OA445: SCOTUS Gives Churches the Right to Spread COVID

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

0:01:23 Andrew: I am fantastic, Thomas, how are you?

0:01:26 Thomas: I am also fantastic because we're having Andrew Seidel on. That always, that's dope. You guys are both fantastic. We're all fantastic here. But the topic is not fantastic, so that, yeah.

0:01:41 Andrew: Uh, no, the topic is terrible, but, you know, if we're gonna cover a terrible topic, I would like to do it with, you know, Atheist Captain America.

0:01:52 Thomas: Can't wait. Let's see how mad we can get Seidel to be. I don't know, he's, he's so even keeled.

0:01:58 Andrew: Oh, yeah, that's it, well that, that, we will not tell him, but that's what we'll, uh, uh you know.

0:01:59 Thomas: Yeah. Yeah, No. One, tell him we'll just try to make him mad, okay? We better, uh, we better get him on the line and And we're joined by Andrew Seidel, back for the, I don't know, 20th time. How you doing, Andrew?

0:02:08 Andrew: Yeah, let's do it. But

0:02:20 Seidel: I'm well, how are you guys?

0:02:22 Thomas: Well, we're upset. Not, not great. We're very happy to have you here.

0:02:28 Seidel: Yeah, I'm angry too. You get angry Andrew today.

0:02:32 Andrew: Yeah, so we wanted to bring you on to discuss the Supreme Court's ruling in Roman Catholic Diocese of Brooklyn versus Cuomo. This has been all over the news and all over, you know, our particular corner of the internet. And I think my take, your take, is the people saying that this is a disastrous opinion are, if anything, underselling it. But but why don't we start? We haven't we have done. I mean, we gave kind of the the very basics last week of, you know, that this involved emergency injunctive relief awarded to two separate churches, exempting them from the the restrictions on gatherings imposed by Governor Cuomo in New York. Anything you want to add on the on the fact pattern.

0:02:56 Seidel: Yes.

0:03:24 Seidel: No, I think you've got that down, I mean I think we'll get into how the order actually favored churches a little bit later, but that's the basic outline, yeah.

0:03:31 Andrew: I want to ask you the question Noah asked me because he meant it as a joke. But but I think the answer is yes. And that is suppose I'm the governor of a southeastern state. Right. Let's say North Carolina, and a hurricane is about to hit the coast of my state, and I want mandatory evacuation orders. Can I tell churches that they have to evacuate in light of this opinion?

0:03:58 Thomas: Can do, Buster.

0:04:02 Seidel: No I don't think you can. I don't think you can. I mean, I think we're in a really strange place, though, too, Andrew. And you and I were kind of talking about this, texting the other day, you know, like one of one of the things that we try to do as lawyers is to synthesize precedent and sort of sift through to determine common rules that we can apply to future issues and case. I mean, that's basically what being a lawyer is, right? Right. And the problem is that the court, when it comes to religion, is just abandoning all legal principle. It seems to be the only principle it seems to follow is let's just do whatever is best for religion here. And so if you're trying to look at precedent in a case and determine, you know, how is the court going to move forward? I don't think you have to look back at what the court has decided.

0:04:06 Thomas: Wow. Right,

0:04:07 Andrew: And

0:04:53 Seidel: It. It's just, what does the religion or the church or the religious group want? Because the court's probably going to give it to them.

0:05:02 Thomas: But only certain religious groups, right? Like if it, they're not going to give any religious group stuff. It'll just be what do white Christians want, I think, roughly.

0:05:06 Seidel: Yeah. Yeah, and I think you have to throw conservative in there, too.

0:05:12 Thomas: Yeah.

0:05:13 Andrew: It's part of why I liked Noah's question so much, because, you know, to piggyback on what you've just said, one of the things that said on the show a fair amount, right, that I didn't fully appreciate as a law student and now appreciate as as a practitioner, is that in a great many circumstances, it's better to have a clear bright line rule, even if that rule is more restrictive than I would like, than it is to have sort of a governing set of principles. Because while like the principles are fun to debate when you're in law school, like my job as a lawyer, right, the reason people pay me money is so that I can tell them what they're legally allowed to do, right?

0:06:03 Andrew: Like that's one of the baseline reasons that you hire a lawyer. And the more you depart from the realm of here are the clear legal principles, the less I'm able to give anybody any kind of guidance whatsoever, right. And again, you know, look, you've got to strike a balance, right, like not everything needs to be, we've talked about principles versus, You know, strict rules like, you know, the speed limit is 65 miles an hour. You know the president must be 35 years old. There certainly are times when you're willing to sacrifice maximal clarity to have some semblance of discretion, but I don't think anybody can figure out what the religion clauses of the First Amendment mean anymore. More, um, and and in my view that trend, uh, goes back to both, uh, Trinity Lutheran and Masterpiece cake shop right, and, and is yep go ahead

0:06:57 Seidel: No, I think that's exactly right. Yeah I mean I think, that's exactly right, you know. So in Trinity Lutheran, you've got a program that excluded a church and that was called discrimination, and that program was struck down by the court. And then in Espinoza, the states say, "Okay, fine, we're going to get rid of the entire program. We're not going to exclude anybody from it. We're going to exclude churches. The entire program is gone." That way we're not violating other people's rights, you know, to religious freedom by taxing them and then paying for religious schooling.

And the court struck that down and said, no, you can't exclude churches and you can't get rid of the program altogether. Together. You've got the American Legion case, the Bladensburg Cross, which basically says, you know, history kind of trumps state-church separation, and if we were to remove this, this would, that would be hostile to religion. And then Masterpiece Cake Shop, where if anybody in the government says anything even remotely negative about religion anywhere along the line, you get a get-out- of-jail-free card. And and then you have this case where churches are actually favored under the order, and it was still blocked by the court. And it was blocked because it didn't give churches the most favorable treatment available under the law, even though they were nothing like the things that were, you know, treated kind of quote-unquote more favorably. Yeah.

0:06:59 Andrew: Right yeah

0:08:15 Thomas: Then? So can we just clarify kind of the basics of what the law actually said? Or was it a law or just an order? I don't know.

0:08:15 Andrew: Yeah, yeah. It was an executive order.

0:08:22 Thomas: Executive order, which,

0:08:22 Andrew: Uh, I think, I think this, this really, this is an excellent kind of way to go at how this decision makes sense on no level of resolution, right? So here's what happened. Governor Andrew Cuomo in New York promulgated Executive Order 202.68. And that executive order categorized certain areas with certain colored zones. And then within those zones prescribed certain treatment in terms of how businesses and other non-essential services were to operate within those zones. By the way, this is quintessentially the kind of thing you want a governor to do, right?

