OA505: The Supreme Court Is a Partisan Instrument of Destruction on Behalf of the Republican Party and We're Going to Keep Telling You This Until the Media Stops Raving About How Centrist John Roberts Is

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

0:01:21 Andrew: Woo! I am fantastic, Thomas. How are you?

0:01:25 Thomas: Doing well. I am laughing at what you put into the title field of our spreadsheet, and I may just type it all in. I'm going to see if it fits in the title field of WordPress and the podcast thing, but as of right now, before knowing that, this episode is called "The Supreme Court is a Partisan Instrument of Destruction on Behalf of the Republican Party, and We're Going to Keep Telling You This Until You Stop Saying Stupid Shit in Media About How Centrist John Roberts Is." I couldn't get that, all that was, I should have taken a deep breath going into it that

0:01:55 Andrew: Oh, that was a NOAA effort, though. That was pretty great.

0:01:58 Thomas: That didn't you know, that was on short notice, my lungs did not prepare for that, so I barely got through, so, it, anyway, that's our episode today. Oh, I don't even think we have, have any announcements, Andrew, I think, uh, as usual on the Tuesday show, we just get right into it.

0:02:12 Clip: Andrew Torrez is correct, the best kind of correct, Andrew Torrez, you were right, tell your sister, you are right.

0:02:28 Thomas: Andrew, looks like we've got an update in the inevitable failure that it was, the Florida social media law trying to ban stuff, that's such, such a weird thing, and if you build a zoo then, then you're exempt from it all that stuff What's the update

0:02:40 Andrew: Right. Yes. Yes. Okay. So, uh, Florida Senate Bill 7072, which punishes social media companies for deplatforming right-wing monsters, we called that law, I think, I think this was your language, Thomas, "stupid, pointless and unconstitutional" in Episode 494, um, that was uh end of May, the law was scheduled to take effect on July 1. And then we predicted in Episode 494 that it would immediately be the subject of a lawsuit to enjoin it. We covered that lawsuit, the filing of that lawsuit, NetChoice LLC versus Moody, in Episode 497. Well, guess what? We're recording this on July 1. Indeed, the court in NetChoice, federal district court in Florida, has in fact granted, granted a preliminary injunction preventing anybody associated with the state of Florida from trying to enforce the stupid law because. Well, my notes say "because, duh." But guess I owe you folks a little bit more of an explanation than "duh."

0:02:58 Thomas: What's

0:03:44 Andrew: We really made two arguments. We also talked in Episode 497 about how well that lawsuit was pled, right, the zoo stuff, um, it, the court decided on the basis of the arguments that I raised in Episode 494, which again are the most slam dunkiest of the agreements, and they are, number one, uh, Section 230 of the Communications Decency Act of 1996 provides a safe harbor of provision and preempts virtually all of it. That is literally just pages 15 and 16 of the opinion, it's about a page split over those two pages. And it's as close to the court being like, "yeah, we're not even really going to talk about," and this is in 14 point font, font, I should point out, right?

0:04:32 Andrew: It's just, well, you know, 14-point font is what you have to use in appellate courts, right, so when you file a brief at the Fourth

0:04:32 Thomas: The usual legal font, I don't know. Wow.

0:04:43 Thomas: I didn't think this was going to be a serious answer.

0:04:44 Andrew: Circuit, yeah, there you go, you actually do use really huge font. The court, for its opinion, can use whatever font it likes, but this just feels like kind of padding out, like it's a 31-page opinion, but it feels like Like, you know, you could put this in Times New Roman 12 and get it down to like, you know, 18 or so. But in any event, just says pages 15 to 16, this blatantly contradicts Section 230, is preempted. Plaintiffs are likely to prevail on their challenge to the preemptive provision, those applicable to a social media platform's restriction of access to posted material. And then they note, however, as we did on 494, that that would not invalidate all of this stupid, pointless and unconstitutional law. So they do have to adjudicate the constitutionality question, which they do. And they find out, shockingly enough, that the rest of the law is unconstitutional as a restriction on speech that is content dependent.

0:04:45 Thomas: Okay.

0:04:55 Thomas: That's

0:05:47 Andrew: Um, I really love, I want to just read a little bit here because, um, the language here is, is really great in terms of slapping down these idiots, and, uh, and everybody should read this. So this is page 17, the court makes three arguments, uh, on the First Amendment, and, uh, it says, "First, the state has asserted it is on the side of the First Amendment and the plaintiffs are not. It is perhaps a nice soundbite, but this assertion is wholly at odds with accepted constitutional principles. The First Amendment says Congress shall make no law abridging the freedom of speech of the press. The 14th Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional exclusive public functions. So whatever else may be said of the provider's actions, they do not violate the First Amendment." Really great, pithy, concise.

0:06:36 Thomas: Shortened to the point yeah, the

0:06:37 Andrew: Yeah. Second, Second, the First Amendment applies to speech over the Internet, just as it applies to more traditional forms of communication. And third, state authority to regulate speech has not increased, even if, as Florida argued nearly 50 years ago and is arguing again today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest. This was a great case to remind of. So Supreme Court case in Miami Herald Publishing Company versus Tornillo. The court rejected just such an argument, striking down a Florida law requiring a newspaper to print a candidate's reply to the newspaper's unfavorable coverage.

0:07:23 Andrew: A similar argument about undue concentration of power was commonplace as the social media restrictions now at issue advanced to the Florida legislature. Right. So, right. In that case, they said, yeah, the Miami Herald is the biggest newspaper in the state of Florida. They say bad things about a candidate. We should make them have to print what the candidate says in rebuttal. And the Supreme Court was like, no, we shouldn't. Newspapers are newspapers. It's the First Amendment. Sorry, you don't like it. Be better. And then the court says here, as in Tornillo, this argument about marketplace concentration is just wrong on the law. The concentration of market power among large social media providers does not change governing First Amendment principles. The argument is also wrong on the facts. Whatever might be said of the largest provider's monopolistic conduct, the Internet provides a greater opportunity for individuals to publish their views and for candidates to communicate directly with voters than existed before the Internet. So, you know, seems I

0:08:18 Thomas: Feeling whoever wrote this was like, "this is not even work, this is just, uh, you know, like this is fun," you know, those days of your job when you're like, "I do this for free, this is awesome," I get to just, this is like the most basic constitutional smackdown, love it.

0:08:32 Andrew: Yeah, I, I think that's right, so, uh, this judge is 70 years old, this is Judge Robert Lewis Hinkle, uh, he

0:08:39 Thomas: Wrote, like, "I came in on a Saturday to write this," by the way, "I'm in my my PJs, this is just fun, this is not even work," isn't

0:08:42 Andrew: He was nominated by Bill Clinton in 1996, took senior status five years ago, uh, and I think you're right, I think he is enjoying, uh, just how stupid these arguments are it is it it

0:08:56 Thomas: The tone like kind of you know, isn't it tone, like it's kind of like, "this what I got into the job for," you know

0:09:01 Andrew: Think that's right, like, so for example, on, on page 24, in evaluating the application, he says, look, this is, uh, the first question is what standard applies, and he says, "these principles plainly require strict scrutiny here, the Florida statute and issue are about as content-based as it gets, thus, for example, 106.072 applies to deplatforming a candidate but not someone else, this is a content-based restriction, similarly, Section 2(h) imposes restrictions applicable only to material posted by or about a candidate, this again is content," right, like He has a lot of fun with it. There's a few pages on how, uh even if intermediate scrutiny applied, these regulations would still not survive. And so then he grants the injunction. So everything we told you is exactly coming to bear, and Judge Hinkle had a good time while doing it. So hopefully he's show listener. Yeah.

