know. None of us know. But look, protecting pre-existing conditions is a good idea whether we're in a pandemic or not. And yes, 100% the Trump administration is, I mean, you heard their words. I'll link the brief in the show notes. It's pages 37 and 43. You go read them for yourself.

0:38:52 Thomas: Right, well that's our first bullet point. There, hey, uh, Andrew, I got a question, um, there such a thing as super precedent? 'Cause that I saw that running around and I, my, my instinct was no, um, didn't sound like anything unless it's, you know, like precedent has hopped up on drugs and it's going to steal my purse or something. That'd be the only, the only super precedent I'm worried about. But, uh, yeah, what, what, what is, is there legally a, like a designation of super precedent if it, if precedent levels up enough, like if It goes through enough campaigns, it becomes super precedent or something? Well, that was kind of like DnD but

0:39:23 Andrew: Yeah. Yeah, yeah. I like how you went with Pokemon, I was thinking like, you know, ducks into a telephone booth Oh, I was thinking like that led the next, yeah, evolution.

0:39:32 Thomas: Yeah Gotcha.

0:39:36 Andrew: Anyway, um, so no, uh, super precedent isn't a thing, um, and and the game here, I, I am Now, after having said that, it's not a thing, I'm going to link and I'm in the show notes and I're going to talk about NYU law professor Michael Sinclair, who wrote a 2007 George Mason Law Review article that I imagine a lot of nerds like me have have just found. And it really deserves to kind of go viral in this moment. That is the history of attempts to make super precedent a thing. You might recall 2007, he wrote this after the Roberts and Alito confirmation hearings, which were the first time that the American public got introduced to this concept of super precedent as articulated by Amy Coney Barrett.

0:39:40 Thomas: Yeah.

0:40:30 Andrew: So first, let's dismantle all this. What these people mean, because they are right wing judicial activists, is precedent. Right. So, so they're saying, like, well, look, we're not going to get rid of all precedent, we're just going to take everything that we used to call precedent, and those rules will only apply to things that we call super precedent. So yeah, everything else is is up for grabs. And and and I want you to realize just how radical that is, right? Like, when Amy Cody Barrett was asked to describe what counts as super precedent, she was like, "Well, I probably wouldn't overrule Brown versus. Board of Education." So, okay, uh, plus two points for her on that one, but minus several million for everything else she would overrule.

0:41:15 Thomas: Well, I'm surprised to learn this, I actually would have just assumed this was like a left-wing attempt to try to protect Roe v. Wade or something, but you're, am I understanding that this is a way to try, like, get around the absurdity of some of these jurisprudential views, which is, well, some things are so precedent that... But, you know, okay, we don't want to do things like overturn, you know, like Brown v. Board or whatever, you know, the really important decisions.

0:41:15 Andrew: Um, yeah. Yeah. Yeah.

0:41:41 Thomas: But other stuff, yeah.

0:41:42 Andrew: Is Dred Scott back on the table, yeah, like it and and and look, um, so so that is exactly, uh, that is exactly the game, it did. I'm going to go through a little tiny bit of the history, because I, because I think it's interesting, and I would encourage our law geek listeners to read, uh, Professor Sinclair's article, um, but again, think about how this game applies. Remember, remember my debate with Justin Walker, where I was taking him to task for what was obviously Brett Kavanaugh's cavalier attitude towards existing president, which has, by the way, been totally borne out in his brief tenure on the Supreme Court. And Justin Walker looked sorrowfully at the crowd and said, "Well, I find this a really interesting argument, given that Kavanaugh has written, then Judge Kavanagh has written a 900 page treatise on the importance of judicial precedent."

0:41:48 Thomas: So this came from the right. Okay.