0:09:09 Andrew: And that you do not want, you know, the Supreme Court of the the United States to do, which is to figure out how do you treat a liquor store in the red zone versus how do you treat, you know, a movie theater in an orange zone, right? Like, this is the kind of thing that conservatives ridicule all the time about, you know, judicial intervention, right, this is this sort of thing that you leave up to your elected officials. So initially, the red and orange said that constrained public gatherings, which included attendance at religious services, to no more than 10 persons in a red zone and no more than 25 people in an orange zone.

0:10:00 Andrew: Before this case was heard by the Supreme Court, Governor Cuomo reclassified out of the red and orange zones the two religious institutions that are the petitioners in this case, right? The Roman Catholic Diocese of Brooklyn and also a gathering of Orthodox Jews, right. So they were not subject to that order. And so, yeah, Well, that's right. And no, let's go down that rabbit trail for a minute because, look, one of the things that is so infuriating about that, all the three of us are atheists, right? But like, we have lots of listeners who are not. And I am always trying to broaden our argument beyond just like, you know, we think religion is dumb. Like, we do think religion is dumb. But lots and lots of people don't, right. And those people are entitled to their beliefs. But one of the the historical, and by historical, I mean, you know, originalist, dating back to the institution of creating the judiciary, is to remedy disparities among those individuals and groups that don't otherwise have strong recourse to the to the democratically elected legislature.

0:10:26 Thomas: By the way, they should be.

0:11:23 Andrew: Legislature, right, to what the most famous footnote in all of American jurisprudence calls discrete and insular minorities, right? And the idea there is, look, yeah, if you're a member of a big, big group, then elected officials listen to you. They like talking to you because you're the majority of the people that get them elected. If you're remember of a tiny little minority, it's really easy for you to get kicked to the extremes, right? And ignored by everybody in politics. And so courts should take the plight of those groups more seriously. And Thomas, that's what I love about your sort of offhanded aside is we are now looking at courts jumping in to stand up for the rights of religious institutions generally, which command the support of, you know, north of 75 percent of the American public. Right.

0:12:21 Thomas: Yeah.

0:12:21 Andrew: And and even more so than that.

0:12:22 Thomas: Won't someone in government think of white Christians, please, for once?

0:12:24 Seidel: Yeah well

0:12:26 Andrew: Right, right. Yeah. The number of out atheists, I mean, like Pete Stark has has now retired. And I think Jamie Raskin uses some I love Jamie Raskin. I don't want to say anything negative about him. He was my former representative before I had to move. But I don't think he calls himself, you know, a non-believer or something. But like, look, like the fact that we're quibbling over two members, you know, of the 535 of the five hundred and thirty five individuals who comprise the House and Senate, right, is illustrative of the point. Everybody else calls themselves religious. Go

0:13:09 Seidel: I mean, also, don't forget Jared Huffman, California's second, and we do have the Congressional Free Thought Caucus now, just total side note. But I also think it's important to note that there

0:13:12 Andrew: Oh, yep. I fed you some red meat there.

0:13:19 Seidel: Is the whole point of the executive order that Cuomo promulgated. It's meant to be responsive. It's meant to be nimble and constantly updated with the latest data on the spread of the disease, right? So the idea is to keep people safe while giving them and the businesses and the community sort of as much freedom and normalcy as is as possible, so the whole point is that the orders are going to change rapidly, that's why they developed this red orange and yellow zone system, with the idea that they would constantly be looking at it and shifting the zone, so there is this idea if you listen to the conservative media and some conservative justices that this was like a conspiracy theory to prevent the court from from the deciding the case.

0:14:06 Seidel: And I don't think it was, I think it just the data had shifted and there was no longer the need to apply that red and orange zone to these particular areas. But the overall point is that the case never should have been decided, right? The orders didn't apply to those groups and it makes no sense for the court to order the governor not to do what he's not doing, as Chief Justice Roberts said. It makes no sense the court should not have been involved in this case at all

0:14:25 Andrew: Yeah.

0:14:39 Andrew: Yeah. Yeah. And and to me, the counter argument on the other side, right, is the standing argument that is raised in abortion rights cases, for example. Right. The capable-of-repetition-yet-evading-review. And it seems to me that, and so just kind of briefly to unpack that, the the the steel man of the conservative argument is, right. Right. But if we don't hear this case now, then the second the court dismisses it, you can just reclassify the churches back into the red and orange zones, and then declassify them into yellow when it gets up to the Supreme Court, and, you know, and play the shell game. And and and there's a fair, look, there's a fair argument there. Right. That's why I wanted to steel man it.

0:15:24 Andrew: But I think the response back and I'm not even going to let you make it because it's such an obvious response is OK, but do it once. Right? Like in the abortion cases, what you show is a pattern time and time again of these restrictions going into place regardless of the state of pregnancy of the particular individual at issue in those cases. Right, and and and certainly, like, I think if you could show, right, actual animus, right? Like, you know, the Governor Cuomo, like, picked a particular church and was like, "Oh, you're in the zone. OK, now you're out. Oh, now your back in. Now you're." Yeah. OK. Right. You should be able to go to the courts with that. But this was their very first bite at the apple. And I think it underscores, I think the determinations that are being made are a complex of factors that also include, you know, political power, which is, you know, to what I was alluding previously.

0:15:33 Seidel: Yeah

0:16:29 Andrew: Yeah, go ahead.

0:16:29 Seidel: It well and what one more real quick additional counter argument is the second circuit noted, at least in the Orthodox Jewish cases, uh, they failed to comply with Federal Rule of Appellate Procedure eight, so they didn't move in district court for an injunction pending appeal,, so they were actually barred from seeking that injunction. Uh, and so the second circuit actually denied it on procedure, and then added, for good measure, "And we would deny the motion by Agadeth Israel if it were properly before us." So Supreme Court should definitely not have been looking at the Orthodox Jewish, uh, case that was consolidated with this one, at the very least.

0:16:36 Andrew: You know, who can be responsible for knowing which courts are allowed to grant injunctions these days, right? The president's lawyers don't know that. So, you know, why should these? Um, so, uh, we got derailed again from sort of the basic facts, but, but but but it's OK. Right. So, uh. So New York has this red, orange, yellow tiered system. And then within that are a complex of regulations. This is going to be important when we talk about the Gorsuch concurrence and the Sotomayor dissent. But so, for example, right, the top line is public gatherings no larger than 10 in the red zone, no larger than 25 in an orange zone. But, for ejemplo, no concerts in either a red or an orange, right?