0:09:36 Thomas: Yeah.

0:09:54 Thomas: A bit of good news, yeah bit of, bit of fun before we talk about the Supreme Court ruining our lives.

0:10:02 Andrew: Fair.

0:10:02 Thomas: Now, for our next segment, the Supreme Court ruining our lives, Andrew, uh, this is a big giant Andrew was right, but in the worst way, I assume, feel

0:10:08 Andrew: Yeah. Yep. Yep. Um, so if, if you haven't, uh, if you don't follow us on social media, and you should, Twitter at Open Args, um, we announced when this decision dropped on Thursday, uh, and knowing that we were, you not going to be able to cover it on Friday's show, uh, that you should go back and listen to Episode 471, or read the amazing transcripts produced by Heather Leverage, I, I did that. And I, uh, I don't want to like strain my right arm, patting myself on the back here. Yeah. Um, yeah, this isthis is a horn tooting. This is exactly what I predicted. Um, you might recall we covered this case, the Brnovich versus DNC case.

Uh, it involves two Arizona restrictions restrictions on voting. Those two restrictions are number one, a restriction on ballot harvesting that I am not going to go back into here because it's a complicated issue. It is not relevant to the outcome. And we cover it in depth in Episode 471. So if you've forgotten about ballot harvesting, go back, listen to 471 number two is a provision about voting out of precinct. And here's the issue, right? And that is districts get redrawn all the time because of gerrymandering. And so you might be in a position where you've always gone to one particular precinct, right, you've gone to One particular elementary school or neighborhood church or whatever to vote.

0:10:40 Thomas: Free feel free that horn I

0:11:34 Andrew: And you may go and all of a sudden find out on Election Day that you were actually redrawn into a different district with a different precinct that you have to go to. States handle what happens when you do that in one of two different ways. OK. There's a federal law, right? The 2002 Help America Vote Act, HAVA, requires that if you show up at the wrong precinct, they have to give you a provisional ballot. But then it's a question of what states have to do with that provisinal ballot. Many states, many blue states will say, oh, if it turns out you voted in the wrong So I should say there is the possibility that you voted in the right precinct, right, that you just are not on the voter rolls because there is some mistake.

0:12:21 Andrew: Right. And and that happens. That happens far more often than voter fraud. Right, because voter fraud never happens. But so if it turns out you were in the right place after all, they count your provisional ballot. But suppose it turns out that you're in the wrong place. You were supposed to go to X school and you wound up going to Y church instead. The approach that most states take is to invalidate any of the stuff that you couldn't actually vote for. Right. So you're redrawn from local district 67B into local district 69A. But, you know, you go to 67B and you cast a vote for county commissioner.

0:13:04 Thomas: Know, we've talked about it, seems super straightforward that you would just take all the things that are in common between, among the two ballots that she should have had, and just, uh, use those votes, right of

0:13:05 Andrew: Yep. Yep. Yep. And that really is the question. Do we throw away your vote for president, governor, senator, right? State ballot initiatives. Right. Of course not.

0:13:21 Thomas: Course not, it's not like you were like, "oh, I'm in the wrong district so therefore I should be voting on the prime minister of Israel, not the president of the United states," you know, right?

0:13:30 Andrew: Yeah. Yep. Yeah. So, of course, the Arizona law says throw it away. Right. And and the question was, does that and the ballot harvesting provisions, does that implicate Section two of the Voting Rights Act? And this got a ton of attention back in March during oral argument because Amy Coney Barrett asked a sensible question. OK, I know I was as surprised as any of you. But she asked the lawyer on behalf of the RNC, hey, I get why the DNC has standing here. Yeah. What is it you say you do here?

0:13:35 Thomas: Yeah. Yeah what is it you say you do here that

0:14:07 Andrew: And the RNC lawyer accidentally said the quiet part out loud and was like, well, I'm here to make sure Democrats lose. So, you know, the fact that the DNC has standing because this disproportionately affects and they introduced evidence to that effect, Democratic voters means by by extension that, you know, we have standing because our job is to make Democrats lose. And that got everybody all a Twitter about like, oh, is Amy Coney Barrett going to like, you know, vote to kick this out on standing? And what I said, and here I'm going to quote myself, quote, At the end of the day, the Democrats are going to lose this case six to three. There would be a really, really good argument here that the RNC lacks standing, but it will not affect.

0:14:52 Andrew: Look, the Supreme Court kicks cases out on standing when they want to. I do not think they want this rule to stand. So I do NOT think that standing is going to be a problem. I think they'll address it in a single sentence. It may show up in one of the dissents, but this case will not get kicked out on standing.

0:15:07 Thomas: Was you quoting you that was Andrew on Andrew

0:15:08 Andrew: That was me quoting me. Yeah, it's the best the best kind of Andrew on Andrew. That is a swish. Page 12, literally one sentence. Here's what the majority, by the way, six three decision upholding the Arizona laws. And I'm going to get to the merits of that in a minute. First, they consider the standing and they address it in one sentence, quote, Secretary of State Hobbs contends that no petitioner has Article three standing to appeal the decision below. But we reject that argument. All that is needed to entertain an appeal of that issue is one party withstanding. And we are satisfied that Attorney General Brnovich fits the bill.

The state of Arizona intervened and the attorney general is authorized to represent the state in any action in federal court. So I lied. That's that's three sentences in one paragraph. But but yeah, there was there was no chance this case was going to get get kicked out on standing. And indeed, it was not. So what did the case hold? The case involved Section 2 of the Voting Rights Act, and what I predicted was that these right-wing activist monsters on the Supreme Court would read expansive language of Section 2 of the Voting Rights Act in the most preposterous way possible so as to frustrate the obvious intent of the law and make it easier for states to restrict how you vote.

And by the way, that's exactly what the 6-3 Alito opinion does. So Section 2 of the Voting Rights Act is 52 U.S.C. 10301, and it says that no voter qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the U.

0:15:09 Thomas: Yeah boy you can't get anything right, I'm just kidding.

0:16:53 Andrew: S. to vote on account of race or color or in contravention of the guarantee set forth in this title. So broad principle, you may not regulate voting in such a way that has that results, right, in denying people the right to vote on account of race. Right. And then subsection B explains how you prove that.

And it says a violation is established if, based on the totality of the circumstances, it is shown that the political processes are not equally open to participation by members of a class of citizens protected by subdivision A. That is, on the basis of race, in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

So that should be really, really straightforward if the, if the state or any political subdivision of the state, any county, city, whatever, enacts restrictions that disproportionately burden a minority group on plain language. Right. And these are right. Or it's called plain language of the statute on the plain language of the voter rights of the Voting Rights Act of 1965. Those regulations are invalid. Right. Under the totality of circumstances, if it shows that the political process is not equally open to participation by minority groups as white people. I predicted that this court would read that that narrowly instead of broadly, and that's exactly what they've done. Beginning on page 16, here is how Samuel Alito, just read the words and what they mean, has defined the totality of circumstances are not equally open to participation.