0:42:36 Andrew: Precedent, to which I then replied, A, he wrote a section of that 900 page treatise, B, I've read the entire 900 page treatment, and C, where he discusses precedent at, from the perspective of a district court judge, right, a judge on the U.S. Court of Appeals for the D.C. Circuit is very different than how you view precedent from the position of somebody who's sitting on on the Supreme Court, right? Because when you're on the D.C. Circuit, the Supreme Court can always tell you that you're wrong. When you're on the Supreme Court, what's supposed to tell you that you are wrong is what the Supreme Court has done over time. And when you get rid of the value of precedent, you then say, "I'm here. Nobody can stop me."

0:43:22 Andrew: Just like no ethics complaints apply anymore. There's nothing to stop me from just changing the law to be whatever the hell I want it to be. That's why precedent is important. As people start to realize this, they have started to shift to, well, you know, look, we still do have some fixed points. So where'd the fixed points come from? First, the term itself comes from iconoclastic conservative theorist and later judge Richard Posner. We've talked about him on the show. Wrote a law review article in 1976 with another guy, Professor Landis, in which they were trying to measure concretely how precedential an opinion was, right? In order to calibrate, like, OK, how strong is this case in terms of constraining future Supreme Courts from changing the rules? And one of the things they considered and rejected was the idea that you could just count the number of times a case gets cited, right? And and and I think they rightfully said that's not the best measure, because some things do get cited again and again and again and again and again.

0:44:38 Andrew: Right. For example as a civil practitioner in in 2005 the Supreme Court changed the rules on how you plead your civil lawsuits. Those two cases were called Iqbal Iqba and Twombly T W O M B L E Y. And my guess is those cases have probably been cited tens of thousands of times since 2005.

0:45:02 Thomas: Oh, so you can actually, I didn't think about this. It's like an academic journal. You can go by what has the most citations. It gets like a score for how important something is. Oh, okay.

0:45:09 Andrew: Yeah. Yeah, yeah, that's exactly right. And so you don't even have to say, right, I filed a motion to dismiss a reply brief supporting it earlier this week. And I cite Iqbal and Twombly, right? Like everybody, it's thing that you do. So, so yes, like number of citations is important. But then, Judd,

0:45:30 Thomas: I thought that was just a British comedy duo. I didn't know that.

0:45:33 Andrew: I love it. Um, but then Posner hypothesizes this, he says, I want you to imagine, um, case so powerful, a super precedent, let's call it that, that it would be, quote, "so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place, or if they do arise, induces them to be settled without litigation. In the limit, such a super president might never be cited in an appellate opinion, and yet have greater precedential significance than the most frequently cited cases." And let me tell you, I love this description because I have made this argument in a brief before, right? I've had a couple of cases in which the opposing side has said something so preposterous that I've gone to look for a case that says, you know, you can't do X.

0:45:33 Thomas: Okay.

0:46:30 Andrew: Let I can't talk about a real case that I have right now. I know Morgan is cackling right now with glee because she knows what I'm thinking about. But, you might have a case in which the The other side says, think about the air bud rule, right? Like that. Yeah.

0:46:44 Thomas: Yeah, It's funny, I was gonna make the same joke.

0:46:46 Andrew: Yeah, if if they were to say, well there's... there's no case that says a dog can't play basketball, right. Like and I've had to say opposing counsel is correct that there's no case, that says, a dog, can't, play basketball. There are 13,000 yeah.

0:46:52 Thomas: Several.

0:47:01 Thomas: Movies. That prove, okay.

0:47:05 Andrew: Yeah. Well, what I said is there are 13,742 cases that say humans play basketball. And, you know, it stands to reason that this proposition is so basic that courts need not even adjudicate it. Right. And that's what Posner is sort of putting to the test there. Right? And I agree with him on that. That use of super precedent is not what Samuel Alito and Amy Coney Barrett mean by super precedent. Their use comes from Ted Cruz's favorite former judge, Judge Michael Luttig, the person for whom Ted Cruz clerked, former Fourth Circuit judge, and the person that Ted Cruz routinely cites as his fixed star for judicial philosophy.