0:17:10 Seidel: Yeah they certainly don't yeah I know we're terror we're terrible here

0:17:53 Andrew: Public gatherings no longer than 10. No in a red zone. But liquor stores remain open in a Red Zone, right. Right. So in other words, in addition to sort of the color coded top level are additional restrictions that, again, are based on the responsive needs of of the communities that that they're serving. And in particular, we've said this on the show before, but I think it bears repeating. The primary reason that liquor stores stay open in red zones and as essential businesses is that in the absence thereof, hospital beds would be overflowing with individuals detoxing, suffering from massive and preventable alcohol withdrawal syndromes.

0:18:47 Andrew: And so, you know, this is just this is something that that Gorsuch takes aim at in his insane concurrence. And but I think it's worth it's worthwhile. This is precisely why lawyer. Right. Like I happen to know that because I've talked to health professionals. Right.

0:19:07 Andrew: And but lawyers shouldn't have to know dat. And this is why it's not your job to figure that out. Right. It's the job of the governor to talk to everybody and be like, oh, right. Right. And in fact, this is how this came about, because I was attending a session and somebody on a particular state's executive board asked the question of the experts and was like, we're classifying liquor stores as essential businesses. Why is that? Right. This was, you know, somebody didn't drink. And the health experts said exactly what I what I just said to you. Right. Which is, yeah, if we don't, our hospital beds will be overflowing in three days with people detoxing. And everybody on the call was like, oh, yeah. Yeah, that makes total sense. Right. This is the kind of thing you do not want a court second guessing.

0:19:01 Seidel: Yeah

0:19:56 Andrew: So anyway, back to the facts. This is granting a preliminary injunction that those restrictions do not apply to these two church entities. As all of our listeners and Thomas know, granting a preliminary injunction means saying, as the per curiam opinion does, we think that these two plaintiffs have met their burden of proving that they would likely succeed on the merits on the claim as adjudicated with respect to their interpretation of the law. Right. So it tells you where this court would go in a ruling on the merits, even though that this is this is not itself a merits hearing. We keep saying per curiam. That means unsigned 5-4 opinion.

0:20:42 Andrew: Andrew, you and I have messaged back and forth on this. The per curium opinion is so badly written that I think it has to be an Amy Coney Barrett opinion. We don't know.

0:20:52 Thomas: Well, she's new to the whole being a judge thing. We got to give her. I know she's yeah she's in the highest court of the land one of the nine people deciding every every issue that matters in the country but she's new so give her give her a minute

0:20:58 Seidel: Yeah but

0:21:03 Andrew: Yeah, it's my first day.

0:21:03 Thomas: Yeah

0:21:05 Seidel: I mean, it's worth pointing out though that without Barrett, right, this case would have gone the other way. Rob— Robert said he wouldn't have weighed in on the merits, so it either would have been 5-4 or 4-4-1,, and the order would have stood. So Barrett is not only the reason the case swung that way, but I, I do, on balance, I do agree, I think she probably wrote that opinion in part because of how poorly it's written and reasoned, and there is a thread of inexperience that really does seem to shine through. When something's badly written in reason, I always want to say Alito, but I do think it's more likely Barrett in this case.

0:21:10 Thomas: Which

0:21:37 Andrew: Yeah. Well, and we should point out that four months ago, Roberts wrote the South Bay Pentecostal Church v. Newsom opinion, which essentially went the other way. Yeah.

0:21:49 Thomas: We all know. Yeah. By heart. I

0:21:50 Andrew: Well, that was, well, V.

0:21:51 Thomas: Memorized it.

0:21:53 Andrew: Newsom, right?

0:21:52 Seidel: This is the first church.

0:21:54 Thomas: Yeah.

0:21:54 Andrew: So you know who Newsom is, You know? And that went the other way and said California's regulations are reasonable even if they apply to churches because we're in the middle of a pandemic. And you know what? We need people to like, the the one thing we know that governors have is plenary authority to protect the health and welfare of their citizens. That is the other case that both the per curiam opinion and the Gorsuch concurrence take aim at, and that is a case called Jacobson v. Massachusetts from 1905, which held that the state of Massachusetts, during a smallpox outbreak, could mandate that its citizens get vaccinated for smallpox.

0:21:55 Thomas: Yeah.

0:22:47 Andrew: Um, maybe this is kind of important that we don't have a court that looks at and is possibly willing to revisit that decision. Um, cause you know, we're going to have a COVID-19 vaccine coming up and 75 million people who think that that's a secret way to inject the mark of the beast into you. Um, I'm a little nervous about that.

0:23:07 Thomas: I just snort them, mark the beast, I don't need, need an injection. Yeah.

0:23:12 Seidel: I just want to back up for a minute too, because the case—to me, you mentioned this at the beginning, Andrew—that it is deeply alarming, but I don't think we've done a good enough job yet of really explaining to people how seriously, even though this is an emergency order, and probably even in part because it's an emergency order, that they were willing to just completely do this 180 on constitutional law on this emergency order, it really is deeply alarming. The court is, they've been kind of slouching towards this goal of weaponizing religious freedom, and they really kind of struck home finally with it. And I mean, we've talked about this. I talk about it all the time. I mean, religious freedom has always been this personal protection that allows believers to believe whatever they want.

0:23:59 Seidel: And then you can act on that belief. You can worship kind of as you want, so long as you're not harming or injuring others or violating their rights. And that's what we're running up to when we're seeing religious freedom being used as a license to discriminate. And the court went even further here. So this ultra conservative Christian, Christian nationalist bloc on the court said, they took that hallowed constitutional protection and they turned it into a weapon, into a tool to afflict and wound, right? And to actually say, you have the right to risk the health and safety and lives of everyone in the community. Because I think there are a lot of people listening that are probably thinking, look, it's just people that go to church. Let them, if they want to, let them go to Church, let him get sick. You know, I've had people on social media say, look, this is Darwin at work here. And first of all, don't do that.

0:24:50 Seidel: And second, and it's also just not true. We know it's not true, I mean, there was one worshiper in Ohio that infected almost 100 other people, and half of them had never stepped foot in a church, right? So almost 50 people infected in his church, they took it home and infected their families, their families then took it and spread it to their offices so you have not just secondary infections but third, so this is something that affects everybody, and here the Supreme Court said that your personal right to religious freedom includes the right to spread a

0:24:49 Andrew: Yeah, seriously, that that that, that's gross. Yeah

0:24:50 Thomas: Yeah yeah the right to kill

0:25:26 Seidel: Lethal pandemic it is insane I

0:25:26 Thomas: People what is the difference between this and a church that hands out poisoned Kool-Aid to its member. I mean, I know that's a ridiculous comparison, but is it? Like, I guess they have the right to, you know, because it's a church and it's First Amendment. You know, we can't take that right away. I don't know.