0:18:34 Andrew: Quote, the provision requires consideration of the totality of circumstances. Thus, any circumstance that has a logical bearing on whether voting is equally open and affords equal opportunity may be considered. We may, we will not attempt to compile an exhaustive list, but several important circumstances should be mentioned. And, and he mentions five that are all in favor of restricting voting. So here's what they are. First, the size of the burden imposed by a challenged voting rule is highly relevant. Mere inconvenience cannot be enough to demonstrate a violation of Section two. Um, that's an insane argument. Uh, the, text of the bill itself says if you're not equally open, right, and being slightly less equally is still unequal, right? So the size absolutely is not relevant. Nothing in the Voting Rights Act suggests that it is. It's just Samuel Alito is like, oh, come on, Black people, like, so you got to stand in a slightly longer line. Boo hoo hoo. Wow. Wow.

0:19:29 Thomas: Yep. Well, again, they get to decide when they care about painstakingly analyzing the text or not. You know?

0:19:36 Andrew: Wow. Yep, exactly right. And as we predicted on 471, this will lead in the next five years without the passage of the For the People Act or something similar preventing this, it will lead to what we call the death of a thousand cuts, right? Right. It will be 25 separate additional burdens, each one of which is, quote, mere inconvenience. But when taken together, make it substantially substantially harder for members of minority groups to vote, which, by the way, is exactly what the statute is meant to prohibit. Right. That's the whole point of that totality of the circumstances language. It is to say, yeah, you don't just look at particular rule, you look at the entire process. So first, he just imposes this random restriction that says, eh, if it's little, come on, right?

0:19:42 Thomas: Wow,

0:20:32 Andrew: Is that supported by any evidence whatsoever? It is not. Second, and again, we'll go back to the quoting. For similar reasons, the degree to which a voting rule departs from what was standard practice when Section 2 was amended in 1982 is a relevant consideration. Because every voting rule imposes a burden of some sort, it is useful to have a benchmark with which the burdens imposed by a challenged rule can be compared. The burdens associated with the rules in widespread use when Section 2 was adopted are therefore useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally open or furnishing an equal opportunity to vote in the sense meant by Section 2. Therefore, it's relevant that in 1982, states typically required nearly all voters to cast their ballots in person on Election Day and only allowed narrow and tightly defined categories of voters to cast absentee ballots.

0:21:27 Andrew: Again, I'm almost at a lack of words for how complete, utter nonsense that is, right? Section two does not say, you know what, it's 1982 and voting is awesome and this will never get any better than it is right now. No, it said in 1982 voting is massively unequal and we want to fix this by enshrining in, by the way, 1982 President Ronald Reagan, right? Like, we're not talking about, out you know, President Bernie Sanders with a filibuster proof Democratic majority. We're talking about Ronald Reagan's America. We looked out with a Republican majority in the Senate and said, okay, um, voting rights still a problem. So, um, if states are trying to pass laws that make it harder for minorities to vote, we want to do something about that. Okay, those those were the days, yeah.

0:22:13 Thomas: Those were the days. Republicans thought they would do something about that? Wow. I mean, those really weren't the days, but like in that one respect.

0:22:17 Andrew: Yeah. Yeah. So the the idea, you know, right.

0:22:24 Thomas: Yeah, I'm juste saying.

0:22:24 Andrew: Right. The steel-manning of this argument is to say you want to look at The objective quality of the burden being imposed. Right. And so 1982 is now going to be our benchmark for what counts as objective quality. Let's assume that that's a cognizable argument. It isn't. But let's assume that it is. That is not what the Voting Rights Act is meant to protect. The voting section two of the Voting Rights Act is meant to protect disparities between racial groups. So in other words, if we made it super duper easy for white people to vote by mail, But super duper hard for black people to vote by mail under the Alito rule established in the Brnovich case.

0:23:10 Andrew: You have no section to claim that is preposterous. It is, it is it is ridiculous at a fundamental level, because the whole idea is not like, OK, boy, would, how would grandpa have felt about standing in this line? The whole idea is to remedy racial inequalities in how voting laws are applied. And obviously, a bill that says, hey, black people don't get to vote by mail, but white people do, is as textbook a case of violating the Voting Rights Act as you could possibly come up with. This provision that I've just read suggests that it would not be. It's like, oh, come on. Like, it's based on 1982, and you couldn't vote by email in 1982. You can't vote my mail now. What are you complaining about? Out.

0:23:14 Thomas: Oh my God. My God.

0:23:55 Andrew: We're not all the way through yet.

0:23:57 Thomas: I mean, imagine, so would that logic apply? Like, let's say, hypothetically, if we came up with online voting, voting super easy internet voting, and then some state is like, black people don't get to use that, sit by Alito's reading, would he be like, well, I couldn't use it in 1980, there wasn't even the internet in 1982, in this way so it's fine?

0:24:16 Andrew: I don't see that there is any other way to read the degree to which a voting rule departs from what was standard practice when Section 2 was amended in 1982 is a relevant consideration. So I suppose, right, if you wanted to say this is a good decision, but also overturn what would plainly be intentional discrimination, you could say, OK, what's a relevant consideration? But it doesn't hold sway here because the obviously racial animus outweighs. But the idea that you would say, well, on the other hand, to a law that says black people can't vote via Internet or can't vote via mail is like there should not be an on the Other Hand for that. It should just be no. That law is invalid.

0:24:40 Thomas: Yeah, there, is no other hand. Yeah, yeah.

0:25:02 Andrew: Yeah, there is no other hand. But Sam Alito thinks there is

0:25:05 Thomas: It's all the more infuriating because these people try to rely on some, like, something that they think shows integrity. You know, I'm just reading the plain language of the text of the law. And it's like, nope, no matter how clear the law is, they will find a way to do the thing they already want to do. It's worthless, their,

0:25:23 Andrew: And none of this is in any way tied to the text of of the Voting Rights Act whatsoever. So I read you the text, you will not see. Right. Objective test, you will not say. So the third point he makes, this this illustrates, right, this this this goes hand in hand with the death of a thousand cuts on on the size of the burden. Alito says the size of any disparities in a rule's impact on members of different racial or ethnic groups is also an important factor to consider. Small disparities are less likely than large ones to indicate that a system is not equally open to the extent that minority and non-minority groups differ with respect to employment, wealth, and education. Even neutral regulations, no matter how well crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules. But the mere fact that there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.

0:26:14 Andrew: Again, that's just not what words mean, right? He's saying If you have a slightly unequal opportunity, come on, it kind of rounds out to equal. And again, this incentivizes employing the next Thomas Hofeller, he's already out there, I'm sure of it, to figure out, okay, how can we suppress 1% of the black vote? OK, and let's get me, too. I'm sure they do. And seriously, if you if you get 25 different regulations that each suppress one percent of the black vote.

0:26:36 Thomas: Hope that person's daughters already hate him. Totally free and clear. Nothing we can do, I'm

0:26:49 Andrew: Totally free and clear. Fourth, next, courts must consider the opportunities provided by a state's entire system of voting when assessing the burden imposed by a challenge provision. And we called this out with respect to the Georgia statute, right? Every single one of these voter intimidation and voter restriction bills will have some kind of language in there about, well, it looked like we're adding in three, three more vote by mail days, or, you know, we're doing X thing to expand access, right, and Y, Z, A, B, C, D, E, and F to restrict access. So, you now, taken together, idea that you would say you can give people more access on the one part, and then that means that you've immunized something that directly negatively affects access on the other hand, not anywhere in the statute.

0:27:40 Andrew: Alito thinks that that's relevant. Fifth and finally, and again, just going to read this to you. Quote, "the strength of the state's interest served by a challenge, by a challenged voting rule, is also an important factor that must be taken into account." Sidebar, no, it isn't, not anywhere in the law. But keep going. "One strong and entirely legitimate state interest is" - want to guess how this sentence ends?