0:47:57 Andrew: And, and there was a place called Richmond Medical Center versus Gilmore, 219 F3rd 376, from 2000. So this is the first time that this concept enters the conservative legal lexicon. And in that, Judge Luttig on the Fourth Circuit says, quote, "I understand the Supreme Court to have intended its decision in Planned and Parenthood v. Casey to be a decision of super stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy." So this was the first time that a conservative activist judge said, yeah, I get it. But like, I'm not going to overturn Casey, right? Like if the Supreme Court, and implicit here, is if the Supreme Court wants to overturn Casey?

0:48:45 Andrew: Like, I guess they can. But to me, this is not just, you know, binding past. This is super stare decisis. Right. And that got a lot of attention. And, and that, that's how very conservative activists like Alito and Barrett have sort of moved the noodle to say, OK, well, you know. Now the question is, is an opinion super precedent, and therefore it's bound by super stare decisis and we can't touch it even if we, unless, unless we really, really hate it, and then, you know, it's probably still up for grabs. Um, so, uh, so incidentally, an improper question as a follow-up, I know a lot of people are sort of inferring from Judge Barrett's remarks, I think properly, uh, that she does not consider Casey to be super precedent. I would have read that statement from Gilmore and asked, OK, you've said super precedent.

0:49:40 Andrew: Judge Luttig, I'm sure you know well, very conservative jurist, Fourth Circuit case, Richmond Medical Center versus Gilmore. I understand Supreme Court intended Casey to be a decision of super stare decisis. Do you agree that the Supreme Court so intended Casey? And that is a question she should but but would not answer. So. So that's super precedent for you.

0:50:04 Thomas: Yeah, that was every bit as dumb as I thought it would be. Uh, final question that a lot of people are, uh, wondering about, for, I know there's a lot we could talk about, but for today's episode, um, talk about the case, uh, it's getting shared as kind of a meme form too. Did Amy Coney Barrett really rule that a boss using the N-word in a workplace was not discriminatory, or not like workplace harassment? Wow. Is

0:50:32 Andrew: Yes, she did. The criticism here is 100 percent fair. And this is how we make the case against conservative judges. Right. Because because, look, this isn't an indefensible opinion if you want to reach the pro employer outcome. In other words, this is not a DC v. Heller situation where they're just making up the rules, right? This is about how you construe the district court ruling on certain kinds of evidence. And I think in a way it helps in even more so than sort of pointing out outcomes to talk about procedurally. This is how Judge Barrett approaches these kinds of cases. So let's talk about the case.

0:51:16 Thomas: This Like A Cruel and unusual type situation, okay.

0:51:20 Andrew: No, because that's a because that'S a matter of first interpretation of a constitutional provision. This is about upholding a district court's evidentiary rulings and how the case got categorized in light of those rulings. So this case is called Smith v. Illinois Department of Transportation. I will link it in the show notes. I want to tell you, we did back-to-back episodes on Amy Coney Barrett's most significant cases. We did not discuss this case because she did not identify this as one of her 10 most significant. Cases, even though that list included dissents. And she then had to add in additional cases that she authored and she authoured this opinion. She did not list it on that list, nor did she list it on her list of additional cases. That she authured that have constitutional implications.

0:51:25 Thomas: Oh.

0:52:17 Thomas: Wow, you Think she was trying to keep this under the radar?

0:52:21 Andrew: So you she like not to talk about this case? I think the answer to that is yes. So, this is a case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000E-2. And we've talked about that in the context of the Zarda versus Altitude Express cases, right? Right. This is the same provision that says it is unlawful for an employer to adversely affect your employment because of race. And here, the two claims that were brought by Smith were claims of retaliation and harassment. And let me kind of briefly explain those It was immediately understood after passing the Civil Rights Act of 1964 that that law would prohibit somebody from saying, well, I didn't hire you because you were a woman or, well I didn' hire you, because you are black.