0:25:35 Seidel: Don't I don'T think it's that ridiculous I honestly

0:25:48 Andrew: So let me, I, it's gonna be hard for me to steel man the court's position on this, but but let me do my best, and that is, Andrew, what looking just at the percurium opinion right that's the holding right it we're gonna talk about Gorsuch's concurrence, which is terrifying, but look, like that's just old man yells at cloud, or, you know, middle-aged man yells that cloud right. Um, What What, what does, what about the court's holding in this case is uniquely dangerous compared to the litany of bad cases that we're already looking at? Right. In other words, right. If I don't grant the premise that the directionality of the Supreme Court on religious liberty issues is terrifying, how could I persuade somebody that that this is uniquely a bad opinion?

0:25:58 Seidel: Okay, yeah Yeah,

0:26:13 Thomas: Yeah, it's not very old.

0:26:42 Seidel: I mean So to simplify it, what they said, to weaponize religious freedom, the justices cried religious discrimination. I think that's kind of the best way to sum it up. They said this is discrimination against the churches. Your order, as it's written, singles out churches and houses of worship by name, and therefore that is discrimination. The obvious problem with that, and we've touched on it a little bit, but we do need to be explicit, this is important, is there was no discrimination. Churches were treated more favorably than other organizations and entities that were nearly identical. So, you know, in that, the per curiam opinion, and some of the other opinions too, concurrences, the justices complained variously about hardware stores, acupuncturists, liquor stores, which Andrew already covered, bike repair shops, accountants, lawyers, I think insurance agents were in there.

0:27:34 Seidel: You know, and they were open with fewer capacity restrictions than churches. But religious worship is different than those one-on-one businesses and stores for sure. But it's also different because people gather in large numbers for religious worship indoors, close together. They file in and out at the same time in crowds gathering at the door. They sing and they pray and they chant, all of which spreads the virus. And we know that churches spread the virus, I mean this isn't something that we are just making up. Up. There's tons of data to back it up. One church worshiper in South Korea infected 1,200 other people. At one point, that country's population, more than half the cases, were traced back to religious worship, even though only about a quarter of the country is Christian.

0:28:24 Seidel: On that Ohio case, Republican governor of Ohio, Mike DeWine, said that it spread like wildfire talking about that one particular case. So, you know, churches are different than liquor stores and bike repair repair shops, and even those like a one-on-one acupuncture appointment. They are more like going to a movie or going to a play or listening to a lecture or watching an indoor sporting event. And all of those, all of Those were banned under the New York orders that the churches were complaining about. Churches were allowed to meet 10 or less and then 25 or less depending on which zone. So when you do the apples to apples comparison, churches were favored. They were given special special privileges

0:29:04 Thomas: So what The hell is going on? Are the justices not reading the facts of the case, or some of them are just watching the Fox News version of what they think the case is? What's happening?

0:29:07 Andrew: It It It Is that right? Like, so, where I want to piggyback on on what Andrew just said is the argument that he made is not just, you know, two lawyers arguing on a podcast here, right? Like, it's not just the three of us talking about common sense. That's what the expert record determined below, and in denying injunctive relief, what the district court, with the trial court, uh, and then uh the the second circuit court of appeal affirmed, uh, on on review. And that is, right, that medical experts, and here I'm quoting from the Sotomayor dissent that is sort of incredulous at at this result, medical experts tell us what facilitates the spread of COVID-19 are large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time. And then there is a site to the brief, right? See appendix to brief and opposition, pages 46 to 51, containing the declaration of Deborah S.

0:29:29 Seidel: Yeah,

0:30:21 Andrew: Blog, director of the Division of Epidemiology, New York Department of Health, right. And there's more stuff, right, there was a brief filed by the American Medical Association, right. Unlike religious services, which have Every one of those risk factors, bike repair shops and liquor stores generally do not feature customers gathering inside to sing for an hour at a time. Right. Like it's it. And so what we're seeing is when you look and this is really one of the most pernicious trends, I think, that, you know, began with Antonin Scalia and continues strongly in the writings of Neil Gorsuch, who sort of patterns himself after Scalia is this like sarcastic mocking tone where you you go on and and just rant and it contains zero citations to anything whatsoever, right? And and and so that is, you know, the answer to your question, Thomas, is the the dissent says these things are not similar. And here's an expert. And Neil Gorsuch says, oh, yeah, but they are.

0:30:38 Thomas: Yeah yeah

0:31:05 Seidel: Yeah And

0:31:30 Andrew: And that's it.

0:31:32 Clip: YOU BETRAYED THE LAW!

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0:33:26 Seidel: It's, I mean, you can't stress enough how how different it is, and you're right, like people don't go into a liquor store and sit down in the aisles a hundred at a time and sing songs, right, It just doesn't happen yeah for an hour or more. And like, even if, even if 300 people visit a liquor store over the course of a day, if it's open for 12 hours, somebody can do the math on that. I mean, it's not the same as everybody showing up to church at the same time and everybody leaving at the time. It's just different. And when you compare it to things that are similar to churches, they 100% got favored treatment. And they cried discrimination because they weren't given the most favorable treatment available out there. And as Andrew was saying, right, that decision was made entirely to protect the public, to save lives. It wasn't made on the basis of religion, but on the base of those other characteristics that relate to the spread of a lethal virus. And five of the six members of

0:33:36 Thomas: For an hour or more why

0:34:26 Seidel: The court's conservative block still agreed that it was discrimination. And Roberts kind of said, like, yeah, maybe it is, I don't know, we'll get to that I'm getting ahead of myself sorry

0:34:33 Andrew: Yeah. Yeah, we're gonna know where we're going to get to. We're gonna get to Roberts because, again, you know, John Roberts is not your friend. And it's worth drawing the distinction, and it is certainly worth the top line analysis that this case would have gone the other way but for Amy Coney Barrett being on the Supreme Court and subtracted back one, but for the Republicans having stolen a Supreme Court seat that belonged to Merrick Garland. Right. That that that additional is the difference between us having a conservative Supreme Court and a very conservative activist Supreme Court. Right. But both would be conservative activists. One would have limits and the other appears to have no such limits. But I think as far as I can detect, right, the only way I can figure out where the line is, is that the discrimination occurred here because churches were not considered the most, were not given the highest possible status of essential businesses, right?

0:34:34 Seidel: Yeah yeah yes it

0:35:42 Andrew: Right. So, again, I'm going to read now from the Gorsuch because the majority doesn't give us any. The per curiam opinion doesn't gives us any analysis whatsoever. It just says, yeah, it's not hard to figure it out. Yeah.