0:28:06 Thomas: Trying to think, like, what's, what's the way that would be, like, racist, but not quite saying it, you know, like? Not saying the - ah, well, it's just gonna be like, "vote," eliminating voter fraud, that kind of thing.

0:28:10 Andrew: Yep. Yep. The prevention of fraud. Fraud can affect the outcome of a close election and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome. This is 100 percent bullshit dog whistle talking points from the extreme right who think that the election of 2020 was stolen. The fact that they are.

0:28:17 Thomas: Yep. Oh. My God. Yeah. Hey! Alito, show me the fraud that you're talking about, demonstrate what potential fraud, what actual fraud, what actually happened, have happened, yeah.

0:28:42 Andrew: Yeah. Yeah, well, oh, look, oh look, there were over 60 lawsuits that were all dismissed because none of it happened. Yeah.

0:28:52 Thomas: One Trump voter put in a ballot for their dead wife or something, to vote, like, that's all the fraud there was, there's no, it doesn't happen

0:28:57 Andrew: Yeah. This is now described as a strong and entirely legitimate state interest, end of quote. And you can bet that that will be quoted in every single subsequent case. The DOJ has intervened right now and sued to enjoin Georgia from enforcing SB 202. This decision is going to make that an unbelievable uphill battle. You should read Elena Kagan's dissent. I'm not going to read it here. I've linked it in the show notes, and just kind of weep for the future of democracy. Um, what I want you to do is, uh, listeners, um, I want you to email and tweet this decision and this episode out at any this is why we titled the show what we did at any talking head who's like, "well, you know, John Roberts, a, uh, you centrist who's gonna, you know, steer the court back to," no, no, they just saved all the hyper, hyperpartisan 6-3 decisions that do nothing but advance the interests of the Republican Party to the end.

0:29:01 Thomas: Yeah.

0:30:00 Andrew: John Roberts signed on to the majority here. He in no way illustrates any disagreement with any of the provisions that Sam Alito has just set forth in any way whatsoever. The idea And that this is not an activist right wing court looking to make it easier for a minority party to stay in power, you have all the evidence you need. And and Brnovich is it. So, sorry, little angry here, a little hot under the collar. But there you go.

0:30:29 Thomas: I mean, we're, we're effed, Andrew, we're effed. What we can't do, we're not getting ah, we're, what, can we do about this? We can't fix the court. Like, we had, we needed to do some sort of court reform, and clearly that's not happening. You know, I guess the answer is we have to do our best to win enough of the Senate and keep everything else so that that could happen. Is but in the meantime, time the Supreme Court is taking away our ability to even do that.

0:30:34 Andrew: Yep.

0:30:56 Andrew: Yep, You know, you got to persuade Joe Manchin sooner rather than later that, you know. Yeah, I know. I know it. Look like optimism only runs so deep. It's

0:30:56 Thomas: Yeah. That's not happening at- Yeah. Maybe we could persuade them on, on, like, the voting rights bill, possibly, but I don't think we're getting any court packing, there's no chance. Again.

0:31:14 Andrew: It's, bad. State stay vigilant and, you know, elect, some elect a mansion proof Democratic majority in 2022.

0:31:22 Thomas: I know I'm a broken record, but if we just despair and stop trying, then they lock it in forever, you know, then they get the ability to restrict voting so much that they can have minoritarian rule, if that's a word, I don't remember. They can have that forever, you know? Like, I'm not exaggerating. I mean, the court is so packed in their direction and fundamentalist that they could lock it in forever if we don't keep our energy up. We can't give up. We have to just keep trying.

0:31:37 Andrew: Yes. Yeah.

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0:35:40 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:35:45 Thomas: All right Andrew, this is sort of like, maybe this will cheer us up, maybe not, I Don't Know. Male grab bag of listener feedback. What do we have?

0:35:52 Andrew: All sorts of great stuff, I love our listeners, and this is these are a bunch of questions and comments that that have come in on a variety of topics that That are are fabulous. So let's begin with listener MM, who says, as perhaps the only other person that has a listen to the latest episode and be read the Thomas dissent in the BL Mahanoy case. That's the cheerleader, you know, F cheerleading. I feel compelled to point out the tiniest nit in your discussion of the Vermont case, Lander versus Seaver from 1859. So remember, we talked about how Clarence Thomas's dissent was predicated on this 1859 case of Vermont. So MM continues, not because anyone should run a school district based on what the Vermont Supreme Court thought was OK in 1859, but because the facts of that case are actually worse than you describe and makes Thomas's descent 2 percent more horrible. So

0:36:16 Thomas: Cheerleader one, yeah.

0:36:32 Thomas: Right. Wow.

0:36:51 Andrew: The facts of Lander versus Seaver are described in note 14 of Alito's concurrence, which also serves as Alito response to Thomas's. OK, I guess no one wants to originalism with me dissent. I put the entirety of the footnote in text below, and I am going to read this. Is delightful. The headline is that in Lander, the teacher actually whipped the student who was 11 at the time for calling him old and was sued by the parents for assault and battery. The lower court held that the teacher held for the teacher, but the Vermont Supreme Court reversed, but apparently made some comments in doing so about the teacher's authority to discipline students for off-campus speech behavior. So let's unpack that a little bit. This is a case in which the Vermont Supreme Court said, yeah, no, you cannot discipline in the form of whipping this kid for calling you old. Could you do something? Yeah, maybe. I don't know. But, you know, in dicta, they said, could you do something? Maybe. I don't know. But like, come on, you can't whip the kid for making fun of you.

0:37:13 Thomas: Oh, my God. Jeez. Even they had lines back in 18-whatever. Okay.

0:37:54 Andrew: Yeah. Yep, now here's the footnote. "There is no basis for concluding that the original public meaning of the free speech right protected by the First and 14th Amendments was understood by Congress or the legislatures that ratified those amendments as permitting a public school to punish a wide swath of off premises student speech. Speech." And then it says, compare post at two to four, which is just a reference to the Thomas dissent. Right? "At the time of the adoption of the First Amendment, public education was virtually unknown, and the amendment did not apply to the states. And as for the 14th Amendment, research has found only one pre-1868 case involving a public school's regulation of a student's off-premises speech.

In Lander v. Seaver, an 11-year-old boy, while driving his father's cow by the home of his teacher, called the teacher, quote, old Jack Seaver in the presence of other students. The next day, the teacher quote, whipped him with a small rawhide in a tort suit against the teacher for assault battery. The Supreme Court of Vermont reversed the lower court's judgment for the teacher but opined that the teacher had the authority to punish the student's speech because of its effect on the operation of the school. This decision is of negligible value for present purposes. It does not appear that any claim was raised under the state constitutional provision protecting freedom of speech.

And even if flinty Vermont parents at the time in question could be understood to have implicitly delegated to the teacher the authority to whip their son for his off-premises speech, that same inference is wholly unrealistic today. So yeah, look, this is the rare rare instance in which uh Samuel Alito's uh don't give

0:38:47 Thomas: Oh,my gosh. Wait,

0:39:34 Andrew: An f uh sarcastic method of writing uh aping his hero Antonin Scalia is actually funny and on point so um thank you mm for for bringing that to our attention those

0:39:44 Thomas: Those weren't the good old days. Jeez.