0:53:16 Andrew: It did not stop employers from saying those kinds of things. And so those claims are right. So, for example, in the in sexual harassment cases, there are category of what are called quid pro quo claims, right, which are, hey, if you'd like to continue being my secretary, you know, you have to engage in performing sexual favors for me. And there are lots of those real and disgusting cases. But over the next, and again, this took very little time to evolve, we understood that the principle of, which says that they may not adversely affect your employment status, right? Right, you can't fail to promote somebody, you can't treat them differently in employment as a result of a protected class, would cover cases in which the employer was discriminatory but less obvious about it, right?

And this is in fact what employers do all the time. Again, it's not to say you can't fire somebody who is an African-American for performance, it is to say that whenever anybody fires an African- American on the basis of race, whenever anybody fires a woman on the base of sex, they will claim, the employers will say, oh, no, I fired them because they were a terrible employee. That's the baseline of analysis in 100% of these cases. And so claims arose in the case law to describe categories of cases in which the employer has a plausible performance-based defense and to allocate how those cases are to be adjudicated.

0:54:11 Thomas: Oh.

0:55:06 Andrew: And two of those come up in this case. The first is retaliation. Right. And that is somebody engages in a protected activity in the workplace and then they're fired because of it. So in Smith's case, he was on the job for a couple of months. He was hired in the summer of 2013 as a traffic minute man, one of the people that redirects traffic around accidents and construction and the like. There were problems immediately, both problems with his performance, but also complaints about his treatment on the job that we're to talk about. And on December 31st, 2013, he filed a complaint with the EEOC that said that detailed three specific incidents of where he felt he was being discriminated against because of his race.

0:56:02 Andrew: On January 3rd, he was then sent a statement of charges by his employer that said they were going to fire him for cause. So, yeah, so Smith properly inferred, I'm being fired because I spoke up, right? And that's the essence of a retaliation claim. The other claim is what we call a hostile work environment claim. That's the harassment claim. And and again, harassment can be overt, but it can also be we've recognized that it can be the environment that you create. Think of the classic example of that. If you had and I have been there.

0:56:48 Andrew: If you have, a I've had, I've had clients where, you know, we've had this, this problem. When I was a young associate, I went to a, uh, a packing facility, and when you walked into the break room, the shared break room, this was 1999, uh, It was one Of My It

0:57:07 Thomas: There's Like A Like A Playboy centerfold in there or something? Like, oh.

0:57:10 Andrew: It, no, the walls were covered with Playboy centerfolds. Yeah. It Was Exactly.

0:57:12 Thomas: Oh. So Not just One. Gotcha. Yeah.

0:57:17 Andrew: Right. Yeah, it wasn't, it's exactly what you're thinking, only way, way worse, right? Um, and you walk in and you were like, uh, it, not occur to, and, and again, you know, the client's perspective was, um, terrible, right, but was basically like, well, you know, used to be women didn't work in the stock room, and now we hire women, but like, you know, the guys have always hung nudie mags on the wall, so, you know, so be it. And, and it should not require much more legal analysis, you know, to say that you don't have to directly say something to the two of 38 employees who were female to be like, maybe having the nudie pics on the wall is not such a great idea at work, right?

0:57:17 Thomas: Oh.

0:58:03 Andrew: Notice that key, and I really want you to put a pin in this one, key in hostile work environment cases is how does the employer respond to the actions of, of various employees, right? Because look, you do want, in the event that you have a supervisor says or does something terrible, right, and the employer is like, oh, holy crap, yeah, uh, sorry, uh, that person has been placed on administrative leave, uh, they're going to be required to complete sensitivity training, they made a total mistake, they're going to give an apology, it will never happen again, right?

You want to differentiate that from the case where the, the CEO occasionally wanders through the break room and is like, yeah, oh, I, I see you got Miss August up on the wall, right? Like, that, there's, there's a difference between the two. It is, it is fact-dependent, right, so it, so it, there's no hard and fast rules other than a single instance is usually not sufficient to constitute harassment, to constitute a hostile work environment. It's got to be a repeated pattern that was permitted by the employer. So, that in mind, we now turn to what the trial court did.