0:35:49 Thomas: Won't These cowards sign their opinion too? Like, we are, we all know who they are I

0:35:54 Andrew: Yeah. But so here's what Gorsich says. And again, I want to tell you, it is astonishing to read this. Andrew will back me up on this in an opinion that that I'm I'm going to read assertions about the facts and the law, and there are no citations to either the facts or the law.

0:35:54 Thomas: Don't get it. Oh,

0:36:05 Seidel: Is appropriate

0:36:15 Andrew: Right. Like like this is not the kind of thing judges write. Right. But Gorsuch. Right, um, so,

0:36:20 Seidel: Reaction thomas yeah

0:36:15 Thomas: My God, it's Just hell. It's just hell for all the good students of the world who are like the ones who listen to this show, pretty much, like, right, it's, it's just so frustrating. The, the, uh, okay, go ahead, read the quote and I'll scream internally. I don't

0:36:36 Andrew: Yeah. And and by the way, when I say without citation, I am going to skip a page worth. So there is before I read this, there is one full page of text describing and ranting about how people can gather inside for extended periods in bus stations and bubble. Then it says, OK, all of that without citation. Then it says no apparent reason exists why people may not gather subject to identical restrictions in churches or synagogues, especially especially Especially when religious institutions have made plain that they stand ready, able, and willing to follow all of the safety precautions required of, quote, essential businesses and perhaps more besides. Leaving aside that odd linguistic construction.

0:37:23 Andrew: The only explanation for treating religious places differently seems to be a judgment that what happens there isn't just as essential as what happens in secular spaces. Indeed, the governor is remarkably frank about this. In his essential laundry and liquor, travel and tools all are essential, while traditional religious exercises are not. That, in italics, is the exactly the kind of discrimination that the First Amendment forbids. So, again, Gorsuch's concurrence is not law, but the law makes no sense. So the holding of this particular case makes no sens. So if I were advising the governor on the hurricane restrictions, I think what I would say is, if there's anybody who is accepted, right, if, if there's any exception to a fire department, right?

0:38:14 Andrew: If you say everybody has to evacuate the coast, right, with the exception of first responders, right. Drop in first responders for essential businesses here. And Neil Gorsuch would be like, well, I don't know. Churches say they're willing to be the first. And throughout our history, they have been the first to respond in instances of tragedy, right ? Like, yeah,

0:38:29 Thomas: Hmm. Well, asking is, do you think these justices give a crap about a principle, or is it just like when it's a Hurricane, they'll be like, oh, well, yeah, a Hurricane's dangerous, so yeah, whatever. You know, kind of thing.

0:38:44 Seidel: No I Mean, I mean, Thomas, like, I honestly, I think if everybody goes and reads Gorsuch's opinion here, to me it read "labels killed Americans" is how I would sum that up, essential versus non-essential. Like, basically the justices, Gorsuch in particular, chafed at the government not listing churches as essential, and not in the sense that they weren't given that same status, but actually not using that word. Like essential organizations were those –

0:39:10 Thomas: Yeah. It's about all their feelings. They want to feel like church

0:39:15 Andrew: Yeah

0:39:13 Seidel: Yeah, no, I seriously think that's true, right? Like essential organisations could mitigate risk factors or they meet basic needs, food, air, water, medicine. Like religion doesn't do that. And I think, yeah, okay.

0:39:15 Thomas: Yeah yeah I just I need to be able to go to the air store and buy some air yeah yeah

0:39:30 Seidel: But I think that that was and is viewed as an affront that can't stand. And I've been thinking this since before the opinion, but his opinion really crystallized it for me. I have wondered if the designation had not been the word "essential," but had been a different word or phrase. Something boring. Whether or not we would have seen such a rebellion against these health orders. And I used this the other day on our show. Like, if you called something like infrastructure-related versus infrastructure-unrelated, or if you flipped it on its head and said there are organizations that meet basic needs and then there are organization that meet higher needs and religion meets a higher need.

0:39:38 Thomas: Yeah Yeah.

0:40:11 Andrew: Oh

0:40:11 Seidel: You know what I mean? Like, would it have been different?

0:40:12 Andrew: I got I I've I've a I I love that I have an even better suggestion which is Let's use zoning classifications, right? Say Q7 businesses will meet with X, but like X5 businesses will be subjected and just use like an impenetrable letter system, right, so that there's – but

0:40:30 Thomas: We're all hostage to children can't

0:40:33 Seidel: Yeah, marketing is killing us now. Okay, great.

0:40:33 Thomas: We when it will it end when will it And I thought, you know, if we get Trump out, that's one baby that we're not a hostage to, but it turns out, you know, the court will be another baby that we're hostage to. Yeah.

0:40:36 Seidel: Yeah.

0:40:45 Andrew: Think, I mean, leaving aside the Q7 or higher services designation, when you move from the – I think Andrew Seidel is exactly correct that it was the essential label that really was able to kind of galvanize them. Because when you read the Kavanaugh concurrence, right, like in many ways, what the Kavanagh concurrence is, is the Gorsuch concurrence. Is just, you know, a crazy person channeling his inner Scalia, screaming about the injustice being done to churches in America. The Kavanaugh concurrence is what happens when you take that and then run it through the Alta Vista, translate this into English. Because for all of He's Justice, I Like Beer, Brett Kavanaugh, we said this when we were predicting him as the nominee and when we're going through his history. Brett Kavanaugh is a very sober and modest author, right? Like his opinions are clear, concise, boring, largely free of rhetoric, right. Right. And and

0:41:00 Thomas: I

0:41:05 Seidel: Yeah.

0:41:30 Seidel: It's

0:41:58 Thomas: Don't

0:41:58 Andrew: And eat possible.

0:41:59 Thomas: Know if your dog's Calling BS on you or what, I'm not sure. God.

0:42:02 Andrew: And and even Kavanaugh's opinion. Right. This is this page two of his concurrence is talking about the definition of discrimination. And I think it's it's key here. This is why I think Andrew's right. It says it talks about, you know, what happens in the red zone. And then it says, quote, In an orange zone, the discrimination against religion is even starker. Essential businesses and many non-essential businesses are subject to no attendance caps at all. Right. And again, you see that, that like the comparison is not comparing churches.

0:42:39 Thomas: I Think You guys are right, It's totally Just the word essential is what did it. Gosh, do we do what? Do

0:42:41 Andrew: Yeah. Yeah,

0:42:47 Seidel: Well, and also people need to know. No, I don't know if I, Brett, boofing Brett Kavanaugh is the median justice on the Supreme Court now in terms of ideology. Think about that. He is the middle of the court in terms OF ideology.