0:39:46 Andrew: Were not. I'm weird. Weirdly, the mid-19th century was not the good old days

0:39:50 Thomas: Yeah. Who would have thought? Shall we talk paddlefish meat? And

0:39:54 Andrew: I love that I love this so much. So we uh broke down uh actions in rem in episode 230, right? So literally more than half the show's lifetime ago, the too much meat episode. And uh and we got this delightful email. Hello, my name is Rachel Stopchinsky and I'm an attorney living Chicago, Illinois.

0:40:16 Thomas: I'm a paddlefish. No, okay.

0:40:18 Andrew: Before that, I was a student at Indiana University, and for seven months during law school, I Was the Asset Forfeiture Intern at the U.S. Attorney's Office in the Southern District of Indiana. During those months, I I assigned to the forfeiture of an obscene amount of American paddlefish meat and caviar. I drafted the complaint and was responsible for the origination of the caption, United States versus 1,855.6 pounds of American Paddlefish fish meat and 982.34 pounds of American paddlefish caviar. Side note, it was very, very difficult to have all of it weighed. Oh.

0:40:27 Thomas: Oh, wow. Oh,migosh.

0:40:44 Thomas: Gosh,

0:40:53 Andrew: I love this. I left the USAO in November of 2018 to focus on finals and my last semester the following spring. I had no idea that the case I put so much energy into had spread infamously because of the caption and the photos I included in the complaint. I discovered its internet infamy around March of 2020 when I mentioned the case to a co-worker and searched online for a copy of the complaint. All this is public knowledge, so I can share a little. The meat and caviar was illegally fished out of the Ohio River and was actually suitable for human consumption. At least I'm still alive, having sampled a small amount of it after it was tested.

0:40:52 Thomas: Yeah, I bet, wow, well, you know, when you're on the job, a little bit of that paddlefish meat fell off the back of the truck, you now, yeah.

0:41:32 Andrew: Oh, caviar. Yeah, right. Right. We decided to forfeit using civil asset forfeiture because the food was actively expiring.

0:41:39 Thomas: Hold on, she, did she take a bite, and then she's like, oh, God, got to change the headline, all right, USV, reduce it by a couple ounces, no, stop eating, God, have had to revise this so many times, wow.

0:41:50 Andrew: That's great. Oh, I'm just picturing Rachel. There was some, you know, some blinis and creme fraiche and just scooping it out. Oh, that's so fantastic. Decided to forfeit using civil asset forfeiture because the food was actively expiring and the criminal defendant was not taking a plea deal, meaning the fish could linger for a long time. Potentially, I have no idea if it was inevitably sold before its expiration date, though I know the government shut down that January. The Right. Expiration date was in April of 2019, if I remember correctly. And honestly, I'm not optimistic, and then she says nice things about getting uh exposed to the show and realizing that she has a little bit of fame, so uh Rachel, well Welcome to the uh readership. That was a fantastic Story And I loved it, yeah.

0:42:31 Thomas: That is so fun, I am so glad for for that, you know, that did cheer me up a little bit. How how cool is it to Have this uh this audience and occasionally You Get to hear from Ms. Paddlefish herself.

0:42:41 Andrew: I I Love if If she does not go by Ms. Paddlefish, then, you know, missing out.

0:42:51 Thomas: Well, What more? I can't believe there's even more, Andrew. Law.

0:42:58 Andrew: Yeah, this is a great comment from Jack Weinstein, who writes in and says, with respect to our back-to-back episodes 501 and 502 on critical race theory, Andrew kept saying that critical legal studies slash critical race theory invented narrative argumentation. I said invented, then I agree with this next sentence. This isn't true. I certainly don't mean to suggest that it originated, the idea of using narratives originated with Roberto Unger. I do think that the argument that it belongs in legal analysis.

0:43:31 Thomas: Yeah.

0:43:31 Andrew: Yeah. And

0:43:31 Thomas: No, that was How I Took it too, I

0:43:32 Andrew: Yeah. Yeah, It may be the case that critical legal studies imported narrative into legal theory, but both CRT and CLS worked in tandem with the feminist philosophers of the 1970s and 1980s. I don't have a first citation, but it had been thrown around for quite a while and then gets filtered and formalized through two sources. One I agree with here, Carol Gilligan's groundbreaking work in A Different Voice from 1982 and Alistair McIntyre's After Virtue. I just want to bracket that like McIntyre is an interesting philosopher. Gilligan was one of the very first feminist legal scholars to, you know, to produce a masterpiece and in a different voice is has long standing implications. So was indeed groundbreaking. In my view, the direction arrow still points in the way that we've described.

0:44:20 Andrew: Right. Like Gilligan has been explicit in pointing out the influence of critical legal studies, the crits on her philosophy. So Weinstein continues, this leads me to my other concern. You never explain why narrative is important. And I think this is essential for your listeners. One can certainly argue that narrative allows for the introduction of non-canonical, non-academic evidence for legal theory, such as slave diaries, memoirs, etc. cetera. But there's a more foundational reason. Narratives create empathy where traditional argumentation does not. What the feminists argue is that traditional argumentation destroys the ability of arguers to enter into the perspective of the people in the cases, legal or ethical, and that removes their humanity. That's a really good point with respect to the additional value of narrative in legal argumentation.

0:45:05 Andrew: And certainly feminist legal thought has has um explained that angle, and so I thought it was a really good point to make, and um, and we we went kind of quickly from uh CLS to uh critical race there because that was the point of the episode, and in particular to, you know, intersectionality, we we quoted from two scholars uh, you know, who would uh clearly identify as feminists, but um, but but the idea that there, there is also a mainstream, you know, non-intersectional feminist legal theory that also drew its influence from from CLS, is worth pointing out. So I appreciate that. I wanted to read Jack's comment.

0:45:43 Thomas: Absolutely, yeah, all right, well, one more, Eminent Romaine, yeah

0:45:47 Andrew: Yeah. A little bit. This is much more. We're putting it back on the whiteboard. So is it going to go another 500 episodes? I don't know. But Sarah, do you know? Writes, uh, I

0:45:54 Thomas: Hopefully not, hopefully not if for no other reason than I want to get Rickrolled sooner than that because it's a delightful song, you know, I don't want to wait another 500, oh

0:46:01 Andrew: Agree I agree So, uh, Sarah says, "I enjoyed the latest episode about eminent domain. I hope you would touch on a weird case over here in Los Angeles from back in the 50s, Chavez Ravine and Dodger Stadium." Chavez Ravine was a Mexican-American community just north of downtown LA. In the late 40s, early 50s, there was a push to redevelop the area for public housing, displacing the communities that were already living there. After a shift in politics away, away from socialist public housing, the development was shelved. Some residents had resisted the original eminent domain, staying in their houses.

Residents who had resisted the displacement were forcibly removed by L.A. sheriffs in 1959 to make way for the Dodger Stadium project. So, yeah, I mean, I want to take a look at the story. It sounds super plausible. We mentioned that the Kelo versus City of New London case would would not address this kind of fundamental inequality in, urban redevelopment and gentrification. This seems totally plausible. And so, yeah, we've got this now on the whiteboard. I think it's a great set of questions. I do not mean to suggest that, you know, cases closed and eminent domain. You know, let's let's throw a party. It's not time to, you throw a parade, but

0:46:14 Thomas: Yeah, ah geez, what do you mean,

0:47:15 Andrew: It's celebrating eminent domain. Right.