And here Smith introduced it. So this did not go to trial, right. This was resolved on summary judgment, in which the trial court dismissed Smith's claims of harassment and retaliation, saying, nope, you could not possibly convince a rational jury to, under any view of the facts, to rule in your favor.

0:59:47 Andrew: So summary judgment in favor of the employer. And one of the ways that happened was that Smith wanted to introduce an affidavit from his former supervisor, who happened to have the amazing name of Marvin Harrison, not the former Colts receiver. Great, um.

1:00:06 Thomas: Yeah, he's one of the all-time Best, love that. Guy, wow.

1:00:07 Andrew: Ah. He's so good, yeah, uh, but this guy, uh, Marvin Harrison, used to be Smith's supervisor, and he filled out an affidavit, and his affidavat said, among other things, that he witnessed Smith being discriminated against on many different occasions by the department and its agents. And crucially, that Smith's supervisor, Colbert or Colbert, used, called Smith the N-word, quote, "frequently," end of quote.

1:00:41 Thomas: Closed, yeah.

1:00:42 Andrew: That's the yeah. So that's the affidavit. But there were problems with the effort. There were admitted problems with the affidavit, right? Um, it it had generalized assertions, uh, and it did not differentiate between things that he heard directly and things that he may have been told by somebody else, right? Court excluded the affidian. In my view, that is an abuse of discretion, right? Um, that because, and, and, and here's why, and this is a really simple rule to apply. Under the, under the affidavit rules, Federal Rule Civil Procedure Rule 56 c4, affidabits to support or oppose a motion for summary judgment must be made on personal knowledge. They must set out facts that would be admissible in evidence, and they must show that But the affiant, the person making the statement, is competent to testify as to those matters.

1:01:41 Andrew: And so any defects in a Rule 56 affidavit are defects that could be cured at trial, right? Just by having his testimony, right, because at trial you don't introduce the affidivit. You put him on the stand and you would ask. Right. Right. And so when he says as as a witness for the plaintiff, yes, I am aware that he was called the N-word all the time. You ask him cross-examination. OK. On in what instances? How did you hear this? Were you there? Right. Like it It's, there's no prejudice to including that affidavit. It trial court felt differently.

The trial court said, uh, without knowing who discriminated, what they did and when they did it, the court has no way of knowing what to make of this evidence. The same problem plagues the affidavit's assertion that Colbert called Smith the N-word frequently. Harrison did not specify whether he heard those slurs himself, nor did he offer any detail about the context in which they were uttered. Without that information, the court could not evaluate whether Harrison was describing events of which he had personal knowledge or simply relaying inadmissible hearsay. That is Amy Coney Barrett describing the trial court, excluding the affidavit, upholding that exclusion. And this gets to sort of the first point, which is

1:01:55 Thomas: Yeah.

1:02:14 Thomas: Is.

1:03:03 Andrew: This is a conservative result of not giving the benefit of the doubt to the plaintiff, right? Of using, yeah, yeah.

1:03:11 Thomas: This effectively, Like, because they made a paperwork error, they don't get to have their witness Statement heard. And I mean, come On. Yeah.

1:03:18 Andrew: Correct. Okay. So they excluded the affidavit. And once they excluded the affitavit, by the way, that affidavat would have shown that Colbert called Smith the N-word all the time, right? Frequently. In upholding that exclusion, Judge Barrett then says, so now a jury could not find in Smith's favor that he was fired for being black, as opposed to on the basis of performance. Well, sure. When you exclude the evidence that it happened all the time, then all you're left with on the retaliation claim is the evidence of his poor performance. But again, that's right. That's putting your thumb on the scale. The hostile work environment is egregiously bad. It's way worse. Right. Because remember what we talked about, right, the balancing test that's used to adjudicate whether a workplace environment is truly hostile includes, right, the frequency with which such remarks were made, made, right? The standard is that the harassment, quote, "was so severe or pervasive that it altered the conditions of employment and created a hostile or abusive working environment."