0:42:47 Thomas: Yeah

0:43:01 Andrew: Yeah, yeah. That's the he's the fulcrum.

0:43:04 Thomas: It's pretty incredible When that, the I wonder if this, this has happened much, but in the court's history, you fellows can tell me, that the Republican or conservative side of the court going to be winning decisions over the conservative chief justice of that Supreme Court who will be dissenting. Isn't that weird?

0:43:04 Andrew: Yeah. Yep.

0:43:25 Seidel: Well, we can talk about, I mean, that's a whole thing we got to talk about. So we can definitely dive into that.

0:43:30 Thomas: Has that ever happened? That doesn't, I mean I'm sure individual decisions here and there, but like this could be the next, what, several years of cases getting decided this way. Maybe. Wow, that is weird. So

0:43:42 Andrew: Yeah. And so let me say very, very quickly, Roberts's dissent, again, I'm just going to quote from it. Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And It may well be that such restrictions violate the free exercise clause, the dissent. It is not necessary, however, for us to rule on that serious and difficult question at this time. The governor might reinstate the restrictions, but he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. Right. That is not somebody who is on your side. Right.

0:43:43 Seidel: Yeah. Yeah. Yeah.

0:44:24 Andrew: If if the governor does reinstate, then the applicants can return to this court. So so basically the argument is, yeah, yeah.

0:44:30 Thomas: He just Actually Did the reading, he was like, yeah, you know, I'm conservative and all that, but like, we didn't need to do this guys. Yeah.

0:44:37 Andrew: Yeah.

0:44:38 Seidel: But I mean I think that's why this case is such a bad omen. Right? Right. Like Roberts is still Definitely a conservative. And there was a rift. I think it was misidentified kind of in the popular media quite a bit. The rift between Roberts and the other five conservatives is not ideological. He is still an arch conservative.

0:44:42 Andrew: Yeah, yep.

0:44:43 Thomas: Yeah.

0:44:56 Seidel: The split is about how to implement the conservative agenda. And Roberts wants to move slowly. He's always wanted to move slowly to help preserve the legitimacy of the court and thereby preserve the legitimacy of those conservative changes. And you've got like Thomas and Alito who've just been ready to go for like more than a decade. They're pissed about this incrementalism. And now they've got three new Trump judges and they don't have to hold back anymore. So this was a rebellion against Roberts constantly putting on the brakes of conservative change. But they all still agree on the need for that change. Do you want to

0:44:56 Thomas: Well yeah.

0:45:36 Seidel: Know why there's like a small silver lining in it? Andrew and I were trying to sort this out.

0:45:38 Andrew: Think You're going to say the same thing, so, so, yeah, you say you're silver lining, because I think it's what I was going to to say.

0:45:44 Seidel: Well, I mean, the question is like, why is Roberts an institutionalist, right? He wants to move slowly to help preserve the legitimacy of the court, to preserve the legitimacy of those changes. And so all that means that if he is right, what we're about to see is going to make people view the court as illegitimate. The pace, this conservative onslaught that we need to get ready for, Roberts is worried it's going to make people perceive the court as illegitimate. So if all of that is true and Roberts' worries are correct, then that runaway conservative activism is going to crater public trust and support in the court and show the need for massive court reform and change. So it may be like the worst silver lining there is, but maybe it's better than nothing. I don't know.

0:46:27 Andrew: Well And and I, and I would add a a tiny section of of silver lining to that, which is that, um, I, Roberts, when you read his dissent, he's clearly taken aback by, uh, by Gorsuch's sarcastic dissent, and he's like, I mean, it basically reads like, dude, dude, why are you calling me out in public, right? And and I, I think the moment that, you know, you sort of open the door a crack and you open your eyes and you're like, oh wait, this sarcastic clown horn that I've been accepting, when he's on my, like, that's how they feel on the other side, like this is terrible, we need to not have that, right? Like that, I, I, I was skeptical of the idea that John Roberts, career conservative, conservative, would would move left, but but I will tell you, you know, from personal interactions, like, one of the things that does move people to the left is when they realize just how cruel people on the right are. And I think the, the my silver lining from this opinion is John Roberts realized, like, what a jerk Neil Gorsuch is.

0:46:47 Seidel: Yeah. Yeah.

0:47:38 Thomas: So cool. So instead of 6-3, we might get some 5-4 losses. Awesome. Can't wait.

0:47:38 Seidel: I think that's... Well, we

0:47:43 Thomas: Take that to the bank.

0:47:38 Andrew: So, Yep,

0:47:44 Seidel: Did get to it, but everybody ought to read Sotomayor's Dissent. She is, as always, just awesome and right on the money. If you want to know the way the case should have come out, go read that.

0:47:47 Thomas: She's the best.

0:47:47 Andrew: It's yeah and and perfect out 10 seconds perfect reason why You know, we support Reverend Warnock in Georgia. Right. Sotomayor Catholic. This is not about labels. Right? This is not about how you identify. It's about how you interpret the law.

0:48:04 Thomas: Yeah. All right. Well, thanks as always, Andrew Seidel, for coming on. Hey, do you want to throw out plugs or anything? People want to find more of you.

0:48:13 Seidel: My pleasure. Oh, yeah. Actually, I'm so glad you said that. I almost forgot. I just signed a contract for my new book, and the book is called weaponizing religious freedom. So it's about exactly what we are talking about right now. Should come out in early 2022.

0:48:24 Thomas: Ooh. Hello. That's awesome. Congratulations. Congratulations all We'll see you next awful, horrible Christian nationalist decision, huh?

0:48:35 Seidel: Thank you. Yeah yeah I mean it's probably probably right around the corner Fulton v Philadelphia is it's coming down any day so thanks Guys, let

0:48:43 Thomas: Yeah. So next week. Thanks again.

0:48:51 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:48:57 Thomas: Now it's time for T3B answer time. Oh, Andrew, I'm not optimistic about this. One, I

0:49:03 Andrew: So, Thomas, this is about a car accident. Right. So woman is the passenger in a car that was rear ended by a driver who was negligent passenger. As you are instructed on day one of torts, sues everybody. She sues the guy driving the vehicle she was in, as well as the guy who hit her. Um, the jury ascertains that her total damages were a hundred thousand dollars and then has to apportion the fault and says, Hey, um, you, uh, are plaintiff here. We're 10% at fault for not wearing your seatbelt. Um, like the guy driving your car was 20% at fall, uh. And the remaining 70% was due to the driver of the other vehicle. Then it gives you the two salient pieces of information, right, which is that this is a pure comparative negligence jurisdiction and one that has adopted joint and several liability. And the question is, how do you put those together to answer what is the maximum amount, if anything, that the passenger can recover from the man?