0:47:15 Thomas: In celebrating Eminent Domain, oh, yeah I Mean, I would hope that nobody takes any time we defend any law, I would hope that wouldn't mean we're defending, you the racist uses of it throughout history, because that would, I mean, if if you had to throw away yeah if you had to threw away any amendment or law or whatever that had a racist history, we couldn't have any, right now, we'd have to reset um which you know what I think we should do instead is reform. Obviously, and and critical legal theory sounds like a great way to understand this. I know I'm broken record, but like, what a bummer of of the history of Dodger Stadium, that's that

0:47:19 Andrew: Yeah. Yeah, right. That would make this a hard show.

0:47:39 Andrew: Correct. Yeah yeah we would have we would have zero laws.

0:47:55 Andrew: Yeah

0:47:55 Thomas: Sucks as a Dodger fan. I don't like that, that, but that's, you, the kind of thing that we would not know about if it weren't for critical theory of different kinds, you know, looking at like actually taking apart the racist history of this country. You know, we just paper over it, nobody would ever think about it, or at least, you know, mainstream, uh, white culture would never discuss it, uh, if, if not for these movements that are very important, and no, is it no wonder that conservatives want to shut it down. It reminds me also, I, I think I saw a similar thing about Central Park in New York, you know, that like that, that obviously when they, back in the day, when they decide, hmm, where should we set aside a bunch of land, you know, where should we do such and such thing, whether it's for a Dodger Stadium or Central Park, whatever, oh, I know, let's choose land that's inhabited by, you know, Black people, or were never, they would never, uh, make the decision.

0:47:55 Andrew: Yeah

0:48:47 Thomas: Let's go take out a bunch of well-off white people's communities. Let's go just wipe them out off the map and put a park there. They would never do that. You know, it's stuff like that, that like you never, you never think about, you go to the Central Park and it's just this beautiful place. You don't think about what was there before. Hmm.

0:49:00 Andrew: If I have read I think ever I'm sure that there may be a handful there, but but I have read the major biographies that Robert Caro has written both about Lyndon Johnson. But but his works on Robert Moses in New York like it's just an amazing read. And so if if you have not read, I think it's called The Power Broker. And I just get I get the titles confused because the Lyndon Johnson is a four volume series that is, you know, the the path to power and means of ascent and whatever. So but I think Moses was the power broker. It is a spectacular read about the man behind redesigning New York City and and the like unbelievable racist application of, you know, what has become, you you know, in a very liberal city. Right. Like it's it's it's truly sorry. I couldn't agree more

0:49:18 Thomas: Yeah yeah it

0:50:00 Andrew: With you on all of that.

0:50:00 Thomas: You know, I just despair over the lack of intellectual curiosity out of out of the right on these issues, you know, like there's the typical parody, like the left thinks that roads are racist, how can a road be, right, and then you do some research, like, they're just the most basic research, and you're like, you know what, actually, roads are racism, you know, know, obviously not the asphalt itself, but like the way cities are designed, the way, the way, you there's food deserts, there's access to these major, um, areas, there's also, by the way, like the, uh, environmental hazards, like the air quality hazards of places, you know, that anything that would be a hazard to people's health that tended to be focused on, uh, poor and downtrodden in Black communities, like that, it's all these things that like it's frustrating to see the just lack of intellectual curiosity out of the right, you know, just this dismissal because, because you can take like a straw man version of the argument and make it seem ridiculous, like how could a road be racist, you can just dismiss the entire thing, um, and it's sad because there's actually, uh, as much as it's a depressing racial history, you know, of course, like it's not fun, but, but, like, it's also, at the same time, it is valuable knowledge. And, who wouldn't want to learn more about history rather than just trying to ignore it?

0:51:19 Andrew: I agree with that 100%.

0:51:22 Thomas: That's a good way to go out. Anyway, all right. It is so cool, though, on a more positive note, the listenership we have, the feedback we get is amazing. It is such a great So, thanks for that. And I'm going to go brag that I know Ms. Paddlefish herself. I know that. Up all

0:51:37 Andrew: Me too.

0:51:39 Clip: And thank you, Let's go!

0:51:40 Thomas: And now, it's a to think our hall of famers, our all-time greats over on patreon.com/law. Andrew, I mean, we signed a contract way back in the day, way back in 2016 to do this every week and it's we have to do it a contract's contract it's binding we gotta do this for the you know to the heat death of the universe unbreakable And therefore, sit back as we, uh, read tons and tons of names of the fantastic people who are on our, uh, all-timers list. Here we go. Kellywovit.com, I make stuff on a loom with my hands, come by it. Comedian Aaron Trahan aka Game Jumper X. Now that Thomas has two small children, it is the perfect time for an episode on train law because trains are great and you know that's actually true. That thing in the attic.

Stock market report: helium was up, feathers were down, paper was stationary, and pencils lost a few points. It strikes me as very British humor, but I'm not sure if I'm right about that. Kelly and David's wedding will be bomb. Potato Face. If Thomas can't pork the streak, he can at least streak the pork. Liberals own guns to support root cause mitigation, not ineffective gun control. You know what root cause of gun violence is? Guns. So I support getting rid of all guns, but that's just me. That guy. Why miss that? Why buy Tesla when we can just move the moon?

0:51:47 Andrew: We sure did it's which is an agreement which is unbreakable

0:52:57 Thomas: This vaccine card is written on a cocktail napkin and it still says not vaccinated, and "not vaccinated" is spelled wrong. Anarchism is the only good ism. Excited about the return of social events, but we'll be more excited about the return of before and after care once kids can be ends. But yeah, I hear you. Tell Morgan. Get Tom's son. January 20 baby, Zach Bloom. Ray. Live baseball scorecards.com. Legal Eagle is so handsome, we agree. Follow Pizza School the Corgi on Instagram, the second cutest corgi after Lily. Oh wow, Pizza School the Corgi, that's an interesting name that's what it says, I don't know if it sounds like Pizza School is the name of the corgis, but that doesn't make any sense to me, but okay, California employment, work, accident, or litigation questions, call or text attorney David Nitka, 310-776-5879, again, 310-776-5879.

The Smiths, Andrew, thou art a gober mouching zoilist, get thee hence. Praise be unto Hamilton, that Mention is Vote 50 is our fault, not his, so let's get at it. You know, I wouldn't say it in such harsh terms about us, but I agree with the sentiment of that, it's all, it's something we can do something about, you know, it's not really Mansion's fault that he's Vote 50. Rest in peace, Brandon Bernard. We must abolish the death penalty. Justice for beer. Budget botanist plant of the week is bloodroot. I see you, Budget Phlebotomist. Altmed, Altmed uses it in black salve that causes scars and disfigurement.

0:53:30 Andrew: Is that it's so it's Pizza School the Corgi all is one all right I'm checking that out right now. I

0:54:31 Thomas: That's not, not good, oh no, associate of this tequila company has ever seen the sparkle donkey, you're kidding, list it in fur ears, steel, can't comb up with something clever, Mary and Adrian, new book, The Greatest Gift of All, Logical Path from Religion to Humanism, by Mark McLean, out now. To E takes D5, I need to start listening earlier in the week, yeah you do, there's nobody, okay, E takes T5 now, no cheating everybody, so that's, that's the move, we've gone E takes D5, so that the move, I, you know, somebody else play along, we'll see if that happens. Hey Jen, say hi to Lady Tiamat Vex, so what, Marjorie something, Van Helsing, keeper of the gray sand sea, sorry, I don't know what all that is, Adam Borchoff, to our creature human wizard, to, to, non-basic lands are mountains, the mega cycle, I, I don't know how you pronounce that.