1:03:53 Thomas: So,

1:04:40 Andrew: And the difference between the testimony that was permitted, which again, not in dispute that Colbert called Smith Smith, the N word at least once, right? The question is, oh yes. So, So, on, yeah, let's go back into the timeline. Um, December 31rd, 2013, Smith files his EEOC complaint. Immediately after the break, January 3rd, the department says, we're terminating you for cause. On January 16th, this is the one undisputed incident, Smith runs into his, his supervisor Culbert, who has found out about the complaint and who says, quote, "It's 81 of us against you. When we go to trial, you're going to lose everything you own, including your house and car. And you're a stupid N-word." End of quote. The court finds it important to note that Colbert was black. I do not.

1:04:53 Thomas: That Still Got Through all This mess, okay. Well,

1:05:42 Andrew: But I'll pass that on that Barrett, you know, repeat it like, you know, this is this is not like, yeah, we had the band NWA on in the background or something like that. It was, And then since we're at the end, I'll include the case in the show notes. But essentially, the court said, well, look, you can only prove, and I swear I'm not making this up, that Colbert called you the N-word after conditions you allege conditions were terrible in the workplace. So it was obviously not the cause of conditions being terrible inthe workplace.

So effectively, Yeah, bottom line, this opinion, if your employer is already treating you terribly, they can say the N-word, and Judge Barrett thinks there's nothing you can do about it. That is 100% a fair reading of this case. Is 100% the holding of this case that, oh, sorry, um, yeah, your quote, "tenure at the department was rocky from the outset because of your poor track record, you clashed with your supervisors over the pay, and they confronted you about your foul language." So you it was already a hostile work environment long before anybody called you the N-word. Too bad. Yeah.

1:06:23 Thomas: My God. Well, How does that excuse, it isn't that acknowledging a hostile work environment? I don't Get It.

1:07:07 Andrew: But The Hostile work requirement must be because of race, right? Like if, if some place is just a terrible place to work, then you don't have a Title Seven claim.

1:07:11 Thomas: Oh, Oh, So, They're saying there was, like, the so Amy Coney Barrett is like, there was just plain awfulness, and that's fine, and then after the plain awfulnessthere was racist awfulness, but it too late, sorry, it's already was the regular awfulness first. Well, That Is really Stupid, was

1:07:16 Andrew: Right.

1:07:31 Andrew: And keep in mind That That The evidence that would establish that the regular awfulness Was Also Racist Was Thrown out, yeah, right.

1:07:38 Thomas: Thrown Out For No good reason Oh, Yeah, yeah.

1:07:41 Andrew: Like, So let's not just pretend It It Is

1:07:41 Thomas: This Is a disaster, but Andrew, She's Adopted Two black children. I don't understand, I thought that immunized Her from

1:07:45 Andrew: Yeah. And the supervisor Who Called him the N-word was black, right? Like this is not, this is not about, yeah, like I said, it's not about listening to NWA. This is about how do we treat people with a minimum level of decency. And look, is fair to say, right, that you could uphold the district court's exclusion of the evidence, right? Like you'd say, the standard is abuse of discretion. But the fact that you were not moved as as a judge by this, I think, is 100 percent illustrative of your temperament. It's 100 percent.

1:07:49 Thomas: Yeah. Well, She's Lost my

1:08:23 Andrew: Yeah. I

1:08:23 Thomas: Vote, I'm Not confirming her, she sucks, sucks, I don't, I don't, if I get a vote on this, but if I Did, I would vote No.

1:08:29 Andrew: Wish you did, Thomas.