0:49:23 Thomas: I Don't

0:50:13 Andrew: And ran the gamut from A, $100,000, right, the entirety of her damages, to D, nothing. You eliminated nothing right off the bat, although you wanted to bring it back at the beginning of this segment. But no.

0:50:28 Thomas: Know? Okay, good. Well, I wasn't Sure if it's all, stupid, pure comparative negligence. I didn't know if it would mean therefore that the driver of the other vehicle, since he was 70 at fault, you know, that means he, it's on him and nothing on anybody else. I thought that was a possibility. I really thought every answer was a probability. It was a, a hard question.

0:50:28 Andrew: Yeah, yeah.

0:50:49 Andrew: It is a hard question. So let's talk about the two concepts that are at issue, right? So the first is the standard of liability, right. And there are really three doctrines, okay. There is contributory negligence. There is pure comparative negligence and there is modified contributory negligence, OK? And in fact, modified contributory negligence is, I would say, the majority rule in a majority of jurisdictions. So how do these break down? Yeah. Contributory negligence is the rule in Maryland and in a small number of jurisdictions. And it says if you, the plaintiff, are also, yeah, at fault for your accident, then you get nothing.

0:51:37 Thomas: That's the one. You get nothing, right? Wow.

0:51:45 Andrew: That's it. Not an electronic sausage. Right. That's a.

0:51:47 Thomas: That is the worst kind of negligence. So, that's contributory. Okay. I know I try to remember this every time and then a year goes by in between questions and I can't remember. But if you're speed listening to our back catalog, you're kind of like, Thomas, come on. You just had this. It was only 170 episodes ago. You can't even remember? Idiot. Yeah.

0:51:51 Andrew: It. Right, right. Yeah, we just had this We actually just got a notification on, uh, I think on Twitter from somebody who, uh, has spent like the last three months listening to the entire back catalog, so So, yeah, that- that listener is like, come on, Thomas, how could you?

0:52:19 Thomas: Yeah. They would nail the bar.

0:52:23 Andrew: Yeah, they would. They would indeed. So that's contributory negligence. If you are at all at fault, you get nothing. Not a comparative, not a contributory negligence jurisdiction. So D, good elimination. Pure comparative negligence means that you reduce the amount that you can recover as the plaintiff by the amount that you are at fault, right?

0:52:28 Thomas: Okay. Okay. So not that one.

0:52:48 Thomas: Dang it. It is freaking B, isn't it? I should have guessed that.

0:52:50 Andrew: Well, hold on, right. So, $100,000 in damages, you're 10% at fault. We reduce that by 10%. Maximum you can recover is $90,000. Put a pin in that. And then, well, I want to go through the rest of the legal analysis, right, and then modified comparative negligence, then in my view, operates sort of as a backstop to potential absurdity. And it basically says that if the plaintiff is more than 50 percent at fault, they can't recover at all. Right.

0:52:52 Thomas: Yeah.

0:53:03 Thomas: If there is more, then I like my chances a little better. Yeah. Yeah. Hmm.

0:53:30 Thomas: Yeah.

0:53:30 Andrew: So it sort of blends the two. Right. Because you can imagine a situation in which we're like, we think the plaintiffs is, you know, 99% responsible for her own injuries. But, you know the injuries are, you know, she right exactly. So yeah, you can still get that million dollars from somebody else and and you know and so it there's an argument.

0:53:43 Thomas: A billion dollars that's a one weird trick for sure.

0:53:54 Andrew: It is a one weird trick. There's an argument that says if we want the most pro plaintiff jurisdiction possible, right and and there's good reasons to want that right? Like if you are a plaintiff, it means you You have suffered an injury. And so, you know, so, for example, strict liability says, yeah, look, the thing we care about first and foremost is making sure people with vicious dog bite wounds get them treated at the hospital.

0:53:55 Thomas: Yeah.

0:54:20 Andrew: So we don't really care. Like when there are wild dogs involved, which is this is a true rule of the law, we will impose strict liability on the person who owned the dogs, even if they were super duper careful with the vicious wild animals. It. So, yeah, a little bit of dog law here for you. And so would be the argument against going with a modified comparative negligence rule. I think there's kind of a common sense argument that says, look, if this if the accident was more your fault than anyone else's, you don't get to go suing people. People. And that's

0:54:20 Thomas: Dog law all right.

0:54:55 Thomas: Yeah.

0:54:55 Andrew: OK. Right. And look, that's a good counter argument when Republicans come after you with let's have tort reform. But you can be like, bro, we all we already live in a in a modified pull this one out on Uncle Frank. It will silence him at the next one. Yeah.

0:55:09 Thomas: Yeah. See if they have any idea what the hell you're

0:55:11 Andrew: Say we already live in a modified comparative negligence jurisdiction. What more do you want from these poor victims, Uncle Frank?

0:55:11 Thomas: Talking about. Like, What is that, part of the gay agenda? I don't understand any of those words, is what Uncle Frank will say. Yeah.

0:55:20 Andrew: Yeah. Exactly. So then the question, once once you figure out who who can collect and how much, then you answer, you have to answer the question, from whom can you collect, right? And joint and several liability, you describe that exactly perfectly correctly, right, which is we we let the plaintiffs collect from any of the joint tortfeasors, right, from anybody who was at all responsible. And then, you know, you kind of let God sort it all out with with respect to, by and among the, those who were responsible for the accident. So as you pointed out, when puzzling through this, she could collect the ninety thousand dollars from the man, and then the man would be left suing the car that rear-ended him for

0:55:48 Thomas: I should have had this yeah yeah I should

0:56:10 Andrew: The balance, and also probably for his own injuries. Right. So um, so indeed the correct answer was B, ninety thousand hours reduced by the ten thousand dollars for her own injuries. Yeah. Um, yeah.

0:56:19 Thomas: Have had it, of course. It was B. I knew it. I yeah, I knew that.

0:56:24 Andrew: I thought I thought you were gonna get there.

0:56:25 Thomas: I had it.

0:56:26 Andrew: Man, we

0:56:26 Thomas: I blew it. I'm tired of blowing it. I knew, I knew all the information, I just didn't, yeah, I choked. It's, you know. I just Look, I got it wrong on purpose to just show how hard it is for everybody who just passed the bar. Good job. I just wanted to, you know, give you more kudos. That's it. Yeah. It's like when the teacher says, like, I was just checking if you were paying attention, when they write something down wrong on the whiteboard.

0:56:35 Andrew: Still love you.