0:55:25 Thomas: Magus? Magus. I know how to pronounce it, Magus, but it sounds like maggot, so that's good. Cycle, are creature tributes to old powerful cards? Okay, so, that last one was in that cycle. Interesting. Yeah, this is Magus of the Moon, which is a creature version of Blood Moon. These are cards I know because they're big in modern, and I played a decent amount of modern, but I didn't know the last one because I've never seen it really get a lot of play.

But, now I learned something new about magic. That cycle is creature versions of old powerful card. Cool, cool. Brian K, we've had baseball law, but what about hockey law? I like my pork streaks paired with At Casa Agria and At Emperor's Brewery beer. Jetpack Ferret. Pizza lawyer, do zombies of the non-magical variety keep their human rights when they become unthinking killing machines?

Lee Sharp, GDT says, oh no, associate in this lineup has ever knocked back a few fajitas, we're getting a lot of those this time, Thomas Kleberg followed Morgan on Twitter, now seeing a different side of the platform. Form, Benghazi and the buttery males, no coin at this firm has ever failed the bar exam, geez, two fabulous lesbians who are enjoying our newfound podcast notoriety and our new siamese kitty, Hazel, oh sorry, y'all, if I had a nickel for every time I forgot to change my Patreon name, I would have lots of nickels, and now it's time to thank our hall of famers, all-time greats on patreon.com slash love, Edgy Veggie, Bob Newhouse, Sassy Italy Tours, can't wait for Europe to be, be open again, oh I've heard that Italy might be, so we gotta do that

0:56:57 Thomas: Jennifer Tchaikovsky, Supreme Court justices should have an 18-year term limit, so should, and so should, Conrad Michaels, one smart cookie, Scent Cutters, vax and relax over here baby, does Jack Black know you have his Pick of Destiny strict? Screwing me, John Brown did nothing wrong, Evie Huntington, Harvard alum, no hood. Don't use Marjorie Taylor Greene's initials, they are for heroes like FDR. Villains get full names like John Wilkes Booth, that's a good call.

1E4D5, also the marathon was 453. My call, Nuzzly Fuzzly, Torsten Piel, to Satanic Temple, elect Thomas Smith president, American Honkytonk Bar Association, support your local Peruvian restaurant, Angry Mac Face, Penelope's glad Sydney got sanctioned for Terpsichore, the books that burn podcast reviewing fictional depictions of trauma since 2019 this is not the greatest patron name in the world no this is just a tribute masking in public now is like going to a nudist resort you don't want to be first to take your pants off nor last oh wayne anyone who has ever lost at poker knows better than to try bluffing a texas bankruptcy judge murray gregerson in la la la la la Lister to the Esquire. Told another podcast Minneapolis is the home of the two fabulous lesbians, they were marginally less impressed. I wish our newborn would exercise his right to remain silent at 4am. P-Ness. Simple country, hyper chicken. We are way in the posteriori that Seattle is the right choice for the first post-pandemic live show.

0:58:32 Thomas: I agree. Put your boss on a, well, not until this heat wave's over, though, well we're gonna wait, wait that out, put your boss on a performance improvement plan. Pass the PRO Act. Small dollar recurring donations to groups organizing for the midterms now are critical to ensure their ability to operate early, that's great advice Thomas, and a quarter star in a Rogers and Hammerstein production of The Coin and I, Jake, Seattle Pete, Crimer, no criming, Guardians ad litem of the Galaxy, Christopher Brown, Philly live show 2022, I'll bring the scotch and cheesesteaks, who's bringing Gritty? Waffle Copter says Andrew and Thomas, from the bottom of my heart, thank you for everything you guys do, a podcast that pairs a man racing a quarter and a real-life lawyer, objection, strangling Uncle Frank, I'm going to allow it, oh wait, live show in Sydney, Australia, please, I won't be vaccinated till October at the earliest, thanks government, and Mr. Whoo, your turn, Andrew

0:59:18 Andrew: Whoo All right, thank you to another Minneapolitan waiting for our live show in Minneapolis, Odin the Law Dog, associate professor of critical beagle studies, Robert M. Medicon 7, Lou, the return of Sane Bananas, insensible sleepwear against defamation, still fighting for positive fruit representation, that is fantastic, and I have not used Bananas and Pajamas in a while, so, so remind me to do so. Our council advises that apparently nobody gets to put the Eli in feline. Shout out to 5D Chess with Multiverse Time Travel, it's a great game on Steam. We can all hope that Joe Manchin is a fan. Red Rocks Amphitheater live show, no idea where that, in Las Vegas, anyway, I would do a live show in Las Vegas. Polly Hernandez, Christ, seven years of college down the drain.

1:00:12 Andrew: Emily Rainbow Spence, the best cardboard crack dealer in the Maritimes. The deck box, halifax.com. Not quite, but uh good enough, close enough for non-lawyer work. Ian Hamilton, Jason Kopas, hashtag cold feet. Crowder should debate Sam Sater. I, this profile name is hilarious in the context of some other podcast, bad textualism, hot take. F your church, we can't legally respect it, no law respecting an and establishment of religion. Nate Trex, Darth Mandy Pants, all your base are belong to us. Take burger restaurant naming advice from a podcast. My fully stocked basement bar is your fully stock basement bar for a Philly live show platinum event. You pick what's on tap. That is a hell of an offer. Jeff Kalbach, Jennifer Kratch, Mike, oh geez, you are killing me with these weird names.

1:00:58 Andrew: Slutson, givedomodestneeds.org, givedomondestneed.org. Seriously, givedemodestmeeds.com. Laughing my ass off because Thomas knows more about the law than a coin does. Civilpoliticsradio.com, Fridays at 7pm Eastern on Valley Free Radio. John Bilderbach, my cousin, mixed my friend's cousin, mixed coke with cop rocks and he died, not that Chris Wallace, Stephen Balticate, Sandoval. If someone can convince Tucker Carlson that the NSA is spying on him, what else might we convince him is true? Philip Kizer, Andrea the Arbitrarian Capricious. COVID showed me that I am the kind of guy that wants a little prick, there really isn't a trick to writing a good limerick, rhyme fit it to time and try not to act like Ted Cruz.

1:01:39 Thomas: Surprise.

1:01:39 Andrew: That's so dumb. I love it so much, dude. And you will go to Mykonos. Yes, pain strumpet, sorry for making you use the last one for so long, it was dumb. Anyway, Jonathan Alfred Wallace, way to go, Thomas, pork that streak like a, whoops, never mind. R.I.P. my friend Harry Mosley, survived cancer twice only to be shot by some punk. Milo Meadsong wishes all Stephen Breyers a happy retire now. Lord Kinbote, join your labor union together, we bargain alone, we beg. Harsh lives matter, dark eyes unionize. Edge dancers for Bernie. If you think this is funny, you should have heard my handle last week. We spent 20 minutes getting legal advice from the firm this week, and I didn't fanboy out once. Thank you, Andrew. False, Puzzle in a Thunderstorm, and Cogdiss, I left the LDS Church and the Republican Party, well, we're doing our part.

1:01:42 Thomas: Ending I like it, yeah, yeah.