1:08:31 Thomas: Um, this Is terrible, she sucks, and uh, I know I keep getting messages that I'm not supposed to say pack the court because it's not the best messaging, as you alluded to earlier, I get a little irritated that I also have to work for, like, the party, or something, I'm just, I Don't care that it's a bad, I'm in favor of packing the court, pack The Court.

1:08:47 Andrew: So, yeah. Oh, that was not I was not held against you in any way.

1:08:51 Thomas: No. I Know, I I Get People, I had a couple people tweeting at me that like the, the party line, which is, well, no, they were packing the coin, like, okay, I get it, I, I have a hard time with that stuff, but that's just me. Anyway, either way, uh, reform the court however we need to present it to best, uh, convince people, that's what we need to do, and

1:09:11 Andrew: Agreed.

1:09:12 Clip: And thank you, Let's go!

1:09:13 Andrew: Oh,

1:09:13 Thomas: Right, and now it's time to thank our new patrons. Patreon.com/law. Hope you're enjoying everything we got, we got that Law'd Awful Movies coming at you soon-ish, you'll hear in a few days, um, scheduling plus, you know, RBG really set us off that last month, so we, uh, we delayed it, it'll come at you, we also give you Monday's episode early, we also gave you the ad-free feed, all that good stuff, here are the new patrons enjoying those perks, thank

1:09:37 Andrew: Right, and thank you to Noktelfa Rootcreeper, yeah, the uh Wisconsin Rootcreepers, I believe, Jared White, Jeff Smith, Totes Not A Ninja, okay, uh, Kristoffer Bentsen, Stephen James, CptWalmart, Timothy F Sharp and Ian Price. Thomas, take it away.

1:09:52 Thomas: And Thank you, Matthew Bornfreund, Melanie K, Wokeness is a Cult, yeah sure idiot, Erica Matlock, Lucy, Myles O'Connor, MIltenG2, Justin B, Amy Coney Barrett reminds me of Nurse Ratched, uh, yeah Anti-Wokeness is Actually a Cult, uh, it's the more harmful cult, it's a cult that's taken over the presidency and a lot of the government, so I don't know if that's a joke or what, that's a stupid, take your dumb patron name and leave. Okay, so thank you, new patrons.

1:10:29 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:10:36 Thomas: Now it's time for T3BE, I feel like I'm on a, on a good streak, I Can't Remember All

1:10:40 Andrew: I think you're on a three-question win streak. So, yeah. And you're you're over 61 percent for the last 44 questions. So,

1:10:42 Thomas: Right. I'm Due for a loss. Still Think that's a bit of cheating, but Fine, okay, we'll take that, that

1:10:49 Andrew: Thomas, under a state law, a drug company that makes a false factual claim about a prescription drug is strictly liable in tort to any user of the drug. OK, so that's the law. In an advertisement promoting sales of a particular drug, a drag company claimed that the drug was safe for children. Suit was filed against the company on behalf of a child who allegedly was harmed as a result of taking the drug. At the time the child took the drug, the available medical studies supported the company's claim that the drug was safe for children, but later research proved that the drug was actually harmful to children. The company has moved to dismiss the suit on First Amendment grounds. Should the court grant the motion? A, No, because false or misleading commercial speech is not constitutionally protected. B, no, because the drug business is subject to extensive health and safety regulation. C, yes, because liability cannot be imposed for false statements without a showing of actual malice. Or D, yes. Because the company's claims about the drug were a matter of public concern.

1:11:04 Thomas: Makes sense, oh.

1:11:32 Thomas: First Amendment Grounds. Oh, okay.

1:11:59 Thomas: I think this seems pretty straightforward. Or, you know, maybe I'm just getting so good at the law I can't wait to get this one wrong. It's gonna, I want to confidently get one wrong just for fun. No.

1:12:07 Andrew: All right.

1:12:09 Thomas: I think so. This sounds like one of those misleading fact patterns that tries to lead you astray. And then the last part is they moved to dismiss the suit on First Amendment ground, so I almost don't even know what the first part, like, like all the part about like, well, the, the medical study supported the claim, and then later proved that the claim was wrong.