0:56:52 Andrew: Exactly right.

0:56:54 Clip: Wrong! Hide my head, I wanna drown my sorrow. No tomorrow, no tomorrow. You lose!

0:57:08 Thomas: Well, I'm bummed. I should have had it. Who didn't choke? Andrew, future Andrew, hop in your time machine.

0:57:09 Andrew: Yeah. Well, Thomas, this week's winner is our friend Stout Skeptic, at StoutSkeptic on Twitter, who writes, If anyone ever doubted the sanctity of T3BE, this weeks question proves once and for all that Thomas isn't cheating. It took 1.5 seconds on Google to learn that the correct answer is B, but Thomas plays it straight. If I win this week, I defer my never-ending fame and fortune to ActBlue. Well, thank you so much, at Stout Skeptic. We know who you are. We love you. Thanks for the shout out and uh thanks for validating Thomas's integrity. Congratulations on being this week's winner. I believe a two-term winner, so uh everyone give at ActBlue a follow since you're already following at Stout Skeptic and congratulations on being This Week's Winner.

0:58:04 Clip: And thank you, Let's go!

0:58:05 Thomas: What? And now, it's Time to Thank our Hall of Famers, our all-time greats, our top patrons over Over on Patreon.com/law and getting all the goodies, all the stuff we always describe. I'll start us off. Thanks to I support five podcasts on Patreon, but I only changed my name because I love you OA Clownhorns. Oh, that's nice. I like that. Sparkle Donkey Tequila, the world's best tequila in the world. Sparkledonkey.com. Read Cynical Theories by Helen Pluckrose and James Lindsay. All right. Sure. Yeah, it's a terrible book. This person again. Okay, yeah, Amy, uh, Amy Coney Barrett reminds meof Nurse Ratchet. Next week on Law'd Awful Movies is the trial of the Chicago Seven. Oh, is that, is the law not good in that one? I don't, it's a, it's Erin Sorkin, so you can't pay me to watch it. Friend of the show, Noctelpha Rootcreeper. The Coterie, expert Salesforce implementations and custom app development. Find out how to transform your business digitally at, that's cut off, but I guess look for the Cotery with a D.

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1:04:03 Andrew: All right, thank you to Alfred Wallace. Give to ModestNeeds.org. Give to ModestNeeds.org. I know who Sidney Powell was before she gave a worse presser than Giuliani is a weird flex, but here we are. Jason Copas. Hot Spear asks that you don't refer to Michael Flynn as the turkey. Turkey, that's foul language. Oh, Conrad Michaels is a Russian super spy. Yeah, you know, even if he is, he's still our favorite.

1:04:29 Thomas: Yeah.

1:04:30 Andrew: Optimism is overrated. No, it isn't. Pushing Left Podcast. Dealing with Republicans is playing Prisoner's Dilemma with someone that always betrays you. Drop ethics, go with game theory. The True Conrad Michael's. Nate Drex. Darth Mandy Pants. That's it. That's the name. No idea what Emotion and Lemonade is, but it sounds delicious. 13th Century Sex and He Gravel Truck Lawyer. Diogenes the Cynic was right. Jennifer Cratch, this patron name is subject to attorney-client privilege. Unionized Brooklyn Friends. Sam Alito is the Newt Gingrich of Clarence Thomas's. I love that one, that's so good. Civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. Good job on the voting for Joe Biden, please continue with the hand washing. Steven Balticate. Sandoval. John Bilderbeck. At this point I think the Seattle NHL franchise is more likely to release the Kraken than before Sidney Powell.

1:05:19 Andrew: Philip Kizer. Andrea the Arbitrary and Capricious. Can I get back to criticizing religious influence on our democracy yet? Well, this is a good episode for you. Bye, Don 2020. Maybe the real infrastructure week was the friends we made along the way. Absion. Pain Strumpet. Trambolus. Thank God she finally changed her stupid Patreon name. RIP Brooklyn. The Pillow Thief. My Drooly Baby. Baby. You were a good pup and F 2020. Yeah, I'm so sorry, Brooklyn. Jonathan, Trump wanted four seasons, got Doubletree. Let me just pause to announce that my co-host, Thomas, is actually planning to run for mayor. I'd be behind that.

1:06:00 Thomas: Yeah, it's to get rid of all. So you can't charge me with anything because I'm a political opponent.

1:06:06 Andrew: Roll up, roll up, get your pardons here. $100,000 cash, no receipts, refunds, or returns. My love meat song is stress eating. This episode is sponsored by the law firm of Season, Season, Season, and Season. Join your labor union together, we bargain. Alone, we beg. Infinite lawyers file infinite briefs supporting infinite motions. I tear the tags off mattresses and pillows. Oh, well, report you to the mattress police. James K. sitting in Seattle, cheering my home state of Georgia. Donate to Save the Senate. Doctorate night, homeschooling our kids in the day. Pretty sure my wife is a superhero. Chad T, anonymous Biden fires between the election and inauguration to his transition team. WordOrigins.org, your source for legal terms from 13th century Saxony.

1:06:51 Andrew: In the end, it was more like Iran-Contra than Watergate. RIP, Notorious RBG. Video killed the Patreon pun. An undisclosed senior government official from an undisplosed red state. Oui, oui, croissant, escargot, omelette du fromage. Ha ha. Derek, Trump pardoned three turkeys this week. Congratulations, Corn, Cobb, and Michael Flynn. Terrified will be pecked to death by lame ducks, a string of unpronounceable characters. Rhonda wants the most boring 2021 possible, yeah. The coronavirus apocalypse is making me too depressed to think of anything clever this week. Adam Costa, J. Alden, Walt Mullica, Chandler, tricycular manslaughter, 43 days left, soggy pants, Matthew Vernon, more like Rudy Giuliani, am I right?

1:07:38 Andrew: Sakashite Fukasumi, adopt a homeless pet in a postie, clawing an ear docking, Dejure Belli at Pachis at last, baby, Heather L., Jeremiah's fancy microwave emporium, Ian and Allie, Danny Rosari, Eli Bosnick, David in Brooklyn, Chastity Slutsky, Sam Donow, Mitchell, no commute so behind on podcasts. Andrew, I'm beginning to think Sidney Powell may not be a good attorney. Natasha Crunchwrap wants you to support the Justice Policy Institute. I agree with that 100%. Sam Buck, and of course, our all-time great, he who shall never be dethroned, Conrad Michaels. Thank you all so much for being our Hall of Fame patrons.

1:08:14 Thomas: That's our show. Thanks so much for listening. We'll see you for a rapid response Friday.

1:08:19 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.

1:08:53 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.