1:02:30 Andrew: WordOrigins.org, your source for word and phrase origins. My witty names aren't original, and my original names aren't witty. Anonymous, RIP Notorious RBG. Go to Nerdgnostic on Society6 for punny corgi art. They said I could be anything, so I became two fabulous lesbians. I don't pray, but when I do, it's for evangelicals to get vaccinated. Derek, our kitchen is your kitchen for an eventual Seattle live show platinum dinner, the offer stands. Big easy blasphemy, kind of nice having a competent federal government to go in again, Summit Shuffleboard.com, a string of unpronounceable characters, RhondaTheDork.com, if Opening Arguments is joining the MSW network, does that make Allison Andrews boss? Malika Chandler, they said I could be anything, so I became two princes who adore you right back at you, Soggy Pants, the 1929 Apportionment Act is unconstitutional, preventing states getting reps relative to population. Sakashite Fukasumi, if if unvaccinated sperm isn't the new Bitcoin, I need Eli's help to resell these buckets.

1:03:30 Andrew: Adopt a homeless pet in a pose, declawing and ear docking. Date jury, belly hit, packies at last, baby. Heather L., Matthew Vernon, Adam Costa, Jay Aldenwalt, Jeremiah's Fancy Microwave Emporium, Ian and Allie, Danny Rosari, Eli Bosnick. Why does Andrew drink so much scotch? Mostly because of David in Brooklyn.

1:03:28 Thomas: It's

1:03:49 Andrew: It's all bones under the water now. I'm sure I get that one.

1:03:53 Thomas: Shoosh, it's Shoosh back, back at last, hmm.

1:03:54 Andrew: Oh, I haven't listened to the latest shoe show. That's that's my fault.

1:03:58 Thomas: Check it out.

1:04:00 Andrew: I will. Sam Donnell Mitchell, a certain entity, add moral realism to my shopping cart. True story. Total Eclipse of the Heart by Bonnie Tyler is a song about vampire love. Don't think that's a true story, but fantastic song. I agree with that 100%. Natasha Crunchwrap wants you to support the Justice Policy Institute, Sam Buck, and of course, our all time great, he who shall never be dethroned, Conrad Michaels.

1:04:07 Thomas: And that's

1:04:28 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:04:34 Thomas: Right, Andrew, it's time for T3BE, coin edition. Oh boy, let's find out what happened here.

1:04:40 Andrew: All right. So this was a hot sauce question. Hot sauce law. Right? Entrepreneur from state A decided to sell hot sauce to the public, labeling it best hot sauce, uh, company from state B, uh, headquartered in state C, so incorporated in state B, headquartering state C, sued the entrepreneur in federal court in state Sea, seeking fifty thousand dollars in damages, uh, and alleging that that infringed upon, uh, the company's federal trademark. The entrepreneur filed an answer denying the allegations. The parties began discovery six months, six months later, the entrepreneur moved to dismiss for lack of subject matter jurisdiction. Thomas, you thought this was an easy question with, with a bunch of attractive distractors. You were like, look, uh, I remember the whole,

1:04:46 Thomas: Do you think it's easy to avoid attractive distractors and say it was easy, none of these questions are easy, and

1:05:30 Andrew: Like it's you said, look. Yeah. There's the whole like diversity jurisdiction. And I think think diversity jurisdiction requires a seventy five thousand dollar amount in controversy requirement. Side note, you are correct. But it's got right. Like, you know, you've got complete diversity of the parties you have proper. So so what's the answer? I'm going to cut right to the chase. Thomas, you and the coin both picked a the simplest, straightforward answer. No, because the company's claim arises under federal law. And you and The Queen are 100 percent correct for exactly the reasons you've described.

1:06:05 Thomas: Three questions streak this was trying to throw off Thomas from earlier in the show, I would have fallen for it, I would just tripped over that, you know, whatever, uh, metaphor, I would, but you know what, I didn't.

1:06:08 Andrew: Yeah. Yep. And decided I think this is probably correct that the second best answer was was B was also a no answer. That was the idea that it got waived because they didn't assert it in the answer. And as it turns out, lack of of subject matter jurisdiction cannot be waived and the court can determine at any time that it lacks appropriate jurisdiction over the parties. And and

1:06:31 Thomas: Okay it kind of makes sense actually, but I was trying to go for the next best bad answer. Interesting.

1:06:46 Andrew: Yeah. Yep. No, I think that's right. And and again, think about how that will often come up in the context of diversity jurisdiction. Right. Like you might answer the complaint and say, you know, we deny that we owe you any money. And then in discovery, you might find out that the most you could possibly owe them was forty thousand dollars. Right.

1:07:11 Thomas: Okay, yeah, oh, that, that's a very good point, I didn't think of that.

1:07:25 Andrew: And In general, federal courts are courts of limited jurisdiction, and the law incentivizes them saying, oh, hey, this is this is not for us. We're going to pass. Right. So so the fact that they did not raise subject matter jurisdiction at the outset, the factthat they answered and waited the six months is not would not have mattered. But I agree with you that that was probably the second best answer. Yeah, yeah, yeah. Yeah.

1:07:42 Thomas: Wouldn't none of the other answers are any better I have to pick one for the coin, yeah.

1:07:50 Andrew: You do. Answer C was that although it arises under federal law, the amount in controversy is not satisfied. There is no amount in controversial requirement under federal laws, you point out. And then D, although there is diversity, the mountain controversy is is not satisfying. That's probably the best. Yes. Attractive distractor, as you pointed out. But if a case or both has subject has subject matter jurisdiction, both for federal question and for diversity, The federal question takes precedence. Right. So, yeah, you don't you don'T have to meet the diversity threshold if you've got a federal question.

1:07:58 Thomas: Hmm.

1:08:23 Thomas: So is the thing that I was saying correct that, like, under this, you know, theory, you could screw someone over federally for up to seventy four thousand nine hundred ninety nine dollars, right?

1:08:31 Andrew: Yeah. And that's not and they they don't allow that. That is correct.

1:08:35 Thomas: Yeah. So I thought, yeah, okay. Well, I don't know what's going on, I'm in the Twilight Zone, um, it's possible that I've died and I'm some weird afterlife where they get to throw me questions that I nail, um, if that's the case, I'm cool with it, so whatever, I have three for three, this is awesome, and I am getting every aspect of them. What, what's happening, did you, are, are you just making me feel better, Andrew? Is this, what source are we on? Have we changed sources?

1:08:35 Andrew: Yeah. Yeah.

1:08:58 Andrew: So is a continuation of the prior 21 questions. So it is it is a different source. You will you will soon. I don't want to give too much away and let people discover it and cheat. But yeah. So this is not materially different than the question is the same background source from, know, what was giving you so much difficulty at the beginning of the year. So I think you're just smarter. Barter yeah

1:09:11 Thomas: Okay. Okay.

1:09:28 Thomas: Okay. Awesome. Well, I nailed it. The coin nailed it! Let's find out who this week's big listener winner is right now.

1:09:36 Andrew: And this week's winner is Z.E. Bozarth on Twitter who writes, Answer A, Federal Question Jurisdiction, Cannot waive subject matter jurisdiction, diversity jurisdiction, does not matter, short, sweet, to the point, brevity at a level I would like someday to accomplish, everyone give them a follow, they are, at ZKidTVitero on Twitter. That is at Z-K-I-D-T-V-I-T-E-R-O. And congratulations, ZE, on being this week's winner.

1:10:10 Thomas: Our show thanks so much for joining us and yeah Wow mad at the Supreme Court but happy about how cool our listeners are so the net result is I'm still really mad at Supreme Court but that's okay so it feels slightly better thanks so mucho for listening we'll see you for rapid response Friday

1:10:18 Andrew: You go.

1:10:27 Andrew: Until then.

1:10:28 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.

1:11:01 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.