I don't know, that, like, trying to think, I feel like the First Amendment thing renders all that kind of mood, like, if, if you, if the company were going to move to dismiss the suit, I don't know that that doing it on First Amendment grounds makes sense. Oh, maybe I'm, now I'm doubting myself, but anyway, okay, let's go through the answers.

It looks like so they made what they thought, and what the, by the way, what the science said at the time was a true statement, and there is strict liability if they make any false statement, but later research proved the drug was actually harmful for children, that, that's, that's an interesting question, I don't know what the, what that underlying issue is, but I almost feel like the question sidesteps that, like the answers, okay so the company has moved to dismiss the suit on First Amendment grounds, see, that doesn't make sense, I feel like you can't just say, well, any advertising, because if you're going to dismiss the suit, doesn't that make the bar super high, like, doesn't mean if you dismissing it, wouldn't the judge or whatever have to grant all the stipulations of the other side in order to dismiss, they would have to grant, like, yes, you made a misleading claim about the drug, but it doesn't matter because because First Amendment protects that. That's my understanding of how this would work. So therefore, I think this wouldn't make sense.

1:13:47 Thomas: So should the court grant the motion? A, no, because false or misleading commercial speech is not constitutionally protected. That's exactly what I think. And I don't think any of the other facts matter except that, but we'll see. B, no because the drug business is subject to extensive health and safety regulation. So that's kind of another way of saying it. And I could see that, you know, like for some reason that could be a better answer, but I kind of just like A. I think A states it better. I think it's a better question. Because it's subject to extensive health and safety regulation. It's not really very specific as to what that means. I think a is just better. B, C, yes, because liability cannot be imposed for false statements without showing actual malice.

1:14:33 Thomas: Well, that hasn't, that isn't easily dismissible answer because we know it's strictly, strict liability, that's where we already are, and not only that, I don't even think that has anything to do with moving to dismiss the suit on First Amendment grounds, I think that's why this question is trying to, you know, trick us. I think, and D, yes, because the company's claims about the drug were a matter of public concern, so that's like more a First Amendment-y kind of argument, like that would be, be like, okay, the company wants to dismiss based on First Amendment right to free speech kind of thing, but, and so then the judge grants it because the claims about the drug are a matter of public concern, there's no way. All right, I've, I've entertained these bad answers long enough, I think it's just, a seems very straightforward to me, um, but I look forward to being straightforward and confidently wrong. A final answer, all.

1:15:23 Andrew: All right, and if you'd like to join Thomas in being straightforward but confidently wrong, or you've got some other take, or who knows, you know, how to play along with this, just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that person with never-ending fame and fortune. Fame and fortune not guaranteed.

1:15:41 Thomas: That's our showing, Andrew. Wow, a lot of stuff. Amy Coney Barrett is as bad and even worse as we all thought. And thanks, as always, for the breakdown.

1:15:50 Andrew: I'm only responsible for what the law means, not for its application to monsters who are going to be interpreting it for the next 60 years.

1:15:58 Thomas: Oh, by the way, yeah, I got a lot of messages about how she said we can't apply the law to a hypothetical set effect. God, nothing pisses me off more than these idiots who all of a sudden, it's every hearing, Oh, a hypothetical? I don't understand. Those aren't real facts. How do I? There's no way I could have a... Shut up. All of law school is that.

1:16:14 Andrew: Yeah, the thing you're a, you're a law, and you're a law professor, you were a law professor for 15 years, like, yeah, your, your life is applying yet it it well we'll talk we'll talk on Tuesday, yeah about that, bye

1:16:18 Thomas: Yeah. I don'T UNDERSTAND. HYPOTHETICAL? WHAT? So frustrating. All right. See you next time. Yeah. I held it in until now. All

1:16:33 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:17:07 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra 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 Arguments 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.